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Divorce in Wisconsin

Custody and Physical Placement: Frequently Asked Questions

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Paternity

 
 
 
Custody and Physical Placement:
Frequently Asked Questions

●WHAT DOES “LEGAL CUSTODY” MEAN?
Legal custody can be granted to one party or to both. If it is awarded to one party, that person is said to have sole legal custody. If custody is awarded to both parties, it is called joint legal custody. Joint legal custody, by definition, allows both parties to share equally the rights and responsibilities of a custodial parent and neither party's legal custody rights are superior to the other's. Any person granted legal custody has the right and responsibility to make major decisions concerning the child (unless a court orders otherwise). There is a presumption that joint legal custody is in the best interest of the child. There is also a presumption that, where a pattern or serious incident of domestic abuse is proven, the abusive parent should not be granted sole or joint legal custody.

●WHAT MAJOR DECISIONS IS THE CUSTODIAL PARENT ENTITLED TO MAKE?
Major decisions include, but are not limited to, consent to marry, to enter military service, to obtain a driver's licenses, authorization for non-emergency health care, and choice of school or religion.

●CAN A PARENT LIVE WITH THE CHILD APART FROM THE OTHER PARENT WITHOUT GETTING A LEGAL CUSTODY OR PLACEMENT ORDER?
The parents can live apart with the child living with one parent. There is nothing illegal about doing so. If the child was born outside of marriage and no court has issued any order as to custody, the child is in the legal custody of the mother. However, if the parents are married and choose to live apart without any court order regarding custody and placement, they have equal rights to custody and placement. If one parent snatches the child, the police may not be able to assist in getting the child back. A court order may be required to get the child returned.

Even though parents can live apart with the child, a parent cannot conceal the whereabouts of the child from the other parent. Any such concealment may be a criminal act unless the parent is fleeing from imminent physical harm to self or the child.

●WHAT IS “PHYSICAL PLACEMENT?”
Physical placement means the condition under which a party has the right to have the child physically with that party. During the time the child is with the party, the party has the right and responsibility to make routine daily decisions regarding the child's care, consistent with major decisions made by the legal custodian.

●DOES A PARENT HAVE “VISITATION” RIGHTS WITH A CHILD?
A parent's right to spend time with his/her child is no longer referred to as “visitation rights” in Wisconsin. What was known as visitation is now to referred as “periods of placement”. Wisconsin law says a child is entitled to periods of placement with both parents, unless after a hearing, the court finds that physical placement with a parent would endanger the child's physical, mental, or emotional health.

●DOES AN AWARD OF JOINT LEGAL CUSTODY MEAN THE CHILD WILL LIVE WITH EACH PARENT 50% OF THE TIME?
No. Legal custody determines your rights and responsibilities to make major decisions. The court will also determine, or the parties will agree upon, where the child will physically reside. If the child resides with one party for most of the time, that party is said to have primary physical placement. In cases where the child resides with both parents equally, the parties can designate a primary physical placement party, or there can be no such designation.

A physical placement order can be very different from one case to the next. In one case, the parties may structure a traditional arrangement where the child lives with one parent during the week and with the other parent on the weekend. In some circumstances, the parties want to have a fairly equal split of time with the child. This may be done in a number of ways: splitting time during the week; weekly exchanges; or all of the summer with one parent and the school year with the other. The order can be designed to meet the specific needs of individual families.

But remember the order can provide for joint legal custody without making a 50/50 split of placement, and there can be a shared placement order without having joint legal custody.

●WHAT FACTORS WILL THE COURT CONSIDER IN DETERMINING WHO SHALL BE AWARDED CUSTODY AND PLACEMENT?
At the time of the divorce, or judgment of paternity, the judge must award custody and allocate physical placement between the parties, based upon what is in the best interest of the child. The judge will consider many factors in reaching its decision, and there are some factors the court is prohibited from considering. For instance, the court may not prefer one parent over the other on the basis of sex or race.

When making placement orders, the court is supposed to set a schedule that allows the child to have regularly occurring, meaningful periods of placement with each parent. The goal is to maximize the amount of time that the child may spend with each parent.

The court also considers any of the following factors in setting a placement schedule:

  • Wishes of the child’s parent
  • Wishes of the child: There is no magic age at which the judge is required to abide by the child’s wishes, but the court will consider the wishes of the child. The amount of weight the court will give to the child’s preference will depend upon the age of the child and the child’s over-all maturity level.
  • Child’s relationship with others: The child’s relationship with each parent, sibling, household member, or relatives are important. Additionally, if your child has a significant relationship with others, such as a child care provider, or a friend of a parent, these relationships may also be considered by the court.
  • Other important factors: These factors include but are not limited to, the parents and child’s physical or mental health; the likelihood that one parent unreasonably interfere with the relationship between the other parent and child; a parent’s problem with drugs or alcohol; and any history of domestic or child abuse.

● DOES A PARENT GET TO SEE THE CHILD IF THE COURT ORDERED CHILD SUPPORT HASN’T BEEN PAID? Yes. Wisconsin law does not tie the child's right to have contact with both parents to the obligation to pay child support.

● DOES A PARENT HAVE THE RIGHT TO SEE THE CHILD’S MEDICAL RECORDS OR SCHOOL RECORDS, EVEN IF HE OR SHE IS NOT THE PRIMARY PLACEMENT PARENT AND DOES NOT HAVE LEGAL CUSTODY OF THE CHILD?
Yes, unless otherwise ordered by the court. Access to a child's medical, dental and school records is available to a parent regardless of whether the parent has legal custody of the child. A parent who is denied periods of placement, however, may not have access to the records.

● CAN THE PRIMARY PLACEMENT PARENT MOVE WITH THE CHILD?
The answer to this question may be different depending on whether your custody/placement order was made pursuant to a divorce or a paternity case.

If your order was issued as part of a divorce action, then before moving out of state, or 150 miles or more from the other parent, the moving parent must give written notice to the other parent if s/he has been awarded periods of placement. If the non-moving parent objects to the move, s/he can either 1) file for a change of placement or 2) ask the court to forbid the child’s removal from the state or 150 miles or more away.

If your order was made pursuant to a paternity action, it is best if you consult an attorney who can review your paternity order. The notice of move provision applies in some paternity cases, and may not apply in others depending upon what is written in the judgment and when the judgment was issued which means the order should be reviewed by an attorney BEFORE a child is removed from the state.

Legal Action of Wisconsin, Inc. does not discriminate on the basis of disability in the provision of services or in employment. If you need printed material interpreted or in a different form, or if you need assistance in using our services, please inform us. Deaf, hearing-impaired or speech-impaired callers may reach us through the Wisconsin Telecommunications Relay System (1-800-947-3529).

The above is intended to provide general information only and is not a substitute for thorough and specific advice on an individual case. Depending on the complexity of your legal problem you may need to consult an attorney for advice or representation.

This was prepared by the staff of Legal Action of Wisconsin, Inc., on behalf of low-income clients and was funded by the Legal Services Corporation, Washington, D.C. 20005. Any opinions contained herein are those of the authors and should not be construed as those of the Legal Services Corporation.

Updated: August 2004

 
 
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