If you are going through a divorce in Wisconsin and have minor children, you will inevitably have many questions about child custody and placement. Custody and placement of the children are two major issues of contention and confusion when people are going through a divorce. As parents, you want to make the best possible decisions for your children and maintain the same closeness you had before the divorce. Many people don’t understand the difference between child custody and child placement in Wisconsin. People also get confused about how child placement is determined in Wisconsin. This article will give you a basic overview and understanding of child custody and child placement in Wisconsin so that you can approach these issues with less fear and greater understanding. Read on to learn more about child custody and placement in Wisconsin.
Wisconsin Child Custody
Often, people mix up custody and placement; after all, when you think about someone in custody, you tend to think of physical custody, i.e., having the person with you. Wisconsin child custody laws do not grant physical custody, and it is a legal term. Here are some definitions to aid in understanding:
Legal Custody
The right to make legal decisions about your child, even life-changing ones, and to take care of that child. For more information on Legal Child Custody in Wisconsin read our article, Wisconsin Child Custody Law Changes 2022.
Sole custody
If a parent is granted sole legal custody by the courts, that does not necessarily mean they automatically have full control over the child at all times. It means that one parent has the legal right to make most major decisions regarding the child without input from the other parent. Sole legal custody is not an automatic right one parent gets over the other. The party or parties must ask that the court grant sole legal custody. Courts are typically reluctant to grant sole legal without a substantial reason. The court recognizes that a child has two parents and wants both parents to be active in the child’s upbringing. However, if one parent demonstrates to the court that the other parent is unable or unwilling to have the responsibility associated with joint legal custody, the court will grant one parent sole legal custody.
Joint Custody
This is the option that most courts prefer, which is joint legal custody. With joint legal custody, you typically see a 50/50 split, with each parent having the same amount of power over decisions that affect the child. There is an almost automatic tendency by the court to lean towards joint legal custody absent evidence that joint legal custody would not be in the child’s best interests. In joint custody, one parent would have to get permission or agreement from the other parent before making any major decisions on behalf of the child, barring an emergency.
Speaking of the child’s best interests, that is the standard by which Wisconsin courts determine things like custody and placement. The courts will look at what is in the child’s best interests and not necessarily what the parents want. The court wants to maintain a continuity of life for the child or children and not allow a divorce to alter things too significantly for the child if possible (although not always possible). The court wants to ensure that the child is in a safe, stable environment where they have structure, consistency of care, and things they can depend on.
Wisconsin Child Placement
Placement is the term used to describe where the child will be physically spending their time. There are many different ways to structure placement depending on the child’s age, where the parents will be living after they stop sharing the marital home, and if one parent has to move away for work. It is not unusual for one parent to have a primary placement, with the other having split placement or visitation. If the parents live near one another and it is sustainable, they can enjoy 50/50 placement. On the other hand, if one parent can demonstrate that time with the other parent is not good for the child, there might only be the possibility of placement under certain conditions. Here are some definitions to help understand how placement works:
Placement is where the child spends their time physically.
Primary Placement
Primary placement is where the child is most of the time or even all of the time if the situation demands it.
Shared placement
Shared placement is when the child spends at least 25% of the time with each parent.
Split placement
When the parties have more than one child and one or more of the children is with one parent most of the time and the other children are with the other parent most of the time.
Placement is more fluid than custody to negotiate in the post-divorce process. As children grow and change, they may want to live with their other parents. If that becomes an issue, the parent will have to file a motion for a change in placement and receive a court order granting the new arrangement. Failure to get a court order modifying the placement can create problems down the road, especially regarding child support, as placement is part of the calculation. Consider a change in placement very carefully before going through with it, and ensure you are doing it for the right reasons.
Visitation
You can’t discuss child custody and child placement without discussing visitation. A lot of the time, parents will come up with their visitation schedule. A common example is that the child or children will stay with one parent during the school week and then go from school on Friday to the other parent’s house for the weekend. Major holidays are also assigned on a schedule; parents tend to switch off the big holidays like Thanksgiving and Christmas, with one parent getting the odd years and the other getting the even years. If at some point, one of the parents has to move away from where the children reside, it is not uncommon for the children to go and spend spring and summer vacation with the parent who moved away. There are many possible combinations for visitation between the non-primary placement parent and the children.
Mediation
If you are struggling with the particulars of custody, placement, and visitation, then it is always possible for you and your soon-to-be ex-spouse to try and resolve them through mediation. You can choose to have your attorney present with you and try to work out a livable schedule without the court interfering. You can simply elect to attend mediation early in the divorce process or ask the court to order mediation if one spouse is dragging their heels. Many courts require that the parties try to work it out in mediation before asking the court to intervene. The reason for the emphasis on mediation is that the people attending the mediation are the ones who have to live with the outcome. The courts find that people tend to do better when they come up with a solution together, instead of the court just telling them what they are going to be doing for the next 18 years. The key to success in mediation is to realize that you will have to compromise to get anything done. If you can compromise and work something out with the other parents, life could be much more pleasant. Depending on your child's age or children, you will have to be compliant with custody, placement, and visitation for many years. It would be best if you had a hand in determining what rules will apply to your foreseeable future.
Wisconsin child custody and placement laws are not very different from most other states. Most states will break custody and placement into the categories described above. Most states also adhere to the best interests of the child standard when it comes to determining how to award custody and placement. If you are planning on filing for divorce or are currently in a divorce and are having problems, it would be best if you consulted with an experienced Wisconsin family law attorney who can help you navigate the legal system and achieve your legal goals. Feel free to give O’Flaherty Law a call, and we would be happy to help you.
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