Child custody is often in a divorce or paternity case. Custody defines who makes major decisions, and placement outlines the daily placement schedule. Parents can decide on custody together, or the court will decide based on the best interest of the child. Child custody falls under family law which is Chapter 767 of Wisconsin’s laws.
Whether the legal matter is a paternity action between unmarried parents or a divorce between married parents, the parents and the court will be focused on making arrangements that serve the best interest of the children. These arrangements include orders that apply to legal custody and physical placement of children.
In essence, custody orders will determine how major decisions regarding the child are made. Legal custody is defined within Wis. Stat. § 767.001(2m) as any major decisions regarding a child and specifically includes consent to marry, consent to enter the military, consent to obtain a motor vehicle operator’s license, authorization for non-emergency health care, and choice of school and religion.
Wisconsin courts may award joint custody or sole custody of a minor child. Joint custody means that the legal guardians of a child must make all legal decisions together and in consultation with each other. Sole custody means one party may unilaterally be authorized to make a legal decision on behalf of the child.
Because of Wis. Stat. §767.41(2)(am), Wisconsin courts must presume that joint custody is in the best interests of the child. For this reason, many people assume Wisconsin is a 50/50 custody and placement state. However, the court does assess the current situation and either party can present evidence showing that joint custody is not in the best interest of the child.
Times when joint custody is not required generally involve a party that is incapable of performing parental duties and responsibilities or does not wish to have an active role in raising the child. Additionally, in cases that involve allegations of domestic abuse, the court may conclude that joint custody is not in the best interests of the minor child.
Physical placement is where a child resides and how often the child sees each parent. Placement orders can either be entered as primary or shared placement.
Primary placement means one party has been awarded placement of the child for a majority of time. Shared placement means the parties each have time with the child. Shared placement can be entered as an order that sets forth specific days and times that the child is with each parent. This placement schedule is usually defined in the parenting plan.
Wisconsin courts must set a schedule that allows the child to have regularly occurring, meaningful periods of physical placement with each parent and that maximizes the amount of time the child spends with each parent. A child is entitled to periods of placement with both parents, unless the court finds that placement with a parent would endanger the child’s physical, mental, or emotional health.
If the parties cannot agree on custody or placement of a child, the court will consider factors relevant to the best interest of the child.
When the court has to make decisions on either custody or placement, they often are required to look to the best interests of the child. Factors to use in determining the child’s best interest are outlined in Wis. Stat. § 767.41(5). Some highlights include:
The exact legal process for custody and placement will differ depending on whether it is part of a divorce, paternity, or custody/placement modification.
In divorce proceedings, the parties will be required to submit proposed parenting plans to the court. These plans outline each parties’ custody and placement proposal. After reviewing these proposals, the court usually approves orders that the parties agree on.
If the parties do not agree, custody and placement issues will be discussed between the parties in addition to property division and financial support orders as the case proceeds. Depending on where your case is filed, the court may also order the parties to attempt mediation for custody and placement issues or appoint a guardian ad litem.
In a paternity action, the court must first confirm a biological relationship between the child and the father. The court cannot award custody or placement rights to a father without first proving paternity. Before that, the biological mother of the child has sole custody and primary placement of the child. A father’s rights to custody and placement of their child start once paternity is established.
Once paternity is adjudicated, custody and placement are addressed in a similar manner as a divorce involving minor children. Meaning each parent will propose a parenting plan, then work to come to an agreement on the things they disagree on. If an agreement cannot be reached, the court will decide.
Modification of custody and placement orders is governed by Wis. Stat. § 767.451. In general, there is a presumption that orders that are less than two years old continue to serve the child’s best interest. However, a party can overcome this presumption with substantial evidence that the modification is necessary because the current conditions are physically or emotionally harmful to the best interest of the child.
Modification of custody and placement orders that are older than two years are easier to change. They change can be made if the party asking for it presents evidence that the modification is in the best interests of the child. Another key factor is whether or not there has been a substantial change in circumstances since the entry of the order. A change in financial circumstances or the marital status of either party is not sufficient evidence for modifying an order.
There is no black and white or brightline rule concerning the age at which a child may refuse placement. A child under the age of 18 cannot unilaterally decide which parent to live with or refuse court-ordered visitation. However, Wisconsin law does state that the wishes of a child are a factor that the court is required to consider in determining custody and placement orders.
