When parents are getting divorced or separating, the most challenging issues they face are usually related to physical and legal custody of their children—where the kids will live, how often each parent will see them, and how parents will make important decisions concerning their children.
When parents are fighting over custody, sometimes they overlook what the children themselves want, or—even worse—they try to manipulate or coerce a child into choosing sides. In order to prevent these problems, Wisconsin law requires judges to consider what the children want—but not necessarily to follow those preferences.
If the parents can't agree on a parenting plan (more on that below), a judge will have to decide for them. In Wisconsin, as in all states, the overriding principle in all custody disputes is that the parenting plan must be in the child's best interests. But how do judges determine what's best for a child?
Wisconsin's child custody laws address that question by requiring judges to consider certain factors. The child's wishes are one of those required considerations—but only one. The judge will also take into account the parents' wishes, as well as a number of other specific circumstances in the case. (Wis. Stat. § 767.41(5) (2022).)
Wisconsin doesn't set any age limit on its requirement that a child's custody preferences be considered. Still, judges are likely to give greater weight to children's opinions when they're mature enough to formulate and express thoughtful and reasonable preferences about which parent they want to live with most of the time, and how much they want to spend time with the other parent.
The law in Wisconsin doesn't require judges to prioritize children's wishes—just to take them into account along with all of the other relevant circumstances. Wisconsin courts have held that children's preferences shouldn't be the controlling factor except in the rare situations when the children give specific, substantial reasons why a different custody award would be against their best interests.
Wisconsin courts have found that judges don't have to allow a child testify in court, as long as they can learn about the minor's custody preferences from appropriate sources. In practice, judges usually don't want to place children in the difficult position of having to choose sides in a custody dispute in front of their parents.
Wisconsin law doesn't spell out exactly how and when judges should find out children's custody preferences. It simply says that children may express those wishes directly or through their guardian ad litem or another "appropriate professional." Judges sometimes appoint attorneys as guardians ad litem to advocate for the children's best interests in custody disputes. As part of their thorough investigations, these attorneys will interview the children and report back to the court on what the children have said about their custody preferences. (Wis. Stat. § 767.407 (2022).)
Other times, judges might receive reports or testimony from custody evaluators or therapists who've met with the children. When information from any of these professionals isn't available—or when judges believe it's necessary to question the children directly—they may interview the children privately in court chambers, outside of their parents' presence.
Until children turn 18 or become legally emancipated, they don't have the right to refuse to visit with a parent when that's required under a court's custody order. Both children and their parents must obey the order. So if a child is refusing visitation, the parent with primary physical custody has the responsibility to get the child to cooperate.
Of course, as any parent knows, it can be difficult to make teenagers do something they absolutely refuse to do. Judges recognize that existing parenting plans might become less appropriate as children age or the parents' circumstances change.
If your current parenting plan just isn't working anymore, you and the other parent could agree on a change, as long as the judge approves your agreement and incorporates it into a new order. (Wis. Stat. § 767.461 (2022).)
Otherwise, you may ask the court for a custody modification. But you'll have to show that there has been a substantial change of circumstances and that the modification you're requesting would be in the child's best interests. The standard is higher if it's been less than two years since the most recent custody order: You'll have to prove that the current parenting plan is physically or emotionally harmful for your child. (Wis. Sta. § 767.451 (2022).)
You may avoid lengthy and expensive court battles over custody disputes if you and the other parent can reach an agreement on the issue. When you're having trouble agreeing on your own, custody mediation may be a way to work through your obstacles. In fact, whenever you've filed a legal case in Wisconsin involving a custody dispute, the court will refer you to family court services for mediation. (Wis. Stat. § 767.405(5) (2022).)
Although custody mediation is between the parents, the mediator may interview the children when that's appropriate and would help the parents agree on a new or changed parenting plan. Once you've worked out an agreement, you'll need to submit it to the court for approval, so that it can be incorporated in an official court order.
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