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Wisconsin Child Custody/Placement Disputes: The Basics
(provided by Max D. Harris, Esq.)
In Wisconsin the term "legal custody" refers not to where the children are to live but to the allocation of decision-making authority among the parties with respect to major decisions. The term "physical placement" is used to refer to where the children are to live, and the term "periods of physical placement" refers to the time the children are placed with a particular parent or custodian.
Legal Custody
Legal custody may be sole or joint, or mixed sole and joint (joint in some areas but sole in others). Joint legal custody means both parents have a right to participate in major decisions affecting the children; sole legal custody means only the parent with legal custody has the right to decide major decisions affecting the children. Occasionally the court will grant joint legal custody on most issues but identify certain areas where one parent has sole legal custody.
The court may grant joint legal custody if it finds that it is in the best interests of the children and either both parents request it or one parent requests it and the court finds all three of the following: 1) both parents are capable of performing parental duties, 2) no conditions exist which would substantially interfere with the exercise of joint legal custody, and 3) the parties will be able to cooperate in the future decision-making required by joint legal custody.
Under certain circumstances the court may transfer legal custody to a relative of the children or to an agency if the court finds that neither parent is able to adequately care for the children. This third-party custody decision under a divorce decree is rare but seems to be becoming more common as more and more children are left with relatives by distressed spouses prior to divorce.
Physical Placement
The court will want the children to spend time with both parents, and by statutory law must allocate periods of physical placement between the parties unless the court finds that physical placement with a parent would endanger the children's physical, mental or emotional health. Absolute denial of periods of physical placement is very rare, but if ordered, may provide a basis for eventual termination of parental rights.
In most cases each parent is awarded periods of physical placement of the children. The actual placement arrangement may take one of three basic forms:
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1. The Traditional Form: One parent has primary placement of the children and the other parent
has periods of placement which usually take the form of every other weekend during the school
year plus extra time in the summer. There is also usually an alternating of holidays and a
sharing of Christmas.
2. Shared Placement: In recent years the idea of the parents sharing placement of the children more equally has grown in popularity. This may take the form of equal shared placement, such as alternating week or two-week periods, or some other form of shared placement which is not equal but in which the parent with less time has substantially more time than the noncustodial parent under the traditional form. Parents who work different shifts may also find shared placement an effective way of sharing responsibility and care of the children. There is a special shared placement child support rule which lowers the child support obligation in recognition of the additional care and support provided by a shared placement format.
3. Split Custody: Occasionally, and for a wide variety of reasons, children are split up between the parents, with each parent having periods of placement with the child or children primarily placed with the other parent. With split custody, the visitation schedules are usually set up to have the children together every weekend and for substantial times in the summer. There is a special split custody child support rule which offsets and nets the child obligations of the parents.
If the parties cannot reach an agreement about the placement arrangement for the children the court may have to decide the issue after a trial. The interests of the children are represented at the trial by an attorney, known as a guardian ad litem, appointed by the court to represent the children's interests. A custody study is usually prepared for the benefit of the court and plays a significant role in the guardian ad litem's position and the court's decision.
The court shall consider the following ten factors in making its determination:
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1. The wishes of the parents.
2. The wishes of the children.
3. The relationships of the children with the parents and other significant persons.
4. The children's adjustments to home, community, school and religion.
5. The mental and physical health of the parties and the children.
6. The availability of child care services.
7. Whether one party is likely to unreasonably interfere with the children's relationships with the other party.
8. Whether there is evidence that a party has engaged in child abuse.
9. Whether there is evidence that a party has engaged in interspousal battery.
10. Whether either party has a significant problem with alcohol or drug abuse.
In addition to the above ten factors, the court may consider such other factors as the court may in each case determine to be relevant.
In the interest of introducing a period of stability for the children, Wisconsin has a two-year rule whereby during the first two years after a custody/placement order has been issued it is generally very difficult to revise the order to substantially alter the amount of time the children spend with the respective parents. The two-year rule is expressed as follows:
In order to make a substantial modification to a custody/placement order, the type of showing the moving party must make is different based upon whether the motion is made before or after two years have passed since the custody/placement order was issued:
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A) If the motion is made before two years have elapsed, the moving party must show by
substantial evidence that the modification is necessary because the current custodial conditions
are physically or emotionally harmful to the children.
B) If the motion is made after two years have elapsed, the moving party must persuade the court to find that there has been a substantial change of circumstances since the entry of the last order and it is in the best interests of the children to make a modification to the custody/placement order.
However, there are three exceptions to the above two-year rule:
1. If the proposed modification is not substantial, the court may grant it at any time if it is in the best interests of the children.
2. If the parties have substantially equal periods of physical placement and circumstances make it impractical for that placement arrangement to continue, the court may at any time modify the placement order.
3. The court may at any time deny physical placement rights to a parent if the court finds that the placement rights would endanger the physical, mental or emotional health of the children.
If a party moves to modify a custody/placement order and the other party opposes it, the parties are first referred to mediation to attempt to resolve the dispute. If the parties fail to mediate a solution, the court will likely appoint a guardian ad litem for the children and may even order a new custody study, based on the circumstances of the case and the nature of the motion.
The Wisconsin Statutes governing custody and placement are s. 767.24 (for initial orders) and s. 767.325 for revision of custody/placement orders.
Max D. Harris, Esq.
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