Note: this article was largely inspired by a lecture made by David Del Re at the Lake County Family Law Conference in February of 2025 which I attended. Mr. Del Re does excellent work and I endorse him and his firm for all family law matters. There’s an old adage in family law courts that “children should have a voice but not a choice”. Children are also highly discouraged from testifying in divorce cases. Without testifying, anything a child alleged said is impermissible hearsay. So, how do children make their wishes known to the court in an Illinois divorce. Why Do Children Need To Have A Voice In An Illinois Divorce? Courts base all decisions related to children on “the child’s best interests” 750 ILCS 5/602.7(a), 750 ILCS 5/602.5(a) Kids do not get to pick which parent they will spend time with but the court can consider their wishes. “In determining the child’s best interests for purposes of allocating parenting time, the court shall consider all relevant factors, including, without limitation, the following:…(2) the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to parenting time” 750 ILCS 5/602.7(b)(2) Likewise, the court must also consider the child’s wishes as to which parent makes what decisions for the child. “Determination of child’s best interests. In determining the child’s best interests for purposes of allocating significant decision-making responsibilities, the court shall consider all relevant factors, including, without limitation, the following: (1) the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to decision-making” 750 ILCS 5/602.5(d)(1) The child’s wishes have to be communicated to the court somehow. But, courts do not like putting kids in the witness box and subjecting them to cross-examination. “The court should…determine whether the best interests of the child would be served by permitting her to testify or be sheltered from testifying and being subjected to vigorous cross-examination.” Crownover v. Crownover, 337 NE 2d 56 – Ill: Appellate Court, 3rd Dist. 1975 Without testifying, the children’s wishes are hearsay testimony. Hearsay And Children’s Testimony In An Illinois Divorce or Parentage Action “”Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ill. R. Evid. 801(a) Hearsay is not allowed […]
