How do I get Custody of my Child in a Wisconsin Divorce?

In this article, we explain some basic procedure for deciding custody and parenting time in Wisconsin, including:

• Filing a Divorce Action
• Child Custody Mediation

• Temporary Order for Parenting Time
• Stipulated or Proposed Parenting Plans
• What factors does the court consider when deciding custody and parenting time?
• Parenting Plan Modifications

Filing a Divorce Action

Custody or parenting time for a child can be determined by any legal action that affects the family. Wis Stat 767.41(1)(a). Most commonly, this happens during divorce or legal separation cases, where parents need to determine how custody and parenting time will be split. To file for divorce, an individual with children would need to file a “Petition With Minor Children” For Divorce, or Legal Separation. The form name is FA-4108. For a list of all Wisconsin Family Court forms, click the link Wisconsin Family Court Forms.

Wisconsin Child Custody Mediation

When custody and parenting time are contested, the court may decide not to order parties to mediation if attending mediation would cause undo hardship or endanger the health or safety of one of the parties. However, in the majority of contested cases, the court will require that the parties go to mediation. Wis Stat 767.405(8). This mediation will not include issues of property division, maintenance, or child support unless those topics relate to custody and placement, or if the parties agree that they should be included. 767.405(9).  

The mediator has discretion in how he or she would like to conduct the mediation. Mediators may interview children. They may include attorneys and/or appoint guardian ad litem to represent the best interests of the children. They can require documents relating to custody, physical placement, and potentially financial information as it relates to the children. The mediator can suspend or terminate the mediation under certain conditions.  

If the parties can come to any agreements during mediation, those agreements should be put into written form to be stipulated to by the parties, so that the court can approve those agreements and deal with any remaining issues. If mediation is insufficient to resolve disagreements between the parties, the mediator will notify the court and the parties can continue to advocate for what they believe should happen to the court. If mediation is terminated without resolving all issues as it relates to the children, the court shall, under most circumstances, the court will appoint a guardian ad litem to represent the best interests of the minor children. Wis. Stat. 767.405(12)(b).  

Temporary Order for Parenting Time in Wisconsin

The court will try to make the parties work things out in mediation. If parents are having issues agreeing on a parenting plan while the divorce or family case is ongoing, they can petition the court for a temporary schedule in order to have something in place until a final decision is made. The form to request a temporary order for parenting time is called an “Affidavit to Show Cause and Request for Hearing for Temporary Order With Minor Children” FA-4128.  

Stipulated or Proposed Parenting Plans in Wisconsin

If at any point during the case parties are able to agree upon custody and a parenting plan, they can stipulate to that agreement, and have it approved by the court. The court could refuse to approve an agreement if it were not in the best interest of the children, but this is unlikely. If parties continue to disagree, it will become necessary for parties to propose a parenting plan to the court. This can be done with the form called “Proposed Parenting Plan” FA-4147, or by partially completing a form called “Marital Settlement Agreement with Minor Children” FA-4150V. It is common that an attached document will be submitted alongside this form with additional information.  

What factors does the court consider when deciding custody and parenting time?

According to Wis. Stat. 767.41(5), link here, if the parties have been unable to agree on a parenting plan, the court will consider all facts relevant to the best interests of the child, including the following factors:  

1. The wishes of the child's parent or parents, as shown by any stipulation between the parties, any proposed parenting plan or any legal custody or physical placement proposal submitted to the court at trial.

2. The wishes of the child, which may be communicated by the child or through the child's guardian ad litem or other appropriate professional.

3. The interaction and interrelationship of the child with his or her parent or parents, siblings, and any other person who may significantly affect the child's best interest.

4. The amount and quality of time that each parent has spent with the child in the past, any necessary changes to the parents' custodial roles and any reasonable life-style changes that a parent proposes to make to be able to spend time with the child in the future.

5. The child's adjustment to the home, school, religion and community.

6. The age of the child and the child's developmental and educational needs at different ages.

7. Whether the mental or physical health of a party, minor child, or other person living in a proposed custodial household negatively affects the child's intellectual, physical, or emotional well-being.

8. The need for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child.

9. The availability of public or private child care services.

10. The cooperation and communication between the parties and whether either party unreasonably refuses to cooperate or communicate with the other party.

11. Whether each party can support the other party's relationship with the child, including encouraging and facilitating frequent and continuing contact with the child, or whether one party is likely to unreasonably interfere with the child's continuing relationship with the other party.

12. Whether there is evidence that a party engaged in abuse, as defined in s. 813.122 (1) (a), of the child, as defined in s. 813.122 (1) (b).

13. Whether any of the following has a criminal record and whether there is evidence that any of the following has engaged in abuse, as defined in s. 813.122 (1) (a), of the child or any other child or neglected the child or any other child:

1. A person with whom a parent of the child has a dating relationship, as defined in s. 813.12(1)(ag).

2. A person who resides, has resided, or will reside regularly or intermittently in a proposed custodial household.

14. Whether there is evidence of interspousal battery as described under s. 940.19 or 940.20 (1m) or domestic abuse as defined in s. 813.12 (1) (am).

15. Whether either party has or had a significant problem with alcohol or drug abuse.  

16. The reports of appropriate professionals if admitted into evidence.

17. Such other factors as the court may in each individual case determine to be relevant.

Parenting Plan Modifications

Things change. Wisconsin Statute 767.451 governs modifications to parenting plans. To get a modification within the first 2 years after the final judgement has been made is more difficult, it requires that the petitioning parent provide substantial evidence to show that “modification is necessary because the current custodial conditions are physically or emotionally harmful to the best interest of the child.” Wis Stat 767.451(a).  

In order to get a modification after 2 years have passed, the individual requesting the modification needs to show that; 1) there has been a substantial change of circumstances and 2) the modification is in the best interests of the child. Wis Stat 767.451(b).

Having an attorney can help you deal with family law issues as efficiently and effectively as possible. If you would like the help of an attorney with your divorce, or to help you get more parenting time with your children. Please contact O’Flaherty for a consultation.  

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If you're looking to learn more about the costs associated with divorce in Wisconsin, please click here.

If you are looking for a Wisconsin divorce attorney to assist you in this matter, please click here to find a Wisconsin divorce lawyer near you. 

 
If you’re in the Madison, WI area, and are looking for an experienced Madison divorce attorney to assist you, please feel free to reach out to O’Flaherty Law of Madison at: 

O'Flaherty Law of Madison

6527 Normandy Ln., Ste. 201A

Madison, WI 53719

(608) 581-9876

madison.wi@oflaherty-law.com

https://www.oflaherty-law.com/location/madison-wisconsin-attorneys

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