How is child custody determined?
In resolving a divorce involving children, the first issue we look at 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 we are 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.
“The granting of periods of physical placement
is a separate issue from legal custody.”
“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 parties have joint legal custody or one party has sole legal custody is immaterial to the issue of periods of physical placement. The parties might have joint legal custody, but the child will spend most of his or her time with one of the parents. In some 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.”