Can Children of Divorce Choose Where They Live?

During divorce proceedings, a common question we hear is: “At what age can my child choose who s/he lives with?” The short answer to this question is: children cannot make the decision concerning who they want to live with — no matter their age. (Once a child reaches the age of 18, they are considered an adult and they can make their own decisions concerning placement.) The courts recognize that children (under the age of 18) are not emotionally mature enough to make a decision that can have such a profound effect on the child’s life and that forcing a child to choose whom they live with can have detrimental effects.

In order to ensure the best interests of the child are protected, the courts review 16 factors under Wi Stat Sec 767.41(5) when deciding child placement issues.  When considering these factors, courts also must consider the preferences of the child. As the child ages and is better able to express him/herself to the guardian ad litem assigned to the case, those wishes are given more weight. The guardian ad litem and court consider the age of the child and validity of the child’s reason for choosing placement with a parent on a case by case basis.

The factors judges consider when deciding placement are:

  • Parents’ wishes
  • Child’s preferences
  • Child’s relationship with parents, siblings and significant others
  • Quality time parent has spent with the child
  • Child’s adjustment to home, community, school, religion
  • Child’s age and educational/developmental needs
  • Parent’s physical and mental health and how it impacts the child
  • Stability and predictability of households
  • Childcare service availability
  • Cooperation between parents and their willingness to encourage healthy relationships between the other parent and the child
  • Child or domestic abuse history of parent and anyone who lives with that parent
  • Parental history of alcohol/drug abuse
  • Input from professionals

In some cases, children try to refuse to attend a visit/stay with the other parent during the court ordered placement times. According to the court, the child must go with the other parent because it is not the child’s place to decide whether or not they can follow the court order. Likewise, parents are expected to enforce the placement, just as they must enforce other rules at home — attending school, completing homework, chores, curfews, etc. In cases where the relationship between a child and parent is particularly strained, the court may note that counseling is necessary.

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Posted in: Family Law