Whether you are divorced or have children from a previous relationship, if you and the other parent are no longer together, you likely have many questions regarding child visitation in Wisconsin. Ideally, there is already a court order telling the parents who gets the child or children and at what times. Additionally, a court order can inform the parents of how the child will be transported between homes and what needs to be done if a child cannot visit one parent at the ordered times.
If there is no court order or if the court order is silent about issues that pop up during attempted visitation, you should consult with an experienced family law attorney in Wisconsin so that you know what your options are moving forward. You have a right to have a meaningful relationship with your child or children, which means regularly getting adequate time with them. Read on to find out how child visitation in Wisconsin generally works and what to do if you encounter obstacles to visitation.
What’s The Difference Between Custody, Physical Placement, And Visitation Schedule?
Before discussing child visitation in Wisconsin, the difference between child custody, physical placement, and visitation should be clarified.
Legal Custody
Legal custody is a legal term where the parent or parents have rights and responsibilities regarding the child or children. That can mean things like deciding where the child attends school, what religious education the child receives, and making healthcare decisions for the child. Often, legal custody is split equally, also called “joint custody,” meaning that the parents must consult and agree before making any types of major life decisions for the child. An exception would be if the child suffered a medical emergency and the parent who had the child could not wait to discuss the situation with the other parent. Joint custody can also mean that the child spends an equal amount of time residing with each parent.
If custody is not joint, then there are different forms the custody can take. An important takeaway from this section is that if one parent has sole custody, they don’t have to consult with the other parent before making life-changing decisions for the child or children.
If you are interested in getting custody, read our article on how to get custody of a child in a Wisconsin divorce.
Physical placement
Whichever parent the child or children live with most of the time. Sometimes it is referred to as “physical custody,” but all in all, it means where and with who the child or children live daily. Sometimes physical custody is 50/50, but that can be challenging unless the parents live near one another and tend to get along well. Wisconsin also recognizes something called “shared placement,” where the child or children spend at least 25% of their time with each parent.
Child Visitation
Child visitation is an arrangement where it is specified when the non-custodial parent gets to have the child spend time with them. If custody/physical placement is joint, only major holidays usually need to be specified. If physical placement is not joint, the parents and the court will have to agree upon a schedule to ensure that the non-custodial parent gets meaningful time with the child or children. If the parents have a difficult time working with each other on the issue of child visitation, sometimes the court will also have to order a specific method of transporting the child or children to curtail conflict during pick-ups and drop-offs for visitation.
What are Visitation Rights in Wisconsin?
There seems to be a great deal of misinformation regarding a parent’s right to visitation with their child or children. Many people assume that a father does not have an equal right to access meaningful time with the children if he is a non-custodial parent. The law in Wisconsin does not give preference to a “father’s visitation rights” or a “mother’s visitation rights.” Neither parent is automatically entitled to a more significant amount of visitation under Wisconsin law. As neither parent has greater visitation rights, it should simply be referred to as “non-custodial parent’s right to visitation.”
Typically, the way the parents will be living after divorce or separation plays a role in formulating a sustainable visitation program. One parent may only be able to see the children on weekends, for example, if they live too far away for the child to attend school during a visitation. It can also mean that the visit takes place during summer break and other holidays with scheduled phone calls or video calls in between because the parent had to move away for work. Wisconsin courts use the “best interests of the child” standard when making custody and visitation decisions, wholly separate from child support decisions. It isn’t easy to define the best interest's standard, but the court will look at all of the facts and evidence presented and decide based on the information provided. The goal in all these decisions is that the child or children enjoy stability, a dependable schedule, and continuity in their schooling and daily lives.
If the parents want to develop a visitation schedule of their own or with the assistance of a mediator, it is certainly encouraged. Many people find making their arrangement that the court will ratify a very attractive option. Working together in the child’s best interests can make custody and visitation a lot more harmonious and sustainable if the parents come to their arrangement.
What happens if a Custodial Parent Withholds Visitation?
Unfortunately, this can be a common issue. Whether one parent is behind on child support payments, the parents have been fighting, or there is a more sinister issue involved, sometimes the custodial parent will not cooperate with court-ordered visitation. The first thing to be addressed is to make sure that it is a specific pattern of withholding visitation and not the custodial parent dealing with job or transportation issues. Another reason visitation might not happen is if the child or children are sick or have an essential school or family event. Ideally, these issues will be clearly and politely discussed between parents, but often they are not.
Once it is clear that the custodial parent is deliberately withholding visitation, you have the right to file a motion to compel visitation with the court. The court will schedule a hearing, examine the ordered visitation, and testify why the visitation is not occurring as ordered. Suppose the court finds that the custodial parent has no reasonable basis for withholding visitation. In that case, the court can order make up visitation for the parent who was previously denied time with their child. If withholding visitation continues to be an issue, the court will examine new facts and rule accordingly. If someone is disobeying a court order, they run the risk of being found in contempt of court and the associated penalties.
There is also always the possibility of filing a motion to alter custody of the child or children in court. Although nothing is guaranteed, it may be the only possible means of getting meaningful time with your children if the other parent continues to stand in the way of visitation.
Court Order Stopping Visitation
The court does not want to issue an order denying visitation most of the time. The court believes that the child has a right to a meaningful relationship with both parents. Unfortunately, there are times when visitation must be stopped for the safety and well-being of the child. Suppose the non-custodial parent has problems with their living arrangements, problems with drugs or alcohol, or is abusing the child. In that case, the court will order that the visitation stop until circumstances change. If the child is exposed to dangerous circumstances because of the visitation, the visitation will be taken away, sometimes permanently. Again, the standard is always in the child’s best interests in Wisconsin.
The court may order supervised visitation. In these situations, the court will order that another person be present in the parent’s home when the child is visiting or that the visitation occurs in a neutral location with another person supervising. The idea behind supervised visitation is to preserve, as much as possible, the parent-child relationship while the troubled parent gets their issues resolved. If and when the non-custodial parent can show that they have taken concrete steps to resolve whatever the issue is, the court can order that visitation no longer be supervised.
Can A Child Refuse Visitation in Wisconsin?
The court can always consider the child’s opinions and preferences when deciding custody and visitation. Typically, the older the child is, the more weight is given to what they have to say about the situation. Ultimately though, the child cannot dictate who has custody and if there will be visitation. If the child refuses visitation simply because they do not like spending time with the other parent, it is not considered a substantial enough reason not to follow through with the court-ordered visitation. If there are more severe issues, like the child claiming instances of abuse or neglect, it will have substantial weight with the court’s decision.
If you are a non-custodial parent and your child is refusing visitation, you may need to file a motion with the court to get the visitation enforced.
What is Abandonment in Wisconsin?
Visitation issues can be challenging to navigate, and sometimes parents become incredibly frustrated and feel like they should leave it alone for a while. In Wisconsin, if you do not have any kind of contact with your child for six months, it could be considered abandonment, depending on the circumstances. If you have visitation problems, consult with an attorney to help you resolve them. If the child is resisting visitation, consider going to family therapy where you can try to work it out, don’t decide on a course of no action.
Can Grandparents Sue for Visitation?
The short answer here is yes. Grandparents can sue for visitation. Whether grandparents will be granted court-ordered visitation is dependent on the facts and circumstances surrounding the case. The court will consider if grandparent visitation is in the child’s best interests, just like a parental visitation.
Visitation problems can be frustrating and emotionally draining. Having a good idea of your rights and options is your best first defense against a visitation conflict getting out of hand. If you have problems with visitation, please feel free to contact a Wisconsin family law attorney at O’Flaherty Law; we would be happy to help you.
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