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.