Wisconsin Child Custody Laws

Wisconsin child custody laws allow for both joint legal custody and sole legal custody. This determines if one or both parents have rights to make major decisions about their children. Joint and sole physical custody determines where the child lives and allocates time spent with each parent. Wisconsin law refers to physical custody as placement.

Who Will Get Custody Of Our Child?

Wisconsin family courts aim to facilitate a healthy co-parenting environment for the child. Some 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

When Will Custody Be Decided?

The court order will be finalized after both parents come to an agreement or after a trial.

Start Preparing for Co-Parenting

Get your WI parenting plan worksheet here. Reviewing this form is a good way to prepare yourself mentally for the conversations you'll need to have regarding your children.

Is Child Support Paid During Joint Custody?

Child support will be awarded if both parents share or don't share child custody or placement. Calculate joint custody child support here.

Wisconsin Custody Laws Unmarried Parents

Regardless if you're married or not, Wisconsin custody laws are the same and both the mother and father are entitled to parental rights if paternity has been established unless ordered by the court.

Sometimes, the paternity of the child is questioned if the couple has never married. If the parents agree on paternity, the father can sign an acknowledgment of paternity. If they don't agree, then the mother or presumed father can petition the court to order a paternity test.

Once paternity is established in Wisconsin, the mother and father can move forward with custody and placement. The best thing you can do is create a realistic parenting plan that benefits the child and take it to the court. Once it's made into a court order, it's legally binding for both parties to ensure both parties rights are protected.

What is Joint Custody and Sole Custody?

Joint custody means both parents share custody.
Sole custody means one parent has custody.

How Far Can a Parent Move With Joint Custody

If you have custody and placement of the children and want to move out of Wisconsin or move more than 150 miles from the home the time the court order was put in place, you must send notice to the other parent via certified mail.

The other parent can then agree or notify you and the court with an objection. If objected, you can't move with your children until this issue is resolved.

After an objection, the court will order mediation. If no agreement is reached during mediation, a guardian ad litem will be appointed to the case and there will be a hearing to determine what's in the children's best interest.

Moving with children could have a major impact on their relationship with the other parent and other aspects like school, family, and friends. The court has the power to allow you to move, adjust the placement (visitation) schedule, or even order the children to stay with the other parent if you move.

Can Children Choose Who To Live With?

In almost all cases, no. Their opinion could be considered a factor if the child is at least 14 years old. You can read more about this here

Can I Modify Child Custody Orders?

You can request to modify after 2 year unless there is physical or emotional harm related to the best interest of a child. You can read more here.

Do I Need a Parenting Plan?

A parenting plan is necessary in most custody and placement cases because it outlines where the child will reside, which days or overnights will be spent with each parent, holidays, birthdays, work schedules, school schedules, and child care needs. You're required to file a proposed parenting plan in Wisconsin within 60 days after the court waives mediation or the mediator notifies the court that no agreement has been reached. If you fail to submit your parenting plan in time, you'll most likely lose the right to contest the parenting plan submitted by the other parent. Click to download a Wisconsin proposed parenting plan template.

Can I Refuse To Let The Other Parent See The Children?

No. Not even if they owe for unpaid child support. Custody and placement is a court order. However, certain situations, such as protecting the child from harm, might justify violating a court order. If you plan on violating the court order, it's recommended to speak to an attorney.

What If The Other Parent Refuses To Spend Time With The Children?

If a parent is unwilling to spend time with the children, you can request to modify the order to have a schedule that works better for the both of you. If you've lost money because the parent isn't fulfilling their duties, like additional child care expenses, you can request the court to order the other parent to reimburse you.

Can Grandparents Apply For Child Custody?

Not usually. This could only happen in extreme situations. Click this to read about grandparents custody and visitation rights.

Where Can I Find Wisconsin Child Custody Forms?

Visit our Wisconsin divorce forms page to download a petition with minor children, stipulation for temporary order, financial disclosure statement, proposed parenting plan, and more.

How Wisconsin Courts Determine Child Custody

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 following factors.

  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 interspousal 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.

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 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.

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