Custody and Placement

How is child custody determined?

In resolving a divorce involving children, the first issue is child custody. Under Wisconsin law, a Judge cannot prefer one parent over the other on the basis of the sex of the parent. When talking about custody, it is important to understand certain definitions: legal custody, sole legal custody, joint legal custody, and physical placement.

“Legal custody” generally means the right and responsibility to make major decisions concerning the child. “Major decisions” include, but are not limited to, decisions regarding authorization for non–emergency health care, and choice of school and religion, consent to marry, consent to enter military service, consent to obtain a motor vehicle operator’s license.

“Sole legal custody” means one person has legal custody and the sole right and responsibility to make major decisions.

“Joint legal custody” means the parents share legal custody (the right and responsibility to make major decisions) and neither parent’s rights are superior, except with respect to specified decisions as set forth by the court or the parents in the final judgment or order.

Under Wisconsin law, which is different from the joint custody laws of many other states, a Judge may order joint legal custody if it is in the child’s best interest and if either of the following applies: 1) both parties agree to joint legal custody; or 2) the parties do not agree to joint legal custody, but one party requests joint legal custody and the court specifically finds that: 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 the time which would substantially interfere with the exercise of joint legal custody; and c) the parties will be able to cooperate in the future decision making required under an award of joint legal custody.

Wisconsin law allows some flexibility in ordering joint legal custody by permitting the Judge to give sole power to one of the joint legal custodians to make certain major decisions concerning the child, while both parties retain equal rights and responsibilities for other decisions.

“Physical placement” means the conditions under which a parent has the right to have a child physically placed with that parent and the right and responsibility to make, during that placement, routine daily decisions regarding the child’s care. Routine daily decisions have to be consistent with the major decisions made by the person having legal custody.

Whenever the court orders either sole or joint legal custody, the court must allocate periods of physical placement between the parents. The granting of periods of physical placement is a separate issue from legal custody; whether the parents have joint legal custody or one party has sole legal custody is immaterial to the issue of periods of physical placement. The parents might have joint legal custody, but the child will spend most of his or her time with one of the parents. In other situations, the child will spend nearly equal time with each parent.

Periods of physical placement may not be denied for  failure to meet, or granted for meeting, financial obligations to the child or the former spouse.

Am I required to attend a parental education program?

In all actions affecting the family involving minor children the parents are required to attend a parental education program of not more than 4 hours concerning the effect of divorce on a child. Attendance at such a program is mandatory. Failure to attend may result in delaying the divorce case, because the case will not be scheduled for any further court proceedings until at least one party meets this requirement.

Statistical data indicates that such programs are effective in reducing tension and in aiding settlements surrounding issues relating to minor children. Further, such programs are even more effective if attended by the parents early in a pending divorce case.

How is mediation used in child custody?

Mediation is intended to afford the parents an opportunity to participate in a problem-solving and decision-making process when confronted with custody/placement issues. Ideally, this affords the parents an opportunity to reach their own resolution. The role of the mediator is to help the individuals resolve misunderstandings, communicate clearly with each other and develop a plan each can live.

Wisconsin’s child custody law contains a provision for “mediation.” Parents may agree to go to their own private mediator, at their own expense, if they so desire. If not, and there is a dispute regarding legal custody or physical placement, then the parents are required to attend an initial session with a county–provided mediator. This initial session is a screening and evaluation session to determine whether mediation is appropriate and whether both parents wish to continue in mediation. The Family Court Commissioner may refer persons to mediation if they wish to have joint legal custody but need assistance resolving problems relating to joint legal custody or physical placement or both, or if they are having difficulty in the exercise of their rights.

Agreements reached in mediation are reduced to writing and submitted to the court in a stipulation for inclusion in a court order. The judicial officer may only approve or reject the agreement; not modify the agreement. A written reason must be given for rejecting any such agreement.

Prior to submitting the agreement to the court, the agreement must be reviewed by each parents’ attorney if they are represented by an attorney, and if appointed, by the guardian ad litem, who is an attorney appointed to represent the child or children. If an agreement is not reached in mediation, the court must be notified and a guardian ad litem must be appointed.

What if we can not agree on legal custody or physical placement?

If the parents cannot resolve the question of custody or placement, Wisconsin Statues require that a guardian ad litem (GAL) be appointed for the minor child or children. A GAL is a lawyer who is appointed by the Judge to represent the minor child or children in that specific case. Upon appointment of the GAL, one or both parties will generally be required to deposit a sum of money towards the GAL’s anticipated fees.

The GAL may hire an expert, such as a psychologist, for assistance in making a decision as to which parent the GAL will argue should receive legal custody and/or primary physical placement of the minor child or children. Depending upon who is appointed as GAL and the circumstances of the case, the GAL may or may not attempt to settle the child–related issues. Each GAL has a different personality and treats each case differently.

It is important to understand that a GAL must act as an attorney and not a social worker. That means that the GAL should not make a recommendation, but rather should examine and cross-examine witnesses and argue his or her position just like any other attorney.

Although the GAL is appointed to represent the minor child or children, one or both parents will ultimately be ordered to pay the fee of the GAL.