Children’s Wishes on Custody Do Not Control

Under Illinois law, children do not decide or choose which parent will be their custodial parent.  Instead, custody must be determined by the Court in accordance with the child’s best interests.   In making such a determination, the Court is mandated to consider all relevant factors, including the child’s wishes as to his/her custodial parent.   Depending on a child’s age and maturity level, the Court may allow the child to articulate his/her custodial preferences.  The Court will then give the child’s preferences appropriate weight in making its custody determination, but  the Court is never bound by the child’s preferences as to custody.

Procedures Available to the Court in Considering a Child’s Custody Preferences
There are several legal tools available which Illinois Courts in their discretion may utilize in order to assist the Court both in considering the child’s preferences in custody ligitigation and in giving those preferences their appropriate weight in its final custody determination.  The three most commonly used are:

• Appointing an attorney to represent the child’s interests
• Appointing a custody evaluator
• Interviewing the child directly

 

Representation of the Child in Custody Disputes
In any case, involving a custody dispute,  the court may appoint an attorney to represent the minor child (or children’s) interests.   By statute, the appointed appointed attorney can be assigned one of the following three roles, each charged with different tasks and different powers:

• Attorney for the child ‘ provides independent legal counsel to the child and advocates the child’s position just as he/she would do for an adult client
• Guardian ad litem testifies and/or submits a written report to the Court with his/her recommendations as to the child’s best interests after investigating the facts of the case and interviewing the child and the parties
• Child’s representative advocates what he/she finds to be in the child’s best interests.  The child representative considers the child’s preferences, as to custody, but  is not bound by the child’s wishes.  A child’s representative advocates his/her position on the child’s best interests through evidence and renders no opinions or recommendations

 

Custody Evaluators
In contested custody matters, the court may appoint an expert to conduct a formal evaluation of the child’s best interest as it relates to custody.   The custody evaluation is usually done by a social worker, psychologist, psychiatrist, or other appropriate professional person, who will observe and interview the parents and the child or children, may perform psychological tests, and may also consult with any other person with information about the child and the child’s potential custodial arrangements.  At the conclusion of the evaluation, the evaluator prepares a written report, setting forth his/her findings, results from all tests administered and conclusions/recommendations concerning custody.  The custody evaluator’s report may be examined and considered by the Court in determining custody, but each parent retains the right to cross examine the evaluator at a custody hearing.

Court Interviews with the Children
Illinois courts have the authority to speak directly a child in order to ascertain the child’s wishes as to custody and custodial arrangements, if the court deems it necessary.   Such interviews are not done in open court, but rather privately in the judge’s chambers.  Parents are generally not present for these in camera interviews, but their attorneys must be present unless the parents’ have agreed otherwise.   A court reporter must be present to make a complete record of such an interview, which then becomes part of the official record in the case.