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Can a Child’s Wishes Override a Custody Arrangement?

When parents decide to separate, it can be very difficult for any children who are involved. Custody battles ensue, and both parents must prove to the court why they are fit to care for their children and why their children would be best taken care of by them. In some situations, the custody agreement that is reached within the court system is not the best fit for one or more children, and at times, those children may want to spend time with a specific parent even if their custody arrangement dictates that they should be with the other parent. If a parent is presented with such a situation, they may be wondering whether they should choose their child’s preference over the custody arrangement, and if they can get in legal trouble for doing so.

How Does the State of Wisconsin Determine Child Custody?

When presented with a child custody case, the state of Wisconsin does its best to ensure that the child or children involved get as much time with both parents as possible, unless they feel it is not in the best interest of the child to do so. Wisconsin courts have to make these decisions when parents are unable to agree on their own custody arrangements, both physical (where the child stays) and legal (what legal responsibilities each parent has to the child). Some of the factors that influence the court’s custody decisions include but are not limited to:

  • What each parent’s wishes are
  • What the child’s wishes are
  • What the child’s relationship is like with each parent
  • The age of the child
  • The developmental needs of the child
  • Both the mental and physical health of everyone involved
  • Whether the arrangement will be stable and predictable
  • How much time the child has already spent with each parent and what that time was spent doing
  • The ability of each parent to communicate, cooperate, and compromise with the other parent
  • Any evidence that either parent neglected or abused a child and/or evidence of domestic violence
  • Whether either parent has issues with abusing drugs and/or alcohol

Although the court takes all of these factors into account, they weigh them differently when deciding on a final custody arrangement. The safety of the children in question will always be the top priority and will be considered over any other factor.

What Is the Difference Between Custody and Placement?

When decisions regarding a child’s living quarters and which parent will care for the child are left to the court, the court can assign different levels of responsibility to each parent. These responsibilities are called legal custody and physical placement, and some parents might be more responsible for one type of care for their child than the other.

  • Legal custody: Legal custody is a term used to describe the responsibility of making major decisions in a child’s life, such as what school they attend, what religion they follow, what medical care they receive, who babysits them, and more. Courts usually prefer to keep this decision making as evenly split between the parents as possible, however, there are situations which require the courts to give more decision-making power to one parent. This happens when one parent has a history of abuse, is unreliable, or has issues with addiction.
  • Physical custody (placement): Physical custody, also known as placement, refers specifically to where the children will live regularly. This type of custody is often shared between parents who are separated, and the responsibilities for this role include providing safe shelter, food, clothing, and daily necessities for the child.

Mandatory Class on Parenting

The state of Wisconsin requires all parents who are divorcing and have minor children together to attend a parenting class before the divorce can be granted. The class is designed to teach parents about the potential trauma their divorce and separation can impart on their children. The only way out of this requirement is through a waiver from the court, which can be difficult to obtain and is only given in extreme circumstances.

Can a Custody Arrangement Be Changed?

Custody arrangements in the state of Wisconsin can be changed, however, there is a two-year waiting period necessary between changes (unless there are extreme circumstances, or the child is in immediate danger in their current situation). Courts want to do their best to avoid disrupting a child’s routine. Once two years have passed, parents who agree about what their revised custody arrangement should look like can have their arrangements changed without formal litigation by filing a stipulation or signing a new agreement with a mediator.

Can I Keep My Child for Longer Than Our Custody Arrangement Allows?

Custody arrangements are put in place to help keep a child safe and happy and to ensure that each parent gets to spend ample time with their children. When physical custody is shared between parents, each parent is responsible for making sure the child is returned to the other parent when their allotted visitation time is completed. In some circumstances, a child might ask to stay with one parent for longer, or a parent may decide they want to keep their child for longer than the custody arrangement calls for. However, keeping your child in your custody for longer than your custody arrangement calls for without informing the other parent is illegal and can lead to legal trouble. There are some factors that must be considered and some actions that can be taken in such situations before legal action is considered, such as:

  • How severe the lateness is: Before a parent can reasonably take action for lateness against the parent they share custody with, they must assess how severe the lateness is and the circumstances around it, as well as any communication regarding the issue. For example, if a parent cannot return their child on time due to inclement weather or another emergency, there would be no basis to seek legal action against them. However, if that parent does not communicate the issue to the other parent, the severity of the lateness can increase. If days go by with no communication, immediate action might be necessary.
  • Discussing the issue: Communication is key in shared custody situations because it helps keep both parties on the same page and keeps everyone, including the child, up to speed about what’s going on. However, some shared custody arrangements are the result of a breakup between the parents, and some parents may fail to return their child on time as a way to disrespect the other parent. In such cases, the parent expecting the child’s return should discuss how returning the child later than the scheduled time can impact their sleep schedule, schooling, or other commitments, and that returning the child on time is for the benefit of the child and not the other parent.
  • How frequently lateness occurs: Returning a child on time when a custody arrangement calls for it is important in teaching the child routine and responsibility. If the child is returned late most of the time, it can be detrimental to their routine. The parent repeatedly returning their child late can face consequences such as court visits to restructure the custody arrangement and reprimands from the judge overseeing the case.
  • Taking the issue to court: If the parent who consistently receives their child late from visits with the other parent decides the situation is disruptive enough or causes distress to their child, they can petition the Wisconsin court system to explain the matter. This may result in reduced visitation rights for the late parent, or the judge may issue a warning that states they will reduce visitation if the behavior continues.
  • Contacting the police: If the parent awaiting the return of their child receives no communication from the other parent and is unable to reach their child for a significant amount of time, they should reach out to the authorities. Even if a child would prefer to stay with the other parent, not returning the child at the scheduled time as outlined in the custody agreement is illegal and can constitute a charge of parental kidnapping.

What is Parental Kidnapping?

Parental kidnapping occurs when a parent confines their child from their other parent or imprisons the child in the home so they cannot contact their other parent. In many cases, this is the result of a conflict between the parents, and the child is always the victim in such situations. Parental kidnapping is illegal and can lead to legal charges. The legal punishments for parental kidnapping in Wisconsin are:

  • A Class C felony on the parental kidnapper’s record
  • A prison sentence of up to 40 years
  • A fine of up to $100,000
  • A prison sentence of up to 60 years if the parental kidnapper demanded ransom from the other parent

Contact an Attorney Today

If your child has been the victim of parental kidnapping or if your former spouse is accusing you of parental kidnapping, contact the Law Offices of Christopher J. Cherella today. With over 20 years of experience litigating criminal cases, Attorney Cherella has the talent expected from a large law firm but maintains a small client base to provide all of his clients with personalized legal services. He understands that custody issues are emotional and difficult to work through and provides his clients with empathetic service and detailed explanations of the legal process. Contact him today at (414) 882-8382 or via his contact page