Wisconsin Child Custody and Placement Overview

Wisconsin family courts address child custody and physical placement issues as part of divorce, legal separation and paternity cases.

After opening a case, parents who are willing to compromise often settle their issues outside of court — either on their own or through an alternative dispute resolution method. If the court approves, the settlement becomes the final order.

If parents don't settle, a judge or commissioner makes custody decisions based on the evidence parents present in a trial.

The court can only make orders for custody, placement and child support if the child has a legal father.

Types of legal custody

Legal custody (also simply called custody) is the right to make major decisions for the child, including decisions about nonemergency medical care, religion and education.

Wisconsin law presumes that parents will have joint legal custody, meaning parents share this right. Parents or the court may opt to divide decision-making responsibilities by category. For example, one parent could make all education decisions.

If a parent has sole legal custody, they make all of the decisions for the child without the other parent's input. Courts typically only order sole legal custody when one of the two parents is unfit to take care of the child.

In both types of legal custody, each parent can make routine, daily decisions when the child is with them.

Types of physical placement

Physical placement refers to where the child lives. There are three types.

• Primary placement: When the child spends more than 75 percent of the nights in a year with one parent.
• Shared placement: When the child spends at least 25 percent of the nights in a year with each parent.
• Split placement: When parents have more than one child together and each has primary placement of at least one child.

Shared placement is most common because the court must maximize each parent's time with the child, granted their households are safe and nurturing. Parents can agree on any arrangement that they see fit.

A placement schedule shows where the child will be from day to day, including during holidays and vacations.

LGBTQ parents

Wisconsin does not have any specific laws about the parental rights of LGBTQ couples. For those seeking to establish a legal parent for their child, it's best to hire an attorney.

Attorneys have in some cases successfully argued that the marital presumption of paternity applies to same-sex married couples who have a child through artificial insemination. A strong case could lead the court to grant parentage to the spouse who's not biologically related to the child.

Adoption is also an avenue to establish parental rights, regardless of marital status.

Factors in custody and placement decisions

Decisions for legal custody and physical placement must serve the best interest of the child. The court considers many factors to determine what's in the child's best interest, including:

• Parental fitness (includes any history of crime, violence or substance abuse)
• Proposed parenting plans
• Current placement arrangements
• Each parent's availability
• The child's wishes

Custody and placement mediation

Wisconsin law requires parents who disagree on custody and placement issues to attend mediation before proceeding to trial. This applies whether they're looking to establish an order or want to modify an existing order. Cases that involve child abuse or neglect, domestic violence or substance abuse are exempt. If attending mediation could endanger a parent's health or well-being, the court may waive the requirement.

Parents who haven't been referred to mediation must contact the court to request a referral to attend a court-affiliated program. If the other parent does not want to participate, the parent who wants to attend must file a motion with the court.

In some counties, the court will deny the request if the applicant has not seen their child within the last six months or they're attempting to modify a custody and placement order that's part of a Judgment of Divorce that's less than two years old.

Length of proceedings and mandatory waiting period

You can settle with the other parent to end your case quickly. However, if you're divorcing, you won't receive final orders until your case has been on file for 120 days; this is the state's mandatory waiting period. (The court can expedite the case in extraordinary circumstances, such as if a spouse is terminally ill.)

If you're involved in a paternity case, it can be resolved at any time you reach an agreement with the other parent on all issues.

If you're unable to settle, your case is contested. A contested divorce or separation can last six months to a year. Paternity and custody-only cases are generally shorter, lasting from three months to a year.

Cost of proceedings

The more complicated your case, the more costly it will be.

Hourly attorney fees vary depending on your location and the attorney's credentials. Costs can range from $175 to $350 per hour. Very complicated cases that go to trial may ultimately cost each parent more than $10,000, but attorney fees totaling $4,000 to $6,000 per person are more common.

If you attend court-ordered mediation, each parent must pay $100. If you opt for private mediation, expect to pay more. Other possible requirements like a custody study or parenting coordination can cost several thousand.

Representing yourself

Before you proceed without an attorney, consider the complexity of your case. If you're strongly at odds with the other parent or have special circumstances, hire an attorney. Some work for free or at a reduced rate for low-income litigants.

Alternatively, you can contact the University of Wisconsin's Family Court Clinic to get legal help. Organizations like Legal Action Wisconsin and the Legal Aid Society of Milwaukee help low-income litigants. Also, the Milwaukee Justice Center assists with family law forms for free and hosts the Marquette Volunteer Legal Clinic, which gives brief advice.

Bear in mind: If something goes awry, you may end up hiring an attorney to fix your mistakes. This could prove more costly than hiring an attorney from the start.

Regardless of the avenue you choose, review Wisconsin's child custody, placement and visitation laws to prepare.

Other resources for litigants:

• Wisconsin Court System's self-help information: Forms, tips and what to expect
• Basic Guide to Divorce in Wisconsin: Overview of the divorce and separation process from the Wisconsin Court System
• Establishing legal fatherhood: Information from the Department of Children and Families on why you should establish your child's paternity and how to do it
• Interpreter request form: A document to ask the court to appoint an interpreter for you or a witness in your case

Our professional sources

For more help, consider reaching out to one of our sources. The people and offices listed below have helped us with the intricacies of child custody in Wisconsin, and we hope they can help you, too.

Eric R. Hart, Esq.
Milwaukee, WI

Musial & Friedrich, S.C.
Elisabeth Fletcher, Esq.
Madison, WI

Nelson, Krueger & Millenbach, LLC
Allison Krueger, Esq.
Milwaukee, WI

Remley Law, S.C.
Renee A. Read, Esq.
Neenah, WI

Sheila L. Romell, Esq.
Wauwatosa, WI

Stephen J. Fozard, Esq.
Appleton, WI

Tlusty, Kennedy & Glascock, S.C.
Zachary P. Glascock, Esq.
Schofield, WI

Staying organized

The custody and placement process requires serious organization. You may need to create a parenting plan, draft multiple physical placement schedules, track your time with your child, calculate expenses and beyond.

The Custody X Change app enables you to do all of that in one place.

With a parenting plan template, custody calendars, an expense tracker and more, Custody X Change makes sure you're prepared for whatever arises in your journey to child custody.

Take advantage of our technology to stay on top of all the moving parts of your case.