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
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
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
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
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
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 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
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
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
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
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
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?