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Know the Laws: Wisconsin

UPDATED June 22, 2017

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Who can get custody and visitation

back to topWho can get custody?

At least one of the child’s parents is entitled to custody, unless there is clear and convincing evidence that both parents are unfit.  If the court finds that neither parent is able to care for the child adequately, the court may decide that the child is in need of protection or services and transfer legal custody of the child to a relative of the child, to a county department, to a licensed child welfare agency, or the department of children and families.*

* Wis. Stat. § 767.41(3)(a)

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back to topWhen will a judge award one parent sole legal custody?

The court may give sole legal custody only if it finds that doing so is in the child’s best interest and that either of the following applies:

  1. Both parties agree on who gets sole legal custody; or
  2. The parties do not agree on who gets sole legal custody, but at least one party requests sole legal custody and the judge specifically determines that any of the following are true:
  • 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 make joint legal custody extremely difficult; or
  • The parties will not be able to cooperate in the future decision making required under an award of joint legal custody. In making this decision, the judge will also consider any reasons given by a party objecting to joint legal custody, such as evidence that either party engaged in abuse of the child, or evidence of interspousal battery, or domestic abuse.*  For more information, see Can a parent who committed violence get custody or visitation?

Note: The judge may not give sole legal custody to a parent who refuses to cooperate with the other parent if the court finds that the refusal to cooperate is unreasonable.**

* Wis. Stat. § 767.41(2)(b)
** Wis. Stat. § 767.41(2)(c)

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back to topCan a parent who committed violence get custody or visitation?

It is possible, yes. In general, the court will assume that joint legal custody between both parents is in the best interest of the child.* However, if there is a history of inter-spousal battery or domestic violence, the court will NOT assume that joint legal custody is in the best interest of the child.** However, the abusive parent can still try to overcome the judge’s assumption by proving to the judge that he should be awarded joint custody or even sole custody.

The court will also consider if there was domestic violence when deciding if a parent will get visitation.*** Again, the parent can still prove to the judge that he deserves visitation regardless of the abuse.

However, the court cannot give visitation rights to a person who has been convicted of intentionally killing a parent of the child who is the subject of the visitation case, unless the judge decides it is in the best interest of the child for this person to have visitation rights.****

* Wis. Stat. § 767.41(2)(am)
** Wis. Stat. § 767.41(2)(d)
*** Wis. Stat. § 767.41(2)(d)1
**** Wis. Stat. § 767.43(1m)

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back to topI am the child's relative. Can I get visitation?

The court may grant reasonable visitation rights to a grandparent, great-grandparent, step-parent or person who has had a relationship that is similar to a parent-child relationship with the child. However, the parents must have notice of the court hearing so that they can come to court to give their opinion as to whether visitation should be granted. The court will grant visitation to the relative if the judge decides that visitation is in the best interest of the child.*

Whenever possible, in making a decision about visitation, the court will consider the wishes of the child.**

Note: Any person who interferes with visitation rights may be held in contempt of court.

* Wis. Stat. § 767.43(1)
** Wis. Stat. § 767.43(2)
*** Wis. Stat. § 767.43(5)

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