Wisconsin Child Custody: Every Child and Family Is Unique

October 12, 2012 (Press-News.org) In the not-so-distant past, judges in custody disputes largely assumed kids would naturally do best living with their mothers full time while granting their fathers regular visitation. In the past couple of decades, gender-based stereotypes about parenting have mostly faded from state child custody laws. No longer is it presumed that the mother is automatically going to be the better child nurturer, nor is it assumed that a child living in only one parent's home with the other having visitation is always the right residential model for every family.

A Kid's Best Interest Is Key

In Wisconsin, the gender of a parent may not be the basis for a child custody order, nor, for that matter, may a parent's race. Instead, in Wisconsin, as in most other states, legal arrangements for kids in divorce, separation and similar situations are based on the "best interest" of the child. Deciding what is in each child's best interest allows assessment of the child's unique personality and needs, as well as of each parent's strengths and weaknesses.

Legal Custody

Wisconsin law uses the term "legal custody" to refer to which parent has the power to make major decisions about a child such as those concerning medical care, religion and education. Wisconsin presumes that legal custody is best held jointly by both parents, but that presumption can be rebutted with evidence that one parent should not have this power. For example, one parent should have sole legal custody when the other parent may not be able to cooperate or negotiate, may refuse to participate, may not be suitable or able to make such decisions for the child, is addicted to alcohol or other substances, or has a history of violent or abusive behavior.

Physical Placement

Most states use the terms "physical custody" or "visitation" to describe periods of time a child spends with a parent, but the Wisconsin Legislature instead chose "physical placement." A child is normally physically placed in the alternating care of each parent for regular periods, unless spending time with one parent would be dangerous for a child physically, emotionally or mentally.

It may be better for some kids to spend the majority of time with one parent and see the other only rarely. It just depends, and that is why the best-interest-of-the-child standard is so important and powerful in family law and in protecting children from unhealthy parental arrangements.

Parental Preferences

Many divorcing couples are able to negotiate legal custody and physical placement arrangements for their families, usually with the assistance of experienced family law attorneys, and sometimes after required mediation. Resulting settlement agreements are then submitted to Wisconsin state court for consideration and probable approval. However, if two parents cannot hammer out an agreement on these important issues concerning their children, the court considers the issues "contested" and a judge will have to decide for them what is in the kids' best interest going forward.

Wisconsin Best-Interest Factors

Wisconsin law is very specific about the meaning of a child's best interest in custody and placement decisions. First, the law requires the court to look broadly at "all facts relevant to the best interest of the child" considering the "individual case." The potential for military duty may not be a disincentive for granting custody or placement. A history of domestic violence or abuse must be a "paramount" consideration in crafting an arrangement that ensures everyone's future safety.

Beyond that, Wisconsin law directs the judge to always consider a long list of specific factors in looking at the child's best interest, including, for example:
- Parental settlement agreements or individual wishes
- The child's wishes
- The child's relationships with the parents or with other significant people like siblings
- Past parenting patterns
- The child's "adjustment to the home, school, religion and community"
- The child's age and appropriate needs
- Mental and physical health of the child, parents or others living in the respective parental homes
- Parental history of neglect of any child
- Parental criminal records
- Professional assessments
- Alcohol or drug problems
- Persons parents are dating

Anyone facing child custody issues in Wisconsin should consult with an experienced divorce lawyer for assistance in navigating this complex area of the law.

Article provided by Magner, Hueneke, Smith & Borda, LLP
Visit us at www.mhslaw.net/