As a new family law attorney, part of my challenge has been understanding when and how to use different legal terms involved in family law cases. Two of the terms that stump new attorneys, and clients as well, are “custody” and “physical placement.” Attorneys who have been practicing for some time tend to use the terms interchangeably, but have an internal recognition that they each address something distinctive. While they are often coupled together in legal documents, they are treated as two separate legal terms of art, and addressed in court as such.
In Wisconsin, legal Custody, or “child custody,” regards the right and responsibility of either parent, both parents, or another such person granted legal custody of the child, to make major decisions concerning the child(ren). Such decisions include: where the child goes to school, what religion the child practices, whether or not the child may obtain a driver’s license, or receive healthcare for nonemergency reasons (such as orthodontia). In Wisconsin, there is a presumption of joint legal custody, or shared custody, which is disturbed only if there is evidence that one of the parents should have primary or sole custody. Primary or sole custody is when one parent, typically the parent with primary placement of the child, has the chief decision-making authority for decisions concerning the child. Sole custody is the condition under which only one of the parents has legal custody.
Physical Placement in Wisconsin is the condition under which a party has the right to have a child/children physically placed with that party and has the right and responsibility to make, during that placement, routine daily decisions regarding the child(ren)’s care, consistent with major decisions made by a person having legal custody. There are a few standard placement schedules (e.g. “50/50 placement”) that parents often work from, but every placement schedule is created on a case-by-case basis, addressing the specific schedules and needs of the parents and children alike.
The most common situation is when the parents agree to the presumption of joint legal custody, but have disagreements over the physical placement schedule of the child(ren). In Wisconsin, if the parents cannot agree on a physical placement schedule, then the court is required to order mediation. Depending on the county your case is in, the first mediation session may be free. If that does not work, the court is then required to appoint a Guardian ad Litem (GAL) who is an attorney appointed to represent the best interests of the child(ren). He or she conducts an investigation and then makes a recommendation as to what they believe is in the best interest of the child(ren). Depending on the county, the court may also order a custody study to determine the condition of the child’s home, each parents performance of parental duties and responsibilities relating to the child, and any other matter relevant to the best interest of the child. The court then uses these recommendations, other evidence the parents provide and the wishes of the child to make a determination on placement. The same process is used if the parents cannot agree on who will be awarded legal custody for the child.
If you have any questions regarding legal custody and physical placement, please contact our office at 414-258-1644 to schedule a free initial office consultation or visit our website for more information.