Who gets child custody in a divorce?

Laws, stipulations and permissions for custody of a child in Wisconsin

In Wisconsin, there is a statutory presumption of parents sharing joint legal custody, meaning neither parent has a superior right to the other to make major decisions. Even if the time spent with the child is unequal, parents are usually presumed to have joint legal custody.

Legal custody: Who has the rights and responsibilities to make major decisions concerning a minor child.
Major decisions include:

• Medical decisions
• Choice of school
• Choice of religion, etc.

The presumption of joint legal child custody can be refuted by a few circumstances which are detailed within the Wisconsin Statutes. One of the most common circumstances creating grounds for sole legal custody stems from domestic violence or abuse incidents/allegations.

Wisconsin visitation rights & laws

Physical placement (the correct term for “visitation”) means the period of time and conditions during which the child/children will have placement with a parent. Unlike legal custody, there is no starting presumption with regard to the physical placement of a child. A number of factors can affect physical placement.

What factors influence child custody & placement?

• Distance between the parents’ homes
• Living conditions in each home
• Age of a child
• Ability of a parent to provide proper care, etc.

Child custody during divorce proceedings

This is generally the most contested portion of a family law matter. Property division and other aspects of divorce can be relatively cut and dry; laws surrounding children and custody fall into a gray area. Parties often disagree on placement for various reasons. This is when the court will order other court resources like a social worker (or a Guardian ad Litem) to investigate and make a recommendation on placement.

Is it true that Wisconsin divorce laws favor the mother?

No, Wisconsin divorce laws do not favor the mother over the father. Listening to the experiences of friends, family members, co-workers, etc., may give the impression that the law may be biased or unfair. The facts of every case are specific to that family, and the courts determine the outcomes on a case by case basis.

The court will look at many factors in deciding custody and placement of the child. They will consider what is in the best interest of the child and whether the child’s physical, mental, and emotional needs are met. The courts will look at the location where each parent lives, where the child’s school, friends, activities and community are. They will consider the age of the child, and whether it is in the best interest of the child to stay closer to one parent over the other. The court will consider many factors and will not automatically favor the mother.

Make divorce child custody laws work for you.

If there is no history of domestic violence or substance abuse, the Court will order the parties to mediate through family court services. This mediation does not involve attorneys, though we will help you prepare for mediation. If mediation is unsuccessful, the next step is for the Court to appoint a Guardian ad Litem to represent the best interests of your child(ren).

Making a parenting plan & navigating the courtroom

At this point, it is also necessary to prepare a parenting plan. This plan will help both parents put on paper the logistics of raising a child as a single parent. This will show how close or far the parties are to an agreement and may show either parent his or her limitations as a single parent.

Only the parents know what is truly best for their children. When parents are unable to come to an agreement regarding what is in the best interests of their child(ren), they are inevitably deciding to put the decision into the hands of a third party, who does not know the parents or the child(ren).

At trial, the judge often has a limited amount of time to hear any evidence and make a decision regarding your future. Thus, the judge will often place great weight on input from the Guardian ad Litem, who has had more time to investigate the situation and meet with the children.

It is important to note that whether parties agree to an outcome or it is decided in the trial, it is extremely difficult to change custody and placement during the first two years of a standing order unless the change is agreed to by all parties.

My Ex has a substance abuse problem. How will it affect child custody?

The court takes allegations of drug and alcohol abuse very seriously. If a court finds that your spouse has a drug or alcohol issue, they may require supervised physical placement for the child/children. The court will always rule on behalf of the best interest for the child or children. 

You should gather evidence supporting your concern about your spouse’s substance abuse, including pictures, evidence of any OWI/DUI convictions, texts or emails verifying use, etc.

By Wisconsin state statute, courts presume joint custody, but sole legal custody can be awarded to one parent in certain circumstances, like substance abuse issues. If your spouse has a substance abuse issue that may interfere will their ability to parent, or if the substance abuse may affect the child’s physical, mental, and emotional health, the court may order sole legal custody to you.

Take the next step — Contact our Wisconsin child custody attorneys today.