custody , Wisconsin physical placement, WI custody laws
Wisconsin there are two types of custody. There is "legal custody"
which refers to the parenting decisions related to the minor children
such as where they will attend school, religious decisions and medical
decisions. the term "physical placement" is used to refer to the
physical residence where the children will live. Under Wisconsin
Statutes Chapter 767.24, each parent is entitled to periods of physical
placement which refers to the time the children are
placed with a particular parent or custodian.
Legal Custody may be shared by the parents or may be granted solely to
just one parent. When legal custody is joint or
shared, it means that both parents have a right to participate in major
decisions affecting the children. Sole legal custody means only the
parent with legal custody has the right to decide major decisions
affecting the children. The court may give joint legal custody
only if it finds that doing so is in the child's best interest and that
either of the following applies:
In making this finding, the court must consider all
facts in the particular case including any reasons offered by a parent
as to why joint legal custody is inappropriate. Any evidence that
domestic abuse has occurred either in the form of child abuse or
interspousal battery or domestic abuse creates a presumption that the
parties will not be able to cooperate in the future decision making and
that joint legal custody is inappropriate. This presumption may be
rebutted only by presenting by clear and convincing evidence that the
abuse will not interfere with the parties' ability to cooperate in the
future decision making required. Clearly, this is a difficult burden.
- Both parties agree to joint legal custody.
- The parties do not agree to joint legal
custody, but one party requests joint legal custody and the court
specifically finds all of the following:
a. Both parties are capable of performing
parental duties and responsibilities and wish to have an active
role in raising the child.
b. No conditions exist at that time which
would substantially interfere with the exercise of joint legal
c. The parties will be able to cooperate
in the future decision making required under an award of joint
There are many variations of the way legal custody can
be awarded. As previously stated, legal custody may be sole or joint. It
may also be mixed sole and joint which means that the parents make joint
decisions in some areas but not in others. For example, the parents may
be required to discuss medical care of the children before decisions are
made, but not religious decisions.
Access to Child Records
Even if joint legal custody is not awarded, parents
may generally be allowed access to a child's important records unless
otherwise ordered by the court. These records include medical, dental
and school records.
Physical Custody or
Physical placement refers to the schedule of parenting and the
respective amount of time that a child spends with each parent. Under
Wisconsin statutes, a court must consider each case individually in
determining periods of physical placement. Its decision must weigh
following factors set out in the statute:
- The wishes of the child's parent or parents.
- The wishes of the child, which may be
communicated by the child or through the child's guardian ad litem
or other appropriate professional.
- The interaction and interrelationship of the
child with his or her parent or parents, siblings, and any other
person who may significantly affect the child's best interest.
- The child's adjustment to the home, school,
religion and community.
- The mental and physical health of the
parties, the minor children and other persons living in a proposed
- The availability of public or private child
- Whether one party is likely to unreasonably
interfere with the child's continuing relationship with the other
- Whether there is evidence that a party
engaged in abuse.
- Whether there is evidence of interspousal
- Whether either party has or had a significant
problem with alcohol or drug abuse.
- Such other factors as the court may in each
individual case determine to be relevant.
There is a presumption under Wisconsin law that a
child is entitled to periods of physical placement with both parents
unless, after a hearing, the court finds that physical placement with a
parent would endanger the child's physical, mental or emotional health.
This does not necessarily mean that physical placement is shared equally
between parents. It simply means that each parent is entitled to periods
of time with the child.
Maximization of Placement.
There has been an important change to Wisconsin's
placement law which can be found in
767.24(4)(a)2 of Wisconsin Statutes. This statute requires courts to
set a placement schedule that “maximizes” a child’s time with
each parent after considering the enumerated placement factors. It is
important to read the requirement to maximize placement in the context
of the placement factors. This should not be
misinterpreted as a requirement for equal placement or
joint custody in all cases. The placement schedule is still
based on what is the child's best interests, not what is in the parents'
best interests. The statute requires courts to consider geographic
distance between the parents separation when maximizing placement.
Litems & Custody Evaluations
If the parties cannot agree on a parenting schedule,
he matter will proceed to a trial. In most Wisconsin counties the Court
will appoint either a guardian ad litem and/or a custody evaluator to
perform an investigation and present to the Court what parenting
arrangement he/she believes is in the children's best interests.
In a “Custody Evaluation” an evaluator meets
with the parties and evaluates the custody issues based on the factors
for determining custody that are spelled out by Wisconsin Statutes
Once an evaluation is
complete the evaluator submits a report to the Court which will
recommend a parenting schedule that the evaluator believes is in the
child’s best interests. The evaluator may appear at trial as a witness
to support the evaluation. Obviously, such a report is a critical
element in any case where physical placement is disputed.
Although custody studies may be challenged in court, many Judge’s defer
to the recommendations of the evaluator because, unlike the parties,
they are deemed to be an independent witness without any personal
Interest in the outcome. As a result how you relate your case to the
evaluator is very important. If you would like to review our article on
presenting your custody case,
A Guardian Ad Litem plays
the role of a lawyer for the children. The Guardian Ad Litem appears at
trial and may present evidence and question witnesses related to the
issue of physical placement.
In Western Wisconsin counties such as
Polk, Pierce and St. Croix, custody evaluations are not usually
performed. However, a Guardian Ad Litem is generally appointed as part
of a contested process.
You may also have a private custody evaluation
performed by an independent professional. Oftentimes the only way to
combat a biased or unfavorable custody evaluation is with a private
custody evaluation. Custody evaluations can be costly and may run
anywhere from $2,000 to $8,000.
Support and Physical Placement are Independent
It is important to remember that the issues of
physical placement and child support are not related. Placement cannot
be denied based on a failure to pay support. Similarly, child support
may not be withheld based on a denial of physical placement.
For an initial Consultation call 1-612-240-8005