When children are involved in a divorce, it means there are more topics that need to be discussed and planned for. Custody, placement, and support are key divorce issues when children are involved. The court will make initial orders on these topics in a temporary order hearing, and the final orders will be a part of the marital settlement agreement or final judgement.
Divorce is a difficult and emotional time, especially when children are involved. At Divergent Family Law, we are committed to helping you through these stressful times by ensuring that you’re well-informed about the process and provide you with any guidance that you need along the way.
Generally, the divorce cannot be finalized any sooner than 120 days after the initial pleadings were served. At the time of filing the initial pleadings, the petitioner will often request that the court schedules a temporary order hearing to set initial order for while the action is pending (ie. who will pay what bills, who will live where, what schedule the children will follow, what support will be paid, etc.).
If the parties have minor children at the time a divorce action is commenced, the court must make orders as it relates to custody and placement. Custody is the parents’ abilities to make major decisions for the children, such as medical, school and religion. Placement is where the children spend time on a day-to-day basis.
The first time that the court will hear issues of custody and placement are at the temporary order hearing. The temporary order hearing is typically held within 30-60 days after the divorce action is commenced. Temporary orders remain in effect until they are modified at a later hearing or until the final judgment is made.
Following Wis. Stat. § 767.225, the court’s temporary orders center around the following issues:
The court can also include more specific orders such as:
These temporary orders are not binding on final decisions by the judge.
Typically, the court will provide the parties with joint legal custody. Oftentimes, the court will look to what current placement schedule has been working since the parents began separating. If this is a newer separation or parents are just starting to live apart, the court will attempt to maximize the amount of time each party spends with the children, taking into consideration work schedules, children’s commitments, distance between homes, etc. Unless there are compelling reasons not to, the court will order the parties to attempt mediation with Family Court Services.
If there are disputes regarding custody and placement, the parties will attempt to resolve these issues in mediation. The goal is to come out of mediation with a plan on how custody and placement will work after the divorce. In addition to custody and placement, the parties will also consider specifics such as:
Mediation is confidential and aims to help parents reach a mutually acceptable parenting plan. If parties already have agreements on custody and placement issues before they start, mediation is often very short and resolved by the parties signing a Mediation Agreement adopting all of those agreements.
If however mediation is unsuccessful, in that the parties cannot come to an agreement on all issues, the court will appoint a guardian ad litem to investigate and make recommendations on any of the disputed issues.
A guardian ad litem is an attorney appointed by the court to represent the best interests of the minor children. The guardian ad litem does not represent either of the parties, but rather seeks to determine what is in the child’s best interest. The guardian ad litem is only involved in a divorce case if that parties cannot reach an agreement on any issues impacting custody or placement.
Every guardian ad litem handles each file differently, but generally, the guardian ad litem will request that each parent completes an intake questionnaire, speak with each parent, meet with the children (if age-appropriate), and possibly interview and meet with teachers, counselors, or other relevant individuals and/or references.
Both throughout and at the end of an investigation, the guardian ad litem makes recommendations to the court regarding custody and placement and any issues impacting custody and placement of the minor children. The judge or the court commissioner is not required to adopt the guardian ad litem’s recommendation. Instead, they are to take the recommendation into consideration when listening to the testimony and wishes of the parties and reviewing the evidence before the court.
If the parties reached a full agreement at mediation, the mediated agreement would be incorporated into the marital settlement agreement.
The marital settlement agreement outlines all of the divorce issues including the plan for custody and placement. If the marital settlement agreement is reached near the end of the mandatory 120-day statutory wait period, the matter will be scheduled for a stipulated final hearing (sometimes referred to as default hearing) after the expiration of the 120-day statutory wait period.
The two ways to get custody and placement of a child in a divorce are either through agreement with the other parent or by order of the court. The court assumes that joint custody and placement is in the best interest of the child unless there is proof otherwise.
The court must make orders that are in the children’s best interests. To do this, they consider all of the factors set forth in Wis. Stat. § 767.41(5).
The court is likely to take up any agreement both parties have come to, and then for outstanding issues, they make their decision based on the best interest of the child. They will also use the guardian ad litem’s recommendations as well as the wishes of each parent when making their decisions.
Whether or not to keep the house or move is a major financial and emotional decision to make in a divorce action. It is also a decision that will have a significant impact on your children. Here are some things to consider:
The court can look favorably on the parent who keeps the home if it provides greater stability for the children. However, if the other parent is keeping the home for one reason or another, you can still absolutely demonstrate stability for your children by having space for them and choosing a residence that maintains family and community connections.
Ultimately, the decision often comes down to financial feasibility. As attorneys, we will work with our clients on creating a detailed budget and property division scenario to determine whether retaining the home is realistic and in our client’s best interests.
It’s common for people to begin new relationships before a divorce is finalized, but it’s important to approach this carefully. Dating does not automatically impact custody or placement, but it can influence how the other parent and the court perceive your focus and judgment—especially if the new partner interacts with the children. Oftentimes, the temporary order will prohibit parties from introducing a significant other to children during the divorce action, as the changes the children encounter as their parents navigate a divorce action are drastic enough without the inclusion of yet another person.
After the action is finalized, you should comply with any requirements agreed to in the final divorce order. If the agreement/order doesn’t specify, you should introduce a new partner to the children slowly and thoughtfully. It is good practice to avoid having the new partner involved in exchanges or parenting conflicts, at least until the relationship is well-established.
In Wisconsin, child support is calculated based on the placement schedule. If one parent has primary placement, the other parent will pay a straight percentage of their income (or ability to earn) in child support. If one parent has at least 92 overnights (182.5 overnights is equal shared placement), then the incomes of both parties are considered when setting child support.
You know your children the best, but there are some common best practices when supporting your kids throughout a divorce.
Children benefit most when their parents maintain stability and minimize conflict. Here are some practical tips: Communicate honestly but simply with your children about what is happening. Reassure them that they are loved and that both parents will continue to be in their lives.
While it can be incredibly difficult to do so, avoid blaming or speaking negatively about the other parent. Do your best to maintain routines and consistency as much as possible. You should consider counseling or a child specialist if your children are struggling emotionally. The court’s focus will always be on what arrangement serves the children’s best interests, and your behavior and cooperation throughout the process can strongly influence that outcome.
Divorce is both a legal and emotional process. While your attorney helps with the legal side, a therapist can help you manage the personal and psychological impact whether that is for you or for your child.
Divorce brings grief, anger, guilt, anxiety, and uncertainty. Therapy provides a safe, structured space to process those emotions and reduce their intensity. Especially when children are involved, you’ll need to maintain some level of communication with your co-parent. Therapy helps develop tools to communicate calmly and effectively, reducing conflict and preventing emotional triggers from spilling into the parenting relationship. Working with a therapist can help you stay grounded and make choices based on long-term goals rather than immediate emotion.
Children often struggle to understand or articulate their feelings during a divorce, and they may internalize confusion, sadness, or fear. Child therapy provides them with a way to feel safe and supported through the changes. A therapist gives them a neutral, trusted adult to talk to without worrying about taking sides or upsetting anyone. Children often express emotional distress through behavior—acting out, withdrawing, or regressing. A therapist can help identify and address the underlying emotions, not just the behavior.
