Legal Memorandum: Modifying visitation rights must be in the best interest of the child

Issue: Under Illinois law, when modifying visitation rights and considering the best interests of a child, what weight is given the preferences of the child?

Section 607(c) of the Act provides that a "court may modify an order granting or denying visitation rights of a parent whenever modification would serve the best interests of the child." [statref]750 ILCS 5/607(c) (West 2012)[/statref]. As the circuit court correctly noted, the modification provision does not require proof of a substantial change of circumstance, but only requires the court to consider whether a modification of a visitation order would be in the minor’s best interest. In determining the best interests of a child, the circuit court considers the factors listed in section 602(a) of the Act. [statref]750 ILCS 5/602(a) (West 2012)[statref]; DeBilio v. Rodgers, 337 Ill.App.3d 614, 617 (2002). On appeal, a court will not reverse a circuit court’s decision regarding the modification of visitation unless it was against the manifest weight of the evidence or an abuse of discretion. Heldebrandt v. Heldebrandt, 251 Ill.App.3d 950, 954 (1993).

Clearly, a mature child’s preference as to custody should be given considerable weight when it is based on sound reasoning. Shoff v. Shoff, 179 Ill.App.3d 178, 185 (1989) (citing In re Marriage of Leff, 148 Ill.App.3d 792, 810 (1986)). However, a court is not precluded from finding that the child’s preference is not in the child’s best interest. Id.