Will My Kids Get to Choose Where They Live After a Divorce?
This is a very common question among divorcing parents and one of the main concerns parents have when they are going through the divorce process. The good news (or bad news, depending on your perspective), is that in Wisconsin children do not get to choose where they live.
You may have heard rumors that children get to choose where they live when they turn thirteen. Or perhaps you read online that teenagers can choose which parent to live with. In Wisconsin, this is not true. Children of any age—all the way up to age eighteen—remain subject to the court’s jurisdiction. That means that it is the court that will decide a child’s placement schedule—not the child.
But does the child at least have a say in the decision?
Children do have influence over where they live. If the parents cannot agree on a placement schedule, the court may appoint a Guardian ad Litem (GAL) to represent the children’s best interests. The GAL will do an investigation on behalf of the court. She will meet with the parents and, depending on their ages and abilities, she may meet with the children. She is charged with considering the children’s wishes—however, she is not bound by them. But older children who can articulate important reasons for their preferences (for example, remaining in the same high school, being closer to friends or an important job, having their own bedroom, continuing to live with younger siblings, etc.) may persuade the GAL to adopt their preferences and recommend the child’s proposed living arrangements to the parents and to the court.
The question of whether a child can choose where to live often comes up in the context of teenagers. Teenagers can be very opinionated—this can especially be true of teenagers whose parents are divorcing. Teens often align themselves with one parent or the other and are more prone to choose sides than younger children due to the fact they are more aware of the circumstances of the divorce and of the consequences to themselves personally.
If you are the parent of teen and you intend to divorce, it can be helpful to let your teen know upfront that they do not get to choose where they live. Teens, too, have heard the rumors that they get to choose which parent to live with and may have heard stories from well-meaning friends or the internet that support this falsehood. It can be reassuring for them to know they will not be asked to choose one parent over the other. It can be a great relief for them to know that the adults in their lives will be making the adult decisions.
But What if My Child Wants to Decide?
What can you do if you have a teenage child who wants to decide and is expressing a very strong preference—and in particular, a preference that you believe is being heavily influenced by the other parent?
At times, one parent will treat the teenage child more like a friend or confidante during the divorce. She will rely on the child as her emotional caretaker and may overtly try to alienate the child from his other parent by telling the child about that parent’s marital transgressions, court filings, or financial demands.
What will the court do in such circumstances? The court will likely appoint a Guardian ad Litem(“GAL”) to investigate both the parents’ and the child’s motivations and to make a recommendation as to what is in the child’s best interests.
When determining matters of placement, the court (or a GAL) must consider a number of factors which include: the parents’ wishes, the child’s wishes, and whether each party can support the other party’s relationship with the child or whether one party is likely to unreasonably interfere with the child’s relationship with the other party.
If a GAL determines that a child’s rejection of one parent is unreasonable or is likely fueled by or encouraged by the other parent, the family may be referred to therapy for intervention so that the child can work through an unhealthy co-dependent relationship with one parent and develop healthy relationships with both parents.
But What If My Child Has Good Reasons for Choosing One Parent Over the Other?
Sometimes a teenager will express a strong preference to live with one parent for good reasons—for example, if he and the other parent have an abusive relationship, or he does not really have a relationship with the other parent and has never lived with him.
Parents on both sides of this argument rarely blame the child for his or her preferences, but readily blame the other parent and very often couch that blame in the context of child support: “He only wants the child to live with him to reduce his child support obligation” or “She only wants the child to live with her so she can get more child support.”
Experienced GALs and judges are wise to these arguments and are often good at siphoning out the truth. They also recognize that teenagers very often are looking out for Number One—that is, they will say whatever they have to say to get what they want. Sometimes, children want to live with a parent for the wrong reasons—for example, because that parent isn’t home after school and the child knows he or she will be unsupervised and have far more freedom at that parent’s house while the other parent will be more attentive and involved—which teens may find intrusive or overbearing.
Ultimately, the court and the GAL will ascertain and weigh all the reasons a child expresses a preference for one parent over the other and will determine whether those preferences are legitimate and should be respected or whether they would result in a living situation that is not in the child’s best interests.