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