By Christina Writz, Marquette University Law School, 2L

This article is published courtesy of the June 2009 State Bar Children and the Law Section newsletter.

July 1, 2009 – As guardian ad litem (GAL) in a contested custody dispute, there are many difficult questions that parents and children may ask you. Meandering through the legal system for parents and children is sometimes confusing and frustrating, and often the GAL is the only attorney these parties can turn to. One of the more difficult questions a parent may ask a GAL is, “At what age can a child choose his or her own placement?” Wisconsin law does not provide a clear-cut age, as Wisconsin law makes the child’s wishes just one of the 16 factors that the court considers in determining the child’s best interests.¹ Furthermore, the law does not even specifically mention anything about the child’s age, making this a difficult question to answer.

Courts take two approaches when looking at a child’s age to determine the gravity of weight to be given to a child’s placement preference. First, some courts use a sliding-scale approach when determining how the child’s age affects his or her placement preference. On one side of the scale, the older the child is, the more preference the court gives to that child’s wishes. On the other end, the younger the child is, the less the court defers to them. Judges who appreciate the sliding-scale approach base their reason on other Wisconsin statutes that give children who are older more responsibilities.² For example, in Graichen v. Graichen,³ the court gives more deference to a child who is over age 14 because Wis. Stat. section 54.01 allows children to choose their own guardians at this age. The Graichen court was particularly flexible in using a child’s age, because the child at issue was one day shy of being 14 when the judge heard her preference; the judge said the child was close enough to age 14 to give her preference more weight.

Judges who use the sliding-scale approach to giving older children’s placement preference more weight also look at how close the child is to the age of majority. The closer a child is to 18, under the sliding-scale approach, the more deference will be given to the child’s choices. The judges reason that the child will be making his or her own choices very soon in the future and so should be given the opportunity to choose which parent to live with.⁴ In Seelandt, the judge gave strong weight to a 15-year-old child’s preference, reasoning she was close enough to the age of majority to make her own decisions, though she was still three years away from the age of majority.⁵

Many courts, however, appreciate the great amount of discretion that they are given under the statute and reserve it. These judges consider the child’s age, but do not rely on the child’s age to determine how much to consider their wishes.⁶ No matter the child’s age, the court believes it is in the best position to determine placement. In Hughes, the court held the 14-year-old child’s wishes were only one of many factors to be considered, and that courts must remember that children’s wishes are not determinative.⁷ The Hughes court countered the sliding-scale approach argument, saying that statutes about children choosing guardians or reaching the age of majority are irrelevant and taken out of context when applied to child placement law.⁸ Hughes emphasized that the courts, not children, determine placement and are in the best position to determine what is in the child’s best interests. Says attorney Deb Fohr of Legal Aid in Milwaukee, “Some children will choose the path of least resistance,” no matter their age, meaning children might choose the parent easiest to live with, not the parent best for their personal growth. Courts may use this knowledge to downplay the relationship between the child’s age and the child’s placement preference.

If the court does decide to give weight to an older child’s preferences in determining placement, the court gets to determine how it will find this information out.⁹ Some courts choose to ask the child his or her preference in chambers, while others rely on the GAL to relay that information.¹⁰ Of course, the GAL’s recommendation is not bound by the child’s wishes,¹¹ but the GAL does have a duty to report the child’s wishes to the court.

So at what age can a child choose which parent to live with? Unfortunately, the answer is “It depends.” As with many issues in family law and guardian ad litem work, it is important to know your judge. Furthermore, “A lot of it is fact specific to the particular case,” says Fohr. When you answer your client’s question with, “It depends,” and the client looks at you puzzled, a GAL can always choose to give the easy answer: “Children can choose their own placement when they are 18.”

Endnotes

¹Wis. Stat. § 767.41(5)(2) (2007-08).
²Seelandt v. Seelandt, 128 N.W.2d 66, 70 (Wis. 1964).
³121 N.W.2d 737, 744 (Wis. 1963).
⁴Seelandt, 128 N.W.2d at 70, quoting Jones v. State ex rel. Falligant, 247 N.W. 445 (1933).
⁵Seelandt, 128 N.W.2d at 70; Wis. Stat. § 48.02(1)(d).
⁶Hughes v. Hughes, 588 N.W.2d 346, 355 (Wis. Ct. App. 1998).
⁷Id.
⁸Id.
⁹Id at 355; Wis. Stat. § 767.24(5)(b).
¹⁰Hughes, 588 N.W.2d at 355.
¹¹Wis. Stat. § 767.407.

This article is published courtesy of the June 2009 State Bar Children and the Law Section newsletter. The State Bar offers its members the opportunity to network with other lawyers who share a common interest through its 26 sections. Section membership includes access to newsletters, email lists to facilitate information sharing, and other resources.