It will come as no surprise that disputes regarding the custody and placement of children are the most difficult, traumatic and painful issues in divorce. This is because the dispute involves a conflict between each parties’ perception of what custody and placement arrangement is in the best interest of their most precious “possession,” their children.
In Attorney Timothy Riley's 23 years of practice, he has represented numerous clients in custody and placement disputes. He also serves as a court-appointed guardian ad litem charged with representing the best interests of children, which affords him a somewhat unique perspective and experience with regard to custody and placement disputes.
Wisconsin Statutes sec. 767.41 sets forth the law governing the custody and placement of children.
Custody concerns legal custody of the minor children which is the right to make decisions regarding such issues as schooling, health care, licenses, and religion.
Legal custody is either granted to the parties jointly or one or the other party solely.
The law presumes that joint legal custody is in the best interest of children. Joint legal custody requires that the parties consult one another and reach joint decisions on legal issues regarding their children.
The presumption in favor of Joint Legal Custody is not easily overcome. Pursuant to Wi's. Stats. 767.41(2) the Court cannot grant sole legal custody unless it finds that sole legal custody is in the best interest of the child or children and one of the following applies:
- One party is not capable of performing parental duties and responsibilities or does not wish to have an active role in raising the child.
- One or more conditions exist that would substantially interfere with the exercise of joint legal custody.
The "conditions" referenced include evidence of abuse of the other party or child, or domestic abuse as defined in stats. 813.12(1)(am).
In short, the Court will need to make a finding based upon sufficient evidence that joint legal custody is contrary to the best interest of the child or children.
The parties can, if they wish, stipulate to sole legal custody to a party regarding a legal issue or issues. The parties can also agree to what is, in essence, a "hybrid" of legal custody by requiring the parties consult on legal issues regarding their children with one party having "impasse decision making authority" if no agreement is reached.
Legal custody is, of course, an important element of a parent's rights and responsibilities for their child post divorce. As such, an order preserving and defining your legal custody rights is essential.
As noted at the outset, disputes over physical placement, basically with whom the child or children reside and when, are emotionally traumatic and complex. It is not uncommon for two parents to hold sincere, passionate and completely divergent opinions as to the best interest of the children with respect to physical placement.
Wis. Stats. 767.41(5) sets forth the factors considered by the Court in establishing physical placement.
The overriding factor in an initial order is the best interests of the child. It is the enumerated factors beyond that general principle and the proper presentation of those factors by your Attorney that will ultimately determine the issue.
The enumerated statutory factors are:
- The wishes of the child's parents as evidenced by a proposed parenting plan, stipulation of the parties or other proposal to the Court.
- The wishes of the child which may be communicated by the child or through the child's guardian ad litem or other appropriate professional.
This requires some additional discussion. I have found in my practice that there is a common misconception regarding the child's input into placement decisions. Contrary to popular belief there is no particular age at which a child can, by law, decide where he or she wants to live. However, as a practical matter children in their teens who express a particular preference are given considerable weight barring any evidence of undue interference by a party. The child's expressed desire must still be within the bounds of being in the child's best interest.
It is very uncommon for children, especially younger children, to testify. The statute thus allows the children's wishes to be articulated by the Court appointed guardian ad litem or other professional such as a therapist or psychologist.
“SHARED” PHYSICAL PLACEMENT
I have found that there is often a misconception regarding the general principles underpinning the allocation of periods of physical placement. Parties often believe that the “new” family code calls for an equally shared placement schedule. This is simply not the case.
The new law does however require the Court, after consideration of the factors, to set a placement schedule that “allows the child to have regularly occurring meaningful periods of physical placement with each parent that maximizes the amount of time a child may spend with each parent, taking into account geographic separation and accommodations for different households.”
So while the current statute states a preference for “maximizing” time with each parent, one must still present the Court with evidence favoring their position in accordance with the enumerated factors as they relate to the particular facts of the case. While I am a zealous advocate for my client’s position in these matters, I also believe it is important that parties make sure that their position takes into consideration the effect of these disputes on their child or children. I also believe that it is important to keep in mind that the parties should endeavor to ultimately be able to cooperate and work together for the benefit and interest of their children.
Wisconsin Child Custody Attorney
Attorney Tim Riley represents parents seeking a change of custody (a modification to the court's previous child custody orders) whose original custody order (including custody orders part and parcel a dissolution of a marriage and entered at the time of the divorce decree) was made by a Circuit Court in Wisconsin, or whose current custody lawsuit must be brought in Wisconsin. Attorney Riley most frequently represents a parent who lives in the Madison, Portage, Wisconsin Dells, Sun Prairie, Baraboo, Middleton, Dodgeville, Darlington, Monroe, Janesville, Jefferson, or Beaver Dam, Wisconsin.
Contact Riley Law Office
If Attorney Tim Riley can be of assistance to you with your legal situation, please call Riley Law Office for a free initial consultation at (608) 833-3880 or email Attorney Riley. Attorney Riley will be happy to speak with you with no obligation on your part.