October 18, 2024 • 14 mins
Divorce and separation cases can be complex, often involving difficult decisions around child custody, visitation, and support. Even when parents are willing to work together, these emotionally charged situations arise as both parties seek time with their children in a new family structure. Navigating these issues requires careful consideration. This podcast episode is based on an article on our Illinois Divorce Law Blog titled "When Can a Child Choose Which Parent They Want to Live With?" To schedule a consultation with our Chicago, Illinois divorce lawyers, call 855-805-0595 or email info@stangelawfirm.com.
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Episode Transcript
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Speaker 1 (00:01):
Welcome to Family Law Talk. Family Law Talk presented by
Kirk Stangy of Stangy Law Firm PC. Stangy Law Firm
is a multi state family law firm. Now here's your host,
Kirk Stangy.
Speaker 2 (00:18):
Welcome to Family Law Talk. We have an interesting topic today.
The topic is the child's preference for custody And this
episode today is based on an article on our blog,
Illinois Divorce Attorneys Blog dot com dated January third, twenty
twenty four titled when can a child choose which parent
(00:38):
they want to live with? So, as a follow up
to the episode today, go on over to Illinoidivorce Attorneys
blog dot com and read this article for more information.
But let's go ahead and jump on into the topic
at hand. And and this topic is a common one
that individuals ask of their lawyers when going through a
divorce or custy case. And again the topic is really
(00:59):
when can choose who they want to live with? And
lots of individuals when they're going through a divorce or
custody case really think this is a big deal and
they think kids ultimately get to choose who they want
to live with, and the kids coming to court and
say they want to live with a mom, or they
say they want to live with a dad. Lots of
parties think that is this positive and that at that
(01:20):
point the judge is just automatically going to do what
the kids want. And so again this assumption, if you will,
this belief is often something parties think is the case
when going through a divorce or custom case. So, I mean,
practically speaking, is it true that a child can choose
(01:40):
who they want to live with? And the answer to
that question is really no. Okay, So, when parties are
going through a divorce or a custody case, a custody order,
which is commonly called a parenting plan has to be
put together. A parenting plan or cust the order can
be put together by consent. In other words, both parties
(02:00):
agree to it and they think it's in the best
interest of the children. That they can sign that, submit
that to the court through their lawyers, and you know,
oftentimes a judge will approve it if it's normal and
ordinary and both parties stipulate that it's in the best
interest of the kids. But the reality is, in some
cases the parties don't agree on child cussing. The parties
(02:23):
have totally different viewpoints on what ought to take place,
what's just, what's fair, what's in the best interest of
the kids, if you will, And so these cases then
get litigated where the parties can't agree. In some cases
where there's abuse or neglect alleged, or even if it's
just a case where there's complicated allegations, a court will
appoint a guardian at lightem which is an attorney appointed
(02:47):
to represent the kids in the litigation and to make
sure that their interests are protected in the case itself. Okay, So,
obviously contested custy case, whether it being a divorce or
if it's in a paternity case, which we generically refer
to the case between unmarried parents. But as these cases go,
(03:09):
you know, one party again their viewpoint might be, look,
the kids want to live with me, they want to
live with me, and they say that they do, and
so that ought to carry the day is the viewpoint.
And ultimately, again that really misses the mark in a
lot of respects. Okay, So let's break this down in
(03:29):
more detail. Obviously, it's important to look at the statute
and whatever state you reside in, your state likely has
a statute that deals with child custody in terms of
the factors the court's supposed to look at in order
to determine the child's best interests. And these factors can
be many, like that, the child's connection to their current homeschool,
(03:50):
and community could be. The child's physical and emotional needs
could be, the child's age and health. Each party's capability
and willingness to provide for basic child needs can be important. Obviously,
the relationship between the children and each parent can be vital.
And then one of these factors is in most states,
(04:13):
the wishes of the children, you know, the wishes of
each parent in terms of what they want, and the
court's got to balance these in weigh all these, okay,
And so I'm not saying at the same token, the
kid's wishes and desires has no meaning. It certainly does.
It's one of the factors, but it's not just positive
(04:35):
in and of itself, okay. And so to break this
down in more detail, the reality is in some cases
there could be parental alienation tactics taking place which you're
causing the kids to be with one parent versus the other.
And parntal alienation is where a parent is really saying
(04:56):
negative derogatory things about the other parents. They're on a campaign,
if you will, to really demean the other parent to
the kids. Terrible when this occurs. But in some instances,
the kids might not want to live with one parent
who's actually pretty good because they've been alienated. So again,
the kids wishes just don't automatically carry the day. In
(05:17):
some instances, the kids might want to live with one
parent because they're more lenient, Like the parent lets them
do whatever they want, like they can stay out late,
they don't have a bedtime, there's not rules, there's not
guidelines in that particular home. Let's say, so let's say
the kids want to live there because they can do
what they want. Well, obviously that isn't a good reason
for the kids to want to want to live with,
(05:39):
you know, that particular parent or not. Now, look, ultimately,
the older the kids get, so the closer to age eighteen,
you know, it's going to be different for different judges.
But a judge is going to be more likely to
take that into account. So you know, again I'm just
sort of painting with a broadbrush. This is not a
(05:59):
card rule, and every judge can see this differently. But
you know, kids get their teenage years, right, they're getting older.
Then oftentimes the court will take their wishes into account, right,
I mean, it's something the court considers. But in and
of itself, is it dispositive? Does a judge automatically have
(06:22):
to allow the kids to live with one parent simply
because this is what the kids want to know? I mean, Ultimately,
the judge has to determine what's in the best interest
of the children and what's in the best interest of
the children, and the judge's opinion might weigh differently than
what the kids wishes are. Now, look, in a lot
(06:45):
of cases, you know, the kids love both their parents,
and they want to see both their parents, and they
want to spend substantial time with both their parents. You know,
that's a good thing in most instances. But in some circumstances,
the kids could prefer one parent over the other. And again,
the kids get the more likely it is a judge
will take it into account. But it's not dispositive if
(07:06):
kids don't just get to automatically choose. Okay, So let's
break this down in a little more detail. Okay, Let's
say a child age twelve wants to live with one
parent and they're determined to live with that one parent. Okay?
Is that dispositive again? No, Although the court may listen
(07:27):
to the twelve year old's wishes and desires and they
may take them into account, you know, particularly if the
child's mature and has a well reasoned explanation, it doesn't
mean that this is necessarily dispositive that could persuade the judge.
It may not, Okay, So it's not It's not like
(07:48):
an easy win because the kids you don't want to
live with one parent or the other. When you think
about it more detailed, too, it makes a lot of
sense if a kid could just choose with whom they
wanted to live, right, that would really encourage parents to
then lobby the kids, right, give the kids, you know,
(08:08):
all kinds of concessions in terms of their parenting or whatnots,
just so the kids will come in the court and say,
I want to live with mom or I want to
live with dad. Right. So, in most circumstances, you really
wouldn't want it to be this way. If it were
this way, parents couldn't be parents because parents would really
have to be most concerned with being popular with their
kids by letting them do whatever they wanted. Okay, Let's
(08:30):
say if a child, let's say a child really doesn't
want to live with one parent. Okay, what effect does
that have. Let's say the child's in passion, if they
don't want to live with one parent, if they don't
want to spend time with one parent or not, is
this this positive? Well? Look, ultimately, if the kids are
in physical emotional danger, then that's one thing. And if
(08:54):
there's physical emotional danger, then a court in most circumstances
is obviously going to take that into account. Okay. And
if it's a divorce or custody case that hasn't been decided,
that's going to be taken into account in terms of
the initial custy determination. If there's already a custody determination
or you know, the divorce is complete, the custod case
is complete, then what often needs to happen is if
(09:17):
the kids are in physical emotional danger, then the other
parent needs to file emotional modify to try to modify
the custody order to get the kids out of danger. Okay,
But short of that, short of the kids being in
some sort of physical emotional danger, again, the kids wishes
are one factor. But ultimately, if the kids aren't in
(09:39):
physical or emotional danger, and there's already a parenting plan
or custody order in place. The kids wishes at the
end of the day, right, I mean, what has to
happen is that the parents have to abide by the
custo order, whatever that custody order is. That's what the
kids need to do in terms of when they're with
(09:59):
my and when they're with that or whatnot. But short
of physical emotional danger, look again, their wishes are just
one factor and one factor only. Okay, you know another
question lots of individuals have relates to fifty to fifty custody.
I mean more and more states or adopting walls, if
(10:22):
you will, which make fifty to fifty custody or shared
parenting a presumption or a starting point for the court.
And again this isn't the case in every state, but
more and more states seem to be trending in this direction.
So the question a lot of individuals have is is
if courts are starting with fifty to fifty custody or
(10:43):
shared parenting, what impact does the kid's wishes have? Well, look, candidly,
if courts are going to start with fifty to fifty
custody or shared parenting. You know, courts, you know, are
going to take the wishes of the kids into account. Again,
it's one factor, one factor only, and they take their
wishes into account again, particularly the older the kids actually are,
(11:06):
you know, not when they're young, but we're talking teenage years.
But oftentimes, again, their wishes aren't going to be enough
to overcome that presumption of fifty to fifty cussy again
unless they're you know, physical emotional danger to the kids
and their physical emotional well being is at risk. You know,
in most of these cases, fifty to fifty custody or
(11:27):
something close to that is what's going to happen. And
so you know, taking that into account. The advent of
shared parenting or fifty to fifty custing in a way
makes the kids wishes even less meaningful in a way,
because most courts are going to do fifty to fifty
custody and that's where they're going to start, and so
the kids wishes not as significant as previous times when
(11:52):
kids would predominantly live in one home and then the
kids would go to the other parents' house every other weekend, right,
you know, that used to be more common and some
states still do that, but more and more states moving
in the direction of fifty to fifty cussy again makes
the wishes of the kids less impactful because most courts,
in spite of the wishes of the kids, even if
(12:14):
they prefer to be in one home over the other,
most of the time, you know, more and more judges
are doing fifty to fifty cuss. Again, fifty fifty cussy
not automatic in every state, and even in states where
it's presumption, courts can overcome that presumption with facts and evidence,
and theoretically, again, the kids wishes could be enough to
overcome the presumption, but oftentimes it's not. Where the kids
(12:36):
are simply preferred to be in one home, you know,
more for preference reasons, or the one parent's more lenient,
let's say, you know, that's probably not going to be
enough to overcome that presumption. All right, Well, this is
definitely an interesting topic, one that individuals ask about a lot,
so I wanted to talk about it on Family Law
Talk again as a follow up to the episode. Today,
(12:56):
going over to Illinois Divorce attorneys blog dot com, read
the article titled when can a child choose which parent
they want to live with? The day of the article
is January third, twenty twenty four. That'll give you more
information on this topic. But thanks for tuning in today.
Stay tuned o our next episode of Family Law Talk
coming up. Thank you very much.
Speaker 1 (13:16):
Thank you for listening to Family Law Talk with Kirk Stangy.
Is it Stangy Lawfirm dot com for more about today's
topic or to put Stangy Law Firm to work for
your family today. The choice of a lawyer is an
important decision and should not be based solely on advertisements.
Either the Supreme Court of Missouri or Illinois reviews or
approve certifying organizations or specialist designations. The information you obtained
(13:40):
in this podcast is not, nor is it intended to
be legal advice. You should consult an attorney for advice
regarding your individual situation. We invite you to contact us
and welcome your calls, letters, and electronic mail. Contacting us
does not create an attorney client relationship. Please do not
send any confidential information to us until such time as
an attorney client relationship has been established. As the results
(14:02):
afford no guarantee of future results. In every case is
different and must be judged on its own merits. Kirkstangy
is responsible for the content Headquarters Office one twenty South
Central Avenue, Sweet four fifty, Clayton, Missouri six three one
oh five. Kirk Stangy is licensed in Missouri, Illinois, and
Kansas
Welcome to Family Law Talk. Family Law Talk presented by
Kirk Stangy of Stangy Law Firm PC. Stangy Law Firm
is a multi state family law firm. Now here's your host,
Kirk Stangy.
Speaker 2 (00:18):
Welcome to Family Law Talk. We have an interesting topic today.
The topic is the child's preference for custody And this
episode today is based on an article on our blog,
Illinois Divorce Attorneys Blog dot com dated January third, twenty
twenty four titled when can a child choose which parent
(00:38):
they want to live with? So, as a follow up
to the episode today, go on over to Illinoidivorce Attorneys
blog dot com and read this article for more information.
But let's go ahead and jump on into the topic
at hand. And and this topic is a common one
that individuals ask of their lawyers when going through a
divorce or custy case. And again the topic is really
(00:59):
when can choose who they want to live with? And
lots of individuals when they're going through a divorce or
custody case really think this is a big deal and
they think kids ultimately get to choose who they want
to live with, and the kids coming to court and
say they want to live with a mom, or they
say they want to live with a dad. Lots of
parties think that is this positive and that at that
(01:20):
point the judge is just automatically going to do what
the kids want. And so again this assumption, if you will,
this belief is often something parties think is the case
when going through a divorce or custom case. So, I mean,
practically speaking, is it true that a child can choose
(01:40):
who they want to live with? And the answer to
that question is really no. Okay, So, when parties are
going through a divorce or a custody case, a custody order,
which is commonly called a parenting plan has to be
put together. A parenting plan or cust the order can
be put together by consent. In other words, both parties
(02:00):
agree to it and they think it's in the best
interest of the children. That they can sign that, submit
that to the court through their lawyers, and you know,
oftentimes a judge will approve it if it's normal and
ordinary and both parties stipulate that it's in the best
interest of the kids. But the reality is, in some
cases the parties don't agree on child cussing. The parties
(02:23):
have totally different viewpoints on what ought to take place,
what's just, what's fair, what's in the best interest of
the kids, if you will, And so these cases then
get litigated where the parties can't agree. In some cases
where there's abuse or neglect alleged, or even if it's
just a case where there's complicated allegations, a court will
appoint a guardian at lightem which is an attorney appointed
(02:47):
to represent the kids in the litigation and to make
sure that their interests are protected in the case itself. Okay, So,
obviously contested custy case, whether it being a divorce or
if it's in a paternity case, which we generically refer
to the case between unmarried parents. But as these cases go,
(03:09):
you know, one party again their viewpoint might be, look,
the kids want to live with me, they want to
live with me, and they say that they do, and
so that ought to carry the day is the viewpoint.
And ultimately, again that really misses the mark in a
lot of respects. Okay, So let's break this down in
(03:29):
more detail. Obviously, it's important to look at the statute
and whatever state you reside in, your state likely has
a statute that deals with child custody in terms of
the factors the court's supposed to look at in order
to determine the child's best interests. And these factors can
be many, like that, the child's connection to their current homeschool,
(03:50):
and community could be. The child's physical and emotional needs
could be, the child's age and health. Each party's capability
and willingness to provide for basic child needs can be important. Obviously,
the relationship between the children and each parent can be vital.
And then one of these factors is in most states,
(04:13):
the wishes of the children, you know, the wishes of
each parent in terms of what they want, and the
court's got to balance these in weigh all these, okay,
And so I'm not saying at the same token, the
kid's wishes and desires has no meaning. It certainly does.
It's one of the factors, but it's not just positive
(04:35):
in and of itself, okay. And so to break this
down in more detail, the reality is in some cases
there could be parental alienation tactics taking place which you're
causing the kids to be with one parent versus the other.
And parntal alienation is where a parent is really saying
(04:56):
negative derogatory things about the other parents. They're on a campaign,
if you will, to really demean the other parent to
the kids. Terrible when this occurs. But in some instances,
the kids might not want to live with one parent
who's actually pretty good because they've been alienated. So again,
the kids wishes just don't automatically carry the day. In
(05:17):
some instances, the kids might want to live with one
parent because they're more lenient, Like the parent lets them
do whatever they want, like they can stay out late,
they don't have a bedtime, there's not rules, there's not
guidelines in that particular home. Let's say, so let's say
the kids want to live there because they can do
what they want. Well, obviously that isn't a good reason
for the kids to want to want to live with,
(05:39):
you know, that particular parent or not. Now, look, ultimately,
the older the kids get, so the closer to age eighteen,
you know, it's going to be different for different judges.
But a judge is going to be more likely to
take that into account. So you know, again I'm just
sort of painting with a broadbrush. This is not a
(05:59):
card rule, and every judge can see this differently. But
you know, kids get their teenage years, right, they're getting older.
Then oftentimes the court will take their wishes into account, right,
I mean, it's something the court considers. But in and
of itself, is it dispositive? Does a judge automatically have
(06:22):
to allow the kids to live with one parent simply
because this is what the kids want to know? I mean, Ultimately,
the judge has to determine what's in the best interest
of the children and what's in the best interest of
the children, and the judge's opinion might weigh differently than
what the kids wishes are. Now, look, in a lot
(06:45):
of cases, you know, the kids love both their parents,
and they want to see both their parents, and they
want to spend substantial time with both their parents. You know,
that's a good thing in most instances. But in some circumstances,
the kids could prefer one parent over the other. And again,
the kids get the more likely it is a judge
will take it into account. But it's not dispositive if
(07:06):
kids don't just get to automatically choose. Okay, So let's
break this down in a little more detail. Okay, Let's
say a child age twelve wants to live with one
parent and they're determined to live with that one parent. Okay?
Is that dispositive again? No, Although the court may listen
(07:27):
to the twelve year old's wishes and desires and they
may take them into account, you know, particularly if the
child's mature and has a well reasoned explanation, it doesn't
mean that this is necessarily dispositive that could persuade the judge.
It may not, Okay, So it's not It's not like
(07:48):
an easy win because the kids you don't want to
live with one parent or the other. When you think
about it more detailed, too, it makes a lot of
sense if a kid could just choose with whom they
wanted to live, right, that would really encourage parents to
then lobby the kids, right, give the kids, you know,
(08:08):
all kinds of concessions in terms of their parenting or whatnots,
just so the kids will come in the court and say,
I want to live with mom or I want to
live with dad. Right. So, in most circumstances, you really
wouldn't want it to be this way. If it were
this way, parents couldn't be parents because parents would really
have to be most concerned with being popular with their
kids by letting them do whatever they wanted. Okay, Let's
(08:30):
say if a child, let's say a child really doesn't
want to live with one parent. Okay, what effect does
that have. Let's say the child's in passion, if they
don't want to live with one parent, if they don't
want to spend time with one parent or not, is
this this positive? Well? Look, ultimately, if the kids are
in physical emotional danger, then that's one thing. And if
(08:54):
there's physical emotional danger, then a court in most circumstances
is obviously going to take that into account. Okay. And
if it's a divorce or custody case that hasn't been decided,
that's going to be taken into account in terms of
the initial custy determination. If there's already a custody determination
or you know, the divorce is complete, the custod case
is complete, then what often needs to happen is if
(09:17):
the kids are in physical emotional danger, then the other
parent needs to file emotional modify to try to modify
the custody order to get the kids out of danger. Okay,
But short of that, short of the kids being in
some sort of physical emotional danger, again, the kids wishes
are one factor. But ultimately, if the kids aren't in
(09:39):
physical or emotional danger, and there's already a parenting plan
or custody order in place. The kids wishes at the
end of the day, right, I mean, what has to
happen is that the parents have to abide by the
custo order, whatever that custody order is. That's what the
kids need to do in terms of when they're with
(09:59):
my and when they're with that or whatnot. But short
of physical emotional danger, look again, their wishes are just
one factor and one factor only. Okay, you know another
question lots of individuals have relates to fifty to fifty custody.
I mean more and more states or adopting walls, if
(10:22):
you will, which make fifty to fifty custody or shared
parenting a presumption or a starting point for the court.
And again this isn't the case in every state, but
more and more states seem to be trending in this direction.
So the question a lot of individuals have is is
if courts are starting with fifty to fifty custody or
(10:43):
shared parenting, what impact does the kid's wishes have? Well, look, candidly,
if courts are going to start with fifty to fifty
custody or shared parenting. You know, courts, you know, are
going to take the wishes of the kids into account. Again,
it's one factor, one factor only, and they take their
wishes into account again, particularly the older the kids actually are,
(11:06):
you know, not when they're young, but we're talking teenage years.
But oftentimes, again, their wishes aren't going to be enough
to overcome that presumption of fifty to fifty cussy again
unless they're you know, physical emotional danger to the kids
and their physical emotional well being is at risk. You know,
in most of these cases, fifty to fifty custody or
(11:27):
something close to that is what's going to happen. And
so you know, taking that into account. The advent of
shared parenting or fifty to fifty custing in a way
makes the kids wishes even less meaningful in a way,
because most courts are going to do fifty to fifty
custody and that's where they're going to start, and so
the kids wishes not as significant as previous times when
(11:52):
kids would predominantly live in one home and then the
kids would go to the other parents' house every other weekend, right,
you know, that used to be more common and some
states still do that, but more and more states moving
in the direction of fifty to fifty cussy again makes
the wishes of the kids less impactful because most courts,
in spite of the wishes of the kids, even if
(12:14):
they prefer to be in one home over the other,
most of the time, you know, more and more judges
are doing fifty to fifty cuss. Again, fifty fifty cussy
not automatic in every state, and even in states where
it's presumption, courts can overcome that presumption with facts and evidence,
and theoretically, again, the kids wishes could be enough to
overcome the presumption, but oftentimes it's not. Where the kids
(12:36):
are simply preferred to be in one home, you know,
more for preference reasons, or the one parent's more lenient,
let's say, you know, that's probably not going to be
enough to overcome that presumption. All right, Well, this is
definitely an interesting topic, one that individuals ask about a lot,
so I wanted to talk about it on Family Law
Talk again as a follow up to the episode. Today,
(12:56):
going over to Illinois Divorce attorneys blog dot com, read
the article titled when can a child choose which parent
they want to live with? The day of the article
is January third, twenty twenty four. That'll give you more
information on this topic. But thanks for tuning in today.
Stay tuned o our next episode of Family Law Talk
coming up. Thank you very much.
Speaker 1 (13:16):
Thank you for listening to Family Law Talk with Kirk Stangy.
Is it Stangy Lawfirm dot com for more about today's
topic or to put Stangy Law Firm to work for
your family today. The choice of a lawyer is an
important decision and should not be based solely on advertisements.
Either the Supreme Court of Missouri or Illinois reviews or
approve certifying organizations or specialist designations. The information you obtained
(13:40):
in this podcast is not, nor is it intended to
be legal advice. You should consult an attorney for advice
regarding your individual situation. We invite you to contact us
and welcome your calls, letters, and electronic mail. Contacting us
does not create an attorney client relationship. Please do not
send any confidential information to us until such time as
an attorney client relationship has been established. As the results
(14:02):
afford no guarantee of future results. In every case is
different and must be judged on its own merits. Kirkstangy
is responsible for the content Headquarters Office one twenty South
Central Avenue, Sweet four fifty, Clayton, Missouri six three one
oh five. Kirk Stangy is licensed in Missouri, Illinois, and
Kansas
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