Legal Information: Wisconsin

Wisconsin Custody

Custody

Please consider getting help from a legal organization in your area before proceeding with court action regarding custody issues. To find help, please go to the WI Places that Help page. In our general Custody page, we have information about custody that is not specific to any state. The page includes a section about how to try to transfer your custody case to a new state where you are living so that you can modify the custody order from your new state.

General info and definitions

What 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).

What 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.1
  • sole legal custody, when only one parent has the right to make such decisions.2

In general, the court will assume that joint legal custody between both parents is in the best interest of the child.3

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

What 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)

What 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.1

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.2

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.2

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

What is a guardian ad litem?

In a case involving 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 during litigation.1

1 See generally Wis. Stat. § 767.407

Should 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.

Who can get custody and visitation

When will a judge award one parent sole legal custody?

The judge 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.1 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 judge finds that the refusal to cooperate is unreasonable.2

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

Who 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 judge finds that neither parent is able to care for the child adequately, the judge 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;
  • a county department:
  • a licensed child welfare agency; or
  • the department of children and families.1

1 Wis. Stat. § 767.41(3)(a)

Can a parent who committed violence get custody or visitation?

In general, the judge will assume that joint legal custody between both parents is in the best interest of the child.1 However, if there is a history of inter-spousal battery or domestic violence, the judge will NOT assume that joint legal custody is in the best interest of the child.2 However, the abusive parent can still try to overcome the judge’s assumption by proving to the judge that s/he should be awarded joint custody or even sole custody.

The judge will also consider if there was domestic violence when deciding if a parent will get visitation.3 Again, the parent can still prove to the judge that s/he deserves visitation regardless of the abuse.

However, the judge 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.4

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

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

The judge 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 judge will grant visitation to the relative if the judge decides that visitation is in the best interest of the child.1

Whenever possible, in making a decision about visitation, the judge will consider the wishes of the child.2

Note: Any person who interferes with visitation rights may be held in contempt of court.3

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

The custody process

How 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; or
  • whether there is evidence of interspousal battery or domestic abuse;
  • whether either party has or had a significant problem with alcohol or drug abuse; and
  • the reports of appropriate professionals if admitted into evidence or such other factors as the judge decides is relevant.1

1 Wis. Stat. § 767.41(5)(am)

Can a custody order provide for future changes without having to go back to court?

When issuing a court order for legal custody or physical placement, the judge can approve an agreement (“stipulation”) between the parties that lays out changes to the terms of the order based upon the occurrence of a “future event” that is likely to take place within the next two years.1 The law defines a “future event” as:

  • a life event of a party;
  • a life even of the child;
  • a change in the developmental needs of the child; or
  • a change in the educational needs of the child.2

1 Wis. Stat. § 767.41(5m)
2 Wis. Stat. § 767.34(3)(a)

What restrictions are in place while a custody case is pending?

After a custody petition is filed, certain restrictions apply to the petitioner. Once the petition is served upon the other party (the respondent), those restrictions apply to the respondent as well. Both parties cannot do any of the following while a custody case is pending in court:

  • harass, intimidate, physically abuse, or restrain the personal liberty of the other party or a minor child of either of the parties; and
  • without the consent of the other party or an order of the court:
    • relocate and establish a residence with a minor child of the parties more than 100 miles from the residence of the other party;
    • remove a minor child of the parties from the state for more than 90 consecutive days; or
    • hide (conceal) a minor child of the parties from the other party.1

If either party violates any of the above restrictions, the other party can file for contempt of court. However, a judge would not hold a party in contempt of court if the judge believes that:

  1. the action was taken to protect a party or a minor child of the parties from physical abuse by the other party; and
  2. there was no reasonable opportunity under the circumstances for the party to first go to judge to ask for permission to do what s/he did.2

1 Wis. Stat. § 767.117(1)(a), (1)(c), (2)
2 Wis. Stat. § 767.117(3)

If 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 during the litigation.1 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 judge decides the issues of custody, placement and visitation.

1 Wis. Stat. § 767.407(1)(a)

Do 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 Wisconsin. Even if you plan on representing yourself, you should consider having a lawyer review your papers before you file them.

If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.

After a custody order is in place

What happens if the custody order is violated?

After a custody order is in place, both parents have to obey the order or else they may 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 judge 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 judge can also hold the other parent 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.1

Withholding children from another parent in violation of a court order can also result in criminal charges.2

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.

1 Wis. Stat. § 767.471(5)(b)
2 Wis. Stat. § 767.471(8)

How do I change an existing order?

Whether you can request a change in a custody or physical placement may depend on how recently the order is issued, as is explained below. However, a change in the economic circumstances or marital status of either party will not be enough of a reason in any of the below situations for a judge to modify an order.1

Within two years after a final order, you can only file to modify an order of legal custody or an order of physical placement where you want to substantially change the amount of parenting time if you can show substantial evidence that the modification is necessary because the current conditions are physically or emotionally harmful to the best interest of the child.2

After two years have passed since the final order was issued, the judge can modify an order of legal custody or an order of physical placement where you want to substantially change the amount of parenting time if there is a substantial change in circumstances and if the change to the custody order would be in the child’s best interests.3

In both of the above situations, there is a “rebuttable presumption” for keeping the current decision-making arrangement and for continuing the child’s physical placement with the parent with whom the child lives for the majority of the time. This means that the judge will start off assuming that these it’s in the child’s best interests to keep things as they are and it is up to the parent who is filing for the modification to provide enough evidence to change the judge’s mind.4

The two-year time period limitations will not apply in any of the following situations:

  • both parties have substantially equal periods of physical placement and circumstances make it impractical for the parties to continue this arrangement;
  • a parent has repeatedly and unreasonably failed to use his/her physical placement;
  • you are requesting to modify physical placement but in a way that does not substantially alter the amount of parenting time;
  • physical placement rights would endanger the child’s physical, mental, or emotional health; or
  • a parent has been convicted of killing the child’s other parent.5

1 Wis. Stat. § 767.451(1)(b)(3)
2 Wis. Stat. § 767.451(1)(a)
3 Wis. Stat. § 767.451(1)(b)(1)
4 Wis. Stat. § 767.451(1)(b)(2)
5 Wis. Stat. § 767.451(2)(a), (2m), (3), (4), (4m)

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

Both parents have a right to their children’s school, medical, and dental records. The only exception is when the judge 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.1

1 Wis. Stat. § 767.41(7)

If 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 modify 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.1

1 Wis. Stat. § 767.451

Relocating with your child

Can I relocate with my children? What steps do I need to take?

If you and the other parent live within 100 miles of each other, and both parents are granted periods of physical placement with the child, either parent who wants to move with the child 100 miles or more from the other parent must file a motion with the court seeking permission for the child’s relocation and must get a court order before relocating.1 The motion must include the following information:

  1. a relocation plan, which includes:
    • the date of the proposed relocation;
    • the municipality and state of the proposed new residence;
    • the reason for the relocation;
    • if applicable, a proposed new placement schedule, including placement during the school year, summers, and holidays; and
    • a proposal for how the parents will split the responsibility for transporting (bringing) the child back and forth and the costs of the transportation under any proposed new placement schedule;
  2. if applicable, a request for a change in legal custody;
  3. notice to the other parent that explains his/her right to object to the relocation by filing and serving (at least five days before the hearing) an objection to the relocation and any alternate proposal, including a modification of physical placement or legal custody; and
  4. the actual blank “Objection to Relocation” form that the other parent would file if s/he objects to the relocation.2

If you and the other parent already live more than 100 miles apart from each other and then you want to relocate, you do not have to file in court the motion explained above. Instead, you must serve written notice of your intention to relocate on the other parent at least 60 days before relocation. The written notice must include the date on which you plan to relocate and your new address.3

    Note: Even if you do not plan to officially relocate with your child but you plan to take your child away from his/her home for more than 14 days in a row, you still need to notify any other person who has periods of physical placement with the child before taking the child.4

    1 Wis. Stat. §§ 767.41(6)(h)(3); 767.481(1)(a)
    2 Wis. Stat. § 767.481(1)(b)
    3 Wis. Stat. § 767.481(1)(d)
    4 Wis. Stat. § 767.481(6)

    What happens after I file the motion to relocate? What can I expect at the initial hearing?

    If you live within 100 miles of the other parent and you plan too relocate your child to a new location more than 100 miles from the other parent, then you need to file a motion with the court to request permission to relocate.

    After the motion is filed, the court will schedule an initial hearing within 30 days. The child cannot be relocated during that time.1

    If the other parent doesn’t show up to the initial hearing or shows up and agrees to the relocation plan, the judge will allow the relocation if s/he believes it is in the best interest of the child.2

    If the other parent objects to the relocation plan, the judge will:

    • refer the parents to mediation (unless attending mediation would cause undue hardship or endanger the health or safety of a party);
    • appoint a guardian ad litem for the child; and
    • schedule another hearing date within 60 days, at which time the judge will consider various factors and decide whether to allow the relocation. Note: The judge could temporarily allow the relocation during those 60 days if relocation is in the child’s “immediate best interest.”3

    ​1 Wis. Stat. § 767.481(2)(a)
    2 Wis. Stat. § 767.481(2)(b)
    ​3 Wis. Stat. § 767.481(3)(a)

    What factors will a judge consider at the final hearing when deciding if I can relocate with my children?

    If the parents cannot agree on a proposed relocation plan, the judge will decide whether or not to allow the relocation at a final hearing. The final hearing generally takes place within 60 days of the initial hearing (and within 90 days of when the petition to relocate was first filed).1

    If the proposed relocation only minimally changes or affects the current placement schedule or does not affect or change the current placement schedule, the judge will:

    • approve the proposed relocation;
    • set a new placement schedule if appropriate; and
    • decide how the parents will split the costs of and responsibility for transportation of the child between the parents under the new placement schedule.2

    If the proposed relocation more than minimally changes or affects the current placement schedule, the judge will make a decision after doing the following:

    • considering the factors explained in How will a judge make a decision about custody?;
    • leaning towards approving the relocation plan if the objecting parent has not been using his/her court-ordered physical placement in a significant way; and
    • leaning towards approving the relocation plan if the relocation is related to domestic abuse, abuse of the child, a pattern or serious incident of interspousal battery, or a pattern or serious incident of domestic abuse.3

    1 See Wis. Stat. § 767.481(2)(a), (2)(c)(4)
    2 Wis. Stat. § 767.481(4)(a)
    3 Wis. Stat. § 767.481(4)(b)

    If I want to take my child with me for a few weeks but I do not plan to relocate, what do I have to do?

    If you have legal custody or your child and periods of physical placement with him/her, the law has a notification requirement in place that you must follow if you plan to take the child from your home for 14 consecutive days or more. Therefore even if you do not plan to officially “relocate” with your child, if you plan to take your child away from his/her home for more than 14 days in a row, you need to notify any other person who has periods of physical placement with the child before taking the child.The exception to this rule is if the court order already allows you to take your child away from his/her home for this specific period of time.1

    Note: Generally, when giving any sort of notice, it is best to do so in writing and to keep proof that it was sent. For example, mailing a letter to the other parent, keeping a copy of the letter, and sending it “certified mail, return receipt requested” is one way to prove that the notice was sent and when it was received by the other parent.

    1 Wis. Stat. § 767.481(6)

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