This is a frequently asked question and one that I don’t think is well understood by most. The general answer is “a child cannot ever decide.” Let’s explore that however, both in terms of the legal issues as well as the practical aspects of the matter. Under Wisconsin Statue sec. 767.41 (5) (am) 2, factors in custody and physical placement determinations, the law considers the following factors, among others, for the placement and custody of minor children. 2. “The wishes of the child, which may be communicated by the child or through the child’s guardian ad litem or other appropriate professional.” The Guardian ad litem statute for minor children, sec. 767.407 (4) reads in part, “Unless the child otherwise requests, the guardian ad litem shall communicate to the court the wishes of the child as to the child’s legal custody or physical placement under s. 767.41 (5) (am) 2.”
So it is clear, under the law the court appointed guardian ad litem needs to consider the wishes of the child and absent an objection by the child, those wishes are to be communicated to the court. In addition, under various factors that the court needs to consider in deciding custody and placement issues of minor children, are the wishes of the child. However, the wishes of the child are not controlling, and may in certain cases, conflict with what the court appointed guardian ad litem or the court may feel is in the child’s best interest.
Certainly as children mature, the wishes of the child become more paramount in deciding custody and placement. The court is not going to be controlled by a five year old stating that they want to live “50/50 with both parents.” The other side of the matter is when a child is in their teens, and as they get closer to adulthood, the court is probably not going to force a 17 year old to live with a parent, if the 17 year old chooses not to be forced to go over to the other parent’s house anymore, due to some personal issues or conflicts that may exist between the child and the parent.
The issue becomes even more clouded, depending on the trier of fact. Some judges and family court commissioners may take the view that a child never gets to decide and at any age the child should be forced to have placement with the other parent and the court order followed, even where that child does not want to stay or visit with the other parent. Other judges and family court commissioners may take the position that you cannot ever force a child after 15 or so years of age to have placement with the other parent or visit with them, if that teenager simply refuses to go and spend time with the other parent.
Merging the law with practicality and having been on both sides of this issue many times I think you have to use common sense when it comes to forcing teenagers to visit with the other parent, when there may be personal issues going on that interferes in a normal parent-child relationship. Children are quick to blame the parent who may have caused the divorce. Teenagers are quick to want to stay only with that parent who gives them the most amount of freedom and refuse to stay with the parent who imposes strict rules and guidelines in their home. While the wishes of children needs to be considered from a legal perspective at any age, it can be expected that children less than 14 years of age have probably little input over the decision making of their parents, or the court, when setting custody and placement orders. As children reach their teen years, after 14 years of age, it can be generally expected that their wishes will be strongly considered and there is a very real likelihood, that at that age, the parents, as well as the court, should follow the wishes of the child in terms of what their custody or placement may be.
Have questions on custody or placement? Call one of our Milwaukee family law attorneys today.
933 N. Mayfair Rd., Suite 300
Milwaukee, WI 53226
M – F: 6:30am – 8pm
Sa – Su: 7:30am – 6pm