Preference of the Child in Awarding Custody

The court must consider the preferences of a child in awarding custody.  However, the court is not bound by that preference.  The weight given to the child’s preference will be affected by the child’s age, reasoning and maturity.  The court can hear the preference of a child of any age.  The age of 14 is sometimes given as a time when a child can make an intelligent preference.  Some courts have considered the preferences of children considerably younger than 14.

Several cases that dealt with a child’s preference include:

In re Marriage of Kush, 106 Ill.App.3d 233, 435 N.E.2n 921, 923, 62 Ill.Dec.123 (3d Dist. 1982), stated that “preferences of young children, though entitled to consideration, are not binding upon the court.”

In re Marriage of Zucco, 150 Ill.App.3d 146, 501 N.E.2d 875, 103 Ill.Dec. 558 (5th Dist. 1986), appellate court reviewed the records and found that the six year old had not truly expressed a preference for either parent.  The appellate court reversed the trial court for relying on the child’s alleged preference.

In re Marriage of Lovejoy, 84 Ill.App.3d 53, 404 N.E.2d 1092, 1094, 39 Ill.Dec.501 (3d Dist. 1980), the court heard differing desires of the children, ages 11 and 14.  The act required the court to consider the children’s wishes.  When they conflicted, the court did not abuse its discretion in giving greater weight to the desire’s of the older and more mature child.

Some children, particularly teenagers, may manipulate their parents by preferring the one who is less of a disciplinarian.  In re Marriage of Allen, 81 Ill.App.3d 517, 520, 401 N.E.2d 608, 611, 36 Ill.Dec. 767, 770 (3d Dist. 1980), a child’s stated preference “may not always accord with the child’s best interest.  Frequently, a child will favor a non-custodial parent, whom he sees only on weekends, to his custodial parent, who is responsible for his day-to-day schooling and discipline, irrespective of the quality of care he receives at home.”

For additional information see Evaluation of Child’s Best Interest Back to the Chicago Child Custody Lawyer home page