When can a child choose which parent to live with in Wisconsin?

Children are not allowed to decide which parent they want to live with after a divorce in Wisconsin. The judge in charge of the divorce or custody hearings must give consideration to the child's wishes at any age but it isn't until age 14 that their wishes are given more weight in the decision.

If the child can't choose, how are custody and placement determined?

Before the year 2000, the Court considered what's best for the child. The Wisconsin child custody laws have changed since then, and now the Court assumes that joint legal custody is in the best interest of the child.

In most cases, a child can only decide where he or she wants to live once they are emancipated, but this usually doesn't happen until they are 18 years old.

Child custody and placement laws are intended to give the child the healthiest relationship they can have with both parents. Most times the parents create their own custody and placement arrangement and then the Court reviews and approve it.

The Court will listen to a minor child's concerns, but the final decision is made by the Court and it's based on what is best for the child and not the minor child's request. When a child is age 14 to 17, more weight on the child's request is given by the court and the child must have substantial reasons for their choice. No superficial reasons (such as gifts, financial allowance, lenient discipline, etc.) are ever considered.

The child's requests or concerns are usually presented to the court by a guardian ad litem. A guardian ad litem is a court-appointed person that investigates what would be best for the child during custody and placement. According to statute section 767.407 (4) “Unless the child otherwise requests, the guardian ad litem shall communicate to the court the wishes of the child as to the child's legal custody or physical placement under s. 767.41 (5) (am) 2.”

Many factors are considered by the Court before they finalize a custody and placement order. Here are a few items that are considered.

  • Each parent's custody request
  • Each parent's physical and mental health that would affect the child
  • Each parent's history of any domestic violence
  • Each parent's current or historical alcohol or drug abuse
  • Each parent's new dating partner's current or historical criminal record or child neglect and/or child abuse evidence
  • If any parent is trying to influence the child regarding divorce or placement
  • The relationship and communication between both parents
  • The availability of childcare service
  • The child's relationship with each parent and their siblings
  • The child's adjustment to the home, school, religion, and community
  • The amount and quality of time that each parent has spent with the child in the past
  • Any other factor the court deems relevant

According to Wisconsin Statute 767.41(4)(a)[1] “The court shall set a placement schedule that allows the child to have regularly occurring, meaningful periods of physical placement with each parent and that maximizes the amount of time the child may spend with each parent, considering geographic separation and accommodations for different households.”

Custody and placement orders are put into place once both parties have come to an agreement or when a trial takes place. If the parents can't come to an agreement, a guardian ad litem It's important to note that custody and placement orders are normally not able to be modified for two years.

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Frequently Asked Questions

What age does a child need to be to decide which parent they live with?

In Wisconsin, children cannot dictate where they reside but the courts may take the child's preference into consideration at about age 14 or when the child can articulate a preference and a reason for the preference.
Reasons such as lax discipline at one parent's house, or one parent gives lavish gifts, will not be seen by the court as substantial reasons for awarding placement to one parent over another.
The court will evaluate what is in the best interest of the child which is assumed to be as close to equal time with each parent as possible. If the parents cannot agree on a schedule, a guardian ad litem may be appointed to represent the best interests of the child and give the court a recommendation for custody and placement.

At what age can a child refuse visitation in Wisconsin?

In Wisconsin, children cannot dictate where they reside but the courts may take the child's preference into consideration at about age 14 or when the child can articulate a preference and a reason for the preference.
A child cannot opt to violate a court order, parents are responsible for following the court order. If the child is refusing to visit the other parent then the custodial parents should speak with a family law attorney about their options for modification of the custody order.

What is considered an unfit parent in Wisconsin?

When a party's ability to parents is questioned, the court will look to ensure that the children's safety is maintained. If the child is not safe, the parent is an unfit parent. Issues that the court views as problematic include:

  • History of drug abuse
  • Alcoholism
  • Mental instability
  • Abandonment
  • Child Neglect
  • Criminal History

The Court will require that any allegation of a parent being unfit be proven by providing necessary supporting documentation such as police reports, photographs, medical files or other verifiable documentation. If you are concerned that your child is in imminent danger, the first point of contact is the police.
An Attorney can assist you once you're able to verify that your children are safe.

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