Wisconsin Child Custody Questions

Wisconsin child custody attorneys answer frequently asked questions about child custody laws in Wisconsin and how custody is decided.

Who will get custody of our child?

In Wisconsin, custody refers to decision-making authority, and it is most common for custody to be held jointly between the parents. Pursuant to statute, the court is required to presume that joint legal custody is in the best interest of the children.

It is in the present best interest of the minor children of the marriage for the parents to have joint legal custody if both parents are fit and proper persons to have joint legal custody.

Placement means the right of a parent to have the child physically placed with that party and has the right and responsibility to make, during that placement, routine daily decisions regarding the child’s care, consistent with major decisions made under the custody designation. The placement order addresses where and with whom the child actually spends time.

Under most circumstances, when a court sets a parenting schedule in a placement order, it is required to set a schedule that allows the children to have regularly occurring, meaningful periods of physical placement with each parent that maximizes the amount of time the child may spend with each parent.

What is joint custody? What is sole custody?

In Wisconsin, joint custody means the condition under which both parties share legal custody and where neither parent’s legal custody rights are superior. The parties are required to consult and attempt to reach agreement with respect to major decisions affecting the lives of the minor children.

Each of the parties is required to provide advance notice to the other regarding these major decisions so as to facilitate co-parenting communication, cooperation, and mediation if necessary.

Sole legal custody is the condition under which one party has legal custody, or sole authority, to make decisions.

Alternatively, the parents can be awarded joint legal custody, but one parent can be awarded decision-making authority as to one or more areas of joint custody, to allow a decision to be made if the parties cannot reach an agreement, subject to review by the court.

This designation to one parent is often done if the parents have difficulty communicating, have different beliefs governing an issue, or if one parent is a significant distance from the other.

If both parents share custody does anyone pay child support?

The child support order, and whether one should be issued, depends on the actual placement schedule and each parent’s income.

In Wisconsin, the Department of Children and Families promulgates percentage standards for child support. The standard child support order for one child is 17% of a parent’s gross income if that parent has placement less than 25% of the time, specifically less than 92 overnights per year.

If the parents have a shared placement schedule, the court utilizes a shared placement formula. The shared-placement formula assumes that both parents assume the child’s basic support costs in proportion to the time that the parent has placement of the child. The steps to calculate the potential child support award follow:

  • Each parent’s gross monthly income is multiplied by the appropriate percentage standard, 17% for one child.
  • Each amount is then multiplied by 150% to account for household maintenance expenditures duplicated by both parents such as a bedroom, clothes, and personal items.
  • Then each amount is multiplied by the proportion of the time that the child spends with the other parent to determine each parent’s child support obligation (If placement is equal, each side is multiplied by 50%. If placement is 60% with the mother and 40% with the father, then multiply the father’s amount by 60% and the mother’s by 40%).
  • Offset the resulting amounts against each other. The parent with a greater child support obligation is the payer.

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.

When can my child decide which parent to live with?

In Wisconsin, the child must be emancipated in order to independently decide where he or she wants to live; this usually occurs when the child turns 18 or graduates from high school.

The wishes of the child are considered by the court at any age, but these wishes are communicated through the child’s Guardian ad Litem. The Guardian ad Litem will also make a recommendation to the court that he or she believes to be in the child’s best interest. This recommendation may or may not be consistent with the child’s wishes.

Do grandparents have custody and visitation rights?

Grandparents have custody and visitation rights, but they are not usually a consideration in most divorce cases. In order to award custody to a relative other than the parents, the court must find that neither parent is able to care for the child adequately or that neither parent is fit and proper to have the care and custody of the child.

In general, courts do not award placement time to grandparents if the case involves two parents; it is up to one of the parents to share their time with the grandparents. Courts have awarded placement time with an absent parent’s family members.

What is a parenting plan, and do I need one?

A parenting plan is a document that sets forth what one parent is seeking from the court. It provides information about what custody and placement orders the parent is seeking, and follows up with more specific questions such as where the parent currently lives, where he or she plans to live, what his or her work hours are, where they plan to have the children attend school, what child care options they have, and how the child will communicate with the other parent.

A parenting plan is required to be filed with the court 60 days after mediation is completed, if mediation was not successful, or 60 days after the court has waived mediation.

If my separation agreement includes custody/support can it be included in the divorce decree?

The final orders on custody and placement, whether they are by agreement or determined by the court following a hearing, will be included and adopted in to the judgment of divorce.

What can I expect from temporary orders?

Temporary orders are issued at a first hearing before a family court commissioner. The commissioner will want to know what issues are contested and will likely accept agreements that the parties have. If parents do not agree on custody and placement, the commissioner will likely order the parties to mediation and may issue temporary orders about what the placement schedule should be while mediation is pending, depending on the circumstances of the case.

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 will child custody be decided?

The custody and placement order will be finalized either when the parties reach an agreement or following a trial. Prior to trial, the Guardian ad Litem will make a recommendation. In some counties, the court may also order a custody study by a social worker or other evaluations to assist in making the determination.

When can I modify custody?

The standard to modify custody and placement orders is different depending on whether two years have elapsed from the entry of the judgment. The first two years following the divorce judgment is colloquially referred to as a “cooling off period.” As a result, it is very difficult to modify the placement schedule other than by stipulation within two years of the divorce.

In order to seek a modification, the moving parent must show “by substantial evidence that the modification is necessary because the current conditions are physically or emotionally harmful to the best interests of the child.”

The standard for modification if more than two years have expired from the final order is significantly different. The threshold question for the court to determine is whether the moving parent has shown that there has been a substantial change in circumstances since the entry of the last order affecting physical placement. If that burden is met, the court then proceeds to consider whether any modification would be in the best interest of the child.

What if we cannot agree on a custody arrangement?

When parents cannot come to an agreement on custody and placement, the court will likely first order the parties to attend mediation. If mediation is unsuccessful, the court will appoint a Guardian ad Litem to represent the children’s best interest. The court may also require a custody study or other evaluations to be completed for the court’s review in making a determination.

What is an ex parte order?

An ex parte order is an order issued while only one party is present. The other party has not been heard by the court on the issue.

How is custody decided?

Custody and placement are determined by the agreement of parents or by court order. The court will issue an order following a trial or evidentiary hearing on the matter. If the court is determining custody and placement, it is required to consider the following factors:

  • The wishes of the child’s parent or parents, as shown by any stipulation or proposal;
  • The wishes of the child, through the Guardian ad Litem or other professional;
  • The interaction and interrelationship of the child with his parents, siblings, and any other person who may significantly affect the child’s best interest;
  • The amount and quality of time that each parent has spent with the child in the past, any necessary changes to the parent’s custodial roles and any reasonable life-style changes that a parent proposes to make to be able to spend time with the child in the future;
  • The child’s adjustment to the home, school, religion and community;
  • The age of the child, and the child’s developmental and educational needs at different ages;
  • 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 need for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child;
  • The availability of public or private child care services;
  • The cooperation and communication between the parties and whether either party unreasonably refuses to cooperate or communicate with the other party;
  • 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;
  • Whether there is evidence that a party engaged in abuse;
  • Whether a person whom a parent is dating, a person who resides or intermittently resides at a proposed custodial household, has a criminal record and whether there is evidence that they have engaged in abuse of any child, or neglected any child;
  • Whether there is evidence of interspousal battery or domestic abuse;
  • Whether either party has or had a significant problem with alcohol or drug abuse;
  • The reports of professionals if admitted into evidence; and
  • Such other factors as the court determines to be relevant.

How can I increase my chances at getting a larger custody agreement?

Custody and placement orders are very fact specific because the court must consider many factors.

What is visitation?

In Wisconsin, visitation, or physical placement, means the right of a parent to have the child physically placed with that party. That parent also has the right and responsibility to make, during that placement, routine daily decisions regarding the child’s care, consistent with major decisions made under the custody designation. The placement order addresses where and with whom the child actually spends time.

Can a judge order supervised visitation or no visitation?

A court can order supervised placement if a reason for the supervision is found by the court, which is usually to alleviate a safety concern about the children. The supervised placement can be supervised by a mutually agreeable person or at a facility.

A court is required to order placement times with each parent unless it finds that placement with a parent would be harmful to the child.

Do courts favor the mother over the father?

By statute, the court may not prefer one parent or potential custodian over the other on the basis of sex or race of the parent or potential custodian.

In practice, parents may have perceived a preference based on the roles that each parent has assumed. For example, if the court is determining a schedule for a young infant and the mother is breast-feeding the child, that role will be a large factor for the court to consider.

What should I know before a custody trial?

Each custody trial is very different, and many steps must be completed prior to a trial. These steps may include mediation, a custody evaluation, and the appointment, investigation, and recommendation of a Guardian ad Litem. You should know what your burden of proof is and how you are going to meet that burden in an appropriate and effective manner.

Can I collect my own evidence to use if my custody case goes to court?

Evidence will need to be presented at trial or at motion hearings. Some of this evidence may be collected by a Guardian ad Litem or social worker, depending on what is involved in your case. However, you should not rely on other individuals to present evidence.

In terms of gathering evidence, you have the right to gather evidence through formal and informal discovery. Discovery should be conducted appropriately to gather the necessary information.

Do I need to use a Guardian ad Litem/Custody Evaluator?

The court may appoint a Guardian ad Litem or require a custody evaluation. If these orders are made in your case, you should cooperate to further your case.

Will my child need to appear in court?

No. Children are not required to appear in court; in fact, they are only allowed to appear in very rare and extenuating circumstances. Permission must be granted from the court before a child would be allowed to appear.

Instead the Guardian ad Litem will speak with the child and relay what the child’s wishes are in addition to what the Guardian ad Litem recommends is in the child’s best interest.

What is the Parental Kidnapping Prevention Act?

The Parental Kidnapping Prevention Act is a federal law that requires every state to enforce any child custody determination made in another state. It also prohibits a state from modifying any child custody determination unless it has jurisdiction and the state that issued the previous order no longer has jurisdiction.

What if my wife tries to move the kids out state?

The steps that you need to take depend on where you are at procedurally in your case. If no case has been filed yet, you must act quickly to initiate an action and file a motion to get the situation addressed.

If a divorce is currently pending, your wife is prohibited from establishing the children’s residence out of state without your agreement or a determination by the court that the move is in your children’s best interest.

If the divorce was previously granted, the judgment states how you must object to the move. Generally, your wife must give notice of her intent to move, and you must respond with an objection, and file that objection with the court. If that procedure is followed timely, she cannot move until the court makes a determination that a move is in the child’s interest.

Can a parent change the child’s last name without the other parent’s permission?

In order to change a person’s name legally, a case must be brought in court. Additionally, any change for a minor is a custody decision that must be agreed to if the court has ordered joint custody.

If I have custody, will I receive child support?

In Wisconsin, child support is set after the placement schedule is determined. The Department of Children and Families has promulgated percentage guidelines. The courts are required to follow these guidelines in issuing an order, or state the reason for deviating from the guidelines. The guidelines are tailored to meet specific circumstances, such as a parent with high income, or situations where one child may have a different placement schedule that then other children.

In general, if that parent has placement less than 25% of the time, specifically less than 92 overnights per year, that parent will pay a percentage of his or her gross income to the other parent. That percentage is: 17% for one child, 25% for two children, 29% for three children, 31% for four children, and 34% for five or more children.

If the parents have a shared placement schedule, the court utilizes a shared placement formula. The shared placement formula assumes that both parents assume the child’s basic support costs in proportion to the time that the parent has placement of the child.

Each parent’s gross monthly income is multiplied by the appropriate percentage standard, 17% for one child.

Each amount is then multiplied by 150% to account for household maintenance expenditures duplicated by both parents such as a bedroom, clothes, and personal items.

  • Then each amount is multiplied by the proportion of the time that the child spends with the other parent to determine each parent’s child support obligation. (If placement is equal, each side is multiplied by 50%. If placement is 60% with the mother and 40% with the father, then multiply the father’s amount by 60% and the mother’s by 40%).
  • Offset the resulting amounts against each other. The parent with a greater child support obligation is the payer.
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