In Wisconsin the relationship between parents and their children are described in two related, but separate concepts:  legal custody and physical placement. Legal custody refers to the major parenting decisions related to the minor children such as where they will attend school, religious decisions and medical decisions.  Physical placement refers to the time the children are placed with a particular parent or custodian.

Please keep in mind that matters of legal custody and physical placement are separate from the financial support of children.  The Wisconsin's Child Support Program has no authority to create or enforce custody or visitation orders, and child support agencies do not handles these matters.

What is legal Custody?

Legal custody is the right and responsibility to make major decisions regarding the child.  Major decisions can include consent to marry, consent to enter military service, consent to obtain a motor vehicle operator's license, authorization for nonemergency health care and choice of school and religion.  Major decisions can also include any decisions important to the parties.

What is joint legal custody?

Joint legal custody means both parents share legal custody and neither parent's custody rights are superior to those of the other parent.  When the parties have joint legal custody, either party can make major decisions regarding the child.  For example, either party could consent to the child obtaining a motor vehicle operator's license.  However, it is expected that the parents will cooperate in making major decisions regarding the child.

What is sole legal custody?

Sole legal custody means that one parent has the right to make major decisions regarding the child.  The other parent does not have the right to make major decisions regarding the child.

How does the court determine whether to grant sole legal custody or joint legal custody?

The court grants legal custody based upon the best interests of the child.  In accordance with statute, the court presumes that joint legal custody is in the child's best interest.

When does the court grant sole legal custody to one parent?

The court grants sole legal custody to one parent when doing so is in the child's best interest.  The parents can agree to sole legal custody with one parent.  If one parents requests sole legal custody and the other parent disagrees, the court can only grant sole legal custody if the court specifically finds any of the following:  (l) one parent is not capable of performing parental duties; (2) conditions exist that would substantially interfere with the exercise of joint legal custody; or (3) the parents will not be able to cooperate in future decision making.

What is physical placement?

Physical placement is the time that the child spends with each parent.  Physical placement also defines who has actual care of the child at any given moment.  If the parents have joint physical placement, the child spends approximately equal time with each parent. 

If one parent has primary physical placement, the child will spend most of their time with that parent.  The time that the child spends with the other parent is called alternate physical placement.  Alternate physical placement was previously called visitation.  The term visitation is no longer used because it implies that the other parent is simply a visitor and not a parent.

Period of alternate physical placement can be set forth in detail, describing exactly what part of each week a child spends with each parent.  However frequently our lives do not run according to strict schedule and frequently an order will provide for reasonable periods of alternate physical placement, leaving it up to the parents to work out a schedule as time goes on.  Frequently orders provide a mechanism for resolving disputes through mediation.

When the Court establishes a placement schedule, the court must set a schedule that allows the child to have regularly occurring, meaningful periods of placement with each parent.  The court is also required to maximize the amount of time the child may spend with each parent, taking into account any geographic separations and accommodations for different households.

What type of schedule will the court set for placement?

If the parties have an agreement regarding placement, the court will usually follow the agreement of the parties.

In the past, one parent (usually the mother) was granted primary placement of the minor child.  The other parent (usually the father) was granted limited periods of time with the child. The statute now requires the court to maximize the amount of time that the child spends with each parent.  Generally, the court will set a placement schedule that takes into account the work schedule of the parents. Holidays are usually split between the parents.

What happens when the parties cannot agree on custody or placement?

If the parties cannot agree on custody or placement, the court will order the parents to attend mediation.  At mediation, the parties must meet with a neutral third party (the mediator) and attempt to reach an agreement.  Both parents are required to attend mediation if so ordered by the court.  The first session of mediation is free, after which a fee may apply.

If the parties cannot agree on custody or placement after attending mediation, the court will appoint a Guardian ad Litem (GAL).  The GAL is an attorney that represents the best interests of the child.  The court will generally require the parents to deposit a sum of money with the Clerk of Court as a deposit for GAL fees.

The GAL will generally meet with the parents and the children.  After gathering the facts, the GAL will make a recommendation to the court regarding custody and placement.

What happens if the parents still disagree on custody and placement?

The matter is then scheduled for trial before the court.  After hearing all the facts in the case, the court makes a decision regarding custody and placement.

How does the court make a decision regarding custody and placement?

The court must make a decision regarding custody and placement based upon the best interests of the child.  To determine the best interest of the child, the court looks at a number of factors.  These factors include what the parents and the child want, the parents' schedules, whether either parent has a problem with drugs or alcohol, whether either parent has a problem with domestic violence, where the parents live, whether one parent is likely to interfere with the other parent's relationship with the child and a number of other factors.

The factors that the court uses to determine the best interests of the child can be found in Wisconsin Statute 767.24.  The factors simply help the court determine the best interest of the child.  The best interests of the child is the main goal when the court is determining custody and placement.

The court is not allowed to prefer one parent over another based upon the sex, race or religion of either parent.

How does custody or placement affect child support?

Child support is based upon the number of overnights that a child spends with the parent.  Because legal custody is about major decisions regarding the child and not placement, determination of legal custody does not affect child support.

Child support may be affected by the amount of placement each parent has with the child.  Wisconsin has child support guidelines.  These guidelines are based upon one parent spending less than 30% of the overnights with the child and the other parent spending more than 70% of overnights with the child.  If the parents have a placement schedule where the parent paying child provides overnight childcare or equivalent care beyond 110 overnights and assume all costs in proportion to the number of days he or she cares for the child under the shared-time arrangement, then support is reduced.  Costs include payment of a proportionate share of food, clothing, school, extracurricular activities, recreation and day care.

If each parent has the child at least 147 overnights but not more than 218 overnights, child support is further reduced and both parents' incomes are factored into the child support formula. 

What will happen if one parent does not exercise their court-ordered periods of physical placement?

Under Wisconsin Statute 767.325(2m), a new "use it or lose it" provision will allow the Court to modify an order of physical placement at any time if it finds that a parent has repeatedly and unreasonably failed to exercise periods of physical placement awarded under an order of physical placement that allocates specific times for the exercise of periods of physical placement.

In order to have an order of physical placement modified by the Court, a parent will be required to file a motion with the court, and prove to the Court that the other parent has repeatedly and unreasonably failed to exercise periods of physical placement awarded under an order of physical placement that allocates specific times for the exercise of periods of physical placement.

What will now happen to parties who disobey the Court's physical placement orders?

Under Wisconsin Statute 767.245(5), a variety of remedies have been available to a parent if the Court finds that the other parent has intentionally and unreasonably denied one parent one or more periods of physical placement, or that one parent has intentionally and unreasonably interfered with one or more of the other parent's periods of physical placement.  These remedies include:

      The court issuing an order granting additional periods of physical to replace those denied or interfered with;

       Award the parent denied physical placement a reasonable amount for the cost of the action and for attorney fees;

      The Court issuing an order specifying the times for the exercise of periods of physical placement if the underlying order or judgment relating to periods of physical placement does not provide for specific times for the exercise of periods of physical placement;

      The Court finding the parent who denies physical placement in contempt of court;

      The Court issuing an order requiring the parent denying physical placement to pay the other parent a sum of money sufficient to compensate the parent for any financial loss or expenses that they incurred as result of the other parent's failure, intentionally and unreasonably and without adequate notice to exercise one or more periods of physical placement under an order allocating specific times for the exercise of physical placement;

       The court to issue and enforce injunctions against the parties who disobey the Court's physical placement orders;

       For such further and other relief as this Court deems just and proper.

Is there anything else I need to do or provide to the court?

If you have a minor child and you are involved in a family court matter regarding that child, you are required to attend the Sandcastles Program.  Your child is also required to attend the program if the child is age 6 or over.  You can receive information regarding the program from the Clerk of Court.

If you are involved in a custody or placement dispute, you are required to submit a parenting plan by the pretrial conference.  You can receive information regarding parenting plan from the Clerk of Court.

Since the other parent is not paying the support money, can I refuse physical placement to the other parent?

No.  Wisconsin family law draws a very definite line between the two issues of physical placement and child support.  This is to prevent children from being penalized due to disagreements between their parents.  You cannot deny court-ordered period of physical placement because the other parent is not paying court-ordered support.  Likewise, the other parent cannot withhold court-ordered support because he/she is denied court-ordered physical placement.

When my children are with the other parent, they are neglected or abused.  What should I do?

If you are concerned about safety issues or the environment at the other parent's residence, you should contact your law enforcement agency or your local Department Of Social Or Human Services, who are responsible for investigating suspected child abuse or neglect cases reported to them.

DISCLAIMER:  THIS DOCUMENT IS INTENDED TO GIVE SOME GENERAL INFORMATION ABOUT CUSTODY AND PHYSICAL PLACEMENT.  IT IS NOT INTENDED TO GIVE SPECIFIC LEGAL ADVICE TO ANY INDIVIDUAL.  IF YOU NEED SPECIFIC LEGAL ADVICE, YOU SHOULD CONSULT WITH AN ATTORNEY.