Family Law

How do Judges Decide Child Custody in Wisconsin

By Kristina Otterstrom, Attorney
A child’s needs, not a parent’s, are at the center of any custody case. Learn more about how judges decide custody disputes.

Custody Basics in Wisconsin

Whether you’re a parent involved in a divorce, paternity, custody, separation, or annulment proceeding, if you and your child's other parent cannot agree on custody, a judge will have to make final custody arrangements. Custody decisions are complex and require a judge to assess several factors. Although a court will have to consider many factors, a child’s best interests are at the heart of any custody proceeding.

Your custody order will address physical and legal custody. The parent with primary physical custody lives with the child. However, parents can share physical custody (also called “joint physical custody”) where one parent has the child 4 nights a week and the other parent has 3 nights per week with the child.

Legal custody refers to a parent’s right and responsibility to make health, educational, religious, and other decisions on the child’s behalf. Parents may share legal and physical custody or one parent may have sole physical and/or legal custody. Even in cases where parents share joint custody, a judge will designate one parent as the primary custodial parent. This is usually the parent who has majority physical custody—the custodial parent has the final say in decisions involving the child when the parents can’t agree.

How Will a Judge Decide My Custody Case?

When evaluating custody, a judge may consider any factor that’s relevant to a child’s best interests. You may have to share some uncomfortable information about your family, work history, health or domestic abuse. Specifically, the following factors are relevant in a custody case:

  • the parents’ wishes regarding custody
  • the child’s current adjustment to school, home, religion, and community
  • each parent’s employment, work schedule, and availability
  • the parents’ ability to cooperate on matters involving the child
  • history of domestic violence, if any
  • the child’s age and emotional, physical, and medical needs
  • the child’s wishes, if the child is of a sufficient age and maturity
  • each parent’s custodial roles and the amount and quality of time each parent has spent with the child
  • each parent’s ability to meet the child’s needs
  • the child’s relationship with siblings, extended family, or stepparents, and
  • each parent’s willingness to facilitate a relationship between the child and the other parent.

Because every case is unique, after evaluating the above factors, a judge may place limits on either parent’s custody if doing so would serve the child’s best interests. For example, a judge may order joint legal custody but give one parent sole decision-making power on religious matters involving the child.

When possible, a judge will try to maximize each parent’s time with the child. A judge doesn’t have to terminate one parent’s rights completely in cases involving domestic violence or abuse. If a child’s safety is at issue, a judge may order supervised visitation until it’s clear that traditional visitation serves the child’s best interests. However, in extreme circumstances a termination of parental rights may be appropriate.

Can Parents Make Their Own Custody Agreements?

In an ideal world, parents would be able to work out their own custody agreements and a judge would merely review the agreements to ensure that they served a child’s best interests. In some cases, a judge may even order parents to attend mediation before scheduling a custody trial. A mediator isn’t a replacement for an attorney, but rather someone who can help guide negotiations and assist in drafting a settlement agreement.

A mediator can’t give you legal advice, but you can hire a consulting attorney to answer questions and review any proposed agreements before you sign off. Because your custody agreement could have long-lasting effects on your rights and relationship with your child, make sure that you understand the agreement’s impact on your parental rights before signing.

A judge may turn your agreement into an official custody order as long as it’s in writing, is fair, and serves your child’s best interests. A judge won’t sign an incomplete agreement. You must make sure that your agreement resolves all custody issues, including:

  • visitation schedule, including holiday and school break visits
  • visitation exchanges
  • legal and physical custody
  • the child’s medical insurance coverage
  • child support
  • custody and visitation in the event of either parent’s relocation, and
  • communication between the child and parent when in the other parent’s care.

A custody order is permanent until the court modifies it. It’s not uncommon for parents to modify custody at least once before a child turns 18.

When Will a Judge Modify Custody?

Parents can modify custody when there’s been a material and substantial change in circumstances. Either parent may file a motion to modify custody with evidence showing how a recent family, job, or major life event requires a change in custody. One parent’s new job or remarriage won’t automatically warrant a custody change,but in situations where a custodial parent’s remarriage or constant travel is negatively impacting the child, there may be reasons to alter custody.

Either parent can seek a custody modification by filing a request with the court. A judge will typically schedule a hearing to decide whether a custody modification is appropriate. Like any custody decision, a child’s best interests will determine the outcome of your case.

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