Wisconsin has two distinct concepts relating to minor children in family law cases: Legal Custody and Physical Placement. Many people use these terms interchangeably, but they have distinct legal meanings and implications in the State of Wisconsin.
A. Legal custody refers to the right and responsibility to make major decisions regarding a child's life. Pursuant to Wisconsin statutes, major decisions include (but are not limited to) consent to marry, consent to enter military service, consent to obtain a motor vehicle operator’s license, authorization for non-emergency health care and choice of education or religion. When entering a judgment of divorce or judgment of paternity, the court must end an order regarding the allocation of legal custody between the parents. The two main options available to the court are joint legal custody or sole legal custody to one of the parents.
1. Joint Legal Custody: The law requires that the court presume (with limited statutory exceptions) that joint legal custody is in the child’s best interest. Joint legal custody is defined as “the condition under which both parties share legal custody and neither party’s legal custody rights are superior” to the other party. This is the most common arrangement, where both parents share the responsibility of making major decisions for their child. Joint legal custody does not necessarily mean equal time with the child, but rather equal say in important matters.
2. Sole Legal Custody: Sole legal custody provides one parent with the exclusive right to make major decisions for the child. The statute provides a rebuttable presumption that it is in a child’s best interest to award sole legal custody to a victim of domestic violence if the court finds that the other parent engaged in in a pattern or serious incident of domestic abuse. There are limited statutory requirements for that rebuttable presumption to be overcome. Sole legal custody is also permitted if the court finds any of the following:
One party is not capable of performing parental duties and responsibilities or does not wish to have an active role in raising the child
1. Condition(s) exist that substantially interfere with the exercise of joint legal custody
3. The court finds that the parties will not be able to cooperate in the future decision making required for joint legal custody.
3. Final Decision Making: The court may also award parties joint legal custody, but authorize one party to have final decision making over a category of legal decision making. For example, joint legal custody with one parent having final decision making for non-emergency medical care.
B. Physical placement refers to the time a child spends with each parent and involves the day-to-day care and supervision of the child. Physical placement is essentially about where and with whom the child lives. The child’s best interest is the overarching principle in determining physical placement. Although the statute requires that the court “set a placement schedule that allows the child to have regularly occurring, meaningful periods of physical placement with each parent and that maximizes the amount of time the child may spend with each parent.” It is important to note that “maximizing placement” does not equate to a presumption for equal placement.
1. Primary Physical Placement: Here, the child lives with one parent for the majority of the time, while the other parent has scheduled placement periods, such as every other weekend.
2. Shared Physical Placement: In a shared placement schedule, the child spends significant time living with both parents. The schedule can vary widely and shared placement is not always equal placement.
As noted above, the statute requires a schedule that maximizes the time the child spends with both parents based on what schedule is in the child’s best interest. This is based on a number of factors including, but not limited to:
- The wishes of the parents and the child,
- How well the parties communicate and cooperate with each other,
- The degree to which each parent can support the child’s relationship with the other parent,
- The child’s relationship with siblings and others in both parents’ households,
- The amount of quality time that each parent has spent with the child and will likely be able to spend with the child in the future,
- The child’s developmental and educational needs, along with issues related to mental health and drug and alcohol abuse.
Legal custody and physical placement issues in family court are often the most expensive issues for parties to litigate. They are also emotionally taxing for parents and children. Understanding the distinction between legal custody and physical placement is crucial for parents navigating the family law system as both aspects play significant roles in the child's well-being and the parents' responsibilities. When parents recognize these differences, they can better advocate for arrangements that serve the best interest of their children and ensure a stable, consistent supportive environment as they grow. If you find yourself in a legal dispute over custody and placement and are looking for legal representation, it is important to hire an attorney who fully understands the complex analysis of these issues. It is also advantageous to retain an attorney who you can be open and honest with because a full review of the factors that the court must consider in entering orders for custody and placement are fact driven and the details related to those factors matter. If you are in need of a Family Law Attorney please reach out to our law firm, we would be happy to assist you.