Child Custody & Placement

In Wisconsin, joint custody means that both parents both parents participate in the important decisions relating to their children.  Neither parent’s decision takes precedence over the other’s. The parties are required to consult with each other and attempt to reach agreement with respect to major decisions affecting the lives of their minor children.  Sole custody means one parent has sole authority to make major decisions relating to the children.  Sometimes, parents have joint legal custody with regard to most issues, but one parent is awarded sole decision-making authority as to one or more important issues (such as religion or choice of school).

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.

If the parties cannot agree on a physical placement schedule, the court will allocate periods of physical placement of the child between the parties. In determining periods of physical placement, the court is required to consider the same factors, listed above, that are considered in determining legal custody. The placement schedule must allow a child to have regularly occurring, meaningful periods of physical placement with each parent and must maximize the time spent with each parent, taking into account geographic distance and accommodations for different households. A child is entitled to periods of physical placement with both parents unless the court finds that physical placement with a parent would endanger the child’s physical, mental or emotional health. Periods of physical placement may not be denied for failing to meet  any financial obligations to the child or former spouse. A court may not make a prospective order prohibiting a parent from requesting a change in physical placement in the future.  Under most circumstances, the initial placement award or agreement is not modifiable for two years.

With exceptions for undue hardship or endangerment to one of the parties, an initial session of mediation is required in any action affecting the family where it appears that legal custody or physical placement is contested. If an agreement is reached in mediation, it must be reviewed by the parties’ attorneys and the GAL and be approved by the court. If no agreement is reached, the matter is referred for a legal custody or physical placement study and the issues are resolved through court procedures.

When the legal custody or physical placement of a child is contested, or if there is reason for special concern regarding the welfare of the child, the court appoints a guardian ad litem (GAL) for the child. A GAL’s responsibility is to represent the best interests of the child (which may be different than the wishes of the child).  A GAL must be a licensed attorney in the State of Wisconsin, who meets the GAL special training requirements, unless waived by the Court.  The GAL will gather information, participate in negotiations, and make a recommendation to the court regarding legal custody and placement.  Often, the GAL’s recommendation is adopted by the Court.  The court will order who pays for the GAL’s fees, though they are often shared equally by the parties.