How Wisconsin Courts Determine Custody

Wisconsin family courts aim to facilitate a healthy co-parenting environment for the child. The factors Wisconsin courts use to determine child custody are as follows:

  • Child's age
  • Parent's living situation
  • Each parent's relationship with the child
  • The child's preference
  • A situation promoting consistency and stability
  • The mental and physical  health of both parents involved
  • The willingness of both parents to communicate and cooperate as co-parents
  • The parent's willingness to help facilitate a meaningful relationship with the other parent
  • Any past domestic violence allegations by either parent against the other parent or child
  • Who has played the role as primary caretaker for the child thus far in the child's life


In Wisconsin, custody and placement is typically determined by a parenting plan that the parents work on together to determine the best interests of the child. When parents can't come to an agreement, Wisconsin courts look at a number of factors in order to determine child custody and placement for the parents. In most cases, unless there's clearly a present danger to the child, the courts aim to maximize time for the child with both parents. This means the court will try to give both parents as much time as possible, based on the work schedule of the parents, school/daycare of the child, and location of the child's significant influencers.

How Does the Court Decide Custody?

If the parents are unable to come to an agreement, placement will be determined by the court following a trial or an evidentiary hearing. Before issuing the custody order, WI judges must consider the following factors before determining the legal and/or physical custody of a child:

  1. The wishes of the child, which may be communicated by the child or through the child's guardian ad litem or another appropriate professional.
  2. The interaction and interrelationship of the child with his or her parent or parents, siblings, and any other person who may significantly affect the child's best interest.
  3. The amount and quality of time that each parent has spent with the child in the past, any necessary changes to the parents' 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.
  4. The child's adjustment to the home, school, religion, and community.
  5. The age of the child and the child's developmental and educational needs at different ages.
  6. 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.
  7. The need for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child.
  8. The availability of public or private child care services.
  9. The cooperation and communication between the parties and whether either party unreasonably refuses to cooperate or communicate with the other party.
  10. 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.
  11. Whether there is evidence that a party engaged in abuse of the child.
  12. Whether any of the following has a criminal record and whether there is evidence that any of the following has engaged in abuse of the child or any other child or neglected the child or any other child:
    • A person with whom a parent of the child has a dating relationship.
    • A person who resides has resided or will reside regularly or intermittently in a proposed custodial household.
  13.  Whether there is evidence of inter-spousal battery or domestic abuse.
  14. Whether either party has or had a significant problem with alcohol or drug abuse.
  15. The reports of appropriate professionals if admitted into evidence.
  16. Such other factors as the court may in each individual case determine to be relevant.

The court's' decision will prioritize a child's safety and well-being over all other factors. Patterns of abuse, either inter-spousal or domestic or a serious incident of abuse are the paramount concern in in determining legal custody and periods of physical placement. Additionally, the court cannot consider active or reserve military service as a factor in determining the legal custody of a child.


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More on the Factors Courts Consider

Since Wisconsin is a state using the “best interests of the child” standard to determine custody, it leaves custody to judges' belief systems. In today's world judges generally lean toward the belief that there is more benefit to the child when both parents are involved on an ongoing consistent basis. The following are the main factors judges consider when overseeing child custody cases.

Children's Age

For the most part, the “tender years” doctrine is all but extinct in Wisconsin, but since the decision is up to the judge, there is still some who believe younger children should grow up with their mother. This is especially true if the mother is the primary caregiver and almost always true when a nursing baby is involved.

Parent's Living Situation

This is typically the most important consideration. Many times the parent who stays in the family house will keep the children. This allows the children stability during an unstable time. For this reason, if you are fighting to get primary custody it is imperative you do NOT move out of the family home if the situation allows.

One Parent's Support of the Other Parent's Involvement with the Children

Since judges typically hold the belief it is in the best interests of the child when both parents are involved in the children's lives, your record of cooperation with the other parent will be considered. This includes your proposed custody and visitation plan and whether you bad-mouth your spouse. The more cooperative parent typically has greater success in custody disputes. It shows you can think objectively about your children's needs.

Relationship with the Children

The judge will review the historical parental relationship for each child with each parent. Judges review this historical relationship because parents request primary custody to get a win over the other parent or avoid paying child support.

The Child's Preference

Children are not allowed to decide which parent they want to live with after a divorce in Wisconsin. The judge in charge of the divorce or custody hearings must give consideration to the child's wishes at any age but it isn't until age 14 that their wishes are given more weight in the decision. A child's preference does not always dictate the primary placement of the children, especially when there are multiple children involved. The court prefers to not separate the children into different homes as this creates more instability in the children's lives.

Consistency and Stability

Lastly, but certainly not least, important is maintaining consistency and stability in the children's lives. This is by far one of the most important overall factors, which rears into every facet of child custody decisions. Many courts believe what is in the best interest of the child is maintaining consistency and stability. Be sure you consider how making decisions for yourself might impact how the court views that decision under the scope of consistency and stability.

Jurisdiction issues in Child Custody Cases

One of the important statutes relating to child custody is the Parental Kidnapping Prevention Act[1] that was adopted by the Congress in 1989 to establish a certain set of standards for the appropriate exercise of jurisdiction over custody matters among the states. Under this law, a preference is given to the home state in which the child involved has resided within the past six months. The purpose for this Act is to prevent a parent from forum shopping which can be done by initiating a legal action in a different state with the intention of obtaining a favorable court ruling. If you are a party who needs to file a case for child custody claim and the other party is residing in another state, then it is necessary that you go over the provisions of the Parental Kidnapping Prevention Act. Take note that jurisdiction in civil cases is important. When there is a failure to acquire jurisdiction, the court's resolution or order will be considered null and void.

Tender Years Doctrine

The Tender Years Doctrine is a mostly outdated legal principle that stated a child's mother should always have custody of the child. But as years have passed, the court systems have increasingly shifted away from this principle and instead focus on the best interest of the child. Unsurprisingly in most cases, the best interest of the child is a life where both parents are involved. As such, laws are slowly being developed to enforce shared parenting with regards to child custody cases.

If Convicted of Spousal Abuse, Will It Affect the Custody Hearing?

Sections 767.24(2)(b) and (d) of Wisconsin statutes state that the court must take into consideration evidence demonstrating a violent character or has abused their spouse regardless of whether it has negatively affected the child or children in question. This is because an individual that has demonstrated violence against their spouse may carry the same traits to the child. The judge may also listen to what the children have to say and could use it as a factor in this case.

In the case of Bertram v. Kilian 133 Wis. 2d 202, 394 N.W.2d 773 (Ct. App. 1986)[2], the court excluded evidence of the husband's violence towards the mother. In addition to several other variables, custody was awarded to the father. The mother appealed, and the decision was reversed.

Can the Court Decrease Child Support If I Move Away?

Making a motion to move the court to align their thinking with yours is common. However, accomplishing this task is another matter entirely. The opposing party can make a motion to reduce child support, but that doesn't mean the court will grant it.

Usually, a change in support would go hand in hand with a major change in financial circumstances. This is seen in the case of Pergolski v. Pergolski 143 Wis. 2d 166, 420 N.W.2d 414 (Ct. App. 1988)[3]. In this situation, the wife decided to move from the state. The husband filed an order to show cause. The court had vacated the divorce and set a trial. The mother maintained custody but was remanded to stay within 50 miles from the husband's residence. The court also stipulated that should the wife move more than 50 miles, child support would be decreased. Upon appeal, the court affirmed the custody decision, but reversed the reduction order.

Does a Court in a Foreign Country Have Jurisdiction?

Unfortunately, with the lack of due process according to American standards, it is more than likely that the foreign court would have jurisdiction for this child custody case.

This is demonstrated in the case of Vause v.Vause 140 Wis. 2d 157, 409 N.W.2d 412 (Ct. App. 1987)[4]. A situation occurred where the father gained custody in West Germany. He came back to the states to allow his wife and her family a visitation. The mother refused to return the child, and the father filed the decree. The decree was upheld and enforced. The wife appealed, and the court of appeals affirmed the decision. This is just an example, though. Your case will be decided upon by its own merits.

References: [1]Parental Kidnapping Prevention Act, [2]Bertram v. Kilian (1986), [3]Pergolski v. Pergolski (1988), [4]Vause v.Vause (1987)

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