What Is the Difference between Physical and Legal Custody in Wisconsin?

When children are involved in a family dispute, emotions tend to run high. Custody can be one of the most challenging aspects of any family law case. Even after an agreement has been reached or an order has been put in place, you can be left wondering what those terms actually mean for your family’s daily life. 

Physical custody and legal custody are distinct concepts under Wisconsin law. For divorced, separated, or unmarried parents, it is crucial to understand the difference and the implications on their parenting decisions.  Your Nowlan custody lawyer can be beneficial to those facing a custody battle. 

Physical Custody Defined

Physical custody or “placement” refers to where a child lives and the ability to make daily decisions regarding your child’s care. The type of placement depends on the number of nights the child spends with a parent or guardian. A parent may have either primary, shared, or split placement of their children.

• Primary Placement: A parent has primary placement of a child if 75% of the nights are spent with that parent.

• Shared Placement: A parent has shared placement of a child if 25% of the nights are spent with that parent.

• Split Placement: Finally, split placement can occur in a family with two or more children. In these cases, each parent has primary custody of one or more children.

Factors such as the following are all taken into consideration:

• Parents’ work schedules
• Child’s daily schedule
• Where children attend school
• How a child may cope with moving between homes 

Legal Custody Defined

Legal custody refers to your authority as a parent to make decisions regarding your child’s welfare. This includes significant decisions like healthcare, religion, education, and extracurricular activities. A parent can have either sole custody or joint custody. 

• Sole Custody: One parent has the right to take care of and make major decisions for the child.

• Joint Custody: Both parents have the right to take care of and make major decisions for the child.

In Wisconsin, joint custody, commonly referred to as 50/50 custody, is the goal. This standard assumes that joint custody is in the best interest of the child. Therefore, receiving sole custody of a child can be challenging. To get sole custody, the parent requesting it will need to show that the other parent is unfit.

What Is an Unfit Parent?

An unfit parent is one who cannot or will not properly care for their child. A parent may be found unfit if there is a history of: 

• Child abandonment
• Alcohol or drug addiction
• Criminal history
• Mental instability
• Refusing to assume responsibility for the child

Having either sole or joint custody can have serious implications. While many parents are understandably concerned with how often their child will live with them, the ability to make these meaningful decisions is equally important. 

Child Support Implications

Child support is based on placement and not legal custody. This means even if you have joint custody of your child, you may still be obligated to pay child support. Using Wisconsin’s Child Support Standard, support is calculated using each parents’ income, number of overnights, and whether the parent is supporting other children. 

The Bureau of Child Support at the Wisconsin Department of Children and Families manages the statewide child support program. However, the court will decide the amount of child support and may order a parent to pay more or less than the Child Support Standard.

How Are Custody Decisions Made in Wisconsin?

Custody and placement decisions depend on what is in the best interest of the child. This includes all major life decisions, daily placement schedule, and child support obligations. Parents can reach an agreement regarding custody and placement, or if no decision is reached, the court will impose an order. 

During the pendency of a divorce or paternity case, the court will issue a temporary custody order. Thereafter, you may negotiate custody and reach an agreement. However, the judge will need to approve any custody agreement. If no agreement is reached, there will be a trial, and the judge will issue a final order. 

Role of the Guardian Ad Litem in Custody Decision

A guardian ad litem plays a critical role in your child’s custody and placement. A guardian ad litem is an attorney who is appointed by the court to represent the best interests of your child. Their role is to investigate your family situation, make recommendations regarding custody and placement, and protect your child’s rights. 

Custody Concerns? Speak with an Experienced Family Law Attorney

Custody and placement decisions are significant. These determinations can impact your relationship with your child and your co-parent. Custody must be approached strategically and with great consideration for your child. 

The  Divorce & Family Law attorneys at Nowlan Law offer compassionate support throughout your custody dispute. Our dedicated and knowledgeable team will represent your interests during negotiations and in court, ensuring that you are heard. If you have custody concerns, contact us today.