Wisconsin Child Custody Laws

When Wisconsin courts decide a child’s custody and placement, they use the factors listed in WI Statute 767.41 § (5). These Wisconsin laws outline how to find what is in the best interest of the child. For unmarried parents, the mother has sole custody until the father establishes paternity.

​How Do Wisconsin Courts Determine Child Custody?

When determining the custody of a child in Wisconsin, the court maximizes the amount of time the child has with each parent based on a variety of factors, unless it’s in the child’s best interest to do otherwise. A court commissioner or judge makes these decisions when parents can't agree on how to schedule their child’s physical custody (placement) and how to divide the legal custody over the child (decision-making ability). The Wisconsin child placement factors are the same factors used to decide child custody–these include:

  • The wishes of each parent
  • The wishes of the child or children
  • The child’s relationship with each parent
  • The child’s age and developmental needs
  • The mental and physical health of all parties
  • That placement is meaningful, predictable, and stable
  • The amount and quality of time with the child each parent has had
  • Any proposed adjustments to a new home, school, religion, or community
  • The ability of each parent to communicate and cooperate with the other parent
  • Whether a parent can support a positive relationship with the other parent
  • Any evidence of previous domestic violence or interspousal battery
  • Any evidence that a parent abused or neglected a child
  • A significant problem with drug/alcohol abuse
  • The availability of child care services
  • Relevant professional reports
  • Any other factors the court determines to be relevant[1]

While the court looks at each of these factors, some impact decisions more than others. For example, the court looks very negatively at patterns of abuse against a spouse or child. The court's decision prioritizes a child's safety and well-being over all other factors.

Who Will Get Custody of Our Child?

Custody of the child is awarded once it’s agreed upon by both parties. If parties cannot agree, a mediator aids them in the process. If they are unable to agree even with the help of a mediator, then the judge makes the final decision with the aim to facilitate a healthy co-parenting environment. Their decision is made with the best interest of the child in mind.

What Does the “Best Interest of the Child” Mean?

The term “best interest of the child” doesn’t have an exact definition–however, it boils down to making decisions for a child that ensures their safety and well-being in the present and for the future.[2] This decision takes into account all the factors listed above.

Because the definition is not exact, the courts are open to proof that the best interest of the child is dependent on the situation. An attorney specializing in family law such as at Sterling Law Offices will work to prove that your request aligns with what is in the best interest of the child.

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What Are Wisconsin Custody Laws for Unmarried Parents?

Once paternity has been established, Wisconsin custody laws are the same for both parties regardless of marital status. If paternity has not been established through a voluntary paternity acknowledgment or some other method, then there will need to be a paternity test. In Wisconsin, once paternity is established, the mother and father can move forward with custody and placement.

What Are Custody and Placement?

Legal custody and physical placement are two different sides of the same coin. Custody refers to the legal decision-making rights over major decisions in the child’s life. Placement refers to where the child is and who is making day-to-day decisions for the child. In Wisconsin, the baseline for custody is 50/50, joint custody, but placement varies depending on the specifics of each situation.

What Are Joint Custody and Sole Custody?

Joint custody means both parents share custody, and sole custody means one parent has custody.

Can a Judge Order Supervised Visitation or No Visitation?

The court is supposed to award times of placement to both parties unless they find it would negatively impact the physical, mental, or emotional health of the child. So, they do have the ability to order that one party has no placement or visitation.

The court can also order supervised placement or visitation. This is where the allocated time is in a controlled setting with a supervisor that was agreed upon to assure the child’s safety.

What Is a Parenting Plan and Do I Need One?

A parenting plan is necessary in most custody and placement cases because it outlines child care needs and determines which days and overnights will be spent with the child while considering work, school, birthdays, and holidays. The easiest way to create a parenting plan is by using the Wisconsin parenting plan template. In some cases, the court requires you to submit a parenting plan.

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 do not submit your parenting plan in time, you waive the right to contest the parenting plan submitted by the other parent.[3]

More on the Factors Courts Consider

Since Wisconsin uses the “best interests of the child” standard to determine custody, it leaves the final decision up to the judge. Judges generally believe it is beneficial when both parents are involved with the child on a regular basis. The following are some important factors judges consider when overseeing child custody cases.

Children's Age

The child’s age is considered in these decisions when it is relevant. For example, if a child is still breastfeeding, they won’t be able to leave their mother for long periods of time. Previously, the courts worked with the tender years doctrine which was the assumption that a mother should always have custody of a child. Now, with the “best interest of the child” as the main focus, both parents have equal claim to the child’s time.

That being said, since the decision is up to the judge, there are still some who believe younger children should grow up with their mothers. This is more common when the mother has worked as the primary caregiver.

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 because it gives the children stability during an unstable time. For this reason, if you are fighting to get primary custody, it is important you do NOT move out of the family home if the situation allows. Or, if you need to leave, you can take the children with you to demonstrate your commitment to them. Taking them could be considered kidnapping if done incorrectly though, so make sure you speak with an attorney first.

If parents are already separated, the judge will consider where the child is comfortable and the stability of each living space.

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

Since both parents will probably continue to be involved in the child’s life, your record of cooperation with the other parent is considered. This includes your proposed custody and visitation plan and your previous behavior interacting with the other parent. A more cooperative parent typically has greater success in custody disputes because it shows you can think objectively about your child’s needs.

Relationship With the Children

The judge will review the relationship between each parent and child. Judges review the historical relationship because some people claim to want more placement time just to use their child against the other party or so they pay less in child support.

The Child's Preference

The judge in charge of the divorce or custody hearings must consider the child's wishes at any age, and the older they get the more weight it holds. There is no definite age where the child gets to choose other than 18 when they are an independent adult. Ultimately, the child does not get to decide, but their wishes do matter. This becomes more difficult when there is more than one child because the court prefers not to separate siblings into different homes as this creates instability.

Consistency and Stability

Finally, maintaining consistency and stability in the children's lives is key because court officials believe it is in the best interest of the child to have a stable living environment. When making decisions in your parenting plan, be sure you consider how the court views that decision under the lens of consistency and stability.

With this, it is important to know the court cannot consider active or reserve military service as a factor when determining who will get legal custody of a child.

When Can I Modify a Wisconsin Custody Order?

You cannot request to modify a custody order until two years have passed since the original order unless the person asking can prove that it is a necessary adjustment. An adjustment is only necessary when the current situation is physically or emotionally harmful to the child.[4]

Considerations

How Is Child Support Affected by Custody and Placement?

Child support is dependent on the number of children, the number of overnights with each parent, and how much each parent makes. It can be awarded if one parent has full placement or if parents share placement 50/50. You can calculate child support for joint custody as long as you know the necessary information.

Jurisdiction Issues in Child Custody Cases

The Parental Kidnapping Prevention Act establishes a set of standards for jurisdiction over custody matters between states. Under this law, preference is given to the home state where the child involved resided for the past six months.[5] The purpose of this act is to prevent a parent from “forum shopping” where they initiate legal action in a different state hoping to get a ruling more in their favor.

If you need to file a case for child custody and the other party is residing in another state, jurisdiction will likely be held by the state where the child has been living. This is important because if a court ruled on the case without having jurisdiction, the order would not count for anything.

Where Can I Find Wisconsin Child Custody Forms?

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

Do Grandparents Have Custody and Visitation Rights?

Grandparents' rights in Wisconsin do not usually provide custody and visitation except for in extreme circumstances. However, they can sometimes get visitation if it is in the best interest of the child.

Frequently Asked Questions

How is child custody determined in Wisconsin?

Child custody will be 50/50 unless that would negatively impact the child. This is decided either by parents agreeing or, if they can’t agree, by the court’s decree. When they have to make the decision, Wisconsin courts work to ensure the child’s safety and future success by deciding in the child’s best interest.

Is Wisconsin a mother state?

Wisconsin is not a mother state. A mother state gives preference to mothers in custody cases. In Wisconsin’s state statutes, it specifically says that, “The court may not prefer one parent or potential custodian over the other on the basis of the sex or race of the parent or potential custodian.”[6]

What is considered an unfit parent in Wisconsin?

A parent can be deemed an unfit parent for:

  • Child abuse
  • Child neglect
  • Drug abuse
  • Alcoholism
  • Mental instability
  • Criminal history

If you are ever worried that your child is in real danger of being harmed, your first step should be calling the police. The court requires that any allegation of a parent being unfit is proven by providing supporting evidence.

What are father’s rights in Wisconsin?

Father’s rights refers to the rights a father has to the custody and placement of their children. As long as the father has established paternity, their rights are the same as the mothers. If paternity has not been established, the mother has sole custody of the child.

How far can I move with joint custody in Wisconsin?

If you have joint custody and want to move more than 100 miles from the home you were in at the time of the initial order, you must notify the court and the other parent. If the other parent objects within 15 days, there will be a hearing and likely mediation.

Can text messages be used in child custody court?

Text messages can be used as evidence in child custody court. They may not be the strongest piece of evidence on their own, but they can help to illustrate someone's behavior or character.

Can a father be denied joint custody?

It depends on what is in the best interest of the child. If the father is a danger to the child’s well-being, then he may be deemed unfit to parent the child and not given any custody.

How can I increase my chances at getting a larger custody agreement?

The best way to increase your chances of getting custody of your child is to be a good parent and have a history of being a good parent. More specifically, look at the 16 factors in the WI state statutes (above), do the things they tell you to, and avoid the things they tell you not to do.

Will my child need to appear in court?

Children are not required to appear in court and are rarely ever asked to. If a Guardian ad Litem was appointed to the case, they will advocate for the child’s best interest after doing their study.


References: Video by youtube.com/c/sterlinglawyers | 1. WI Statute, 767.41 § (5)(am)1-16. Child Custody, Placement, and Visitation. | 2. Determining the Best Interests of the Child. Child Welfare Information Gateway. (2020, June). | 3. WI Statute, 767.41 § (1m). Child Custody, Placement, and Visitation. | 4. WI Statute, 767.451 § (1)(a). Child Custody, Placement, and Visitation. | 5. 28 U.S. Code § 1738A. Federal Parental Kidnapping Prevention Act. | 6. WI Statute, 767.41 § (5)(am). Child Custody, Placement, and Visitation.


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