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IMPACT OF CHILD'S CUSTODIAL PREFERENCE |
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If the parents are disputing who will have custody of a child after a divorce, who decides? |
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What are the factors the court must consider under Section 602 to award custody to one of the parents? |
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Because the child's wishes is a factor, what is the impact of the child's custodial preference? |
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At what age is a child considered to have sufficient mental capacity to make an informed decision? |
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If the child is not considered to have sufficient mental capacity to make an informed decision, who can protect the best interests of the child when the parents cannot? |
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What are the problems with relying on the wishes of the child? |
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Is it easier to wait until after the divorce proceedings have concluded to allow the child to make an informed decision about with which parent the child prefers to live? |
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I know my child will tell the judge she wants to be with me, so shouldn't I push for the judge to interview her? |
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| Q: |
If the parents are disputing who will have custody of a child after a divorce, who decides? |
| A: |
The judge. The judge must look to Section 602 of the Illinois Marriage and Dissolution of Marriage Act and will grant one of the parents custody based upon what is in the best interest of the child. |
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| Q: |
What are the factors the court must consider under Section 602 to award custody to one of the parents? |
| A: |
The relevant factors are: the wishes of the child as to his custodian; the wishes of the child's parents as to the child's custody; the interactions and interrelationships the child has with family and friends; the child's adjustment to his home, school, and community; the mental and physical health of all parties involved; the physical violence or threat of physical violence by the child's potential custodian; the occurrence of ongoing abuse, whether directed at the child or another person; and the willingness and ability of each parent to facilitate and encourage a close relationship between the other parent and child. |
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| Q: |
Because the child's wishes is a factor, what is the impact of the child's custodial preference? |
| A:: |
The court should consider the custodial wishes of the child, providing the child has sufficient mental capacity to make an informed and intelligent choice and the choice is consistent with what is in the best interest of the child, but custody cannot be decided based only on the child's preference. |
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| Q: |
At what age is a child considered to have sufficient mental capacity to make an informed decision? |
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Only after the child is a legal adult: 18. Before that what is important is the maturity level of the child and whether his reasoning is consistent with the child's best interests |
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| Q: |
If the child is not considered to have sufficient mental capacity to make an informed decision, who can protect the best interests of the child when the parents cannot? |
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The court has the ultimate duty to protect the best interests of the child, but each parent has the option to petition the court for an attorney to represent the best interests of the child. The appointees are either a Guardian ad Litem or a child representative. |
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| Q: |
What are the problems with relying on the wishes of the child? |
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First, asking a child to make a decision puts tremendous pressure on the child. Second, the reliance can provide an incentive to one of the parents to manipulate or intimidate the child to choosing that parent and also an opportunity for the child to manipulate one of the parents. This is not in the best interest of the child. |
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| Q: |
Is it easier to wait until after the divorce proceedings have concluded to allow the child to make an informed decision about with which parent the child prefers to live? |
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No. It is much harder to obtain a change of custody after the initial custody order. |
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| Q: |
I know my child will tell the judge she wants to be with me, so shouldn't I push for the judge to interview her? |
| A: |
Be careful. Children have an instinct for survival. No matter what the child tells you, if the child has a sense her custody will be awarded to the other parent, she will not want to offend the other parent and make "survival" difficult for herself, so she will choose the other parent. |
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