Introduction
When your marriage ends, your role as a parent does not - and neither does
your former spouse's. Both of you love your children and want what's
best for them.
Now that you're divorcing, you must devise child
custody and placement arrangements. How well the two of you handle
these arrangements will have an enormous impact on how well your
children cope during and after your divorce.
The basic
assumption behind child custody and placement laws is that children are
healthiest and happiest when they have good relationships with both
parents. When parents divorce, the law requires the court to make
provisions for parental decision-making. The court also must set
periods of physical placement with each parent.
Legal processes
and terminology come into play throughout the process of creating a
custody and placement agreement. This pamphlet answers common questions
you may have.
What is legal custody? This is the legal right to make major decisions
about your children. Major decisions cover such matters as elective
health care, choice of school, and choice of religion. Others include
parental consent to marry, obtain a driver's license, or join the
military. Additional matters also could be major decisions, if the
court so determines. Legal custody can be joint or sole, and it's different from physical placement (see below).
What is the difference between joint legal custody and sole legal custody? Joint legal custody means both parents have equal rights to make major decisions about their children. Sole legal custody
means only one parent has the right to make such decisions. The court
also may order that one parent or the other has the sole right to make
certain types of major decisions, such as health care.
What happens if we have joint legal custody and can't agree on a major decision? Neither
parent has the superior right to make a major decision. Family courts
encourage parents to make these decisions together. Otherwise you each
could make decisions that contradict the other.
For example, one
of you could send your children to one school, and the other could
select a different school. The children would attend different schools
on different days. This clearly would be chaotic and stressful for your
children.
It's best for children if their parents try to resolve
disagreements about major decisions. One good way to work out your
differences is to discuss them with a mediator. A mediator can help you
reach a decision that addresses both parents' concerns. Most counties
provide at least one mediator to help people through such situations.
For more information, call your county's family court commissioner or
clerk of court.
If you're unable to reach an agreement in mediation, you may file a motion to ask for a court ruling. Each parent presents his or her positionto the court. The court also may appoint a guardian ad litem,
an attorney who represents your children's best interests. After
hearing everyone's position, the court chooses which parent gets to
make the major decision.
People often prefer, however, not to
have the court decide. Leaving it to the court means that neither
parent has any control over the outcome. Plus, going to court is costly
and time-consuming for both of you.
What is physical placement? This is the time your children are with you or in your care. During physical placement, you have the right to make routine daily decisions about your children's care.
Most court orders provide a placement schedule
of the times the children are to be with each parent. The placement
time with each parent might be about the same. Or the order might
provide placement with one parent more of the time. Then the children
would be with the other parent at reasonable times upon reasonable
notice, as agreed upon by both parents.
Some court orders are
detailed, stating the exact times when placement switches from one
parent to the other. Specific fixed schedules often are helpful for
parents who have significant difficulty in enforcing placement times.
Which decisions are considered routine daily decisions? These
include bedtime, study time, diet, extracurricular activities, social
activities, discipline, and so on. The right to make routine daily
decisions legally belongs to the parent during his or her placement
time. But legal restrictions exist. Any routine daily decision must be
consistent with major decisions made under the legal custody
provisions. And it must not break any laws about safety.
Whatever
the parents' legal rights are, children do best when their parents
agree to similar rules and routines in both households.
Also,
while neither parent has legal control over what goes on in the other
parent's home, it's helpful for everyone if you respect each other's
right to know about your children. Both parents need to know the
children are safe and well cared for. And children benefit when their
parents coordinate their upbringing.
What are my rights to information about my children? All
parents have a right to their children's school, medical, and dental
records. The only exception is if the court denies a parent any
visitation or physical placement with the children.
How can I get information about my children without relying on the other parent to give it to me?
You
may contact the school or health care provider directly to get school,
medical, and dental records (including report cards, notices of
parent/teacher conferences, health notices, prescription information,
and so on). Wisconsin statute 767.24(7) requires schools and health
care professionals to give you this information. You may want to
provide a self-addressed, stamped envelope to make it easier for the
school or clinic to send you copies of records. You also may need to
pay a fee for copying records.
What happens if the other parent won't let me see my children? First,
check your court order. Does it state specific times the children are
to be with you? If it does, you may want to remind the other parent of
this order. Or you might give the other parent a copy of the order.
If
the order states no specific placement times, you may want to ask the
court to change the order. The court could add specific times and thus
clarify your right to see your children (see more on this below).
If
the other parent still won't let you have the children during your
placement times, you may ask the court for help in enforcing the order.
You would file a "petition to enforce physical placement orders" or an
"order to show cause for finding of remedial contempt." Most counties
have forms you can fill out to bring these motions. Ask your county
family court commissioner or clerk of court for more information. You
also can obtain some forms online at www.wicourts.gov.
What is a "petition to enforce physical placement"? This
is a request to the court for help in enforcing a placement order.
After you submit a properly filed petition, the court schedules a
hearing. The court also may appoint an attorney (guardian ad litem) to
investigate and represent the best interests of your children. At the
hearing, you and the other parent (and the guardian ad litem, if the
court appointed one) present evidence to support your positions.
After
hearing the evidence, the court might find that the other parent,
without good reason, intentionally denied or interfered with your
court-ordered time with your children. In that case, the court must
give you additional placement to make up for the missed time. Also, the
court must award you a reasonable amount of costs and attorney fees.
As
the court deems necessary, it also may: (1) make a more specific
placement schedule; (2) find the other parent in contempt; or (3) issue
an injunction ordering the other parent to follow the placement
schedule or be subject to fines or imprisonment.
What is an order to show cause for remedial contempt? This
is another type of request for the court's help in enforcing an order.
After you submit a properly filed request, the court schedules a
hearing. You and the other parent present evidence to support your
positions. If the court finds that the other parent, without good
reason, failed to follow a court order, the court will hold that parent
in contempt.
The court then decides what sanction is
appropriate. It might be paying compensation for losses, up to six
months in jail, a fine of up to $2,000 for each day the contempt
continues, or anything else the court finds appropriate.
The
sanction, however, won't happen immediately. The court must give the
other parent a last chance to start obeying the court order (and often
make up for the past failure to abide by the order). This opportunity
is called the purge. The parent's failure to satisfy the purge
will result in the court imposing the sanction.
What if my order does not specify times the children are to be placed with me? You may want to ask the court to change the order to state specific times for placement with each parent.
How do I get an order changed? You
have two choices. First, you may come to an agreement with the other
parent. Put your agreement in writing and ask the court to approve it.
The court usually approves a placement agreement, as long as it seems
to be reasonable and voluntary for both parents. If the court doesn't
approve the agreement, the agreement is not an order, and the parents
aren't required to follow it.
Parents having difficulty reaching
a placement agreement may find it helpful to see a mediator. Most
counties provide a mediator to assist people in resolving disputes
about their children. Call your county family court commissioner or
clerk of court for information.
The second way to get a
placement order changed is to file a "motion to change the placement
schedule." This requests the court to make a new order. After you
submit a properly filed motion, the court usually appoints an attorney
(guardian ad litem) to represent the children's best interests. The
court also asks a trained expert to investigate and recommend a
specific placement schedule that's in your children's best interests.
This investigation may take several months to a year.
After
learning of the guardian ad litem's and expert's recommendations - and
before a court hearing is held - some parents come to a written
agreement about placement. The court usually adopts such an agreement.
If
the parents and guardian ad litem can't reach an agreement, the court
schedules a hearing. The parents and guardian ad litem present their
evidence at the hearing. The court then makes a decision about
placement.
If your placement schedule doesn't have specific days
and times for you to see your children, and the other parent won't let
you see your children at all, you also may file a "petition to enforce
physical placement," described above.
What if I don't think it is good for the children to be with the other parent or step-parent? Start
by discussing your concerns with the other parent. Try to work out
something mutually acceptable. It's better for children when their
parents are sensitive to each others' concerns, and when parents work
together to share information and routine decision-making.
That's
not saying it's easy to do, especially if one or both of you have new
partners. But making the effort definitely will help your children.
If
you've talked things over and you still have concerns, you can ask for
a mediator's assistance. Contact your county's family court
commissioner or clerk of court.
When mediation doesn't resolve
your concerns, you may file a "motion to change the placement
schedule," described above. But a motion based solely on the fact that
you don't like the other parent's parenting style will be difficult to
win. Unless there's evidence of actual harm to the children, the court
will rule it's best for them to have substantial relationships with
both parents.
What will happen if I refuse to let the other parent see our children? Violating
a court order that states certain times for the children to be placed
with the other parent could lead the court to hold you in contempt (see
above). Or the court could grant the other parent relief under a
"petition to enforce physical placement"(see above). Also, the court
could charge you with committing a felony crime, depending on your
circumstances.
Certain situations might justify violating a
court order - for example, to protect you or your children from
immediate abuse or harm. Before intentionally disobeying any court
order, talk to an experienced family law attorney.
What happens if the other parent refuses to take our children as provided in the order? It's
difficult to force an unwilling parent to spend time with his or her
children. If your children's other parent fails to take them for
placement as provided in your order, you may want to find out why. Talk
it over together. Is there a problem you could work out? Could the
order be revised to better suit the other parent's scheduling or other
needs?
If the other parent still refuses to take your children
as provided in the order - and if you're losing money as a result - you
may file a "petition to enforce physical placement" (see earlier
explanation). This could force the other parent to pay you for money
lost (such as for added child care expenses). You'll need to prove
three points to the court: (l) how much money you lost; (2) that the
other parent intentionally failed to take the children as ordered, and
that this failure was unreasonable; and (3) that the parent didn't
give you adequate notice, given your circumstances. The court decides
what's unreasonable and adequate.
Reasonable
failure might be due, for instance, to a medical emergency or a car
breaking down on the way to pick up the children. Adequate notice might
be enough time for you to arrange for a babysitter.
If a parent
repeatedly and unreasonably
fails to take the children as provided in the court order, you may file
a "motion to change the placement schedule" (described earlier). You
could ask the court to order a schedule consistent with what's actually
happening. Again, the court decides what's repeatedly and unreasonably.
Taking
this action is especially appropriate when a child support order was
reduced based on the children spending significant time with the child
support payer. If the placement order changes, you can (with a properly
filed request) ask the court to change the child support order
accordingly.
Where can I get further information? Perhaps
you want to learn more about how to raise your children in cooperation
with their other parent. One common term for this is co-parenting.
You might want to work with a private counselor or therapist trained in
divorce issues. Or you could see a family court counselor or mediator
through your county's family court commissioner office (if available).
To learn more about custody/placement law, see an experienced family law attorney. Only an attorney can review the facts of your situation and give you legal advice.
You also may choose to hire an attorney to file motions or orders to
show cause for you. Many county courthouses also have do-it-yourself
papers for filing on your own.
Last updated: March 2005
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