One of the pervasive urban myths that I have heard during my many years of family law practice is that children at the age of 13 have the right to choose which parent they live with. I have heard this from clients, prospective clients and even an occasional practitioner. This statement is unequivocally false. The preferences of a child are a factor that Courts are allowed to explore; however, great caution must be exercised in situations where the preference become the focus of a dispute.
In Illinois, custody or visitation/parenting time is to be determined in accordance with the “child’s best interests”. In determining a child’s best interests, the Court is required to consider all relevant factors. One of the many specific factor listed for the Court’s consideration if “…the wishes of a child as to his custodian.”1 Many courts have emphasized that any preference is but one of many factors and is not dispositive or binding upon the Court. As would be expected, in a disputed custody case the parents do not always agree on what the child’s wishes are and unfortunately, occasionally put the child in the middle to choose.
Most mental health professionals caution against ever putting a child in this situation. Even the Courts are reluctant to put a child in a position to voice a choice of one parent over the other. Courts have adopted these concerns: “…the court stated that it was reluctant to conduct the interview not only because the child’s preference is just one factor to consider in reaching a custody decision, but also because the court was concerned about the emotional impact the interview would have on Olyvia. We find no error in the court’s reasoning.”2 Indeed, it has been recognized that when dealing with these issues, it may be more appropriate to avoid asking a child directly as to preferences, putting that child in the middle of the parents’ divorce. Rather, the focus is the gathering of information from the child indirectly and from 3rd persons in addition to the parents or professionals appointed by the Court to obtain this information. A rigorous examination of a child as to the basis for his or her preferences has been deemed placing “…a tremendous amount of pressure on the child…” and “…counterproductive.”3
The focus of the Courts will be if a child has a preference, what is the basis for the preference-is the basis of a preference based upon “sound reasoning”.4 The issues that commonly arise are: whether the parents are manipulating a child to obtain a desired preference; or whether the child is manipulating the parents to get whatever he or she wants or perceives he or she needs. There are many cases that discuss examples of parental manipulation. Many parents of teenagers are well aware that some teenagers will gravitate to the parent who will be more liberal in their parental supervision and will use parents against each other. In reality, these teenagers are more interested in their friends, activities and school-that is there real preference. In some situations, a child’s preferences may not be in the child’s best interests. The eventual Court determination may indeed be contrary to any such preference.
Parents must be cognizant that having the resolution of any dispute that hinges upon a child’s preference is highly problematic. Children should not be empowered to make decisions that their parents cannot or refuse to make. In most instances, all considerations will not be equal so that the child’s preferences may not be a crucial factor. Placing too much emphasis on this one factor may not be in the best interests of the child, creating great controversy, further family dysfunction, as well as a very costly proceeding.
1 750 ILCS 5/602(a)(2).
2 Grunstad v. Cooper, 2012 IL App (3d) 120524, ¶23.
3 In re Marriage of Hefner, 282 Ill.App.3d 73,76-77 (4th Dist.1996).
4 See: In Re Marriage of Wycoff, 266 Ill.App.3d 408, 414 (4th Dist. 1994).