Wisconsin Child Custody Laws

Wisconsin Child Custody

Here’s what you should know if you’re engaged in a child custody action in Wisconsin.

What are the Types of Child Custody in Wisconsin?

There are several types of custody that a court can order in Wisconsin.

Temporary orders are issued in front of a family court commissioner at the first hearing. The commissioner will want to know what issues are contested and will usually accept any agreements already in place.

When parents disagree, the court may order mediation and issue temporary orders to be put in place until the divorce is finalized.  The court will also issue temporary orders on other issues depending on the circumstances of the case. These orders may include allocating use of the residence, use of bank accounts, use of vehicles, and child support or maintenance orders.

When the divorce is final, temporary orders end.  They may be replaced by the same orders or the court may change terms to meet the child’s best interests.

Courts decide two primary forms of custody.

Legal custody refers to a parent’s right and responsibility to make major decisions concerning their child. These generally refer to healthcare, school and religious choices, and other significant life part of a child’s upbringing.

A court can award joint legal custody or sole legal custody. Joint custody means both parents share decision-making responsibility. Sole custody means one parent decides all issues. Because courts want continuing and frequent involvement in a child’s life by both parents, joint custody is preferred.

However, it is possible that one of the parents will have sole decision-making authority on a specific issue. For example, one parent might have the right to make all decisions regarding the child’s education.

“Physical placement” is also known as physical custody and refers to where the child lives.  Wisconsin tossed out the terminology of physical custody and visitation and replaced them with the term physical placement. Placement refers to where the child stays on a day-to-day basis and who makes those daily decisions for the child. In Wisconsin, the standard is 50/50 joint custody, but placement varies depending on several factors, so it is rarely evenly split.

One parent is awarded primary custody most of the time, and they become the custodial parent.  The other parent is the noncustodial parent and, in most cases, will have visitation rights.  The visitation schedule is one of the primary issues that must be worked out.

Joint physical custody means the child resides with each parent for periods of time, and sole physical custody means the child lives with only one parent. In either case, the parent with whom the child isn’t residing has visitation rights with the child.

Courts are obligated to try to maximize the time the child spends with each parent. While there is no presumption that parenting time should be equal, the courts try to ensure a child has the best relationship possible with each parent.

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Determining Child Custody in Wisconsin

Wisconsin courts look at many factors when determining child custody, including:

  • The child’s age and developmental and educational needs.
  • Each parents’ past quality time with the children that they have spent together.
  • Changes that affect the parent’s custodial roles and any other lifestyle changes a parent should make to spend more time with their children.
  • The child’s wishes as to which parent they want to live with.
  • The child’s interaction with their parents, siblings, and any other person who has any bearing on the child or children’s bests interest.
  • The child’s home, school, religion, and community adjustments.
  • Whether any parties that live with a party, another minor child,
  • Whether the mental or physical health of the parents negatively affects the children’s physical, emotional or intellectual well-being.
  • The need for meaningful periods of physical placement to provide predictability and stability for the child.
  • The availability of childcare services for both parents.
  • The parents’ cooperation and communication concerning the children involved and whether each parent refuses to work with the other parent.
  • The willingness of each parent to support the other parent’s relationship with the children includes advocating for and encouraging a parental relationship between the other parent and the children.
  • Is a parent likely to interfere with the other parent’s relationship with the children?
  • The best interests of the child or children.
  • Any other factor that the court deems relevant under the circumstances.

How is the child’s preference handled?

A judge will consider the child’s preferences no matter how old the child is and will give more weight to that input with an older child.  The court is not bound by what the child wants and ultimately will decide based on the child’s best interests.

Can a judge order supervised or no visitation?

Yes.  These orders are generally put in place to ensure the child’s safety.  Supervised visitation can include a monitored visit with a third party present, such as a friend, relative, or a person appointed by the court.

No visitation means the court is concerned that any contact with the other parent could pose a risk and could be the result of substance abuse, domestic violence, or criminal activity.

Will I need to take a parenting class?

A parenting class is common for divorce cases. It provides lessons on co-parenting and helping children adjust to life after their parents are no longer together. Approved programs vary by county, and they occur in person or online.  Parents receive a certificate to turn in to the court as proof of attendance.

What is a custody study?

A custody study is an evaluation that allows a court-appointed official to gather more information on a family so that the court can reach the best possible custody decision. This is common in high-conflict cases involving special circumstances like domestic violence.  A representative may interview the family and people who know them and may also visit the parents’ homes.  Sometimes, a psychologist may be ordered to evaluate the parents and the child.

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What are The Best Interests of the Child Standard?

This standard means that all custody decisions are made with the child’s best interests placed above all others.  The parent’s desires do not factor into the same degree as what is best for the child.  Parents may end up with restricted visitation and custody rights under this doctrine.  Courts are especially concerned about the parent’s fitness and will look for the following dangers which could undermine that best interests standard.

  • The parent has a criminal record
  • The parent has mental instabilities
  • The parent has an addiction to drugs or alcohol
  • The parent has been found to have committed child abuse
  • The parent has been found to have committed child neglect

The court will require that unfit parent allegations be supported by evidence.

What to Know About Parenting Plans

Parenting plans are detailed instructions about each child’s physical and legal custody when parents divorce or are legally separated.  Courts prefer that parents develop a plan on their own but this is often not the case.  Instead, the court will weigh input and evidence and then draw up a parenting plan that meets the best interests standard.

In some cases, parents may retain a mediator or a family law attorney to help them draft a plan which should contain the following elements:

  • Physical custody details, including the number of overnight visits for each parent.
  • Legal custody and how those responsibilities are allocated between parents.
  • Holiday and school break schedules
  • Vacation and travel approval and advance notifications
  • How will a child communicate with both parents
  • How is communication between parents handled?
  • Contact with other family members and friends
  • How are tuition, medical costs, school activities, hobbies, and recreational activities expenses handled?
  • Child support payment amounts and recourse if a parent falls behind.
  • The manner of exchanging children, including when, where, and time of day
  • Transporting children for visitation and other necessary movements
  • Access to records and information
  • Children’s use of technology and online activities
  • How to address child discipline and mental health issues
  • Guidelines when a new partner is involved
  • Grooming and dress guidelines (extreme haircuts, make-up, etc.)
  • Drinking or drug use in the presence of the children

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How Do I Modify a Wisconsin Custody or Visitation Order?

At least two years must pass before Wisconsin courts allow parents to petition the court for a modification.

If it’s been less than two years, the Court will not entertain requests for modification during a “cooling off period” unless substantial changes warrant a review.  This is linked back to the child’s best interests.  If a parent can show that the child is in danger or that there have been significant changes in the parent’s health, job situation, or other related matters, the court may approve a modification.

Until the court approves a modification, it’s critical to adhere to the terms of the original agreement.  When parents don’t do this, they risk alienating the court by not following an official court-approved agreement.  That can lead to penalties and, in some cases, a modification that the parent may not want.

If the court deems it necessary to review a custody order, the judge will evaluate the same factors used to create the initial custody decision.

Parents can also work out a modification between them and submit it to the court for approval. Considering that the law presumes joint custody is favorable in most cases, the court makes it easier for parents to modify a joint custody arrangement. If you have substantially equal periods of physical placement and circumstances have made it impractical for parents to continue sharing equal time, the court can modify the order if it’s in the child’s best interest.

Wisconsin Child Custody FAQs

What are Wisconsin custody laws for unmarried parents?

If paternity has not been established, the mother maintains custody until it can be determined.  Paternity can be determined through a DNA test or an acknowledgment by both parents that they are the child’s biological parents.  After paternity is established, the father gains rights and responsibilities, including visitation and support obligations.

Does Wisconsin have a relocation law?

Yes.  Sometimes one parent wants to move out of state or far away from the other parent for reasons like a job change or to be closer to a new significant other.  This usually requires advance notice and approval when it will affect the other parent’s visitation rights.  That parent can challenge the move in court, and a judge must decide if the move is warranted for the right reasons.

Can a parent refuse to allow visitation if child support is not paid?

No. Failure to pay child support is not a basis for denying another parent their placement time.  If you withhold placement time, you could be held in contempt of court and face penalties unless you prove that visitation would put the child in danger.

Do grandparents have custody and visitation rights?

Grandparents have custody and visitation rights, but they are not usually a consideration in most divorce cases.  Relatives other than the parents who seek custody must be able to prove that neither parent can care for the child adequately or that neither parent is fit and proper to have the care and custody of the child.

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