By Evan Compton
Parents want their children to feel empowered to make decisions and to feel autonomous in their lives. So when two parents are divorcing, it should be a no-brainer that the child should have a say in who they spend more time with, right? Well, the answer to this is like the answer to many legal questions: it depends.
The Court when deciding on how to allocate parenting time considers a number of factors which are enumerated in 750 ILCs 5/602.7(b). One of these factors is “the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to parenting time.” There is a lot to unpack in just this short sentence.
When is a child mature enough to have a say? Typically, a judge will just not take a parent at their word to express the child’s opinion. Many times, a judge will not even consider the opinion of the child if they are under a certain age and that age can very from judge to judge. From a practical standpoint, once a child is in high school is usually when their opinion will start being accounted for more heavily. However, there are other ways for the Court to learn of the preferences of a child.
The Court will utilize a Guardian Ad Litem who will be appointed to investigate the situation and make a report. In the investigation, the Guardian Ad Litem, or “G.A.L.,” will speak with the child and try to learn their opinion organically. The G.A.L. will take into account how heavily to weigh the child’s opinion when making their recommendations based on their interviews with the child.
The other option is for the Court to speak with the child themselves. For that to happen, a motion needs be made and granted at which time the child will meet with the Judge in their chambers and be interviewed in-camera. This does not happen very often and a judge will only do it if they feel it is necessary. You can pretty much forget having a child come testify in a hearing as well. Judges will practically never allow for a child to testify.
This is all to say, how a court will go about weighing a child’s opinion, but what if a child is still saying they do not want to go with the other parent? The question then turns to the why.
Let’s say that a judgment has already been entered giving one parent alternating weekends and the child does not want to go when the weekend comes around. From a larger legal prospective, the obligation for parenting time goes both ways. A party is entitled to the parenting time allocated to them in a judgment and the other parent is required to encourage and facilitate said parenting time. If the child simply does not want to go, the parent cannot just toss their hands up and say they tried. Case law has shown that a court will still hold that party responsible for violating a judgment. Obvious reasons to not allow for a child to go for parenting time would include endangerment.
As stated above, age will also be a factor. Courts recognize that high schoolers are far busier with activities and social lives and that generally, teenagers are a bit more difficult to do what they are told. Therefore, courts are far less inclined to order, say, a seventeen-year-old to go spend time with a parent if they do not want to. However, if a ten-year-old says the same thing, a court will certainly investigate the why much more.
To sum up, a child’s preference and opinion can be a factor, but it may not be weighed very heavily depending on the age and maturity of the child. If a child truly does not want to see a parent, the Court will always want to investigate the why and if that issue can be resolved before making any ruling.