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Child Custody: Should We Let Kids Decide Where to Live?

Child Custody: Should We Let Kids Decide Where to Live?

By: M. Scott Gordon

When you have made the decision to get divorced and have minor children from your marriage, the matter of child custody can be a contentious and daunting one. If your children are slightly older and are voicing a preference for where they want to live, should you let the kids decide? Or, even if you do not want to let your kids make that decision, how much should you consider your child’s preferences if you are creating a parenting plan that involves the allocation of parenting time?

In the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/), the statute makes clear the court can consider the child’s preference in certain circumstances in determining what is in the best interests of the child. When it comes to parenting time, we want to say more about child custody and the ways in which a child’s preferences might play an important role.

Allocating Parenting Time and a Child’s Preference

As you may know, Illinois law no longer awards child “custody” but instead “allocates parental responsibilities”. One of the parental responsibilities that gets allocated is parenting time, which was formerly known as physical custody or visitation. There are two ways parenting time can be allocated: Through a parenting plan developed by the parents and approved by the court, or through an allocation judgment issued by the court when the parents cannot come to an agreement. Even when the parents develop a parenting plan themselves, it must be in the best interests of the child for the court to approve and must use the same standard the court uses in developing the terms of an allocation judgment.

Where does a child’s preference for where he/she lives come into play? The IMDMA makes clear with more than two dozen factors that can be considered in determining what is in the best interests of the child. One 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.” But how much weight should this factor carry? And can it be the prevailing concern when parents develop a parenting plan, or a court allocates parenting time?

Psychologists Suggest a Child’s Preference Should Play a Major Role

While the child’s preference may be only one of numerous factors that can be considered in deciding where the child lives most of the time, some psychologists suggest the child’s preference should carry more weight. According to an article in Psychology Today, parents can help to ease a child’s anxiety and distress after a divorce by taking into account how the child “feel[s] about the assigned living arrangements.”

As the article explains, children who are reaching adolescence or are teenagers benefit from having some control over their lives. Accordingly, “if a child . . . doesn’t particularly want to live with one of the parents, the child will become resentful and potentially act out.” But you should not, on the other hand, put your child in the middle. Let them feel free to speak with a therapist about these issues.

Contact a Chicago Child Custody Attorney

If you have questions or concerns about the allocation of parenting time, Chicago child custody attorney can assist you. Contact M. Scott Gordon & Associates for more information.