Sometimes in a divorce, kids express a clear interest in living with one parent or the other. It often leads to the question: “Can my kids decide which parent they want to live with?” In Wisconsin, that’s generally not the case. The Court makes decisions based on what they believe is in the child’s best interest – and usually, that includes custody with both parents. Here are some more details to consider in answering the question.

A child can only decide if 18 or emancipated.

Typically, a child can only decide whom to live with if they are 18 or legally emancipated. As underage children, the Court assumes they are unable to judge what is best for themselves – something no parent should find shocking. However, that doesn’t change how the child feels. You may still end up with a kid who wants to live with their other parent. If this is the case, don’t respond with anger or appear hurt. Allow your kids to be honest about how they feel. That’s only possible if you demonstrate you will always take things well. Working on listening and focusing on your child’s thoughts and feelings while they are young will help build a stronger relationship in the long run. In this same vein, try to respect their feelings and work towards a compromise, while still spending quality time with them.

Parents can generally make their own arrangements.

In most situations, parents can sit down and come to an arrangement without the need for a Court judgement. This allows them to consider the feelings of their children when deciding where the kids will stay, and when. In most cases, the Court will review and approve a schedule created and agreed to by both parents. However they always look for a schedule that shares time with both parents. Keep in mind that once court-approved, a schedule is usually not changed for two years unless there is a significant change in circumstances. In some situations though parents are unable to come to their own agreement and the Court must decide on a schedule for them.

The Court assumes joint custody is in the child’s best interest.

The starting assumption for the Court is that joint custody is in the child’s best interest. While a child might declare a preference to live with one parent, the Court assumes that time with both parents is preferable for the long term. This is intended to provide kids a chance to develop healthy relationships with both parents. A Guardian-Ad-Litem (GAL) is often appointed to serve as an attorney looking out for the child’s best interests. They often complete an investigation and give the Court a recommendation on what they believe is in the child’s best interests, including interviews with the child themselves. The Court will give requests from older kids more thought, especially if the reason given is strong and directly relates to their best interest. For example, a concern over mental health would be more valid than an appreciation for gifts received in the past. The Court will also consider other factors including:

• The physical and mental health of both parents, and how it affects their children,
• History of drug and/or alcohol abuse
• History of violence and criminal record
• Availability of child care, housing, and other basic child care necessities
• Parent stability (job, community, housing, church, etc.)

Can my kids decide which parent they want to live with?

To review, kids usually cannot decide which parent to live with unless they are 18 or legally emancipated. However the court will take their views into consideration, among numerous other factors. The best solution is often coming to an agreement between both parents, who can take their kids’ thoughts and preferences into account more directly than the Court. In the end, always do your best to support your child’s relationships with both parents. It really is in their best interest.

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