Can a Child Choose Which Parent to Live With in Illinois?

Though children’s preferences are taken into account, they can’t choose who to live with. In Illinois, child custody and placement are referred to as parental responsibilities and parenting time respectively. If parents can’t agree on an arrangement themselves, the court will make a decision in the children’s best interest.

If the Kids Can’t Choose, Then How Does the Court Decide Custody and Placement?

As of 2016, Illinois became a truly no-fault divorce state. This means that a spouse no longer as to prove wrongdoing to get a divorce. This also means that fault grounds for divorce like adultery, desertion, or impotency are no longer taken into account when deciding things like child custody. Illinois family courts will always prefer arrangements that maximize time with both parents when possible.

Instead, Illinois family courts operate on the rule of a child’s “best interests”. This takes into account a number of things including how they’re adjusting to their current school, their health, how much each parent participates in their life, the distance between parent’s houses, and many other things.

Notably, right at the top of the list of the legal definition of a child’s best interest, are the child’s wishes themselves.[1] This takes into account their emotional maturity, so a teenage child’s opinion is likely to hold a bit more weight.

Remember, sometimes a child’s preference will be overridden because the court doesn’t see it in their best interest. This is also to safeguard against one parent trying to emotionally manipulate a child.

To understand the child’s wishes, the court will usually appoint what’s called a guardian ad litem. These are specially appointed people who specifically work with children to understand what is best for them in custody and placement. A guardian ad litem will often speak for the children in court as well.

When parents can agree on a parenting schedule, the court is likely to sign off on it. In a contested case, the court will take all the evidence into account then decide parenting responsibilities (custody) and parenting time (placement) as part of the final divorce judgment. After that, you can not request a modification for two years.

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Frequently Asked Questions

What age does a child need to be to decide which parent they live with?

The general rule of thumb is that once a child turns 14, their opinion will be taken more seriously by the court. But a child’s preference will never be solely used in determining parenting time.

The final decision on parenting time and parental responsibilities is not a suggestion, but a legal agreement. Parents are responsible for following the court order, even if the child is reluctant. If your child is refusing the other parent during their allocated time, then it may be best to speak with a family attorney to modify the order.

At what age can a child refuse visitation in Illinois?

When a child refuses visitation, their parents will be in violation of a court order. Understandably, when a child won’t budge it puts you in a difficult position. Always get in touch with the other parent to explain and document the situation in writing.

Written documentation is recommended in case the other parent tries to claim you, not your child, was the reason the visit didn’t happen. If taken to court, the judge would need evidence that you didn’t interfere with the visit.

Furthermore, if you’re on speaking terms with your ex, it may be best to get them involves in making sure the child is following the schedule. Unless you have concerns about your child’s safety, you should do everything you can to get them to comply with the parenting time laid out in your divorce settlement.

If you suspect your child is refusing to visit the other parent because of abuse, then you should contact an attorney. And of course, if the child mentions abuse directly, you should get the police involved first and foremost. Your child’s safety is always paramount.

What is considered an unfit parent in Illinois?

Illinois law strictly defines what behaviors might constitute someone being an unfit parent,[2] including:

  • Abandonment
  • Habitual substance abuse problems
  • Physical or emotional abuse
  • Mental illness or instability
  • Putting the children in an unsafe living environment
  • Being incarcerated
  • Not being interested in the children’s welfare
  • Neglect

Proving a parent is unfit in the context of parental responsibility and parenting time is no small task. Personal dislike and grudges will not play well in the court, and could even play against you.

If you suspect the other parent is unfit and the child needs to spend less time with them, you’ll need to prepare supporting documents to prove your case. These include things like police reports, medical files, or other verifiable documentation.

Even if proven, the courts are much more likely to grant a modification of parenting time than cutting it off altogether. If you are considering this, we highly recommend you consult an attorney.