Custody and Placement Factors

April 13, 2009

Clients commonly wonder what factors courts consider in making decisions about legal custody and physical placement of children in a divorce.  Section 767.41 is the relevant Wisconsin Statute to this determination.  See: 

http://nxt.legis.state.wi.us/nxt/gateway.dll?f=templates&fn=default.htm&d=stats&jd=767.41

Under the statute, the Court is required to consider “all facts relevant to the best interest of the child.”  The following are the specific factors described in the law:

  • The wishes of the parents;
  • The wishes of the child;
  • The interaction an interrelationship of the child with family members and any others who significantly affect the child’s best interest;
  • The amount and quality of time each parent has spent with the child in the past, and proposed changes a parent wishes to make to spend time with the child in the future;
  • The child’s adjustment to 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 household negatively affects the child’s well-being;
  • The need for regularly occurring and meaningful periods of placement to provide predictabilty and stability for the child;
  • The availability of child care services;
  • The cooperation and communication between the parties, and whether one party unreasonably refuses to cooperate or communicate with the other;
  • Whether each party can support the other party’s relationship with the child;
  • Whether there is evidence that a party abused the child;
  • Whether a person dating a parent or living in the proposed household has abused the child, or another child;
  • Whether there has been interspousal battery or domestic abuse;
  • Whether either party has or had a significant problem with alcohol or drug abuse;
  • The reports of outside professionals if admitted into evidence; and
  • Such other factors as the court may in each individual case determine to be relevant.

If you are involved in custody litigation, be prepared to address all of the above factors.  In my opinion, it is very important is that the Court may consider any factor determined to be relevant to the best interest of the child.   If a factor important to your case is not specifically listed by statute, show the Court how that information is relevant to your particular circumstances.

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