Kids do not Decide Where They Live

May 24, 2024
When parents divorce or separate in Illinois, deciding where the child will live can be a major source of conflict.  But what role do children’s wishes play in these decisions?  The answer is not what you think. Kids do not decide where they live, even if they are 13 (or 17).

The Judge’s Decision, Not the Child’s


Ultimately, it’s the judge who decides where a child will primarily reside, focusing on what’s in the child’s best interests. While the child’s preference is considered, it’s not the sole determining factor, even if they are a teenager. And let’s face it, teenagers do not always make the best decisions for themselves. There is a reason that they are not allowed to join the military until age 18, buy alcohol before age 21, or get a driver’s license until age 16.

A Recent Illinois Case: In re Marriage of Jessica F.


A 2024 Illinois court case, In re Marriage of Jessica F., highlighted the complexities of considering a child’s wishes. The case involved child who told both of his parents he wanted to live with them. The mother wanted to move to a new school district. The father wanted the child to stay with him. However, the court determined that other factors, such as the child’s established routines and relationships with siblings, were the most important factors. Neither parent testified what the child wanted, and instead, wanted the child to tell the Judge in an in camera interview. The Judge refused to hold such an interview. When the father lost, he appealed, asking the appellate court to change the parenting plan and order the trial court to interview the child.

The Dangers of Putting Children in the Middle


The case also underscored the potential harm of placing too much emphasis on a child’s expressed desires. Children can feel immense pressure to choose between parents, leading to stress, guilt, and even manipulation by one or both parents. Imagine how uncomfortable you were giving presentations in school when you were a child. Putting a child into that situation, whether in an in camera interview or on the stand, is cruel.  And what if the Judge disagrees with the child? The child will have no trust that the adults make good decisions. Or, if the child gets what they want, then they believe that they are the most important voice.
If children were allowed to make such big decisions, then why does the law prevent children from voting until the age of 18, from buying cigarettes until age 21, or driving until they are 16? Kids — no matter how smart or logical — are known for making bad decisions. if you reflect what you wanted at 13 (or 16) and imagine you got it, would you be set up for success as an adult. At 13, I wanted to live at my friend’s house with an unlimited supply of junk food and no rules. That would not have set me up for a bright future. I doubt my experience is that much different than most kids. As adults, we realize how those decisions would work out, which is why the decision rests with the adults. If the parents cannot make the decision, then the adult without emotional ties to the child or the case has to make the decision.

How Children’s Voices are Heard in Court


While kids don’t get to make the final decision, there are ways for their voices to be considered:
  • Guardian ad Litem (GAL): The court can appoint a GAL, a neutral third party who investigates the child’s situation and advocates for their best interests.
  • In Camera Interview: The judge can privately interview the child, outside the presence of the parents, to get their perspective. However, In re Marriage of Jessica F. highlighted how this can be stressful for children, potentially forcing them to say negative things about one parent.

The Goal: A Child-Centered Approach

The best outcome for children is often reached when parents work together to create a parenting plan that prioritizes the child’s well-being, rather than battling it out in court.  While the child’s voice is important, it’s just one piece of the puzzle.

Need Help with Parenting Time Allocation (Custody) in Illinois?

If you’re going through a divorce or separation, I can help you navigate the complexities of parenting time decisions.  I focus on out-of-court resolutions that prioritize your child’s best interests and minimize conflict. As a professional, I have seen terrified children walking into court to “talk to the judge”. I have 20+ years of experience designed to take that terror away from your children and draft a parenting plan that will let your child be a kid and support their relationships with both parents.
Call my office at 618-726-2671 or reach out through my website for a free consultation.
Disclaimer: The information contained herein is general and should not be construed as legal, medical, or financial advice.  It’s always best to consult with an attorney about your specific situation.