Best Interest Factors for a Minor Child

For those going through a family law matter involving a child, a common phrase one hears in court is “best interests of the child.” This is what the court considers when it is making a determination as to allocation of parental responsibilities (meaning, major educational, medical, extracurricular, and religious decision-making for the child) and parenting time (meaning, visitation with the child) between parents. If you are going through a family law matter involving a child, it is good to know exactly what this means and what this looks like.

First, let’s look at the statutes themselves. Under Illinois law, the court considers several factors in making a determination as to the best interest of a child, as it relates to allocation of parental responsibility, which can be found at 750 ILCS 5/602.5(c), and which include:

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;
2. The child's adjustment to his or her home, school, and community;
3. The mental and physical health of all individuals involved;
4. The ability of the parents to cooperate to make decisions, or the level of conflict between the parties that may affect their ability to share decision-making;
5. The level of each parent's participation in past significant decision-making with respect to the child;
6. Any prior agreement or course of conduct between the parents relating to decision-making with respect to the child;
7. The wishes of the parents;
8. The child's needs;
9. The distance between the parents' residences, the cost and difficulty of transporting the child, each parent's and the child's daily schedules, and the ability of the parents to cooperate in the arrangement;
10. Whether a restriction on decision-making is appropriate under Section 603.10;
11. The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;
12. The physical violence or threat of physical violence by the child's parent directed against the child;
13. The occurrence of abuse against the child or other member of the child's household;
14. Whether one of the parents is a sex offender, and if so, the exact nature of the offense and what, if any, treatment in which the parent has successfully participated; and
15. Any other factor that the court expressly finds to be relevant.

Likewise, under Illinois law, the court considers several factors in making a determination as to the best interest of a child, as it relates to allocation of parenting time, which can be found at 750 ILCS 5/602.7(b), and which include:

1. The wishes of each parent seeking parenting time;
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;
3. The amount of time each parent spent performing caretaking functions with respect to the child in the 24 months preceding the filing of any petition for allocation of parental responsibilities or, if the child is under 2 years of age, since the child's birth;
4. Any prior agreement or course of conduct between the parents relating to caretaking functions with respect to the child;
5. The interaction and interrelationship of the child with his or her parents and siblings and with any other person who may significantly affect the child's best interests;
6. The child's adjustment to his or her home, school, and community;
7. The mental and physical health of all individuals involved;
8. The child's needs;
9. The distance between the parents' residences, the cost and difficulty of transporting the child, each parent's and the child's daily schedules, and the ability of the parents to cooperate in the arrangement;
10. Whether a restriction on parenting time is appropriate;
11. The physical violence or threat of physical violence by the child's parent directed against the child or other member of the child's household;
12. The willingness and ability of each parent to place the needs of the child ahead of his or her own needs;
13. The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;
14. The occurrence of abuse against the child or other member of the child's household;
15. Whether one of the parents is a convicted sex offender or lives with a convicted sex offender and, if so, the exact nature of the offense and what if any treatment the offender has successfully participated in; the parties are entitled to a hearing on the issues raised in this paragraph (15);
16. The terms of a parent's military family-care plan that a parent must complete before deployment if a parent is a member of the United States Armed Forces who is being deployed; and
17. Any other factor that the court expressly finds to be relevant.

As you can see, these factors mirror each other very closely, and each set of factors ends with a catch-all factor that allows the court to consider anything else it deems to be relevant in its determination of an allocation of parental responsibility and parenting time. What another factor may be depends entirely on the facts and circumstances of the case. It is important to note that the court is not limited by these factors, and can consider anything it believes to be necessary regarding the best interest of a child.

It is also important to note that courts give greater weight to the wishes of a child as the child ages—courts often give greater weight to a child’s wishes when the child is 14 years old and older. While a child’s wishes is not all a court will consider in determining what is in his or her best interests, the age and maturity of the child expressing will be given more consideration. The child can express his or her wishes through a Guardian ad Litem or Child Representative, or, in some instances, speak directly to the judge through an in camera interview or in testimony.

Further, it is important to note that courts tend to assume both parents are fit to share in parental responsibility and parenting time with the child, unless there is a showing that that is not in the child’s best interest, such as in instances of abuse or endangerment. Where a court finds that one parent is unfit to share in parental responsibility, one parent will be awarded sole allocation of parental responsibility, meaning, they are the only parent to make major educational, religious, extracurricular, and medical decisions for the child. Where a court finds one parent is unfit to have liberal parenting time, courts will order supervised parenting time, therapeutic supervised parenting time, or, in extreme cases, deny parenting time altogether.

If you are going through a family law case involving a child, it is a smart idea to go through these factors with your attorney point by point, and have an honest discussion about how each factor applies to your position. This is crucial in instances where you and the other parent cannot agree as to what is in the best interest of your child, and is a great step to positing yourself as you prepare for a potential trial on the issues.

If you would like more information on this topic, please contact the author, family law attorney Colleen M. Breems, at 312-888-4112 or cbreems@lavellelaw.com.