Can Children Express Preference in Wisconsin Custody Proceedings?

Many considerations factor into each child custody decision. Parents’ desires for custody, parents’ relationships with their children, parents’ history of childcare, and many others factors all help determine the best child custody arrangement. Often overlooked, however, are children’s custodial preferences. In most states, courts are required to consider children’s opinions when deciding custody.

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

Wisconsin judges decide custody for parents who can’t come to a custody agreement on their own. Each court considers a variety of factors before issuing a custody order, 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 with one another, 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.

To read more information about custody decisions in Wisconsin, see Child Custody in Wisconsin: The Best Interests of the Child.

When Will the Court Consider a Child’s Preference?

Wisconsin courts will consider children’s custodial preferences whenever their age and maturity allows them to voice reasonable opinions about child custody. Children 14 years old or older have the right to select a parent, and if the court approves, the judge will award that parent custody. When children are under the age of 14, the court decides on a case-by-case basis whether to consider the child’s wishes when creating the custody arrangement.

For a child 14 or older, a judge will only overrule the child’s custodial preference if the selected parent is unfit to have custody. For example, courts may consider parents with histories of abuse, or drug or alcohol problems, to be unfit to have custody. Otherwise, judge will grant the selected parent custody.

Children under the age of 14 must be able to 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 the children’s 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.

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 children aren’t placed in even more difficult positions.

If you have additional questions about the effect of children’s custodial preferences, contact a Wisconsin family law attorney for help.