When Can My Child Decide Where They Want to Live?
A guide to Wisconsin custody and placement laws, court-appointed professionals, and how your child’s wishes impact custody decisions.
“Once my son turns 14, he’ll finally get to decide which parent he wants to live with. ”
As a Wisconsin family law attorney, I’ve heard this assumption from countless clients navigating paternity, divorce, or post-divorce matters. Unfortunately, this is not true. Under Wisconsin law, children under the age of 18 never truly get to choose which parent they live with.
Common Wisconsin Child Custody Misconceptions
The belief that children get to choose their placement once they reach a “magic age” likely stems from a misunderstanding of Wisconsin law.
Let’s clear up some common points of confusion:
- Wisconsin law requires courts to consider the child’s wishes when determining custody and placement. This does not mean the child simply chooses which parent they want to live with and the court approves of that request. Wisconsin courts must consider all 14 best interest factors outlined in 767.41(5), and the child’s wishes account for only one of those factors.
- There is no specific age that deems a child legally able to determine where they live, however, age can impact the weight put on their wishes. While Wisconsin law does not establish a specific age when a child can decide who they live with, as they grow in age and maturity, the court may give more weight to the child’s wishes. For example, a court may put more weight on what a 16 year old wants versus what a younger child wants.
- Where the child lives is referred to as physical placement, not legal custody. In Wisconsin, there are two distinct legal concepts at issue in cases where there are minor children involved: physical placement and legal custody.
- Physical placement describes where and with whom the children will spend their time.
- Legal custody is the parental right to make major decisions for minor children. These major decisions include where they go to school, their religious upbringing, non-emergency medical decisions, whether the child will get a driver’s license, and marriage consent just to name a few.
What if Both Parents Agree With Their Child’s Wishes?
Wisconsin law requires that couples participate in at least one mediation session with a professional mediator before appearing before a judge or family court commissioner (however there are exceptions to this requirement—see below). If both parents and the child agree on custody and placement, the parents can sign a stipulation and make that stipulation the court order.
If a decision cannot be reached in mediation, the courts often appoint a guardian ad litem to communicate the child’s wishes and represent the children’s best interests. A Wisconsin family law court may also require a detailed parenting plan that establishes how each parent will care for the needs of their children.
Exceptions: There are certain circumstances in which parties are not required to participate in mediation. For example, if there is no contact order between the parties due to a domestic abuse injunction, the court may bypass mediation and appoint a GAL.
How Does the Court Consider a Child’s Wishes?
When determining legal custody and physical placement, the court must consider the best interest factors outlined in 767.41(5). One of these factors is the wishes of the child, which can be communicated through the child’s Guardian Ad Litem (GAL) or other appropriate professionals.
The Guardian Ad Litem’s Role
- A Guardian Ad Litem is an attorney appointed by the court to represent the child’s best interests.
- A GAL typically begins their investigation by conducting interviews with both parties. Additionally, each parent often completes a questionnaire that provides background information about the parties.
- Then, the guardian ad litem may also interview and meet with the child or children. Please note: All GALS conduct their investigations in different ways that could be case specific and what makes sense for one family or matter might not for the next.
- After the investigation is complete, the GAL prepares a recommendation for custody and placement based on what they believe is in the child’s best interest.
- Why does a GAL have to speak for my child? Why can’t my child just testify in court? Although there is no rule preventing a minor child from testifying, courts tend to avoid placing the child in the middle of a custody dispute by having them testify in court.
Appropriate Professionals
In contested family law cases, experts and other professionals may offer additional perspectives on what custody and placement arrangement is in the child’s best interests. These professionals can be an advocate for the child by voicing how the child’s mental and/or physical health could be protected in custody and placement orders.
Appropriate professionals can include:
- Child psychologists, medical professionals, mental health professionals, social workers, etc.
What Happens When the Child Turns 18?
Once the child turns 18 the family court loses jurisdiction over the child. This means no more court orders on placement and custody related to that child. Courts no longer get involved after a child turns 18, they put it in the hands of the family.
Final Thoughts
To ensure that your rights are protected and that you aren’t making mistakes that harm your family law case, it is highly recommended that you seek the professional legal advice of experienced child custody attorneys. Our legal team would consider all options and keep you informed of all your rights and responsibilities throughout the legal process to secure a favorable resolution to your case.
If you would like to learn more, we invite you to contact HKK Law Offices. Our attorneys are available to meet by phone, video conference, or in person at our offices in Sheboygan, Mequon, and Random Lake.
Disclaimer: This article is provided for general educational purposes only and should not be considered legal advice. Reading this article does not create an attorney-client relationship. Because every situation involves unique facts and circumstances, you should consult a qualified attorney regarding your specific legal needs.
