Custody and placement can be the most concerning issues in a family case with minor children. Parents are often very concerned about how the court orders will affect the children. In Wisconsin, the law presumes that both parents should share joint legal custody. There are, of course, circumstances in which there should be an exception and only one parent should be awarded sole legal custody. These cases tend to include very difficult issues such as spousal or child abuse, alcohol or drug abuse, untreated mental health conditions, or other similarly difficult issues. When dealing with these difficult issues, parents should seek out an experienced family law attorney.
WHAT EXACTLY DOES “LEGAL CUSTODY” MEAN? No matter what you’ve heard on television, or read on the internet, in Wisconsin courts “custody” refers to the ability to make major decisions for a minor child. In any action affecting the family, including but not limited to divorce, legal separation, or paternity action, the court will enter an order addressing custody of a minor child. When the court enters an order awarding a party custody of a minor child the court is giving that party the right and responsibility to make major decisions concerning the child.
- Joint legal custody gives the parties equal decision-making authority regarding the major decisions for the minor child. Neither party’s rights to make decisions for the minor child are superior to the other party.
- Sole legal custody gives one party the authority to make major decisions for the minor child.
WHAT ARE MAJOR DECISIONS? Major decisions include, but are not limited to, decisions regarding the consent to marry, consent to enter the military service, consent to obtain a driver’s license, authorizations for non-emergency medical decisions, the choice of school, and the choice of religion. Arguably body piercing, tattoos, and the like are major decisions, as well. The court may award the parties joint legal custody or sole legal custody of the minor child. In some cases, the court may award or the parents may agree to impasse authority for one parent.
HOW DOES THE COURT DECIDE WHO SHOULD BE AWARDED CUSTODY? The court will consider the best interest of the child in making a determination on whether to award joint legal custody or sole legal custody. Pursuant to Wisconsin Statutes, the court shall presume that joint legal custody is in the best interest of the child. Wisconsin statutes also provide exceptions to that presumption: the parties agree to sole legal custody; the court finds that a party is not capable of performing parental duties and responsibilities, there is evidence that either party engaged in abuse of the child; or there is evidence of domestic violence. If parents can agree on custody, the court is very likely to accept that agreement. If the parents cannot agree, absent rare circumstances, the court will refer the parties to mediation. If mediation is not successful, the court will then refer the parents for a custody study and/or appoint a guardian ad litem. A family court counselor will be in charge of the custody evaluation. A guardian ad litem is an attorney, appointed by the court, to represent the best interest of the child(ren). Both the custody evaluator and guardian ad litem will create and offer recommendations based on his or her assessment of what is in the best interest of the child(ren).
Modification of Custody Orders. If you already have a court order regarding custody that court order may be modified. If the order you are seeking to modify was entered within 2 years of the final judgment the party seeking modification must show that the current custody arrangement is physically or emotionally harmful to the minor child. Filing such a motion should be left to the expertise of an experienced family law attorney. If your initial order is from at least 2 years ago you must show that the modification you are seeking is in the best interest of the child and there has been a substantial change of circumstances since the entry of the last order affecting legal custody.
If you have questions regarding legal custody of your child contact one of the experienced family law attorneys at Your Family Law Center, S.C..