Family Law Advisor®
Articles

• Legal Custody
• Access to Records
• Physical Placement
• Guardian Ad Litems & Custody Evaluations
• Child Support & Physical Placement Unrelated

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.

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 problem with alcohol or drug abuse. 
• Such other factors as the court may in each individual case determine to be relevant.

There is a presumption under Wisconsin law that a child is entitled to periods of physical 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. This does not necessarily mean that physical placement is shared equally between parents. It simply means that each parent is entitled to periods of time with the child. 

Guardian Ad Litems & Custody Evaluations

If the parties cannot agree on a parenting schedule, he matter will proceed to a trial. In most Wisconsin counties the Court will appoint either a guardian ad litem and/or a custody evaluator to perform an investigation and present to the Court what parenting arrangement he/she believes is in the children's best interests. In a “Custody Evaluation” an evaluator meets with the parties and evaluates the custody issues based on the factors for determining custody that are spelled out by Wisconsin Statutes

Once an evaluation is complete the evaluator submits a report to the Court which will recommend a parenting  schedule that the evaluator believes is in the child’s best interests.  The evaluator may appear at trial as a witness to support the evaluation. Obviously, such a report is a critical element in any case where physical placement is disputed. Although custody studies may be challenged in court, many Judge’s defer to the recommendations of the evaluator because, unlike the parties, they are deemed to be an independent witness without any personal Interest in the outcome. As a result how you relate your case to the evaluator is very important. If you would like to review our article on presenting your custody case, CLICK HERE. 

A Guardian Ad Litem plays the role of a lawyer for the children.  The Guardian Ad Litem appears at trial and may present evidence and question witnesses related to the issue of physical placement. 

In Western Wisconsin counties such as Polk, Pierce and St. Croix, custody evaluations are not usually performed. However, a Guardian Ad Litem is generally appointed as part of a contested process.

You may also have a private custody evaluation performed by an independent professional. Oftentimes the only way to combat a biased or unfavorable custody evaluation is with a private custody evaluation. Custody evaluations can be costly and may run anywhere from $2,000 to $8,000.

Child Support and Physical Placement are Independent

It is important to remember that the issues of physical placement and child support are not related.  Placement cannot be denied based on a failure to pay support.  Similarly, child support may not be withheld based on a denial of physical placement.

-- Hellmuth & Johnson, PLLC