Legal Custody: The Basics

September 14, 2009

Parents who are divorcing are usually concerned about their “custody” rights.  In Wisconsin, the term “legal custody” is not the same as “physical custody.” 

Legal custody  is the legal terminology describing the legal right to make major decisions about your children and their upbringing.  The law specifically sets forth some of the major decisions, including:

  • decisions regarding consent to marry;
  • consent to enter military service;
  • consent to obtain a driver’s license;
  • authorization for routine health care;
  • choice of school; and
  • choice of religious upbringing.

This is not an exhaustive list of major decisions.  The Court may determine that other decisions affecting a child’s life are major decisions.  For example, the choice of a work-related child care provider is typically viewed as a major decision. 

Wisconsin law presumes that legal custody should be granted to parents jointly.  Joint legal custody means that both parents have an equal right to be an involved participant in major decision-making.  

However, upon request, if the Court finds that it would be in the best interests of a child, the sole legal custody may be awarded to one parent.   If a parent is granted sole legal custody, that parent alone has the right to make major decisions. 

Joint legal custody requires cooperation and communication between parents.  This can be a challenge.  Unless the Court has specifically granted one parent with joint legal custody the sole right to make certain types of major decisions, both parents must agree.

If the parents disagree, it is best for them to try to resolve the disagreement.  Involving third parties is always more time consuming and involves more emotional and financial cost. 

Typically, the first alternative is to seek the assistance of a mediator.  Wisconsin law requires that legal custody disputes are mediated.  Most Wisconsin counties have mediation services readily available to parents facing a dispute about legal custody issues, for relatively low-cost.   Parents may also be referred to co-parenting counseling, where they will learn communication tools in dealing with one another.

If parents are unable to agree upon major decisions, even with the assistance of a third party, they will have to go to Court.  Then, the Judge will decide which parent will be the ultimate decision-maker, at least as to the disputed issue.   In many cases, although a parent may technically “win” or “lose” the case, it is the child who really loses.

Under Wisconsin law, parents are required to attend at least one session of mediation whenever legal custody and/or physical placement is at issue, with little exception.  The purpose of mediation is to try to help parents resolve their disagreements without having to go through a full-blown custody battle.  

Most parents are able to reach agreement in mediation, which shields children from much of the emotional trauma a prolonged custody battle brings.  To maximize the potential for success, parents need to be prepared to discuss a variety of topics regarding their children at mediation.  At a minimum, parents should be prepared to discuss the following topics:

  • The legal custody arrangement you are requesting, and why you feel it is best for your child.
  • The physical placement (physical custody) arrangements you want in place and why you believe those arrangements are best for your child.  Be thoughtful about a specific proposed schedule and how you suggest transportation be handled.  
  • A holiday and vacation schedule.
  • Your relationship with your child, the activities you enjoy doing together, your philosophy of discipline.
  • The other parent’s relationship with the child.
  • Your child’s personality, routines, likes and dislikes, friends, teachers, activities, health care providers, etc.
  • Where you work and the hours of your employment.
  • Proposed child care providers when you and/or the other parent are unavailable.
  • How the child will be able to contact the other parent, and vice versa during periods of physical placement.
  • How you are following through with the child’s religious commitment, if any.
  • Concerns you have regarding the fitness of the other parent, including any abusive behavior, drinking and drug issues, lack of past contact and concern, etc.
  • Concerns you have regarding any other members of the other parent’s household and how your concerns affect the best interests of your child. 
  • How you intend to address problems you may have had in the past.
  • Actions you intend to take to address concerns raised by either the other parent or the mediators.
  • How you have communicated with the other parent, and how that could change/improve in the future.

Focus on what is best for your child or children.  Try to refrain from bad-mouthing the other parent.  If your circumstances dictate that you must raise serious concerns about the other parent, be prepared to cite specific examples of conduct.

For advice on issues specific to your case, you should contact an experienced divorce and family law attorney.

One of the things clients are most concerned about is the length of time it will take for their divorce to be finalized.  Unfortunately, there is no real “standard” amount of time it takes to be divorced.  In Wisconsin, the minimum waiting period is 120 days from the date that the other spouse is served with the Petition for divorce or legal separation.  That’s about four months.  However, most divorces take longer than that.   On average, most divorces take six to eight months to be concluded. 

There are a number of variables which impact the length of time a divorce will take, but here are some of the most important ones:

1.  Whether or not there is a custody/placement dispute.   A custody or placement dispute is one of the biggest determining factors for the length of the divorce process.  Wisconsin law requires parents who disagree about custody or placement to attend mediation.  In most counties, a mediation orientation/educational class is required prior to the first “individual” mediation session with the parents.  In Outagamie County, for example, the orientation is only held once per month (“Children Caught in the Middle“).  Mediation itself takes time.  If mediation fails, the Court will appoint a Guardian ad Litem, and may order other custody evaluations, extending the process.  As a result, it is not uncommon for a fully contested placement dispute to take a year to wind its way through the system. 

2.  The complexity of the case.  The more complex the case, the longer it will take to conclude.  For example, if the marital estate includes a business, that business may need to be valued by an accountant.  If one spouse is claiming an asset is not subject to division because it was gifted or inherited, that gift or inheritance will have to be documented and traced. 

3.  The contentiousness of the case.  There is no doubt that the more issues in dispute, the longer the case will take.  The more time the parties and/or their attorneys spend fighting about issues large and small, the longer it takes them to be prepared to conduct a final divorce hearing.  There is also a direct relationship between the number of issues in dispute and the amount of court time required to present the case.  The more court time that is required, the further in advance the hearing needs to be set.

4.  The county in which the divorce is venued.  This doesn’t seem as though it should matter, but it does.  Some counties have local rules in place to keep divorces on track, while others do not.  Some counties have Judges assigned to hear only family court cases, while others have all Judges hear all types of cases.   Some counties automatically schedule Status or Scheduling Conferences, while others require the parties to request them.  Your attorney can give you an idea of how long a divorce may be expected to take in your particular county.