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Wisconsin Child Custody

Wisconsin Child Custody/Physical Placement

By Maury D. Beaulier, Esq.

Index




In Wisconsin there are two types of custody. There is "legal custody" which refers to the parenting decisions related to the minor children such as where they will attend school, religious decisions and medical decisions. the term "physical placement" is used to refer to the physical residence where the children will live. Under Wisconsin Statutes Chapter 767.24, each parent is entitled to periods of physical placement which refers to the time the children are placed with a particular parent or custodian.

Legal Custody

Legal Custody may be shared by the parents or may be granted solely to just one parent. When legal custody is joint or shared, it means that 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. The court may give joint legal custody only if it finds that doing so is in the child's best interest and that either of the following applies:

  1. Both parties agree to joint legal custody.
  2. The parties do not agree to joint legal custody, but one party requests joint legal custody and the court specifically finds all of the following:

      a. Both parties are capable of performing parental duties and responsibilities and wish to have an active role in raising the child.

      b. No conditions exist at that time which would substantially interfere with the exercise of joint legal custody.

      c. The parties will be able to cooperate in the future decision making required under an award of joint legal custody.

In making this finding, the court must consider all facts in the particular case including any reasons offered by a parent as to why joint legal custody is inappropriate. Any evidence that domestic abuse has occurred either in the form of child abuse or interspousal battery or domestic abuse creates a presumption that the parties will not be able to cooperate in the future decision making and that joint legal custody is inappropriate. This presumption may be rebutted only by presenting by clear and convincing evidence that the abuse will not interfere with the parties' ability to cooperate in the future decision making required. Clearly, this is a difficult burden.

There are many variations of the way legal custody can be awarded. As previously stated, legal custody may be sole or joint. It may also be mixed sole and joint which means that the parents make joint decisions in some areas but not in others. For example, the parents may be required to discuss medical care of the children before decisions are made, but not religious decisions.

Access to Child Records

Even if joint legal custody is not awarded, parents may generally be allowed access to a child's important records unless otherwise ordered by the court. These records include medical, dental and school records.

Physical Custody or Physical Placement

Physical placement refers to the schedule of parenting and the respective amount of time that a child spends with each parent. Under Wisconsin statutes, a court must consider each case individually in determining periods of physical placement. Its decision must weigh following factors set out in the statute:

  • The wishes of the child's parent or parents.
  • The wishes of the child, which may be communicated by the child or through the child's guardian ad litem or other appropriate professional.
  • 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.
  • The child's adjustment to the home, school, religion and community.
  • The mental and physical health of the parties, the minor children and other persons living in a proposed custodial house-hold.
  • The availability of public or private child care services.
  • Whether one party is likely to unreasonably interfere with the child's continuing relationship with the other party.
  • Whether there is evidence that a party engaged in abuse.
  • Whether there is evidence of interspousal battery.
  • Whether either party has or had a significant





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