How Are the “Best Interests of the Children” Determined?

Best Interests of the ChildrenWhen a couple with children decides to get divorced, the first question is usually: how will it affect the children? In most cases, everyone wants what’s best for the children, including the court, but what, exactly, does that mean? And how does a court determine what’s in the best interests of the children?

Ideally, the couple can agree on what’s best for their children and work together to come up with a Parenting Plan that decides how much parenting time each parent gets, where the children will live, who pays child support and how much, etc. The Parenting Plan needs to be approved by a judge, but judges do often assume the parents know what’s best for their children. So long as the Parenting Plan does not run afoul of the law, go against public policy interests, and/or seem unconscionable (meaning no reasonable person would agree to it), the Parenting Plan will be approved by the Court.

Most couples can agree on how to raise the children after the divorce, but sometimes a divorce happens in which the couples can’t agree, and no amount of mediation can help them reach common ground. In that case, the court will have to step in and make up its own mind as to what’s best for the children of the divorcing couple.

In addition to determining how to split parenting time, most judges will also decide which parent gets to make the major parenting decisions (where the children will go to school, who their doctor will be, when they can get their driver’s license, etc.) In Illinois, the law requires that the Court allocate decision-making responsibilities to the parents, either by having them jointly decide one category or by having one parent be solely responsible.  With the 2016 amendments to the Illinois Marriage and Dissolution of Marriage Act, the Court now specifically has to award decision-making responsibility for the 4 following categories:  Health/Medical, Education, Religion, and Extracurricular Activities.  For each category, the Court must indicate whether both or one parent can decide that issue, so it is possible for one parent to have sole decision making on something like medical decisions, but the other parent to be solely responsible for educational decisions.

When allocation of decision-making is contested, Judges must look at 15 factors and weigh them against the existing facts of that case. Those 15 factors are:

  • The children’s wishes;
  • How well the children have adjusted to their current home, school, and community in general;
  • The mental and physical health of everyone involved in the divorce;
  • The level of conflict between the parents and their ability to work together to make decisions;
  • The level of each parent’s past participation in making significant parenting decisions;
  • Any prior agreement or course of conduct between the parents regarding the making of parenting decisions;
  • The wishes of the parents;
  • The children’s needs;
  • The distance between the parents’ residences, the cost and difficulty of transporting the children, each parent’s daily schedules, that of the children, and the likelihood the parents will be able to cooperate in an arrangement;
  • Whether a restriction on decision-making is appropriate;
  • The willingness and ability of each parent to foster a close and continuing relationship between the other parent and the children;
  • Any history of physical violence or threatened physical violence directed at the children by either parent;
  • Any history of abuse against the children or any member of the child(ren’s) household;
  • Whether one of the parents is a sex offender, the nature of their offense, whether they’ve sought treatment, and the nature of that treatment;
  • Any other factor the court might find relevant.

It should be noted that this is not a tally in which parents should aim to win the most points. Each judge will give more weight to some factors than others and it all depends on the situation. If you have any questions about what this might mean for your case, contact us today.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 25 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests.