Who will get custody of our children?


In Wisconsin, there is a presumption that joint legal custody is in the best interest of the child. The court may award sole legal custody only if it finds it is in the child’s best interest, and that either (1) both parties agree to sole legal custody with the same party; or (2) the parties do not agree to sole legal custody with the same party, but at least one party requests it, and the court specifically finds any of the following:

  • One party is not capable of performing parental duties or does not wish to actively participate in raising the child; or
  • Conditions exist that would substantially interfere with the exercise of joint legal custody; or
  • The parties will not be able to cooperate in future decision-making involved in joint legal custody. Evidence of child abuse, interspousal battery, or domestic abuse raises a rebuttable presumption that the parties will not be able to cooperate in future decision-making.

The court is required to consider the following factors in determining legal custody and physical placement:

  1. The wishes of the child’s parent or parents.
  2. The wishes of the child.
  3. The interaction and interrelationship of the child with his or her parent or parents, siblings, and other persons who may significantly affect the child’s best interests.
  4. The amount and quality of time a parent has spent with the child, any necessary changes to the parents’ custodial roles, and lifestyle changes the parent proposes to make to be able to spend time with the child in the future.
  5. The child’s adjustment to home, school, religion, and community.
  6. The child’s age, and the child’s developmental or educational needs at different ages.
  7. The mental and physical health of the parties, the minor children, and others living in the proposed custodial household.
  8. The need for regular periods of physical placement to provide for predictability and stability.
  9. Child care availability.
  10. Cooperation and communication between the parties, and whether any party unreasonably refuses to cooperate or communicate.
  11. Whether each party can support the other party’s relationship with the child, including encouraging frequent contact, and whether it is likely that there will be interference with the child’s relationship with the other party.
  12. Whether there is evidence that a party has engaged in child abuse.
  13. Whether there is evidence that a party has engaged in interspousal battery or domestic abuse.
  14. Whether either party has a past or current problem with drugs or alcohol.
  15. Reports of appropriate professionals, if admitted into evidence.
  16. Such other factors as the court may determine to be relevant.
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