During divorce or separation proceedings, couples who have children will have several very important decisions to make, including:
- Who will have custody of the children;
- What type of custody each parent will have; and
- Depending on the individual’s situation, the arrangements for visitation with the children.
In general, child custody refers to the legal rights and responsibilities that a parent has over the care, control, and upbringing of a child. There are several different ways parents can split custody rights over their child or children.
Child visitation refers to those legal rights that are afforded to a non-custodial parent. If one parent does not have any type of physical custody over a child, they will typically be granted visitation rights.
Regardless of whether an individual is selling custodial or visitation rights over a child, there are two main ways that a party to a divorce or separation proceeding may begin the process, by agreement and by court order.
The preferred method for determining custodial or visitation rights is by agreement. If both of the parties are willing to cooperate, the parents should discuss child custody and visitation arrangements without the involvement of lawyers or the court.
This way the parties can come to an agreement on their own terms. If this is possible, then they should draft an agreement in writing that states the conditions of custody as well as a basic visitation schedule.
In cases where the parents are not able to come to an agreement on their own, or if the well-being of a child is in jeopardy due to the behavior of one or more of the parties, the court will be required to intervene and make decisions regarding the arrangements. Typically, the parents will be given the opportunity to present their side of the situation to the court at a hearing.
What is the Child’s Best Interest Standard?
In most family law cases where a child is involved, the court will make decisions regarding the child based on the child’s best interest standard. This standard is used when the court is finalizing child custody and visitation agreements.
In addition, this standard will take precedence over most state child custody laws. There are, however, factors that a court will consider when applying the standard.
These factors may vary by state. However, in general, the purpose of this standard is to provide a way to ensure that a vulnerable class of individuals, such as children, are given the utmost protections.
According to this standard, therefore, an individual who is taking custody of a child is required to be able to provide a stable home environment and must be able to ensure the safety and well-being of the child.
The court will consider a variety of factors in order to determine whether or not a parent qualifies for custody under the child’s best interest standard, including:
- The parent’s ability to care for the child;
- The parent’s relationship with the child; and
- Which home would be better suited for the child’s needs or adjustment.
How Do I Modify Child Custody or Visitation Arrangements?
Even if there is a final court order governing a child custody or visitation arrangement, it may still be possible to gain custody of a child by submitting a request for modification. A new or modified custody order is typically issued in cases where one or both of the parties experience a major life change or major change in circumstances.
These are changes that would likely have a serious impact on a child and how they are being raised. Major life changes that may qualify as enough to modify an existing order include:
- When a parent’s behavior puts the child’s life at risk, for example, abusing or selling drugs;
- If one of the parents becomes incapacitated, deceased, or some other reason that results in them no longer being able to care for the child;
- The parent remarries, relocates, or loses their job; or
- They complete court-ordered programs that reinstate certain parental rights.
If a situation arises where a parent seeks to modify an existing child custody or visitation order, they will be required to file a request for modification with the family court. The court will review their request, determine if any changes should be made and, if so, issue a new or modified order based upon those adjustments.
What Does Wisconsin Law Encourage in Child Custody Disputes?
In Wisconsin, the law encourages parents to work out their custody arrangement themselves without bringing the issue to court. If the parents are not able to reach an agreement, courts in Wisconsin will make custody decisions based on what is in the best interests of the child.
What is a Parenting Plan or Placement Agreement?
Pursuant to Wisconsin laws, divorcing parents are required to provide the court with a proposed parenting plan prior to their divorce being approved. A parenting plan, also called a placement agreement, is a detailed, written agreement which outlines how the parties will share legal and physical custody of their children.
If the parents cannot agree on a parenting plan, they may be required to participate in mediation, a dispute resolution process, before the court gets involved.
What Does the Court Consider in Assigning Custody?
If the parents are not able to agree on custody, the court will award custody based on the best interests of the child. Courts in Wisconsin will balance a series of factors when determining the best interests of the child, including:
- The parent’s ability to actively parent the child;
- The parent’s ability to provide:
- education; and
- health care;
- The emotional bond with the child;
- The emotional and developmental needs of the child;
- The physical and mental health of the parent;
- The character of other individuals living with the parent;
- The history of contact between the parents and the child;
- The importance of sibling relationships as well as other familial relationships;
- How close in proximity the parents live to one another;
- Evidence of child abuse or spousal abuse; and
- The child’s reasonable preference, if the child is at least 12 years old.
The gender of a parent is not a factor. In some cases, a guardian ad litem will be assigned to advocate for the child in a custody dispute.
What Happens When the Court has Made a Decision?
Once a parenting plan and divorce order are signed, they are filed with the court clerk. Both of the parents are then bound by the approved parenting plan.
In addition, the court will be required to approve any modifications of the plan.
Should I Contact a Wisconsin Lawyer Regarding my Custody Issues?
Child custody disputes are often emotionally charged and require a detailed understanding of the law. If you are currently involved in a custody dispute or are trying to come to an agreement with your child’s other parent, it may be helpful to consult with a Wisconsin child custody lawyer.
Your lawyer can answer any questions you have regarding the process as well as advocate for your and your child to secure the best possible parenting arrangement for your family. If you need to modify a current order, your attorney can help you request a modification from the court and represent you during any hearings.