Many people often think of custody of their children as how much time they spend together. However, legal custody is a bundle of rights that can be divided between the parents. The time one parent has with the children is referred to as physical placement, not custody or visitation. The statutes define the rights and responsibilities of sole and joint legal custodians.
Legal custody is the right of a person granted custody to make major decisions concerning the child. Major decisions include, among other things; consent to marry; enter military service, and obtain a motor vehicle operator’s license; authorization for nonemergency health care; and choice of school and religion. Joint legal custody is where both parties share legal custody and neither party’s legal custody rights are superior except with respect to specified decisions as set forth by the court. Sole legal custody means that one party has legal custody. Physical placement is the right of a party to have a child physically placed with that party and the right and responsibility to make routine daily decisions regarding the child’s care during that placement, consistent with major decisions made by a person having legal custody.
The statutes presume that joint legal custody is in the child’s best interest. The court may award sole custody if the parties agree that one party should have sole legal custody. Additionally, if one party requests sole legal custody and the court finds:
- 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 at that time that would substantially interfere with the exercise of joint legal custody; or
- The parties will not be able to cooperate in the future decision making required under an award of joint legal custody.
For the third finding, evidence that either party engaged in child abuse or evidence of interspousal battery or domestic abuse creates a rebuttable presumption that the parties will not be able to cooperate in the requisite future decision making
If the court finds, by a preponderance of the evidence, that a party has engaged in a pattern or serious incident of interspousal battery or domestic abuse, then the court will presume that it is detrimental to the child and contrary to the best interests of the child to award joint or sole custody to that party. The alleged abuser may rebut this presumption only if both of the following apply:
- The alleged abuser has successfully completed a batterer’s treatment program that is either itself certified or facilitated by a certified provider, and the alleged abuser is not abusing alcohol or any other drug; and
- It is in the children’s best interest that joint or sole legal custody be awarded to the alleged abuser based on the factors in section 767.41(5)(am).
The court must state in writing whether this presumption is rebutted and, if so, both what evidence overcame the presumption and the reasons why its findings on legal custody are in the child’s best interest.
If the court finds that both parties have engaged in domestic abuse or interspousal battery, then the court must determine which party was the primary physical aggressor. In making this determination, the court must consider (1) any prior acts of domestic abuse that occurred between the parties; (2) the relative severity of any injuries that resulted from these prior acts; (3) the likelihood of future injury from domestic abuse to either party at the hands of the other party; (4) whether either party acted in self-defense in any of the previous incidents; (5) whether there is or has been a pattern of coercive and abusive behavior between the parties; and (6) any other relevant factors.
The court (or the circuit court commissioner, in many counties) may order sole legal custody at a temporary hearing without the parties’ agreement and without making the specific findings required of the court at a final hearing.
If legal custody or physical placement is contested, a party seeking custody or placement is required to file a parenting plan. Failure to timely file a parenting plan may result in waiver of the right to object to the other party’s parenting plan. The parenting plan must provide information about the following:
- What legal custody or physical placement arrangement the parent is seeking;
- Where the parent lives and where the parent intends to live for the next two years. If there is evidence of interspousal battery or domestic abuse, a general description of the parent’s current and future residences is sufficient in place of a specific address;
- Where the parent works and the hours of employment. If there is evidence of interspousal battery or domestic abuse, a general description of the parent’s place of employment is sufficient in place of a specific address;
- Who will provide any necessary child care and who will pay for it;
- Where the child will go to school;
- What doctor or facility will provide the child’s health care;
- How the child’s medical expenses will be paid;
- What the child’s religion will be, if any;
- Who will make decisions about the child’s education, medical care, choice of child care providers, and extracurricular activities;
- How the holidays will be divided;
- What the child’s summer schedule will be;
- Whether and how the child will be able to contact the other parent when the child is with the parent providing the parenting plan;
- Whether equipment for providing electronic communication is reasonably available to both parents;
- How the parent proposes to resolve disagreements related to matters over which the court orders joint decision making;
- What child support, family support, maintenance, or other income transfer there will be; and
- If there is evidence of interspousal battery or domestic abuse, how the child will be transferred between the parties to ensure the safety of the child and parties.
When joint legal custody has not been requested, pursuant to section 767.41(2)(a) the court may award legal custody and physical placement, giving no preference to either parent because of his or her sex or race, after considering all facts relevant to the child’s best interest and the following factors:
- The wishes of the child’s parent or parents, as shown by any stipulation between the parties, any proposed parenting plans or any legal custody or physical placement proposal submitted to the court at trial.
- The wishes of the child, which may be communicated by the child or through the child’s guardian ad litem or other appropriate professional.
- 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.
- 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.
- The child’s adjustment to the home, school, religion and community.
- The age of the child and the child’s developmental and educational needs at different ages.
- 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.
- The need for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child.
- The availability of public or private childcare services.
- The cooperation and communication between the parties and whether either party unreasonably refuses to cooperate or communicate with the other party.
- 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.
- Whether there is evidence that a party engaged in abuse, as defined in [section] 813.122 (1) (a), of the child, as defined in [section] 48.02 (2).12m. 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.
- Whether there is evidence of interspousal battery or domestic abuse as defined by statue.
- Whether either party has or had a significant problem with alcohol or drug abuse.
- The reports of appropriate professionals if admitted into evidence.
- Such other factors as the court may in each individual case determine to be relevant.
Additionally, if the court concludes that battery or domestic abuse has occurred, then the court must also consider as paramount the safety and well being of the child and the victim-parent. The court is to allocate periods of physical placement with both parents unless the court finds, after a hearing, that physical placement with a parent would endanger the child’s physical, mental, or emotional health.
Further, no court may grant or deny periods of physical placement contingent upon a party’s meeting or failing to meet any financial obligations to the child or the former spouse.
If a court denies periods of physical placement, the court must give the parent who was denied placement a warning that the denial may be grounds for termination of parental rights.
In entering an order providing for joint legal custody and periods of physical placement, the court may specify one parent as primary caretaker and one home as the child’s primary home for purposes of determining eligibility for aid or for any other purpose the court considers appropriate. The court must further specify the parties’ rights to physical control of the child in sufficient detail to enable a party deprived of that control to secure relief for interference with custody or parental rights.
The court can order the parties to attend an educational program concerning the effects of divorce on children. In many counties, attendance at such programs has become mandatory even when custody or placement is not at issue. However, if there is evidence of interspousal battery or domestic abuse, the court may not require the parties to attend together.
The statutes specifically require each county, or two or more contiguous counties, to provide family court services including legal custody and physical placement study services. Whenever it appears that legal custody or physical placement is contested, the court must refer the parties to the director of family court services for possible mediation of the contested issues. If mediation is not successful, a guardian ad litem is to be appointed to represent the interests of the minor children, unless the court determines that (1) the appointment of a guardian ad litem will not assist the court, or (2) a party is seeking the appointment of a guardian ad litem for tactical or delay purposes and not for a purpose that is in the child’s best interest.
A guardian ad litem is an attorney appointed by the court to advocate for what that attorney believes is in the child’s best interest. What the guardian ad litem believes is in the best interest of the child may not be what the child wants, no matter the age of the child. A child is not allowed to choose with whom they live. Older children’s wishes should be taken into consideration by the GAL, but are not dispositive.
The rules of evidence limit the admissibility of communications in mediation.
However, both parties to the mediation can consent to waive confidentiality if the mediator also conducts the legal custody or physical placement study.
At the time of granting the divorce, if the court grants sole custody, the parent not granted custody must complete a Family Medical History Questionnaire, which the court forwards to the child’s doctor.
In paternity actions in which there is neither a presumption of paternity nor a voluntary acknowledgment of paternity, the child’s mother has sole legal custody until a court orders otherwise.