As a Family Law Attorney, I often get asked about what is “normal” for a judge to order for placement of a minor child after a divorce. That question is very difficult to answer because there is no “normal” in Wisconsin placement. Rather than outlining a “normal,” the statutes provide 14 factors for the Court to consider when deciding a placement schedule. At a hearing where placement is being determined by the Court, these are the factors that the Court is required to take into consideration with the ultimate goal of making a ruling on what is in the child’s best interest. In this article we will list the factors and explain what they mean.
1. The wishes of the child’s parent(s), as shown by any stipulation between the parties, any proposed parenting plan or any legal custody or physical placement proposal submitted to the Court at trial.
With this factor, the Court takes into consideration anything verbal or in writing either parent has stated they want placement to look like. If the parties agree and stipulate to what placement should be, the Court will take that into consideration, and likely emphasize. If the parents want different things, the Court will have to consider both parties' ideas in determining what is in the child’s best interest.
2. The wishes of the child, which may be communicated by the child, through the child’s guardian ad litem, or other appropriate professional.
What the child wants placement to look like is a factor the Court has to consider. Judges generally do not encourage children to testify in court, so the wishes of the child are generally stated to the Court by a Guardian ad Litem or by a professional who works with the child and is testifying at the hearing. There are some situations where a judge may speak with the child directly about the child’s wishes.
3. The cooperation and communication between the parties and whether either party unreasonably refuses to cooperate or communicate with the other party.
The parties’ communication style and their willingness to communicate is a factor for the Court to consider. The Court is looking at whether the parents are able to work together for the child to succeed and whether each parent is choosing to cooperate with the other.
4. Whether each party can support the other party’s relationship with the child, including encouraging and facilitating frequent and continuing contact with the child, or whether one party is likely to unreasonably interfere with the child’s continuing relationship with the other party.
The basic expectation in this factor for the Court to consider is that both parties have a responsibility to help promote the child’s relationship with the other parent. The Court would want to be informed if one party was taking actions that were hurting the other party’s ability to build a relationship with minor child.
5. The interaction and interrelationship of the child with his or her siblings, and any other person who may significantly affect the child’s best interest.
The Court needs to know all the people the child has significant relationships with besides the parents. If one party has other children in the home that are close to the child, if one party’s own parents are heavily involved in the care of the child, the Court will consider those relationships.
6. The interaction and interrelationship of the child with his or her parent(s) and the amount and quality of time that each parent has spent with the child in the past, any necessary changes to the parents’ custodial roles, and any reasonable lifestyle changes that a parent proposes to make to maximize placement with the child.
The parent-child relationship and what the specific breakdown of parental “duties” is like are factors the Court needs to consider. If one party intends to make significant life changes in order to change the role they are playing in the child’s life, the Court needs to take that into consideration.
7. Whether any of the following people have or had a significant problem with alcohol or drug abuse:
a. A party
b. A person with whom a parent of the child has a dating relationship, as defined in Wisconsin Statute 813.12 (1) (ag)
c. A person who resides, has resided, or will reside regularly or intermittently in a proposed custodial household.
The Court wants to protect children from those who have a significant drug or alcohol problem, in a way that affects the child. Often this comes in the form of criminal charges against a person, but not always. As long as a party is able to prove with evidence that the accused person has a drug or alcohol problem, the Court will consider it, even if that person does not have convictions against them. It is also important to point out that this is a category where significant others’ actions can affect a placement decision. Courts generally do not want to police who a parent is dating, but if it endangers the child in some way, the Court could step in through the placement order to minimize the risk to the child.
8. The child’s adjustment to the home, school, religion, and community.
When I am a Guardian ad Litem on a case and investigating these factors I will sometimes paraphrase this question as “How is the child doing in their current situation?” because a child whose parents are going through a divorce will often have adjustments in their home or school. Therefore, finding out how things have been going recently is important for the Court to know.
9. The age of the child and the child’s developmental and educational needs at different ages.
How old a child is matters to the Court, but not always in the way people assume. I often get asked “at what age does a child get to decide where they will live” and the answer is, under the statutes the child does not get to decide at any age. This factor has more to do with creating a placement schedule that works for the child in their development. Often younger children will have shorter placement periods with each parent so that the child does not have long gaps without seeing a parent, but older children might be able to handle longer placement periods.
10. Whether the mental or physical health of a party, minor child, or other person living in a proposed custodial household negatively affects the child’s intellectual, physical, or emotional well-being.
The Court needs to be informed of the mental health of everyone involved. The Court will make sure that the child is around safe people and that the child’s mental health is being considered.
11. Whether any of the following people have a criminal record or whether there is evidence that any of the following have engaged in abuse, as defined in Wisconsin Statute 813.122 (1) (a), of the child or any other child or neglected the child or any other child:
a. A party
b. A person with whom a parent of the child has a dating relationship
c. A person who resides, has resided, or will reside regularly or intermittently in a proposed custodial household.
Similar to the drug and alcohol factor above, the Court is very concerned about the child’s safety and wants to know if any of the people involved in the child’s life are a risk to the child. An important phrase in this factor is the “whether there is evidence.” This means the Court does not only look at criminal records, but any form of evidence that there was abuse or neglect of the child or any other child. Courts have to examine other family law cases involving people around the child to see if there was any evidence in those other cases about abuse or neglect.
12. Whether there is evidence of interspousal battery, as described under Wisconsin statute 940.19 or 940.20 (1m), or domestic abuse, as defined in Wisconsin statute 813.12 (1) (am).
This factor has serious consequences for the parent who is the abuser in Wisconsin statute 767.41(6) when the Court is making a final order. If the Court finds that a party has engaged in interspousal battery or domestic abuse, the Court will try to protect the child and the victim of the abuse when deciding how to grant placement.
13. The reports of appropriate professionals if admitted into evidence.
If any reports or records from any relevant professional are presented as evidence, the Court has to consider them. The most common reports are those from medical professionals, therapists, or teachers.
14. Any other factor that the court determines to be relevant.
The final factor for the Court, is a catch all. This is the factor where anything that may be relevant can be considered by the Court. It is important to note that this factor is what the “Court” (meaning the judicial figure making the decision) thinks is relevant. What may be relevant to one parent may not be to the other, and what is relevant in one Court may not be relevant in another Court.
When making an order on custody and placement, the Court is to consider the above factors and decide what is in the child’s best interest. The factors can be weighted differently based on the judge’s discretion and one factor may be the one that tips the scales to one party or the other. Because of this, it is important to present evidence on all the factors and to be as prepared as possible for any hearing on placement of a minor child.
If you are in need of a Guardian ad Litem or a Family Law Attorney please reach out to our dedicated and compassionate attorneys.