Legal custody can be granted to one parent or both parents. The court may award joint legal custody to both parents or sole custody to one parent.
The presumption in Wisconsin is that joint legal custody is in the best interests of the child. Joint legal custody provides both parents an equal opportunity and responsibility to make decisions for the child. For parents who have joint legal custody, no one parent’s decision is superior to the other parent. In cases where there is domestic abuse, severe drug or alcohol abuse, mental health issues, or other serious situations where the parties cannot communicate, one parent may be awarded sole legal custody. The court is very hesitant to grant sole custody unless there is compelling evidence presented that shows eliminating decision-making rights for one parent is in the best interest for the child.
In some cases, the court may award joint legal custody with one parent having final decision making for all or some of the custodial decisions. This is sometimes referred to as “veiled sole custody,” and therefore is not popular with the court unless good reason is given for the request.
Major decisions include, but are not limited to, consent to marry, consent to enter military service, consent to obtain a driver’s licenses, authorization for non-emergency health care, and choice of school or religion.
One of the most controversial custodial decisions is school choice. When parents no longer reside together, or never did reside together, there are often geographical issues that naturally arise that affect school choice. For example, one parent may reside in the marital home and in the district where the children have been going to school for a number of years, while the other parent has moved to another county where they believe the children would receive a better education or be afforded better opportunities. When the parents cannot agree on where the child should go to school, it is likely the court will appoint a Guardian ad Litem to address this issue. The Guardian ad Litem’s job is to make a recommendation to the court of what he/she believes is in the best interest of the child.
Taking one example, if one parent is exercising primary placement of the child and has been the school placement parent since the parents split up, the court is likely to find it is in the best interest of the child to continue the current placement schedule. However, if the school placement parent’s work hours change and that parent can no longer take the children to and from school and be there for the children after school, there may be reason for the court to find that a school change would be appropriate and in the best interests of the child.
The court is required to consider a number of factors when deciding the appropriate custodial arrangement for a family. The extensive list of the required factors is the following: the wishes of the child’s parents, the wishes of the child, the interaction and relationship with all members of the child’s family, the amount and quality of time that each parent has spent with the child in the past, any necessary changes to the parents’ custodial roles and any reasonable life-style changes that a parent proposes to make to be able to spend time with the child in the future, the child’s adjustment to the home, school, religion and community, the age of the child and the child’s developmental and educational needs at different ages, whether the mental or physical health of a party, minor child, or other person living in a proposed custodial household negatively affects the child’s intellectual, physical, or emotional well-being, the need for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child, the availability of public or private child care services, the cooperation and communication between the parties and whether either party unreasonably refuses to cooperate or communicate with the other party, Whether each party can support the other party’s relationship with the child, including encouraging and facilitating frequent and continuing contact with the child, or whether one party is likely to unreasonably interfere with the child’s continuing relationship with the other party, whether there is evidence that a party engaged in abuse, whether a parent’s significant other, or person residing with them has a criminal record, has engaged in abuse of the child or any other child or neglected the child or any other child, has engaged in interspousal battery, has a significant problem with alcohol or drug abuse, the reports of appropriate professionals if admitted into evidence and such other factors as the court may in each individual case determine to be relevant.
When the court is consider making a school choice decision, there are usually a number of other considerations included in a court’s ultimate determination. For example, where the child primarily resides, how old the child is, how “rooted” the child is in the current school district, what grade the child is in (will there be a natural break in the child’s schooling anyways that would require a change? i.e. Middle school to high school), the child’s involvement in the school, the child’s social life and how it would be affected, the proposed school placement parent’s ability to care for the child before and after school, and the reason the parent is requesting the school choice change (personal or for the child’s benefit). The aforementioned is not an exhaustive list of what the court can and will consider, but includes some common considerations.
Please note, while many parties focus on school ratings, the court does not typically focus on same. The reason being, the evidence brought forward regarding school ratings (unless very drastic) is often being used by the parents to further a different underlying motivation for the school change.
Please be advised, if the school you wish to have your child attend would require you to move more than 150 miles for more than 90 days, then you have to notify the other party and wait to see if the other party objects to same. For more information on this specific topic, please see our blog about moving with a child at https://wisconsinfamilylaw.info/category/custody-and-placement/.