FrequentlyAsked Questions

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Child Custody

People often confuse custody of the child with the placement of the child. “Custody,” in Wisconsin, means parental authority to make major decisions impacting the child’s life. The court will either award one parent “sole legal custody” or both parents “joint legal custody.” A parent with sole custody can unilaterally make the important and substantial decisions regarding the child’s life without the consent or consultation with the other parent. Parents who are awarded “joint legal custody” have equal rights as to the major custodial decisions impacting the child and must consult with the other parent in making these important decisions. If the parents cannot agree on a major decision impacting their child, they may need an order from the court granting one parent sole custody as to that decision. “Placement,” on the other hand, determines where the child will reside on certain days of the week. In the placement context, the court can award a parent “primary placement,” “shared placement”, or “equal placement.” “Primary placement” generally involves a parent who has the child with him or her for a great majority of the time and the other parent either has no set time with the child or fewer than 92 overnights a year. An “equal placement” schedule generally involves each parent having approximately 182 overnights a year. A “shared placement” schedule is any other placement schedule that is neither primary nor equal (for example, on parent could have two overnights each week and the other parent has five overnights each week). The court and family law attorneys generally speak of placement in terms of two week increments. For example, you may hear a “7/7 schedule.” What this means is an equal placement schedule with each parent having a full week of placement before the exchange of the child. A different example of an equal placement schedule is a “2-2-3 schedule.” In this context, one parent could have placement every Monday and Tuesday, the other parent would have every Wednesday and Thursday, then the parents would alternate the Friday to Sunday weekends. Because there are no statutory requirements as to how the placement schedule must be arranged, the parents have a great deal of flexibility for reaching a placement schedule.
There is no definitive list of custodial decisions but you can presume if it is an important decision impacting the child, it is a custodial decision. Examples of a custodial decisions would be the child’s religion, healthcare, education, driver’s license, and participation in a sports or other extracurricular activities.
Yes. The applicable custody statute starts from the premise that the parents should presumptively be entitled to joint legal custody of their child. A court can find that this presumption is overcome or rebutted by evidence that the parents are unable to exercise joint legal custody due to circumstances such as evidence of child abuse or spousal abuse. If the court finds a parent has engaged in a pattern of or a serious incident of domestic abuse, there is a rebuttable presumption that the parent should not be awarded either sole or joint legal custody of the child. The court can find evidence of domestic abuse regardless of whether a domestic abuse restraining order has been issued against the parent.
No. In contrast to joint legal custody, there is no presumption as to where the child will live and what days each parent will spend with the child. The court will determine the child’s placement schedule based upon what the court determines is in the best interests of the child. This “best interests of the child” standard is the cornerstone of all legal issues impacting the child in divorce or paternity proceeding.
The court must consider a variety of statutory factors in determining the child’s best interest as to placement with each parent. These factors include (1) the wishes of each parent, (2) the wishes of the child, (3) the relationship of the child with each parent, (4) the physical and emotional health of each parent, (5) the child’s adjustment to his or her community, (6) the age of the child, the developmental needs of the child, (7) any special needs of the child, (8) the criminal record of a parent, (9) substance abuse by a parent, (10) whether a parent has engaged in child or spousal abuse, and (11) any other factors the court deems relevant.
There is a widespread misconception that there is a set age in which a child’s wishes dictate his or her placement schedule. The placement statute refers to the child’s wishes as only one of many factors the court must weigh in determining the child’s placement schedule. In practice, however, the older the child, the more his or her wishes will affect the court’s decision. The child’s wishes will be viewed in the context of not only the child’s age but also the maturity of the child and the basis for his or her wishes. For example, if the child is doing poorly in school, has behavioral issues, and is basing his decision to spend a majority of his time with one parent because that parent is more lenient with household rules, then that child’s wishes will likely have less weight on the decision of his placement schedule.
The issue of significant others, especially when that significant other may have caused the end of the marriage, is an emotionally-driven issue. Wisconsin is a no-fault divorce state, meaning that the fact that a parent had an affair will have very little impact on the underlying issues that must be resolved in the divorce. Nevertheless, the court can place conditions on a parent’s placement if the conditions would be in the child’s best interests. In the context of significant others this means that the court must find that the introduction or time with the significant other would detrimentally impact the child’s welfare. Clear examples of detrimental impact are such things as (1) the new partner having a drug or alcohol issue, (2) a criminal background, (3) a history of domestic abuse, or (4) who actively denigrates the parent who is objecting to the contact. Things get more complex when the issue is whether the mere presence of the person would impact the child. For example, if the child is a teenager who became aware of the affair during the marriage and holds a great deal of animosity towards this person, a court might be persuaded to limit or restrict contact between the child and this person during the parent’s placement periods. In practice, any such restriction regarding significant others is generally agreed upon by the parents and limited in length. The more stable, serious, and longer the relationship, the more likely the child will spend time with the parent’s significant other. When these provisions are included into placement order, the length of time before a parent can introduce the child to the significant other is anywhere between 6 months to a year, depending on the circumstances of each individual case.
Generally, no. A parent’s sexual behaviors and conduct will not be used as a basis to deny that parent placement of the children unless it can be shown that the children are exposed to that behavior and it adversely impacts the children. The mere fact that the parent views pornography or has cheated on his or her spouse is not a basis alone to restrict time with the children. Examples of when this behavior becomes a relevant factor in the placement of the children is if the children see different women “come and go” in the father’s home or see firsthand numerous fleeting relationships between the parent and other dating partners. This behavior can adversely impact the children in the sense that they could view relationships as disposable and unstable.
In the not-so-distant past, a parent’s homosexuality was a basis to deny that parent placement of his or her child. This is no longer the case in Wisconsin. Recently the United States Supreme Court issued a decision recognizing marriage equality for gay and lesbian couples, and there are now many marriages in which same-sex spouses are raising children together. In fact, that Supreme Court decision explicitly referenced overwhelming social science research finding that a parent’s sexual orientation has no negative impact on their children, and, in some cases, it even enhanced the child’s developmental measures. Accordingly, the fact that a parent is gay or lesbian is no longer a basis to deny that parent’s rights as to the custody and placement of their children. Nevertheless, the same considerations a parent may have with any new significant partner of the other parent would equally apply. For example, if the new partner has a drug or alcohol addiction, a criminal background, or a history of violent behavior, then the parent has a genuine basis to seek more placement or additional terms related to the other parent’s placement.

Each county in the state may have a different procedure and resources, but most often the parents will participate in a variation of the following three steps when there is a dispute regarding custody and placement.

1. Parent Education Program
The parents will be required to attend a seminar on how divorce can impact the children and how to alleviate the harmful effects it may have on the children. The seminar is intended to also encourage good communication skills with the other parent and to start viewing the other parent as a co-parent rather than an ex-spouse. In some counties, this seminar is required even if there is no dispute regarding custody and placement between the parents.

2. Meditation
The parents will either be required or encouraged to attend mediation. Mediation is a process in which a third party neutral facilitates settlement negotiations towards an agreement regarding the children’s custody and placement schedule. In Dane County, the mediator is a child development specialist who works with the Family Court Services agency and the mediation generally occurs immediately after the Parent Education Program.

If the parents reach an agreement in mediation, the mediator will then send a summary of that agreement to the judge for the judge to approve and adopt as the court’s order. If the parents cannot reach an agreement in the first mediation session, they can either elect to participate in future mediation sessions or proceed to step 3.

3. Appointment of a Guardian Ad litem and Commencement of Custody Study
A guardian ad litem (GAL) is an attorney appointed by the court to represent the child’s best interests in the custody and placement dispute. Note that the GAL does not represent the child, but rather, advocates for the best interests of the child. The GAL’s determination of what is best for the child as to custody and placement might not be aligned with the child’s wishes or either parent’s wishes.

The GAL is not an expert witness. The GAL’s role is that of an attorney who advocates in court on behalf of the child’s best interests. His or her role is no different than a parent’s attorney advocating for his or her client’s position. The GAL can call witnesses at trial, cross-examine other witnesses, and offer the court both an opening and closing statement at trial.

The GAL will determine what he or she believes is in the best interests of the child by conducting an investigation. He or she will meet with each parent and the child, interview the child’s teachers, counselors and sometimes doctors, interview extended family members, a parent’s counselor or therapist, review medical records, school reports, and criminal backgrounds of the parents and any significant others. On occasion, the GAL may also conduct a home visit of each parent’s home.

In some counties, a custody study will also be commenced at the same time the GAL is appointed. A custody study is conducted by a caseworker who is an expert in child development. Unlike the GAL, the caseworker will actually testify to his or her opinion of what placement and custodial arrangement is in the best interests of the child. The caseworker will often work in conjunction with the guardian ad litem and follow the same process outlined above.

At the end of custody study, the caseworker will issue recommendations for the child’s custody and placement schedule. The GAL will either join in that recommendation and advocate that position at trial, or issue a different recommendation. Each parent has the opportunity to either agree with these recommendations or challenge them by seeking a contested trial. The court will most often give substantial weight to the recommendations of the GAL and caseworker since they are impartial and conducted investigations. Nevertheless, the court is not required to accept these recommendations; it can adopt them entirely, adopt them partially, or simply find that the recommendations do not represent the child’s best interests.

After the divorce or paternity is granted, a parent can file a motion to modify the child’s custody or placement schedule. The law takes into consideration that the circumstances surrounding a child’s life can change dramatically over time and there may be a need for a change in the child’s custodial and placement arrangements. For this reason, a child’s custody and placement schedule is always modifiable. Notwithstanding, the court does not want parents returning to court every few years re-litigating the child’s placement schedule. To balance these two interests, the law distinguishes between two legal standards a parent must meet in order to modify the child’s custody and placement depending on when the motion to modify the placement or custody is filed with the court. The first two years after the original custody and placement order are commonly known as the “truce period.” There is a strong public policy and statutory basis to dissuade parents from challenging the placement and custodial arrangements of the child. In order for a parent to modify the child’s placement within the first two years of the original order, he or she must establish that there is substantial evidence that the “current custodial or placement conditions are emotionally or physically harmful to the child’s best interests.” After the first two years, the standard becomes more lenient. There is no need to allege emotional or physical harm but only that there has been a “substantial change in circumstances” affecting the custody and placement of the child, and that a modification is in the “child’s best interests.”
No. There is a separate statute specific to the issue of a parent’s relocation. Under the relocation statute, a parent wishing to move, with the child, 150 miles away from the other parent or to a different state must provide proper notice to the other parent and to the court of his or her intent to relocate. This notice must be sent by certified mail and no fewer than 60 days in advance of the intended date to relocate. If the other parent objects to the child’s relocation, the parties will be referred to mediation from the court. If mediation fails, then a GAL will be appointed (or reappointed if a GAL had been involved in the underlying action); in some cases, a custody study is commenced. The legal standard regarding the relocation is different from other modifications of placement and custody orders. The legal standards differ between whether the parent relocating has primary or equal placement of the child. The court will consider the reasonableness of the relocation, the relationship of the child with the other parent, the impact and ability to continue to foster a relationship with the other parent, and, in some cases, the court will consider the child’s adjustment to the home, community, religion, and school.
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