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Divorce in Wisconsin
Custody and Physical Placement: Frequently Asked Questions
Guardian Ad Litem
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
●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
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
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
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
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?
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.
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
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
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.
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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