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:
- the action was taken to protect a party or a minor child of the parties from physical abuse by the other party; and
- 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.