Custody, Placement & Child Support:


Custody to Mother vs. Custody to Father:

There is no legal presumption in Wisconsin favoring either parent for custody of the children. In determining custody, Courts do not discriminate on the basis of sex. The Court will assess the “best interests of the child” by weighing the recommendations of forensic psychologists, the fitness of the parties and, in some cases, when the child is old enough or mature enough to express his or her preference to a guardian ad litem. If the father is the working parent and the mother is the stay-at-home parent, the children will ordinarily stay in the custody of the mother depending on whether or how soon the mother must return to the workforce. However, if the parents are able to communicate amicably regarding the children, the father may still be entitled to joint legal custody with the ability to spend a liberal amount of time with the children.

Joint Custody vs. Sole Custody:

In Wisconsin there is no legal presumption in favor of joint custody or sole custody. Each case is determined on its own merits. There are two types of joint custody: “joint legal” and “joint physical” custody. When joint legal custody is awarded, both parents ordinarily share in the legal decisions for the children. Joint physical custody typically means an almost 50/50 division of the children’s time. In either type of joint custody, the parents are expected to communicate and confer regarding major decisions about the children, such as education, childcare, medical and religious decisions. The Court requires both parents to attend mediation at Court, without attorneys, to discuss the settlements of all custody and placement disagreements before those issues can be heard by a judge.

Factors the Court Considers in Awarding Custody:

If the parties cannot agree on custody or placement, the Court will make the final decision. When awarding custody and placement, the Court considers the physical and mental fitness of each parent. The Court also considers the role that each parent plays in the child’s life, including the parent’s involvement with the children’s health matters, their extra-curricular activities, religious matters, where and with whom the children have been living, and the interaction between the parent and child. The Court may also seek advice from other relevant professionals.

Non-Custodial Parent’s Contract with the Child:

Even if a parent is not awarded custody, that parent may still maintain frequent contact with his or her child. The Court will normally permit the non-custodial parent to have liberal and frequent placement rights with the children unless there is a history of addiction, abuse, or other mental impairment that might endanger the welfare of the child. Even under such circumstances, placement would usually occur under Court supervision.

Moving with a Child:

It is often a concern that the spouse will move away with the children, thereby significantly decreasing the other parent’s interaction with the children. If the matter is settled by an agreement, your attorney may negotiate a non-relocation clause in the agreement to prevent the other parent from moving away with the children. Without such an agreement, the standard for relocating with a child is “the best interests of the child.” The Court will weigh the impact of the child’s move, including decreased visitation time with the other parent and the effect on the child’s education and social relationships, against the reason for the relocation. A parent who wants to relocate as a result of remarriage or employment opportunity must show that such a move will be in the child’s best interest and not simply to fill the parent’s desires.

Modification of Custody:

After the Court awards custody, it may be modified if it is shown that a “substantial and continuing change in circumstances” has affected the children since the Court order was set. Also, it must be shown that a change in custody is in the best interests of the children. At least two years has to have passed since the original award was ordered to be able to request a change with the Court, unless the children are in danger.

Placement (or “Parenting Time):

If you and your spouse can agree to the details of a parenting plan, the Court will usually approve the plan that you have worked out. A placement arrangement must set forth a specific parenting schedule, including days and times, and must also account major holidays.

Grandparent Placement:

Grandparents can sometimes obtain custody or visitation despite a parent’s objections. To do so, the grandparents must show that it would be in the best interests of the child to maintain such relationships, and that the grandparents have had a close, warm, loving, and meaningful relationship with the grandchild.

Determination of Child Support:

Wisconsin has Guidelines for determining the amount of support that should be provided for children. The Guidelines apportion child support based on the gross incomes of both parents. The Guidelines may be deviated from if both parents agree and if the Court determines that a deviation is in the best interests of the children. It is not uncommon for parents to agree on the amount of child support. If they cannot, the Court will use the Guidelines in determining the amount. The factors that may affect this determination are complex and interdependent.

New Spouse’s Income:

If a spouse remarries, and the new spouse has an income, such an income is not considered for purposes of calculating child support because the new spouse has no legal obligation to provide support to the child. The additional income may factor in, however, by allowing the supporting parent to spend less for day-to-day expenses, thereby freeing up more funds to be available for the monthly support payments.

Medical Insurance for the Children:

It is not always the non-custodial parent that is responsible for providing the children with health insurance. Presently, the Court orders the parent with the best plan at the lowest rate to provide insurance for the children.

Modification of Child Support:

Wisconsin allows for the modification of child support as long as a substantial change has occurred, and the change is not something that has been previously addressed. The change will typically be associated with either living arrangements or income.

Bankruptcy and Child Support:

If the paying spouse files for bankruptcy, he or she is still obligated to make support payments. The federal bankruptcy law does not allow any child support or spousal maintenance payments to be discharged. The paying spouse continues to be responsible for support for the time period stated in the order, unless a modification is allowed.