Wisconsin’s child custody laws comport with most other states, but it's important to know the similarities and differences.
The term “legal custody” means the same in Wisconsin as virtually everywhere else. It refers to the parents’ right and responsibility to make major decisions concerning their child. (Wis. Stat. § 767.001 (2).) “Major decisions” are matters such as nonemergency health care, choice of school, and religion. (Wis. Stat. § 767.001 (2m).)
The subcategories of legal custody—joint legal custody and sole legal custody—mirror the laws in other states. Joint legal custody means that both parents share decision-making authority. (Wis. Stat. § 767.001 (1s).)
With sole legal custody, only one parent has the right to make the major decisions in the child’s life. (Wis. Stat. § 767.001 (6).)
Note, however, that in a joint legal custody arrangement, the parents can agree, or the court can order, that one of the parents will have sole decision-making authority on a specific issue. For example, one parent might have the right to make all decisions regarding the child’s education.
Under Wisconsin law, there’s a presumption that joint legal custody is in a child’s best interests. (Wis. Stat. § 767.41 (2) (am).) In fact, a court can’t award sole legal custody unless there are good reasons (which the statute dictates). (Wis. Stat. § 767.41 (2)(b).)
“Physical placement” is where Wisconsin veers away from other states. The court refers to the determination of where a child is going to reside after a divorce as “physical custody.” (Wis. Stat. § 767.001 (5).)
As with legal custody, there are subcategories: joint physical custody (the child resides with each parent for periods of time), and sole physical custody (the child resides with only one parent). In either case, the parent with whom the child isn’t residing has visitation rights with the child.
Wisconsin law jettisoned the terminology of physical custody and visitation (as relating to parents) and replaced them with the term physical placement. As the name states, and as defined in the statute, it refers to a parent’s right to have the child physically placed with that parent. It also gives the parent the authority and responsibility to make routine daily decisions regarding the child's care during this time, such as a child’s bedtime or diet. (The parent can only make major decisions if the parent has joint or sole legal custody.)
Although the term physical placement is hardly warm and fuzzy, its underlying purpose is rather noble. The law is meant to allow the child to have regularly occurring, meaningful periods of time with each parent, with a goal of maximizing the amount of time the child will spend with each parent. (Wis. Stat. § 767.41 (4)(a)(2).) In this respect, it appears to strive to be somewhat less rigid than the older concepts of physical custody and visitation, with an eye to creating greater harmony after the divorce process ends.
Whenever judges deal with family matters relating to children, the guiding principle is always “the best interest of the child.”
Wisconsin law sets out factors a judge must consider when deciding what’s in a child’s best interest in custody and physical placement cases. Some of these are:
Another factor a judge will consider in determining custody and physical placement is a child’s wishes. As a practical matter, however, the court probably won't give great weight to this unless the child has reached a certain level of maturity, typically around the early teens. (Wis. Stat. § 767.41 (5)(2).)
When deciding custody and physical placement, Wisconsin law doesn’t permit the court to give preference to one parent over the other based on a parent’s sex or race. In other words, the court begins every custody evaluation with the presumption that both parents are equally suited for custody. (Wis. Stat. § 767.41 (5)(am).)
Although the purpose of physical placement is to maximize children’s time with their parents, that doesn’t mean they must spend equal time with each. In some situations, a child may live with each parent for certain periods, which could be anywhere from a few days a week to months at a time.
In other scenarios, the child may spend time with a parent without residing with that parent, such as when a parent sees the child one or two evenings a week and has the child every other weekend. There are many options, and ultimately it all depends on what’s best for the child. As with every aspect of custody, if parents can agree, and the court believes it’s best for the child, the judge will approve your agreed-upon parenting plan.
Notice that in the list of factors a judge must consider in determining a child’s best interest, there’s a reference to child abuse, domestic violence, and a parent’s drug or alcohol problems. If the court determines that being alone with a parent could endanger a child, the judge can order supervised physical placement, which means the parent can only spend time with the child in the presence of a third party.
In that regard, particularly if a parent is violent, a state-sanctioned agency might monitor the parent’s time with the child. In other circumstances, the court may permit a family member or friend to oversee the visits. You might possibly see this when the parent has an alcohol or drug problem but isn’t a physical threat to the child. (Wis. Stat. § 767.41 (6)(g).)
A court can modify custody or physical placement orders. If parents can communicate and agree to a new parenting plan for the family, the court will approve it, unless the court finds that it doesn’t benefit the child’s best interest. (Wis. Stat. § 767.461.)
However, if you can’t agree, but believe that a modification or review is best for your child, the parent seeking modification must meet the various conditions set out in the statute before the judge will review the case.
If you seek a modification within 2 years of the court issuing the prior order, and you’ll need to demonstrate, with substantial evidence, that the current custodial arrangement is harmful to your child’s best interest. (Wis. Stat. § 767.451 (1).) For example, if you share custody and the child’s other parent is in jail or suffering from addiction, the court may modify the order.
If it’s been at least 2 years since the court decided custody, and you would like to modify the order, the court will reevaluate your case only if you demonstrate:
Considering that the law presumes joint custody is favorable in most cases, the court makes it easier for parents to modify a joint custody arrangement. If you have substantially equal periods of physical placement and circumstances have made it impractical for parents to continue sharing equal time, the court can modify the order if it’s in the child’s best interest. (Wis. Stat. § 767.751 (2).)
If the court deems it necessary to review a custody order, the judge will evaluate the same factors used to create the initial custody decision.
It’s important to note that both parents and children must comply with the court order until the court issues a new order. Failure to follow the custody requirements can result in the court finding the guilty parent in contempt, leading to fines, court appearances, and a jail sentence.
Custody and physical placement matters can be quite complex. For state-specific information and forms, visit the Wisconsin Court System Circuit Court website.