Custody & Placement
What is legal custody?
This is the legal right to make major decisions about your children. Major decisions cover such matters as nonemergency health care and choice of school and religion. Others include parental consent to marry, obtain a driver’s license, or join the military. Legal custody can be joint or sole – it means who decides. It does not mean where the children live.
How do joint legal custody and sole legal custody differ?
Joint legal custody means both parents have equal rights to make major decisions about their children; decisions should be made jointly after consultation since neither parent’s rights are superior. Sole legal custody means only one parent has the right to make such decisions. The court also may order that one parent or the other has the sole right to make certain major decisions, such as education. Joint legal custody is presumed unless there is an agreement otherwise or specific reasons for a court to grant sole custody, such as domestic violence.
What is physical placement?
This is the time your children are in each parent’s care. During physical placement, you have the right to make routine daily decisions about your children’s care.
Most court orders provide a placement schedule of the times the children are to be with each parent. Placement schedules can vary from brief time with one parent and the remainder with the other to the same amount of time with each parent. Placement schedules also provide for placement on holidays and vacations.
Court orders can be general or specific. Very general court orders (such as “reasonable times on reasonable notice”) can be hard to follow or enforce. This can create conflict for the parents and stress for the children. Orders that spell out specific periods of placement with each parent and transitions can be helpful and can provide a safety net for parents and children to rely on if parents are not communicating well. It is best for children if each parent is flexible and considerate of the child and other parent’s needs.
Is it true that the law requires that each parent have equal placement?
No. The law provides that the children should have a schedule that allows regularly occurring, meaningful periods of placement, and maximizes the time the children spend with each parent, considering the geographical distance between the parents and each parent’s household accommodations. Factors in the statute to be considered in determining what schedule is in a child’s best interests include each parent’s availability to provide care for the children, each parent’s wishes, family and other significant relationships, past parenting time and proposed changes, individual adjustment, needs and wishes of each child, availability of child care, communication and cooperation between parents, and support or interference of each parent with the other’s relationship with the children.
Which decisions are considered routine daily decisions?
These include decisions such as bedtime, study time, diet, extracurricular activities, social activities, and discipline. The right to make routine daily decisions belongs to the parent during his or her placement time. Any routine daily decision must be consistent with major decisions made under the legal custody provisions and must not break any laws about safety.
Whatever the parents’ legal rights are, children do best when their parents agree to similar rules and routines in both households. Also, many daily decisions, such as extracurricular activities, overlap periods of placement and require parental communication and coordination.
It’s helpful for everyone if you respect each other’s right to know about your children. Both parents need to know the children are safe and well cared for. Children do best when their parents work together. Parents must cooperate to make join custody and shared placement work for their children.
How do custody and placement issues get resolved?
It’s best for children if their parents reach their own agreements about custody and placement. You should first try to come to an agreement with the other parent; then put your agreement in writing and ask the court to approve it. Parents may work with family counselors or child specialists to get professional assistance in creating plans that best meet their children’s needs. The court usually approves a placement agreement if it is reasonable and voluntarily agreed to by both parents. You can go to www.wicourts.gov for forms to assist putting your agreements in writing. Parents can reach agreements by direct discussion, mediation (joint sessions with a neutral mediator), or collaboration (each parent hires a lawyer and all four commit to an out-of-court settlement process).
Parents who are unable to reach agreements must meet at least once with a mediator. For information about court services for mediation, call your county’s family court commissioner or clerk of court. Parents also may retain private mediators to assist them in reaching parenting agreements. Parents also may work with a child specialtist or co-parent counselor to help them address issues in the best way possible for their children.
If you’re unable to reach an agreement in mediation, you ask the court to decide. The court will appoint an attorney (called a guardian ad litem) to investigate and represent the best interests of your children. Some counties also have court social workers who conduct studies and recommend allocation of custody and a specific placement schedule. The social worker and guardian ad litem process may take several months to a year. Some parents reach agreements, with the approval of the guardian ad litem, after receiving such input. If no agreement is reached, the court schedules a hearing. The parents and guardian ad litem present their evidence at the hearing, and the court decides the issues.
Most parents prefer not to have the court make decisions about their children. Going to court is costly and time-consuming for both of you and takes an emotional toll on the whole family. Alternatives to the court process that may assist you in reaching agreements include hiring a mediator and/or hiring a lawyer. Collaborative practice is a popular process to resolve issues. Information on using the collaborative process in divorce cases and lists including lawyers and child and family specialists are available at www.collabdivorce.com.
What are my rights to information about my children?
All parents have a right to their children’s school, medical, and dental records. The only exception is if the court denies a parent any visitation or physical placement with the children.
You may contact the school or health care provider directly to get school, medical, and dental records (including report cards, notices of parent/teacher conferences, health notices, prescription information, and so on). Wisconsin statute 767.41(7) requires schools and health care professionals to give you this information. You may want to provide a self-addressed, stamped envelope to make it easier for the school or clinic to send you copies of records. You may need to pay a fee for copies.
What happens if the other parent won’t let me see our children?
First, check your court order. Does it state specific times the children are to be with you? If it does, you may want to remind the other parent of this order and give the other parent a copy of the order.
If the order states no specific placement times, you may want to ask the court to change the order. The court could add specific times and thus clarify your right to see your children.
If the other parent still won’t let you have the children during your placement times, you may ask the court for help in enforcing the order. You would file a “petition to enforce physical placement orders” or a “motion and affidavit for contempt.”
Parents can get in legal trouble if they do not follow the court order. The court can provide make-up time, and order the losing party to pay the other party’s attorney fees. If the court finds a party in contempt, the court then makes orders which can include fines, jail time, or anything else the court finds appropriate.
Neither parent should ignore a court order, and neither party should take legal action unless necessary. You may want to try counseling or mediation before involving the court to avoid the cost and effect of conflict on you and your children. You may ask your county family court commissioner or clerk of court for information about court mediation or filing a court action. You should consult with a family law attorney before filing.
What if I have concerns about the other parent or a stepparent?
Start by discussing your concerns with the other parent. Try to work out something mutually acceptable. It’s better for children when their parents work together to share concerns, information, and decision-making.
That’s not saying it’s easy to do, especially if one or both of you have new partners. But making the effort definitely will help your children. If you’ve talked things over and you still have concerns, you can pursue family counseling or meet with a child specialist. You also could agree to obtain a mediator’s assistance or contact your county’s family court commissioner or clerk of court for court-referred mediation. When mediation doesn’t resolve your concerns, you may file a motion to change placement. But a motion based solely on the fact that you don’t like the other parent’s parenting style will not support a change. Unless there are safety issues, it is generally best for parents to find a way to work out issues without the court’s involvement. You should consult with a family law attorney before filing any court action.
What happens if I refuse to let the other parent see our children?
Violating a court order that states certain times for the children to be placed with the other parent could lead the court to hold you in contempt or grant the other parent relief under a “petition to enforce physical placement.” Withholding children also can result in criminal charges.
Certain situations might justify violating a court order – for example, to protect you or your children from immediate abuse or harm. Before disobeying any court order, talk to a family law attorney.
What happens if the other parent does not take our children as provided in the order?
It’s difficult to force an unwilling parent to spend time with his or her children. If your children’s other parent fails to take them for placement as provided in your order, try to discuss the problem. Could the order be revised to better suit the other parent’s scheduling or other needs? Consider co-parent or family counseling.
If the other parent still refuses to take your children as provided in the order – and if you’re losing money as a result – you may file a request with the court to order the other parent to pay you for money lost (such as for added child care expenses).
If a parent repeatedly and unreasonably fails to take the children as provided in the court order, you may ask the court to modify the placement schedule to order a schedule consistent with what’s actually happening. A change in placement may also be a basis for you to ask for a change in child support.
Can I move with the children?
If you have physical placement of the children and you wish to move the children out of Wisconsin, or move the children more than 150 miles from your home at the time the court order was made, you must provide certified mail notice to the other parent. If the other parent notifies you and the court of an objection, the court orders mediation and, if no agreement is reached, a guardian ad litem will be appointed and a hearing held to determine what is in the children’s best interests. No move may occur until the issue is resolved. Even moving less than 150 miles can impact the ability to follow the placement schedule.
The court has the power to allow the children to move and to adjust the placement schedule or order the children to stay with the other parent if you move. The court will consider various factors in making decisions that reflect the best interests of the children. The decision to move with the children can have a major impact on your children and their relationship with each parent and on other aspects of the children’s lives such as school, extended family, and friends. You should obtain professional input and explore the impact of such an action before proceeding.
How do I change an existing order?
Changes may occur anytime by mutual agreement of both parents. To be legally binding, the agreement must be submitted to the court for approval. If the court doesn’t approve the agreement, the agreement is not an order, and the parents aren’t required to follow it. Either parent may bring a motion to return to court and request a change in a custody or placement order if there is a substantial change in circumstances that supports the parent’s claim that a change would be in the children’s best interests. If it is within two years of the first placement order, the court will not order a change unless there is a showing that the current conditions are physically or emotionally harmful to the child. The procedure for resolving issues about changing orders is the same as for deciding original orders as discussed above.
Where can I get more information?
There are many resources to learn more about the impact of divorce on children and how to cooperate and co-parent. Effective co-parenting helps promote healthy outcomes and development for your children. You might want to work with a private counselor or child specialist trained in divorce and separation issues. If you have disputes, you could obtain information about private mediation or collaborative practice. You also could request court information through your county’s family court commissioner office or clerk of courts.
To learn more about custody/placement law, see a family law attorney experienced in children’s issues. Attorneys can discuss options and the potential legal consequences of different decisions and process choices. Only an attorney can review the facts of your situation and give you legal advice. Some county courthouses have papers for filing on your own and most regularly-used forms are available online at www.wicourts.gov.
FAQs | Guardians ad Litem
Deciding how your family will be restructured to best meet the needs of your children during and after divorce is perhaps the most important decision you, as a parent, will make. Legal custody, physical placement, and child support issues must be decided to ensure that your children’s needs continue to be met. “Legal custody” means making major decisions affecting your children, such as medical care, education, and religion. “Physical placement” means the amount of time your children will live with each parent. “Child support” means providing for your children’s financial needs. If parents have disagreements, they must participate in mediation to help them resolve issues.
Parents sometimes are unable to agree on these issues, even with the help of a mediator. When this happens, the judge will appoint a guardian ad litem (GAL) to assist the judge in making custody, placement, and support decisions.
What is a guardian ad litem (GAL)?
A GAL is an attorney, licensed to practice law in Wisconsin. The GAL’s role is to represent the best interests of the children as determined by the GAL through an investigation.
The GAL will investigate the facts, participate in negotiations, and take a position in court on legal custody and placement. The GAL also may become involved in the financial issues of a case when those issues affect the children. The GAL does not have any of the rights or duties of a parent or general guardian. Although the GAL may be incorrectly referred to as the children’s attorney, the GAL’s role is to advocate for the best interests of the children. This may not be the same as advocating for what the child wants.
What determines whether a GAL becomes involved in a case?
When parents cannot agree on custody or placement, the court must appoint a GAL. Usually, the parties first must try mediation to reach an agreement. If mediation fails or is inappropriate for some legal reason, the court will appoint a GAL to assist the court in deciding custody or placement. The court also will appoint a GAL if the court has special concern for the welfare of a minor child. Although the GAL generally is appointed in the beginning of a case, the court can appoint a GAL any time in the proceeding when the best interests of the children are at issue. The exception is in a modification proceeding if the proposed modification would not substantially alter the placement times. In that situation, the court may find that a GAL would not assist it in making its orders.
How is a GAL appointed?
A GAL is appointed by a family court commissioner or judge, acting alone or when asked by one of the parents. The procedure varies – some counties have lists of attorneys who take GAL appointments, other counties have contracts with specific attorneys for GAL appointments.
What is the GAL’s role?
In representing the best interests of the children, the GAL may negotiate settlements, conduct formal and informal discovery, hire experts, interview witnesses, investigate whether there has been interspousal battery or domestic abuse, comment on any parenting plan filed by any party or any stipulation or mediation agreement reached by the parties, and participate in all court proceedings. Either party may request a status hearing before the court on the actions taken and work performed by the GAL anytime after 120 days from the GAL’s appointment. A second status hearing can be requested after an additional 120 days from the first status.
Will the GAL meet with my child and me?
The GAL will meet with both parents, usually separately and in the GAL’s office. The GAL also will decide whether and when to meet with your child, which could be in the GAL’s office, each parent’s home, the child’s school, or another location.
How does the GAL investigate issues that affect my child?
Because the GAL is an attorney, the GAL investigates facts that are relevant to the issues in your case. Much of the investigation is called “informal discovery,” which is conducted through interviews with both parents, the child, or other people with significant information. You may also be asked to sign a release authorizing the GAL to review relevant records, such as school, medical, or mental health records.
The GAL may ask other experts, such as a social worker or a psychologist, to provide input and possible future testimony regarding the case. If there are problems with alcohol or drugs, the GAL may ask the judge to order a parent to have screening tests.
The GAL also may use the “formal discovery” process to assist in the investigation, including interrogatories, requests for document production, or conducting a deposition.
What factors does the GAL consider in the investigation?
In investigating and developing input for the court’s consideration, the GAL must consider: the wishes of your child and both parents; whether a parent has engaged in a pattern or serious incident of interspousal battery; the safety and well-being of the child and the safety of the parent who was the victim of the battery or abuse; your child’s interaction and relationship with you and other family members; the amount and quality of time you have spent with your child in the past; any necessary and reasonable custodial and life-style changes you propose to make to spend time with your child in the future; your child’s adjustment to home, school, religion, and community; your child’s age and developmental and educational needs at various ages; the mental or physical health of a parent, the child, or other person living in the proposed custodial household; the need for regularly occurring and meaningful placement to provide predictability and stability for your child; availability of child care services; the cooperation and communication between parents and whether either one unreasonably refuses to cooperate or communicate with the other; a parent’s likelihood to interfere in the other parent’s continuing relationship with the child; any physical abuse or problems with alcohol or drugs; the reports of appropriate professionals; and other significant factors that would affect your child’s well-being.
What happens when the GAL completes the investigation?
The GAL generally will give the parents and/or attorneys a preliminary summary of what the GAL will present to the judge. The input could change depending on additional evidence or facts that are uncovered. Generally, the parents’ attorneys will discuss the GAL’s preliminary recommendations with their clients. Frequently, settlement proposals are exchanged and the case may be resolved by agreement. If the parents cannot agree, the case is prepared for trial before the judge, who will make the final decision.
Who pays for the GAL?
The judge decides who pays for the GAL’s services. The requirements vary from county to county. Generally, each parent is responsible for one-half of the GAL’s total costs, including the GAL’s time and investigation costs, such as tests and experts. The court also may require the parents to pay an initial deposit and periodic payments to the GAL during the case. If the judge decides that both parents are unable to pay for the GAL’s services immediately, the judge may have the county pay the GAL bill. However, the parents are still responsible for the GAL fees and the county may require the parents to reimburse the county.
Can I change GALs?
There are very limited circumstances in which a new GAL would be assigned to your case. Only the judge can remove a GAL.
How long will the GAL be involved in my case?
By statute, the GAL serves in a case until either the parents reach a written agreement resolving the issues and the judge approves it, or there is a hearing and the judge decides the case. The judge can discharge the GAL if one is no longer necessary. If your case is appealed, the GAL is involved in the appeal process unless the court orders otherwise. If a new motion is filed in your case in the future, the judge may reappoint the same or a different GAL as an advocate for your child’s best interests.