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Know the Laws: Wisconsin

UPDATED June 22, 2017

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WomensLaw.org strongly recommends that you get help from an organization in your area before proceeding with court action. To find help, please go to the WI Where to Find Help page.

General info and definitions

back to topWhat is legal custody?

Legal custody is the legal right to make major decisions about your children, such as non-emergency health care and choice of school and religion. Custody is different from physical placement (see below).

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back to topWhat options are there for legal custody?

There are two types of legal custody in Wisconsin:

  • Joint legal custody, when both parents have equal rights to make major decisions about their children.*
  • Sole legal custody, when only one parent has the right to make such decisions.**
In general, the court will assume that joint legal custody between both parents is in the best interest of the child.***

* Wis. Stat. § 767.001(1s)
** Wis. Stat. § 767.001(6)
*** Wis. Stat. § 767.41(2)(am)

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back to topWhat is physical placement?

Physical placement refers to the time that your children are in each parent's care. Most court orders provide a placement schedule of the times the children are to be with each parent. Placement schedules can vary from brief time with one parent and the remainder with the other to the equal amounts of time with both parents.

When physical placement of the child is with you, you have the right to make routine daily decisions about your children's care such as bedtime, study time, diet, extracurricular activities, social activities, and discipline.

Wis. Stat. § 767.001(5)

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back to topWhat is a parenting plan?

A parenting plan is a document that is written up by each party outlining what kind of custody or physical placement s/he wants. It also includes important details about the child’s life – for example, where s/he will go to school, how s/he will receive medical care, and who will provide child care when needed.*

Usually, in any case involving annulment, divorce, legal separation, paternity, custody, or child support in which legal custody or physical placement is challenged, a party seeking legal custody or physical placement has to file a parenting plan with the court if:

  • the judge waives the requirement to attend mediation, or
  • if the parties attend mediation and do not reach an agreement.**
Unless the judge orders otherwise, the parenting plan has to be filed within 60 days.  If you do not file the parenting plan in time, you waive (give up) the right to object to the other party's parenting plan.**

* Wis. Stat. § 767.41(1m)(a)-(o)
** Wis. Stat. § 767.41(1m)

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back to topWhat is a guardian ad litem?

In an action affecting the family (paternity, legal custody, physical placement, and support cases), a guardian ad litem is an attorney who acts as an advocate for the best interests of a minor child.*

* Wis. Stat. § 767.407, outlines qualifications and duties.

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back to topShould I start a court case to ask for supervised visitation?

If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised.  If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request (although this may depend on your situation).

However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits.  We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.

In the majority of cases, supervised visits are only a temporary measure.  Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time -- and if there are no obvious problems, the visits may likely become unsupervised.  Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.

In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to WI Finding a Lawyer to seek out legal advice.

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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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The custody process

back to topHow will a judge make a decision about custody?

When making a decision about custody or visitation, the judge will consider all facts relevant to the best interest of the child. These factors include:

  • The wishes of the child’s parent or parents, as shown by any proposed parenting plan or any legal custody or physical placement proposal submitted 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.
  • The interaction and relationship the child has with his/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 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 anyone living with one of the parties asking for custody/visitation negatively affects the child’s intellectual, physical, or emotional well-being.
  • The ability of a party to provide predictability and stability for the child.
  • The availability of child care 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 or child abuse.
  • Whether any of the following people has a criminal record and whether there is evidence that any of the following has engaged in child abuse or neglect, of the child or any other child:
    • A person with whom a parent of the child has a dating relationship
    • A person who lives, has lived or will live with the party
  • Whether there is evidence of interspousal battery or domestic abuse.
  • Whether either party has or had a significant problem with alcohol or drug abuse.
  • The reports of appropriate professionals if admitted into evidence or such other factors as the judge decides is relevant.*
* Wis. Stat. § 767.41(5)(am)

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back to topIf the other parent and I don't agree on custody or physical placement, what happens?

In the beginning of a custody case, both you and the other parent will be asked to suggest a parenting plan that explains how you want custody and physical placement to be divided up. If you and the other parent are unable to reach a custody agreement, the judge will eventually hold a hearing (or trial) and the judge will make the final decision.

To prepare for the hearing, the court will appoint an attorney for your child (called a guardian ad litem) to investigate and represent the best interests of your child.* You and the other parent also have a right to get a lawyer to represent you in the custody hearing. Some counties also have court social workers who do an investigation and recommend who should get custody and what the specific placement schedule should be. The investigation that is done by the social worker and guardian ad litem may take several months to a year. Once the investigation is done, the court schedules a hearing where the parents (with or without lawyers), social worker and guardian ad litem present their evidence, and the court decides the issues of custody, placement and visitation.

* Wis. Stat. § 767.407(1)(a)

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back to topDo I need a lawyer?

It is highly recommended that you get a lawyer to make sure that your rights are protected. If you cannot afford a lawyer, you may be able to find sources of free or low-cost legal help on our WI Finding a Lawyer page.

If you plan to file for custody on your own, you may want to visit The Wisconsin Law Library, a resource that provides links to paperwork you need to fill out and file with the court, and additional information about custody in WI. Even if you plan on representing yourself, you should consider having a lawyer review your papers before you file them.

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back to topCan I get financial support for myself and my children?

Yes.  As long as paternity is established, you are entitled to receive support for your child.  The judge makes separate decisions when awarding support for you and your children, so it is possible that you may only be able to get support for your children, and not for yourself.

Support for your child: Generally, the judge will determine how much money each parent will pay to support a child.  The judge almost always uses set guidelines in a child support obligation worksheet to determine how much support you will receive.  If you would like to see all of the factors that go into determining support, you can visit Wisconsin Guidelines for Setting Child Support Payment Amounts.

The guidelines the judge uses involve a very complex formula, but basically the court looks at both parents’ incomes, your child’s needs and the custody arrangements.  An order of joint legal custody does not affect the amount of child support ordered.*  To get a rough idea of how much support you may receive, you can visit AllLaw.com's Wisconsin child support calculator.  However, this website only estimates the amount of support you may get. The amount of support you receive depends on how much the judge actually decides to give you.

Note: Violation of physical placement rights by the custodial parent is not a reason for failure to meet child support obligations.**

To read more about child support in Wisconsin, visit the Wisconsin Child Support Program.

Support for yourself: In Wisconsin, spousal support is referred to as maintenance. If you are getting separated or divorced, the court can award you temporary or permanent maintenance. In deciding whether to award you maintenance, a judge will look at many factors. A few of the things a judge will look at are:

  • The length of the marriage.
  • The age and physical and emotional health of the parties.
  • The educational level of each party at the time of marriage and at the time the action is commenced.
  • The earning capacity of the party seeking maintenance.
  • The contribution by one party to the education, training or increased earning power of the other.***
To read more about spousal support and maintenance in Wisconsin, go to Woman's Divorce or the Wisconsin State Law Library.

* Wis. Stat. § 767.511(7)
** Wis. Stat. § 767.511(3)
*** Wis. Stat. § 767.56

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After a custody order is in place

back to topWhat happens if the custody order is violated?

After a custody order is in place, both parents have to obey the order or else they face legal consequences.  If, for example, the abuser does not return the children to you after s/he takes them for a visit, you may have to file a "petition to enforce physical placement" or an "order to show cause and affidavit for finding of contempt."   The court can provide make-up time for the parent who lost out on his/her scheduled visitation, order the children to be returned, and order the losing party to pay the other party's attorney fees.  The court can also hold him in contempt of court for violating the court order and the abuser could be fined, sent to jail or anything else that the court finds appropriate.*

Withholding children from another parent in violation of a court order can also result in criminal charges.**

Note: If your custody order does not give specific placement times, you may want to ask the judge to change the order.  The judge could add specific times that each parent has the child, which would make it easier for both parents to follow the order.

Certain situations might justify violating a court order — for example, to protect you or your children from immediate abuse or harm. However, before intentionally disobeying any court order, we recommend that you talk to an experienced family law attorney to think through your options and to understand the specific consequences you could face if you violate the order.  Go to WI Finding a Lawyer to find legal help in your area.

* Wis. Stat. § 767.471(5)(b)
** Wis. Stat. § 767.471(8)

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back to topHow do I change an existing order?

Either parent can request a change in a custody or placement order if there is a substantial change in circumstances and if the change to the custody order would be in the children's best interests.  If you are requesting a change of the order within two years of when the order was issued, the court will not order a change unless you can prove that the current conditions in the order are physically or emotionally harmful to the child.*

* Wis. Stat. § 767.451(1)(a)

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back to topCan I change the state where the case is being heard?

Possibly.  There are a lot of factors that go into whether or not a case can be transferred from one state to another after a final order is issued.  See our Changing a final custody order section for more information.  This is often complicated, and as with all custody issues, we recommend that you talk to a lawyer about this.

To find legal resources in Wisconsin, go to our WI Finding a Lawyer page.  To find legal resources in a state other than Wisconsin, choose your state from the drop-down menu here.

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back to topCan I move with the children?

If you have physical placement of the child and you wish to move the child out of Wisconsin, move the children more than 150 miles from your home at the time the court order was made, or remove the children from Wisconsin for more than 90 consecutive days, you must provide written notice to the other parent at least 60 days before the move.  If the other parent objects, you cannot move until the issue is resolved.*

Disobeying a custody order can have serious consequences.  Please read our section on Parental Kidnapping for more information and talk to a local attorney or domestic violence service organization to help you in this process.  See WI Finding a Lawyer and WI State and Local Programs.

* Wis. Stat. § 767.481(1)

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back to topIf one parent is deployed by the military, how will that affect the custody order?

If either parent is a service member in the military, and the service member has been or will be called to active duty in the U.S. armed forces, the judge can modifiy an order of physical placement based on this.  However, the order will state that immediately upon the service member's discharge or release from active duty, the order will go back to how it was before the parent left for military duty.*

* Wis. Stat. § 767.451

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back to topDo both parents have access to the child's educational and medical records?

Yes.  Both parents have a right to their children's school, medical, and dental records.  The only exception is when the court denies a parent any visitation or physical placement with the children – then that parent would not have the right to access the child’s records.*

* Wis. Stat. § 767.41(7)

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