Child Custody & Placement

Legal Custody

In Wisconsin, legal custody is the right to make legal decisions for a child. These decisions include consent to marry as a minor, consent to enter military service, consent to obtain a driver’s license, authorization for non-emergency medical care, choice of school and religion, and other similar important decisions. Wis. Stats. Sec. 767.001(2m). Many people confuse custody with physical placement, which has to do with where the child spends his or her time. Legal custody has nothing to do with physical placement of the child.

Under Wisconsin law, one party can have sole legal custody, or the parties can have joint legal custody. Wisconsin statutes provide a presumption that the parents will share joint custody of their children. Wis. Stats. Sec. 767.41(2)(am). The court, however, has authority to grant sole custody to one parent based on several factors. In summary, if the parties do not agree to joint custody, the court may grant sole custody if one party is not capable of performing parental duties, or if the parties will not be able to cooperate in the future decision-making required for joint custody. When reviewing whether the parents are able to cooperate, the court is required to consider evidence of domestic abuse.

The court may also enter an order that is somewhat in between joint and sole custody. The court can order the parties to have joint custody, but award one party the “sole power to make specified decisions.” Wis. Stats. Sec. 767.451(6)(b). For example, the court could order that one parent has sole authority to make decisions regarding religion, and the other parent has sole authority to make decisions regarding education.

Physical Placement

Physical placement involves the right of a parent to have a child physically placed with them and gives that parent the right to make routine decisions regarding the child’s care during the placement period. Wis. Stats. Sec. 767.001(5). The statutes provide sixteen factors the court must consider when setting a placement schedule. Wis. Stats. Sec. 767.41(5). For example, the court looks at the child’s adjustment to home, school, religion, and community; the age of the child; and the child’s development and educational needs. Significantly, the court will consider drug and alcohol abuse by the parents, or whether the parents have issues with violence toward children or toward the other parent. The court can also consider the influence of new romantic partners for the parents.

In 1999 the Legislature made a major change to the placement statutes, introducing the concept of maximization of placement. The court is now required to “set a placement schedule that allows a child to have regularly occurring, meaningful periods of physical placement with each parent and that maximizes the amount of time the child may spend with each parent, taking into account geographic separation and accommodations for different households.” Wis. Stats. Sec. 767.41(4). Some judges and practitioners believe this maximization language creates a presumption of equal placement. The Supreme Court has held that the maximization requirement does not dictate an equal placement schedule. Certainly, however, we have seen a substantial increase in how much placement time is awarded to fathers.

One factor the court must consider is the amount and quality of time each parent has spent with the child in the past. However, as part of the 1999 legislative reforms parents now have the option of making reasonable lifestyle changes that will allow them to spend more time with the child. Thus even if Parent A has not been as involved as Parent B in raising the child in the past, Parent A can demonstrate to the court lifestyle changes (such as a different work schedule) that will allow Parent A to be more involved with raising the child in the future.

People often ask at what age children can choose for themselves where they want to live. When they are 18 and become adults they can make that choice; until then, it is up to the parents or the courts. Nonetheless, from the time they are able to articulate their wishes, their views can be relayed to the court through an appropriate professional or a Guardian ad Litem.

Modification of Legal Custody or Physical Placement

Unlike most types of judgments and orders in Wisconsin, judgments and orders regarding child placement (sometimes called physical custody) and legal custody (sometimes called decision-making authority) are modifiable until the child reaches age eighteen. The reason, of course, is that what’s in the child’s best interests may change over time as circumstances change.

The law governing placement and custody modifications, Section 767.451 of the Wisconsin Statutes, imposes a two-year time frame. Generally, a parent must wait for two years after entry of the “final” placement or custody order before seeking modification. This “two-year rule” is based on the recognition that children (and their parents) need stability and consistency. The two-year “truce” period is meant to let tempers cool, let litigation calm, let everyone settle into routines and a new status quo prevail before custody and placement issues are addressed again.

After the two-year period has passed, a parent seeking modification of placement or custody need only establish that there has been a substantial change in circumstances since entry of the previous order, and that the modification is in the child’s best interests. The “substantial change of circumstances” standard is a vague standard that necessarily varies with each set of circumstances that comes before the court. The court conducts the “best interests” analysis by considering the factors specified in section 767.41(5) of the Wisconsin Statutes.

There are, however, some circumstances that demand immediate action. If a parent can show that the current arrangements are physically or emotionally harmful to the child, then placement or custody may be modified before the expiration of two years.

This summary is a simplification of the rules governing modification of arrangements concerning children. Different rules govern various specific circumstances, such as if the parents share placement equally; if one parent has failed to spend the allocated time with the child; even if one parent is an active-duty service member. The rules can even change from county to county and from court to court; for example, currently some judges impose the two-year rule only after the initial final order, while others impose it after every final order entered in a case. Thus we recommend consulting an experienced Wisconsin family law attorney whenever you are considering seeking a custody or placement change or are faced with a motion to modify custody or placement.

Finally, parents are always free to agree to changes in arrangements concerning children, whether or not the two-year period has passed and regardless of other circumstances. This is probably both the most common and the preferable approach to children’s changing needs and parents’ changing circumstances. Just remember that unless your agreement is put in writing and signed by the judge, it will not be enforceable in court, should the need arise.