How does a court decide who gets custody and physical placement of minor children in Wisconsin?

Patricia L. Grove

Answered by:
Patricia L. Grove

Located in Milwaukee, WI
Halling & Cayo, S.C.

Patricia L. Grove - Family Law - Super Lawyers

Answered by: Patricia L. Grove

Halling & Cayo, S.C.
Milwaukee, WI
Phone: 414-271-3400
Fax: 414-271-3841

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If you and your spouse are considering divorce, it is important to know your role as parents. Custody and physical placement are two similar, but separate, considerations for minor children in divorce. Knowing the difference, and how each affects your role as a parent, is vital to understanding your future beyond divorce.

Defining legal custody

The term legal custody refers to decision making – that is major decision-making regarding minor children. Those decisions include:

  • Medical treatment
  • Education
  • Religious considerations
  • Obtaining a driver’s license
  • Entering the military under the age of 18

The good news if you are worried about your decision-making role in your child’s life after divorce is that there is an assumption of joint legal custody. The law supports the idea that decisions over how to raise your children after divorce should be made together as parents, just like they were in marriage.

Parents are encouraged to co-parent and work together to come up with the best decisions, and in many cases, they can. Presumably, both parents do want to do what is best. The court respects this notion, but there are disagreements.

Primary sources of disagreement

Disagreements over medical and schooling decisions are the main sources of conflict between co-parents after divorce. For example, one parent wants their child to go to private school, while the other parent wants the child to go to public school.  

In this case, when parents are unable to agree on their own, the court may intervene and award that specific decision to one parent over the other. The court will consider your family’s circumstances and make a decision that the judge believes is in the best interests of the child.

Joint legal custody may not always be possible

Sometimes parents cannot communicate effectively. For example, restraining orders are a barrier because they may restrict communication due to past incidents of domestic violence or harassment. If joint custody is unrealistic, then the court will award sole custody to one parent.

Defining placement

Placement deals with determining where a child lives. This is different from joint legal custody. While joint legal custody has to do with decision-making, a child can still only live in one place at one time.

Like joint legal custody, there is good news for both parents in this process. The court assumes that a child is okay spending time in both homes — some time with mom, some time with dad. 

In recent years, there has been an increase in shared arrangements between parents. Today, it is much closer to a 50-50 split year-round or seasonally depending on the school year. However, it is important to remember that this arrangement can vary depending on the needs of your children. A near-even split is never guaranteed, but it can be accomplished in some cases.

What if my former spouse and I cannot agree on placement?

Like joint legal custody, parents can usually agree on placement. If parents cannot agree, the court will make a decision to determine what the placement schedule looks like.

When making placement decisions, it is important to consider:

  • Work schedules
  • Availability and desire of parents
  • Age of the children
  • Community resources
  • Where each parent lives in proximity to the child’s school
  • The wishes of the child

When making a placement decision, it is important to remember that the best interests of the children are the primary concern. Remember that placement and custody are separate considerations. Just because a child spends more time with one parent during the school year does not mean that that parent will be the only one to decide their education in the future. 

Many decisions can be made outside of court

It is possible to avoid court when making custody and placement decisions at the outset of divorce. This is done through mediation; which couples are required to try unless there is a restraining order in place. Many divorce cases, and subsequent decisions related to children, are resolved through mediation and do not go to court.

The county has mediation services available, or you can go to a private mediator. Your mediator may be a social worker, mental health professional or a lawyer. Whomever your mediator is, it is important to remember that they are not there to take sides. Instead, they help couples talk through their needs at their own pace.

Your future as a parent

When you and your ex agree on plans related to custody and placement initially, there is a two-year cooling-off period. This means that these plans cannot change for a period of time unless there is proof of harm. However, it is reasonable for you to expect arrangements to change after this time as your kids grow older.

In most cases, parents can come to agreements on joint custody and placement, even during a stressful time like divorce. The court respects your desire and ability to make decisions for your children because the best interests of your children matter most.

Disclaimer: The answer is intended to be for informational purposes only. It should not be relied on as legal advice, nor construed as a form of attorney-client relationship.

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