13: Overview of Custody and Placement Orders in WI
- Page ID
- 121699
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\(\newcommand{\avec}{\mathbf a}\) \(\newcommand{\bvec}{\mathbf b}\) \(\newcommand{\cvec}{\mathbf c}\) \(\newcommand{\dvec}{\mathbf d}\) \(\newcommand{\dtil}{\widetilde{\mathbf d}}\) \(\newcommand{\evec}{\mathbf e}\) \(\newcommand{\fvec}{\mathbf f}\) \(\newcommand{\nvec}{\mathbf n}\) \(\newcommand{\pvec}{\mathbf p}\) \(\newcommand{\qvec}{\mathbf q}\) \(\newcommand{\svec}{\mathbf s}\) \(\newcommand{\tvec}{\mathbf t}\) \(\newcommand{\uvec}{\mathbf u}\) \(\newcommand{\vvec}{\mathbf v}\) \(\newcommand{\wvec}{\mathbf w}\) \(\newcommand{\xvec}{\mathbf x}\) \(\newcommand{\yvec}{\mathbf y}\) \(\newcommand{\zvec}{\mathbf z}\) \(\newcommand{\rvec}{\mathbf r}\) \(\newcommand{\mvec}{\mathbf m}\) \(\newcommand{\zerovec}{\mathbf 0}\) \(\newcommand{\onevec}{\mathbf 1}\) \(\newcommand{\real}{\mathbb R}\) \(\newcommand{\twovec}[2]{\left[\begin{array}{r}#1 \\ #2 \end{array}\right]}\) \(\newcommand{\ctwovec}[2]{\left[\begin{array}{c}#1 \\ #2 \end{array}\right]}\) \(\newcommand{\threevec}[3]{\left[\begin{array}{r}#1 \\ #2 \\ #3 \end{array}\right]}\) \(\newcommand{\cthreevec}[3]{\left[\begin{array}{c}#1 \\ #2 \\ #3 \end{array}\right]}\) \(\newcommand{\fourvec}[4]{\left[\begin{array}{r}#1 \\ #2 \\ #3 \\ #4 \end{array}\right]}\) \(\newcommand{\cfourvec}[4]{\left[\begin{array}{c}#1 \\ #2 \\ #3 \\ #4 \end{array}\right]}\) \(\newcommand{\fivevec}[5]{\left[\begin{array}{r}#1 \\ #2 \\ #3 \\ #4 \\ #5 \\ \end{array}\right]}\) \(\newcommand{\cfivevec}[5]{\left[\begin{array}{c}#1 \\ #2 \\ #3 \\ #4 \\ #5 \\ \end{array}\right]}\) \(\newcommand{\mattwo}[4]{\left[\begin{array}{rr}#1 \amp #2 \\ #3 \amp #4 \\ \end{array}\right]}\) \(\newcommand{\laspan}[1]{\text{Span}\{#1\}}\) \(\newcommand{\bcal}{\cal B}\) \(\newcommand{\ccal}{\cal C}\) \(\newcommand{\scal}{\cal S}\) \(\newcommand{\wcal}{\cal W}\) \(\newcommand{\ecal}{\cal E}\) \(\newcommand{\coords}[2]{\left\{#1\right\}_{#2}}\) \(\newcommand{\gray}[1]{\color{gray}{#1}}\) \(\newcommand{\lgray}[1]{\color{lightgray}{#1}}\) \(\newcommand{\rank}{\operatorname{rank}}\) \(\newcommand{\row}{\text{Row}}\) \(\newcommand{\col}{\text{Col}}\) \(\renewcommand{\row}{\text{Row}}\) \(\newcommand{\nul}{\text{Nul}}\) \(\newcommand{\var}{\text{Var}}\) \(\newcommand{\corr}{\text{corr}}\) \(\newcommand{\len}[1]{\left|#1\right|}\) \(\newcommand{\bbar}{\overline{\bvec}}\) \(\newcommand{\bhat}{\widehat{\bvec}}\) \(\newcommand{\bperp}{\bvec^\perp}\) \(\newcommand{\xhat}{\widehat{\xvec}}\) \(\newcommand{\vhat}{\widehat{\vvec}}\) \(\newcommand{\uhat}{\widehat{\uvec}}\) \(\newcommand{\what}{\widehat{\wvec}}\) \(\newcommand{\Sighat}{\widehat{\Sigma}}\) \(\newcommand{\lt}{<}\) \(\newcommand{\gt}{>}\) \(\newcommand{\amp}{&}\) \(\definecolor{fillinmathshade}{gray}{0.9}\)When the parents are able to reach an agreement concerning legal custody and physical placement, the outcome for everyone is generally more positive than when a court order is entered after a contested hearing. When negotiating an agreement, the parties must view their individual circumstances in the context of state laws, and with the best interest of the child (not the self-interest of the parents) as the paramount concern.
Co-Parenting: State Law Standards for Legal Custody and Physical Placement
When a minor child is involved in an action for divorce, legal separation, annulment, or paternity, a court must determine the legal custody and physical placement arrangements for the child. This chapter briefly describes the general standards a court uses in determining those arrangements. The principles governing a court also guide the parties and their attorneys when reaching an agreement for the court’s approval.
Legal Custody
A court must presume that joint legal custody is in the best interests of a child. Joint legal custody means both parents equally share the right to make major decisions, and neither parent has a superior right over the other for such decisions.2 If the presumption for joint legal custody is challenged, a court must consider the best interests of the child using a number of specific factors that are identified in the statutes, described below. A parent may challenge the presumption for joint legal custody in the following limited circumstances:
- A parent is not capable of performing parental duties and responsibilities.
- A parent does not wish to have an active role in raising the child.
- Conditions exist that would substantially interfere with exercising joint legal custody.
- The parents will not be able to cooperate in the future.
The presumption for joint legal custody is reversed if a case involves domestic abuse. If a court finds that a parent has engaged in a pattern or serious incident of interspousal battery or domestic abuse, the court must presume that joint or sole legal custody to that parent is detrimental to the child and cannot be awarded to that parent.3 In determining legal custody for the child of a military service member, a court cannot consider the service member’s absence from the home for a call to active duty in the U.S. armed forces.4
Physical Placement
Physical placement is the actual time a child is in a parent’s care. A parent may make routine daily decisions regarding the child’s care while the child is physically with that parent. Physical placement does not authorize decision-making on major issues such as choice of school, religion, or health care.5
A court must consider the best interests of the child when determining a physical placement schedule. Unless physical placement with a parent would endanger a child’s physical, mental, or emotional health, a child is entitled to periods of physical placement with both parents. The statutes do not provide a standard placement schedule, but, instead, specify that a schedule must allow a child to have regular, meaningful periods of physical placement that maximize the amount of time a child may spend with each parent. If a court grants physical placement to one parent for less than 25 percent of the time, the court must enter specific findings of fact as to why a greater allocation is not in the best interests of the child.6
A court may not prefer one parent over the other on the basis of the parent’s sex or race. A court also may not deny physical placement for a child based on a parent’s failure to provide financial support.7 If a court finds that a parent has engaged in a pattern or serious incident of interspousal battery or domestic abuse, the safety and well-being of the child and the safety of the parent who was the victim of abuse are the paramount concerns in determining periods of physical placement.8 Also, as with legal custody, in determining periods of physical placement, a court cannot consider a service member’s absence from the home for a call to active duty in the U.S. armed forces.9
Factors in Determining the Best Interests of a Child
When determining the best interests of a child for purposes of both legal custody and physical placement, a court must consider the following factors:10
- The wishes of the parents.
- The wishes of the child.
- The cooperation and communication between the parents.
- Whether a parent can support the other parent’s relationship with the child.
- The interaction and interrelationship of the child with siblings and other significant persons.
- The interaction and interrelationship of the child with the parents, including the parents’ history of amount and quality of time with the child, and any proposed reasonable lifestyle changes.
- Whether a parent, a person in a dating relationship with a parent, or another person in the household has a significant problem with alcohol or drug abuse.
- The child’s adjustment to the home, school, religion, and community.
- The child’s age and developmental and educational needs.
- The mental or physical health of a parent or other person in the household may affect the child’s well-being.
- A criminal record, or abuse or neglect of the child or of any other child, by a parent, person in a dating relationship with a parent, or other person in the household.
- Whether there is evidence of interspousal battery or domestic abuse.
- Reports of appropriate professionals admitted into evidence.
- Any other relevant factor.
(ib_legal_custody_physical_placement_msk_2023_01_06 - wisconsin.gov)
Content of Orders/Agreements
Court orders and agreements regarding legal custody and physical placement are often very detailed and sometimes complex. A myriad of topics should be covered, including decision-making, placement schedules, and transportation of children. Wisconsin’s Proposed Parenting Plan form includes these topics and more.
Legal Custody
The parties should state who will have decision-making power with respect to the children’s non-emergency health care, school activities, child care providers, and other enrichment or recreational activities. It is also helpful to indicate how disputes regarding these decisions will be resolved. Remember, in Wisconsin joint legal custody is presumed to be in the best interest of the child.
Physical Placement Schedules
Physical placement can be ordered without a specific schedule (typically expressed as reasonable times or reasonable periods as agreed by the parties, or similar language). However, most of the time a specific placement schedule is included in the agreement and/or court order; specific schedules provide predictability and consistency and are generally easier to enforce when necessary. Remember, equal physical placement with both parents is presumed to be in the best interest of the child in Wisconsin.
In Wisconsin, if a placement schedule will result in a parent receiving less than 25% physical placement, the specific reasons supporting this placement must be stated in writing. Placement schedules should be specific as to days and times of regular placement, and should also include a schedule for summer, holidays, and other special days.
This website provides several example placement schedules
A Special Note About Virtual Visitation
With the advent of virtual meeting platforms such as Zoom, FaceTime and others, maintaining contact with family members living outside the household has become easier than ever. In Wisconsin, courts are permitted to grant “either or both parents a reasonable amount of electronic communication at reasonable hours during the other parent's periods of physical placement with the child.” Section 767.41(4)(e), Wis. Stats. If the parent receiving the right to electronic communication is restricted to supervised physical placement, then the electronic communication must also be supervised.
Assuming equipment needed for electronic communication is reasonably available, as with any other issue regarding physical placement, the decision whether to grant a parent electronic communication with the child during the other parent's periods of physical placement must be in the child's best interest. However, Wisconsin does not allow electronic communication to be used as a replacement or as a substitute for actual “in-person” physical placement.
Wisconsin court procedure
Whenever legal custody or physical placement is at issue in an action affecting the family (legal separation, divorce, paternity, or post-judgment disputes), the typical procedure in Wisconsin is as follows:
- Court orders the parties to complete an educational program regarding the impact of the legal action on the child, as well as parenting and co-parenting skills under section 767.401.
- If legal custody or physical placement are contested, the parties are ordered to mediation by an entity approved by the County or State, frequently through Family Court Services under section 767.405.
- The court may appoint a Court Appointed Special Advocate (CASA).
- If the parties are still unable to agree and/or the mediator declares an impasse, a guardian ad litem is appointed to investigate, represent, and make recommendations concerning the best interest of the child under section 767.407.
- The court may also order a psychological evaluation of either or both parents and/or the child.
- If the parties are still unable to agree, the court will schedule a contested hearing at which the parties and the guardian ad litem are allowed to present evidence, including documents, lay witness testimony, and expert witness testimony regarding the best interest of the child.
Court Appointed Special Advocate (CASA): A volunteer appointed by the court to act as fact-finder, interviewer and investigator in cases involving child welfare.
The Guardian Ad Litem
In Wisconsin, if parents have disagreements regarding legal custody or physical placement, they must participate in mediation to help them resolve issues. If parents still don’t agree, the court will appoint a guardian ad litem (GAL) to assist the court in making custody, placement, and support decisions.
Guardian ad Litem (GAL): An attorney, licensed to practice law in Wisconsin, whose role is to represent the best interests of the children as determined by the GAL through an investigation.
The GAL will investigate the facts, participate in negotiations, and take a position in court on legal custody and placement. The GAL is also involved in the financial issues of a case when those issues affect the children, such as child support and child expenses. The GAL does not have any of the rights or duties of a parent or general guardian. Although the GAL may be incorrectly referred to as the children’s attorney, the GAL’s role is to advocate for the best interests of the children. This may not be the same as advocating for what the children want.
In representing the best interests of the children, the GAL may negotiate settlements, conduct formal and informal discovery, hire experts, interview witnesses, investigate whether there has been violence or abuse between parents, comment on proposed parenting plans or any stipulation or mediation agreement reached by the parties, and participate in all court proceedings. The GAL investigates facts that are relevant to the legal custody, physical placement, and child support issues in the case. Much of the investigation is conducted through interviews with each parent, the child, or other people with significant information. Parents may also be asked to sign a release authorizing the GAL to review relevant records, such as school, medical, or mental health records. The GAL may ask other experts, such as a social worker or a psychologist, to provide input and possible future testimony regarding the case. If there are problems with alcohol or drugs, the GAL may ask a parent to participate in screening tests or ask the judge to order such tests. The GAL also may use formal discovery to assist in the investigation, including interrogatories, requests for document production, or conducting depositions.
In investigating and developing input for the court’s consideration, the GAL must consider the following legal factors:
- the wishes of the child as expressed by the child through the GAL or another appropriate professional and the wishes of the parents; the child's input will be only one factor for the GAL to consider. It gives the child a voice, not a choice, in the outcome;
- whether a parent has engaged in a pattern or serious incident of violence between parents;
- the safety and well-being of the child and the safety of the parent who was the victim of the battery or abuse;
- the child’s interaction and relationship with each parent and other family members;
- the amount and quality of time each parent has spent with the child in the past;
- any necessary and reasonable custodial and lifestyle changes each parent proposes to make to spend time with the child in the future;
- the child’s adjustment to home, school, religion, and community;
- the child’s age and developmental and educational needs at various ages;
- the mental or physical health of a parent, the child, or other person living in each parent's household;
- the need for regularly occurring and meaningful placement to provide predictability and stability for the child;
- the availability of childcare services;
- the cooperation and communication between parents, and whether either one unreasonably refuses to cooperate or communicate with the other;
- each parent’s ability to support the other parent’s relationship with the child and the likelihood a parent will interfere in the other parent’s continuing relationship with the child;
- any physical abuse or problems with alcohol or drugs;
- the reports of appropriate professionals; and
- other significant factors that would affect the child’s well-being.
The GAL generally will give the parents and/or attorneys a preliminary summary of what the GAL will present to the judge. The input could change depending on additional evidence or facts that are uncovered. Generally, the parents’ attorneys will discuss the GAL’s preliminary recommendations with their clients. Most often, settlement proposals are exchanged, and the case is resolved by agreement. If the parents cannot agree, the case is prepared for trial before the judge, who will consider the evidence presented and make the final decision.
The judge decides who pays for the GAL’s services. The requirements vary from county to county. Generally, each parent is responsible for one-half of the GAL’s total costs, including the GAL’s legal fees and investigation costs, such as tests and experts. The court also may require the parents to pay an initial deposit and periodic payments to the GAL during the case. If the judge decides that both parents are unable to pay for the GAL’s services immediately, the judge may have the county pay the GAL bill. However, the parents still are responsible for the GAL fees and the county may require the parents to reimburse the county.
By statute, the GAL serves in a case until either the parents reach a written agreement resolving the issues and the judge approves it, or there is a hearing and the judge decides the case. The judge can discharge the GAL if one is no longer necessary. If the case is appealed, the GAL is involved in the appeal process unless the court orders otherwise. If a new motion is filed in the case in the future, the judge may reappoint the same or a different GAL.
Paralegal Roles
When a client’s family law matter involves issues of legal custody, physical placement, or visitation of children, the paralegal’s role is to support the supervising attorney in providing legal services and acting as a liaison between the client and the supervising attorney. Typical tasks include interviewing the client, requesting documents and other information from the client, conducting factual investigation and/or legal research, drafting documents as directed by the supervising attorney, facilitating the signing of documents, and filing documents with the court or other state agency. Paralegals may also be asked to help locate appropriate psychological or other experts to provide evidence regarding parental fitness and the best interest of the child. Sometimes paralegals can also refer parents to a parenting coordinator.
Parenting coordinator: A professional who assists parents in resolving custody disputes that arise under a parenting plan.
Notes
2 ss. 767.001 (1s), (2), and (2m) and 767.41 (2) (a), (am), (b), and (c), Stats.
3 s. 767.41 (2) (d), Stats.; Legislative Council, Effect of Domestic Abuse in Child Custody Disputes, Issue Brief (October 2019).
4 s. 767.41 (2) (e), Stats.
5 s. 767.001 (5), Stats.
6 s.767.41 (4) (a) and (b) and (6) (a), Stats. The Wisconsin Supreme Court has held that “maximizing” does not mean “equal” placement. [Landwehr v. Landwehr, 2006 WI 64, at par. 11.]
7 s. 767.41 (4) (c) and (5) (am) (intro.), Stats.
8 s. 767.41 (5) (bm), Stats.; Legislative Council, Effect of Domestic Abuse in Child Custody Disputes, Issue Brief (October 2019).
9 s. 767.41 (5) (c), Stats. To address additional issues during a call to active duty, the Legislature enacted 2021 Wisconsin Act 161, the Uniform Deployed Parents Custody and Visitation Act.
10 s. 767.41 (5) (am), Stats.