11: Introduction to Child Custody and Placement
- Page ID
- 121697
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\(\newcommand{\avec}{\mathbf a}\) \(\newcommand{\bvec}{\mathbf b}\) \(\newcommand{\cvec}{\mathbf c}\) \(\newcommand{\dvec}{\mathbf d}\) \(\newcommand{\dtil}{\widetilde{\mathbf d}}\) \(\newcommand{\evec}{\mathbf e}\) \(\newcommand{\fvec}{\mathbf f}\) \(\newcommand{\nvec}{\mathbf n}\) \(\newcommand{\pvec}{\mathbf p}\) \(\newcommand{\qvec}{\mathbf q}\) \(\newcommand{\svec}{\mathbf s}\) \(\newcommand{\tvec}{\mathbf t}\) \(\newcommand{\uvec}{\mathbf u}\) \(\newcommand{\vvec}{\mathbf v}\) \(\newcommand{\wvec}{\mathbf w}\) \(\newcommand{\xvec}{\mathbf x}\) \(\newcommand{\yvec}{\mathbf y}\) \(\newcommand{\zvec}{\mathbf z}\) \(\newcommand{\rvec}{\mathbf r}\) \(\newcommand{\mvec}{\mathbf m}\) \(\newcommand{\zerovec}{\mathbf 0}\) \(\newcommand{\onevec}{\mathbf 1}\) \(\newcommand{\real}{\mathbb R}\) \(\newcommand{\twovec}[2]{\left[\begin{array}{r}#1 \\ #2 \end{array}\right]}\) \(\newcommand{\ctwovec}[2]{\left[\begin{array}{c}#1 \\ #2 \end{array}\right]}\) \(\newcommand{\threevec}[3]{\left[\begin{array}{r}#1 \\ #2 \\ #3 \end{array}\right]}\) \(\newcommand{\cthreevec}[3]{\left[\begin{array}{c}#1 \\ #2 \\ #3 \end{array}\right]}\) \(\newcommand{\fourvec}[4]{\left[\begin{array}{r}#1 \\ #2 \\ #3 \\ #4 \end{array}\right]}\) \(\newcommand{\cfourvec}[4]{\left[\begin{array}{c}#1 \\ #2 \\ #3 \\ #4 \end{array}\right]}\) \(\newcommand{\fivevec}[5]{\left[\begin{array}{r}#1 \\ #2 \\ #3 \\ #4 \\ #5 \\ \end{array}\right]}\) \(\newcommand{\cfivevec}[5]{\left[\begin{array}{c}#1 \\ #2 \\ #3 \\ #4 \\ #5 \\ \end{array}\right]}\) \(\newcommand{\mattwo}[4]{\left[\begin{array}{rr}#1 \amp #2 \\ #3 \amp #4 \\ \end{array}\right]}\) \(\newcommand{\laspan}[1]{\text{Span}\{#1\}}\) \(\newcommand{\bcal}{\cal B}\) \(\newcommand{\ccal}{\cal C}\) \(\newcommand{\scal}{\cal S}\) \(\newcommand{\wcal}{\cal W}\) \(\newcommand{\ecal}{\cal E}\) \(\newcommand{\coords}[2]{\left\{#1\right\}_{#2}}\) \(\newcommand{\gray}[1]{\color{gray}{#1}}\) \(\newcommand{\lgray}[1]{\color{lightgray}{#1}}\) \(\newcommand{\rank}{\operatorname{rank}}\) \(\newcommand{\row}{\text{Row}}\) \(\newcommand{\col}{\text{Col}}\) \(\renewcommand{\row}{\text{Row}}\) \(\newcommand{\nul}{\text{Nul}}\) \(\newcommand{\var}{\text{Var}}\) \(\newcommand{\corr}{\text{corr}}\) \(\newcommand{\len}[1]{\left|#1\right|}\) \(\newcommand{\bbar}{\overline{\bvec}}\) \(\newcommand{\bhat}{\widehat{\bvec}}\) \(\newcommand{\bperp}{\bvec^\perp}\) \(\newcommand{\xhat}{\widehat{\xvec}}\) \(\newcommand{\vhat}{\widehat{\vvec}}\) \(\newcommand{\uhat}{\widehat{\uvec}}\) \(\newcommand{\what}{\widehat{\wvec}}\) \(\newcommand{\Sighat}{\widehat{\Sigma}}\) \(\newcommand{\lt}{<}\) \(\newcommand{\gt}{>}\) \(\newcommand{\amp}{&}\) \(\definecolor{fillinmathshade}{gray}{0.9}\)Generally, child custody and placement laws assume that children are healthiest and happiest when they have good relationships with both parents. Tragically, it is the children who suffer most when their parents’ relationship ends and the parents are unable to agree regarding what is best for their children. When this occurs, whether in divorce or paternity cases, the courts are called upon to make difficult decisions concerning who has the authority to make decisions about the children’s well-being and where the children will live until they reach the age of majority. In these cases, the two issues to be addressed are legal custody and physical placement of the children.
Legal Custody
When a child is born, both parents have the right to direct the care, custody, and control of the child. Child custody is a fundamental right of the parents, protected by the Due Process clause of the United States Constitution, as stated in the United States Supreme Court case of Troxel v. Granville, 530 U.S. 57 (2000). As a result, Wisconsin and many other states presume that the parents should have legal custody over their children, regardless of whether the parents are or were ever married.
Legal custody: The right to make major decisions regarding a child’s life relating to the child’s health, education, religion, and general welfare.
In Wisconsin, this “includes but is not limited to, decisions regarding consent to marry, consent to enter military service, consent to obtain a motor vehicle operator's license, authorization for nonemergency health care and choice of school and religion.” Section 767.001(2m), Wis. Stats. What is a “major” decision isn’t specifically defined by the law. However, “major” decisions are generally considered to be those that impact the child’s life as a whole over the long term, as opposed to “day-to-day” decisions. The table below provides some comparisons:
|
Child's Life Categories |
Major decisions |
Day-to-day decision |
|---|---|---|
|
Health |
Which doctor will provide regular health care |
Whether to take the child to urgent care for symptoms of an ear infection |
|
Education |
Which school the child will attend |
Transportation to school or extra-curricular activities Whether to sign a permission slip for a field trip |
|
Religion |
Will the child practice a religion, and if so, which one? |
When and where to attend religious services (within the religious practice chosen by the parents) |
|
General welfare |
Consent for the child to marry or enter military service |
Bedtime, study time, diet, extracurricular activities, social activities, and discipline |
In Wisconsin, a parent has the right to access the child’s records relating to education, physical and mental health care, and other official records regardless of whether the parent has legal custody (unless the court orders otherwise). Wisconsin statutes require schools and health care providers to give both parents school, medical, and dental records (including report cards, notices of parent/teacher conferences, health notices, prescription information, etc.). Section 767.41(7), Wis. Stats.
Wisconsin’s statutory requirements for parenting plans (which must be filed in any action involving issues relating to legal custody or physical placement) also shed some light on what are considered to be “major decisions.” Among other topics, the parenting plan must provide information about
- Who will provide any necessary child care when the parent cannot, and who will pay for the child care
- Where the child will go to school
- What doctor or healthcare facility will provide medical care for the child
- What the child's religious commitment will be, if any
There are two types of legal custody that can be ordered: (1) joint legal custody and (2) sole legal custody.
Joint legal custody: Both parents have equal (though not necessarily simultaneous) decision-making rights. This means that the parents should make these decisions together; neither parent has “veto power” over the decisions or desires of the other parent. While collaboration is not required for day-to-day ordinary or routine decisions made while the child is with the parent, those decisions should be consistent with major decisions that should be jointly made by the parents.
Sole legal custody: Only one parent has decision-making rights. This means that the parent not having legal custody must abide by the other parent’s decisions and does not have a right to provide input or otherwise control major aspects of the child’s life. Sole legal custody is rare.
Physical Placement/Custody and Visitation
Physical Placement: The right of an adult to have a child residing with the adult.
In Wisconsin, the right to have physical placement also includes “the right and responsibility to make, during that placement, routine daily decisions regarding the child's care, consistent with major decisions made by a person having legal custody.” Section 767.001(5), Wis. Stats. Physical placement has also been referred to as physical custody; however, to avoid confusion between this right and legal custody, this textbook will refer to this right as physical placement.
In Wisconsin, there are four types of physical placement that can be ordered: (1) shared physical placement, (2) primary/secondary physical placement; (3) sole physical placement, and (4) split physical placement. Other states have similar types of physical placement, though they may use slightly different terminology. Some states previously referred to the parent with fewer overnights as having “visitation” with the children; however, this term is no longer preferred because it tends to diminish the importance of the parent’s time and relationship with the child.
Shared physical placement: The child’s placement with one parent is at least 25% of the time. If a placement schedule dictates that the child spends at least 25% of the overnights with a parent (92 overnights in a 365-day period), it is considered shared placement. Notice that "shared" doesn't necessarily mean "50/50" or "exactly equal."
Primary/secondary physical placement: The child’s placement with one parent is at least 76% of the time. This means that the child has fewer than 92 overnights with the other parent.
Sole physical placement: The child has placement with only one parent. The child may “visit” with the other parent under controlled or supervised circumstances and that parent has very little control over the interactions with the child. Sole physical placement is rare.
Split physical placement: When two or more children of the same parents have different physical placement allocations and/or physical placement schedules. Split physical placement can occur as a combination of shared placement and primary/secondary placement. For example, one child might have shared placement with the parents, and that child’s sibling may be placed with one parent 80% of the time and the other parent 20% of the time. Split physical placement can also occur as a combination of shared placement and sole placement, where one child has shared placement with both parents and that child’s sibling is placed with one parent all of the time. Because it is generally preferred to keep siblings together, split placement is not very common.
Visitation: Access to the child. An order for visitation gives a person permission to spend time with the child, perhaps even for one or more overnights, but it is not the same as physical placement. Visitation is generally granted to persons other than parents (such as grandparents or other close relatives) who share an especially close relationship with the child. Visitation may also be granted to a parent who is otherwise unfit to receive physical placement. A more in-depth discussion of visitation occurs later in this chapter.
Jurisdiction Over Orders Regarding Legal Custody and Physical Placement
Before a court can enter an enforceable order regarding legal custody or physical placement, the court must have subject-matter jurisdiction and also personal jurisdiction. Prior to the 1960s, a state court could assert jurisdiction over a child if it had a "significant relationship with the child." This meant that a parent could move the child to another state in an attempt to take advantage of what the parent perceived to be legal custody and placement laws favorable to that parent, and then seek entry of an order or modification of an existing order. To discourage this type of behavior, the National Conference of Commissioners on Uniform State Laws (now the Uniform Law Commission) drafted uniform state laws, the most recent of which is the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). As of March 2025, every state except Massachusetts has adopted the UCCJEA.
Because these orders impact primarily the child, it is the child’s domicile (sometimes called "home state") and/or the child's presence in the state that dictates whether a state has the power to enter an initial legal custody or physical placement order or to modify an existing order under the UCCJEA. The table below summarizes the types of jurisdiction, in order of priority, under the UCCJEA:
|
Jurisdiction |
Power to enter initial orders |
Power to modify existing orders |
|---|---|---|
|
Home State Jurisdiction |
The home state has priority jurisdiction to enter the initial order if either of the following exists
|
The home state has exclusive continuing jurisdiction to modify the initial order unless no one – neither parent nor the child – resides in the state |
|
Significant Connections or Substantial Evidence Jurisdiction |
This state is next in priority and has jurisdiction if all three of the following exist
|
This state cannot modify existing orders unless the home state no longer has jurisdiction or declines to exercise jurisdiction |
|
Temporary Emergency Jurisdiction |
This state can make temporary orders if both of the following exist
|
This state can enter only temporary emergency orders that will be in effect only until a state with home state or significant connection/substantial evidence jurisdiction intervenes and enters a permanent order |
|
Last Resort Jurisdiction |
This state has jurisdiction to enter the initial order if either of the following exists
|
This state cannot modify orders unless the home state no longer has jurisdiction or declines to exercise jurisdiction, and the state with significant connection/substantial evidence of jurisdiction to modify has declined to do so |
It may seem odd that a court that appears to have either a home state or significant connection/substantial evidence jurisdiction would decline to exercise that jurisdiction. However, as mentioned previously in other contexts, the “clean hands doctrine” may be grounds for a court to decline to exercise jurisdiction over an action brought by the parent with dirty hands. Thus, if a parent removes a child to another state for the sole purpose of trying to find a “friendly” court that is likely to enter an order in favor of that parent (also known as forum shopping), the court can refuse to exercise its jurisdiction as long as doing so would not harm the child.
"Clean hands doctrine”: An equitable doctrine that is intended to prohibit someone from obtaining judicial relief when that person is also guilty of behaving in bad faith, unethically, or illegally.
Dirty hands: Wrongdoing or other inappropriate behavior that would make it unfair or inequitable to allow a person to assert a right or defense otherwise available to that person.
Forum-shopping: The practice of choosing a court in which to bring an action for the sole purpose of trying to find a “friendly” court that is likely to enter an order in favor of that person.
The Full Faith and Credit Clause of the United States Constitution, along with the federal Parental Kidnapping Prevention Act (PKPA), apply to the enforcement and modification of existing legal custody and physical placement orders. In addition to precluding states other than the home state from modifying existing orders (regardless of whether the case involves child kidnapping), the PKPA created the Federal Parent Locator Service, which can help locate an absent parent or child.
In the case of unauthorized removal or kidnapping of a child out of the United States, there are some remedies depending on the country to which the child is taken. The first step is for the U.S. State Department to open an International Parental Child Abduction case, in addition to the concerned parent requesting that the child’s name be entered into the databases for the National Crime Information Center (NCIC) and the Federal Bureau of Investigation (FBI). If the child has been removed to a country that is a member of the Hague Convention on the Civil Aspects of International Child Abduction, action may be taken through the country’s central authority designated to address questions of where the ensuing custody dispute should be heard. While convention countries have agreed that children wrongfully removed to their countries should be promptly returned to the place having jurisdiction to determine the parents’ rights, those countries do not directly enforce orders from other convention countries. Similarly, the US Department of State’s Office of Children’s Issues does not provide legal representation, but it can provide information and assistance with coordinating the aggrieved parent’s concerns.