Can Children Express Preference in Wisconsin Custody Proceedings?

Learn whether children can express their parental preferences in Wisconsin custody decisions.

Many considerations factor into each child custody decisions after divorce or separation. Parents' desires for custody, parents' relationships with their children, parents' history of childcare, and many other factors help determine the best child custody arrangement. Often overlooked, however, are children's custodial preferences.

This article will explain how a child's preference affects custody in Wisconsin. If you have additional questions about the effect of a child's custodial preference in Wisconsin after reading this article, you should consult a local family law attorney.

Overview of Custody Decisions in Wisconsin

Courts encourage parents to work together to determine what the best custody arrangement is for their family. However, judges are also realistic and understand that some parents can't communicate and will need help.

Wisconsin judges decide custody for parents who can't come to a custody agreement on their own. By far, the most important aspect in every custody case is what's best for the child.

When deciding custody, each court considers a variety of factors, including the following:

  • each parent's wishes for custody
  • each child's relationship with parents, siblings, and anyone else who significantly affects the child's best interest
  • the time each parent has spent with the child in the past
  • the child's adjustment to home, school, religion, and community
  • the child's age and developmental and educational needs
  • each parent's physical and mental health, to the extent it affects the child's well-being
  • the child's need for stability and predictability
  • child care service availability
  • each parent's ability to cooperate, including encouraging a relationship between the child and other parent
  • either parent's history of child abuse
  • whether either parent lives with someone who has a history of child abuse
  • whether either parent has a history of alcohol or drug abuse
  • the reports of professionals, if associated with the case
  • the child's custodial preference, and
  • any other factor the court deems relevant. (Wis. Stat. § 767.41 (5).)

When Will the Court Consider a Child's Preference?

Wisconsin courts can consider a child's custodial preference for custody decisions, but it doesn't always mean the judge will use the preference in the final decision. For the court to consider a child's preference, the judge must believe that the child's age and maturity are enough that the opinion is reasonable and substantial.

Although the law doesn't allow a child to decide custody until they turn 18 years old (or become legally emancipated through the court), the judge may give more weight to an older child than a younger one.

For example, if a child is 10, the court may hear the opinion but not use it in the final determination. However, if a child is 15 years old and presents a valid opinion on custody, the judge will likely give more weight to the preference in the overall decision.

It's important to understand that even if the child has a valid preference for custody, it's only one of many factors, and the judge has the final say in every case.

If the child wishes to live with an unfit parent, the judge will deny the child's request to live with that parent. For example, courts may consider a parent unfit if there is a history of abuse or drug or alcohol problems.

Children of all ages must state substantial reasons why they prefer one parent to the other before their preferences affect custody decisions. Courts won't grant children's preferences for superficial reasons such as a parent giving more lavish gifts or lax discipline.

Judges give more weight to reasons such as a child's closer relationship with one parent, or a parent's greater involvement in a child's life.

Do Children Have to Testify About Their Custodial Preferences in Court?

In Wisconsin, children usually don't have to testify about their custodial preferences in court. Judges have several options to obtain children's custodial preferences without placing them in the difficult position of choosing between their parents in front of them. Most often, courts prefer for children to speak with professionals who can then communicate their custodial preferences to the court.

Sometimes judges appoint guardians ad litem, which are attorneys that represent children's interests in custody cases. Guardians ad litem thoroughly research all factors relevant to child custody decisions and communicate those factors to the court, including children's custodial preferences. (Wis. Stat. § 767.407.)

Other times, mental health professionals or custody evaluators meet with children; they can also testify in court about children's preferences. Parents' attorneys can cross-examine any professionals who testify.

Alternatively, judges interview children privately in court chambers, outside of their parents' presence. In-chambers interviews are less stressful for children than testifying on the witness stand. When a court interviews a child in chambers, a court reporter must make a transcript of the conversation for the case record.

In the rare instance that children testify in court, judges are careful not to let attorneys badger the children on the witness stand. Courts can limit attorneys' questions or choose to ask the questions instead of the attorneys to ensure the attorneys don't place the children in even more challenging positions.

Can My Child Refuse Visitation?

It's a common misconception that children of a certain age can refuse visitation with a parent. On the contrary, until a child reaches age 18 or becomes legally emancipated through the courts, the custody order controls, and all parents and children must comply.

If a child refuses to attend the court-ordered visitation, it's the custodial parent's responsibility to follow the court order (unless the child's safety is in immediate danger) until the court changes the requirements.

The court understands that custody orders can become less appropriate as a child ages or as the parents' circumstances change. In Wisconsin, either parent can ask the court to review or change the current order.

However, because the court favors stability for children, the state has strict requirements that a parent must meet before the court considers changing custody or parenting time.

If a parent is requesting a modification within 2 years of the original order, that parent must demonstrate, with significant evidence, that the modification is necessary because the current arrangement is harmful to the child's best interest. (Wis. Stat. § 767.451 (1).)

If it's been at least 2 years since the last order, the parent requesting a modification must prove all of the following factors:

  • the modification is in the child's best interest, and
  • that, since the last order, there's a significant change of circumstances that substantially impacts custody. (Wis. Stat. § 767.451 (b).)

If the judge agrees that a modification would serve the child's best interest, the court will evaluate the case using the same factors used during the initial custody determination, including considering the child's preference.

If you have additional questions about the effect of children's custodial preferences or divorce in general, contact a Wisconsin family law attorney for help.

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