Generally, children are not allowed to decide which parent they live with or how often they are with each parent in a divorce. The child’s preferences are considered in the judge’s decisions on the child’s custody and placement. When the child turns 14, their opinion can carry more weight.
Under Wisconsin law, a child’s legal parents are given broad rights to establish who a minor child shall spend time with (for example, grandparents, other extended family members, etc.).
18 years old is the age at which a child can decide outright who to live with. When a child is under the age of 18 (and not legally emancipated), the child is not allowed to decide which parent to live with and does not have the right to refuse court-ordered visitation with a parent.
Often, when a separation is newly established, parents will craft their own placement schedule for their minor children. The courts generally encourage this, believing parents have a deeper understanding of their children’s needs than a court official who spends a limited time with the parties inside a courtroom.
If both parents agree on a placement schedule, the court will review and often approve the schedule.
The parents may give as much or as little weight to child’s preference as they feel is appropriate in their agreed-upon placement schedule. However, it is best advised to avoid direct involvement of the child as much as possible when coming to these decisions.
If the parents do not agree, the court will create a placement schedule and implement it by court order. It is in cases like this where it is especially important to have an experienced attorney at your back, like those here at Divergent Family Law.
The court will take the child’s preference on placement into consideration, but ultimately, decisions regarding placement will be made based on the best interest of the child. The child’s best interest is the main factor even if that conflicts with the wishes of the child at the time the placement order is established.
More significant weight is given to the child’s wishes as the child nears the age of consent, specifically at ages 14-17. However, even within this age range, the court will consider the child’s reasons and ensure those reasons are substantial, and not superficial (such as one parent offering more expensive gifts, less discipline, etc.).
A guardian ad litem (GAL) is a court-appointed attorney who represents the best interest of the child, rather than the interests of one parent or the other. Oftentimes, the child’s wishes with respect to placement are presented to the court by the Guardian ad Litem.
The courts tend to frown on parents directly discussing any part of an active family court case with minor children, so gathering feedback on issues such as a child’s feeling on physical placement often falls within the GAL’s role.
When considering a placement schedule that will be in the best interest of the child, the court is not allowed to prefer one parent or the other based on race or gender. The court does consider the following factors under §767.41(5) (am) of the Wisconsin Statutes:
It is the custodial parent’s responsibility to ensure that the court-ordered placement schedule is followed. If the child is older, and you feel you cannot force the child to comply with the court-ordered visitation schedule, make sure to document all attempts to have the child follow the placement schedule.
A family law attorney may be able to help you craft a plan for achieving compliance with the court order or to modify the placement order based on the circumstances of your case.
If both parties agree on a modification to the placement schedule, the parties can file a stipulation with the court, stating the details of the desired modification. Generally, the court will approve such a stipulation, unless the court has strong reason to believe such an agreement is contrary to the best interest of the child.
If parties do not agree on how to modify to the placement schedule, they may motion the court for a placement modification.
The parent requesting the modification must be able to show both (1) that the modification is in the best interest of the child and (2) that there has been a substantial change of circumstances since the most recent placement order. If it has been less than two years since the most recent placement order, you will additionally need to show that the current arrangement is physically or emotionally harmful to the child.
The child needs to be 18 years old (or fully emancipated) to make legal decisions on where to live and who to live with.
A child can legally decide to stop seeing a parent when the child turns 18 or if a court order is granted eliminating contact between the child and a given parent.
Court orders denying all contact between a child and a legal parent are rare and only granted in extreme circumstances, most often in situations where there is a substantial risk of harm or abuse to the child if contact it permitted between the child and the parent in question, and the concern cannot be resolved by ordering supervision during placement.
If the stepparent has legally adopted the child, that stepparent is a legal parent, and the same considerations outlined above for legal parents apply.
