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.
-Madeleine Thompson-Davies
Wisconsin Family Law Info 
if we have 50 50 or joint custody of two kids, why am i paying child support?
In Wisconsin, there is a strict formula for calculating child support. In a shared placement schedule, even 50/50, there will be support if the two incomes of the parties are different. Attached is a link if you would like to run these calculations yourself. http://dcf.wisconsin.gov/bcs/pdf/worksheets_shared_placement.pdf
My brother is just trying to get visitation with his daughter and the GAL sent a letter that there should be no change in placement at this time wich is him having to drive 200 miles every other Saturday to have 6 hours with his child and no overnight visits ever is placement mean visitation or is that separate?
First, the GAL doesn’t get to decide. He or she only makes recommendations to the court. Ultimately, the judge is the one who decides. Depending on the circumstances, it might be worthwhile to ask for a trial or a hearing and have the judge make the decision. However, to best evaluate all of the options, your brother should discuss this with an experienced family law attorney. To answer your question, though, placement and visitation mean the same thing.
Does Wisconsin allow every other week placement? My children are 5, 2, and 7 months. The 7 month is not breast fed anymore.
Yes but that is not a good schedule for young children. Research shows that shorter, more frequent periods of contact are best for young children. Only teenagers typically do well under a week on/week off schedule because they can handle the longer times away from their parents. For younger children, we usually recommend alternating weekends and then splitting up the weeks M/T, W/R, flip flopping those days so the children are not away from a parent for more than 2-3 days. As they get older, you can switch so the M/T, W/R is with the same parent each week. However, each situation is different and kids handle different schedules in different ways. You have to work with the other parent to see what is going to work best for your family situation and your children. Good luck.
My step daughters mother is refusing to talk to my husband or I about when she is taking our daughter. We currently have 50/50 custody but my husband and I have primary placement. My daughter is 10 and has a phone and so she texts my daughter when she is taking her. We have no set visitation schedule because her schedule is inconsistent. Can she do this? I would assume since my daughter is a minor she would have to go through an adult to schedule visitation.
I’m sorry – your question is somewhat confusing because you say “your daughter”. I assume you mean your step-daughter? The first place to start in this is the court order. What does the current order say regarding placement? That is what the default schedule is. If there is no schedule and it is just “reasonable times on reasonable notice”, then yes, she should be contacting your husband, not her daughter. It is not appropriate for placement to be arranged through a child. Your husband needs to send her a strong message on this and tell her that if she does not contact him directly, she will have no placement. From there, your husband might want to meet with an experienced family law attorney to determine if there are any other options or to attempt to reach an agreement on a set schedule which then can be sent to the court to formalize into an order. Good luck.
My wife and I are divorcing and working to establish a placement schedule. I’m worried because her bf (that she left me for)has domestic issues and a criminal record. She’s a good mom but I don’t want this man around my children.
I don’t blame you! Of course, there are degrees of “a criminal record”. A disorderly conduct charge from 10 years ago is very different than a felony battery last year. But, an experienced divorce attorney should be able to assist you in evaluating the facts and making a determination as to whether this is a legitimate issue/request on your part and what the likely result will be in court. Good luck!
Okay I’m from California.I moved to Wisconsin with new born twins and a gf there mom. We lived in basement at moms for awhile. The mom lost her job for drinking on the job . Soon after we moved to peshtigo wisconsin. We had an apartment together. Shortly the. After she left the state with the twins for 6months.No court order was in place of the time.
there after we had differences about raising children I also learned she lost previous four kids to cps.for child cruelty. Eventually the kids were adopted bye my twins mom early 2014and relocated to Wisconsin crivitz. I have the records for that but not the actual details behind cps intervention. Or there’s even a protective order ? As of late I removed here from the house and petition the courts. And I have a date set. My question is wth police reports of violence battery against me the dad and children were around with grandma same one who adopted my twins moms kids . Now not only does my twins mom live with her mom in a basement . One room . I currently have the kind do Monday thru Friday and there in daycare school three days the other two days I stay with them. They have there own beds and there own room . I have. No record or history of violence . I’ve held my job and I’m responsible. I’ve study all the laws and want to know with children being so young 2 to be exact there’s no since for GAL and with all the proof and paper trail I have is this enough for the judge to grant temporary sole legal custody and primary placement. Till the courts can compel the California courts to release the information for the courts to better decide custody for the twins.
Thank you for your interest in our blog. Unfortunately, I cannot give you legal advice through this site, especially with a complicated situation such as yours. There are likely many more facts which are important to your case which are not set forth in your question and which impact your case. Your best bet is to consult with an experienced family law attorney. Most attorneys offer free consultations and they can at least steer you in the right direction, even if you aren’t able to hire them. Good luck!
My ex and I share custody of our son. Is my son’s father legally obligated to tell me when he goes out of town and my son will be cared for by my ex’s mom for several days? Is my ex obligated to reply in a timely manner to my texts/phone calls inquiring about matters regarding my son? It’s very frustrating to not know know what is going on and my son would rather spend extra time with me than 3 days with his grandma and no dad.
The first place to look in answering your questions is your court order. Does it say that he has to advise you of the child’s whereabouts? Or, is there a right of first refusal provision where he is required to give you the opportunity to provide care first? If your divorce judgment or court order is silent on these points, then it makes it a bit more difficult. For example, is it wrong for a child to spend time with a grandparent once in a while? Children have one-on-one time with grandparents all of the time. This is a different scenario than leaving the child with a babysitter. If it is happening frequently, however, then you might have grounds to seek a modification of the court order. You should consult with an experienced family law attorney in your area to evaluate the facts of your case and advise you as to the possible results of a motion to modify the custody and placement orders.
My ex wife & I have joint custody of our 7yr old daughter. Right before she started kindergarten my ex asked me to take her to live with me as she has several other children and felt she couldn’t handle them all. Last summer my ex who is now remarried picked up the rest of her family leaving our daughter with me and moved an hour away. My ex signed court paperwork giving me 100% placement. My little girl is very happy to visit her mom every other weekend. Which is how the court order reads.. My ex is all of a sudden wanting more control and causing all kinds of trouble. Legally can she pick her up at school without me knowing? How can I protect my little girl from unexpected exits from school? What rights do I have?
I apologize for the delay in the response. Your court order controls. Unfortunately, schools are not in a position to enforce court orders. You should consult with an experienced divorce attorney for advice and to discuss your options.