Kaplan Law Firm S.C.

10200 North Port Washington Road, Suite 100

Mequon, WI 53092

 

 Created by Danielle Jurjevic. Hosted by Wix.

When your marriage ends, your role as a parent does not –

and neither does your former spouse’s. You both love your

children and want what’s best for them.

Now that you’re divorcing, you must decide legal

custody and placement issues. How well the two of you

handle these decisions will have great impact on how

well your children cope with their parents' separation as

well as their emotional well-being during and after your

divorce.

Custody and placement decisions also must be

made in paternity cases by parents who have never married.

This includes cases that began with the filing of a

Voluntary Acknowledgement of Paternity.

Generally, child custody and placement laws assume

that children are healthiest and happiest when they have

good relationships with both parents. When parents

divorce, the court must make orders about decision-making

and periods of physical placement with each parent.

The term "visitation" is used for other relatives, but not

for parents. In most cases, the parents reach their own

custody and placement agreements that the court then

approves.

Legal rules and terms come into play throughout the

process of creating a custody and placement agreement.

This pamphlet answers common questions you may have

regarding your divorce or paternity case.

 

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.

 

Does the law require 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 agreement.

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 joint custody and shared placement work for

their children. 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.

If no agreement is reached, you may not move out of state

or more than 150 miles without a court order allowing it.

A motion must be filed with the court. A guardian ad litem

will be appointed and a court hearing held to determine

what is in the children's best interest. 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.

 

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. Professional assistance

is helpful and can include 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). If you discuss and reach agreement

on your own, you can go to www.wicourts.gov for forms to

put your agreements in writing; however, you are encouraged

to consult with a lawyer.

In most cases 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 may retain private mediators to assist them in

reaching parenting agreements. Parents also may work

with a child specialist 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 trial. 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. Parental conflict is harmful to

children. 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.

Custody & Placement

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

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 (www.collabdivorce.com). 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 self-help

centers and frequently-used forms are available online at

www.wicourts.gov.

 

This is one in a series of consumer information pamphlets

published by the State Bar of Wisconsin.

Custody and Placement

What are my rights? How do I petition for divorce?

How does child custody and support work?