Legally Speaking

Wisconsin law includes provisions for two distinct rights for parents involved in divorce or paternity actions: legal custody and physical placement. While the terms are often used interchangeably by persons outside of the family law community, they have very different meanings.

“Legal custody” refers to the right and responsibility to make major decisions concerning the child(ren). Major decisions include, but are not limited to, decisions regarding consent to marry, enter the military, obtain a driver’s license, receive healthcare and choice of school and religion. The court will presume that joint legal custody (shared custody by both parents) is in the best interests of a child. However, one parent may be granted sole legal custody in certain circumstances. In determining legal custody, the court will consider all factors relevant to the best interests of the child(ren) in question.

“Physical placement,” sometimes referred to as visitation, means the condition under which a party has the right to have a child physically placed with that party and has the right and responsibility to make, during that placement, routine daily decisions regarding the child’s care, consistent with major decisions made by a person having legal custody. Simply put, physical placement refers to the right to have a child physically reside with a parent at any given time. The law provides that the court shall set a placement schedule that allows a child to have regularly occurring, meaningful periods of physical placement with each parent and that maximizes the amount of time the child may spend with each parent, taking into account geographic separation and accommodations for different households. As with the right of legal custody, in determining physical placement, the court will consider all factors relevant to the best interests of the child(ren).

Legal Custody and Physical Placement must be determined in every court action involving paternity or divorce with children. If the parents do not agree on these legal issues, the court will typically first send them to Mediation in an attempt to reach an agreement. If Mediation is unsuccessful, a guardian ad litem (attorney) will be appointed to represent the best interests of the child(ren). The guardian ad litem will investigate the situation involving both parents and make a recommendation to the court with respect to legal custody and physical placement of the child(ren). While the court is not bound by the recommendation of the guardian ad litem, it will consider that recommendation in determining legal custody and physical placement.

If you are involved in a court action concerning the legal custody and physical placement rights to your child(ren), you should contact an attorney to discuss your options based upon your unique situation.

This column is based on general legal principles of Wisconsin law, is for informational purposes only, and is not intended to provide legal advice. Each legal matter must be judged on the merits of its unique circumstances. If you have a legal problem, consult an attorney.