Legal Custody

Legal Custody

Misconceptions exist, as to what legal custody of a child is and means. Many times, in a divorce or paternity proceeding, a parent will come into the divorce or paternity process asking for “full custody.”  There is no such term, under Wisconsin law. Also surprising to parents at the outset of a divorce or paternity matter is the fact that legal custody, in Wisconsin, is not connected to physical placement (or visitation) with a child. In other words, custody has nothing to do with when a person is able to see or spend time with their children. This article will attempt to clarify the concept of legal custody, in Wisconsin.

Wisconsin statutes define legal custody as the right and responsibility to make major decisions concerning a child. The law states that major decisions include but are not limited to those involving consent to marry, consent to enter military service, consent to obtain a motor vehicle operator’s license, authorization for non-emergency health care, and choice of school and religion. People sometimes agree or the court could add additional decisions to this list. For example, some divorce or paternity orders list a child’s extra-curricular activity involvement as a custody decision. “Custody,” put simply, is the right to make big decisions for your children.

In a divorce or paternity action, there are three main types of legal custody that a parent could be given, in a court order. “Joint custody” means that both parents have the ability to make custody decisions. When parents have joint legal custody, they share legal custody. Parents with joint custody must discuss custody decisions with one another and try to agree. Neither parent may unilaterally make custody decisions without the agreement of the other parent. At the opposite end of the spectrum is “sole custody.” As the name implies, someone with sole custody of a child is the only person who has the ability to make custody decisions for a child. The third variety of legal custody is referred to as “joint custody with impasse-breaking authority.” This means that one parent has the “trump card” in custody disputes. In this hybrid scenario, parents still need to talk about custody decisions and try to agree, but if an agreement is not possible, the parent with impasse-breaking authority gets the final say, as to what happens. It is possible for a parent to have impasse authority over only one category of custody decisions, such as religion, education or medical decisions.

Wisconsin law presumes that joint legal custody is in children’s best interests, so the court will assume that joint custody is appropriate, at the outset of a divorce or paternity case. However, it is possible to rebut this presumption, if the court finds that certain criteria are met. The court may order sole custody if one parent is incapable of making sound decisions (if there is a substance abuse or mental health issue, or if one parent has a concerning criminal history, for example). Sole custody may also be appropriate in a situation wherein one parent does not want to have an active role in raising the child. If your relationship with the other parent is high-conflict and you are unable to cooperate or communicate productively (because of domestic violence, for example), the court may find that sole custody is warranted. Reliable evidence and credible testimony are important and necessary components of the court finding it to be in the best interests of the child for one parent to have sole legal custody.

Legal custody is the ability to make big decisions for kids. These decisions are important, and their effects on children can be long-lasting. If you have a concern or a question about legal custody of your child, feel free to contact our office to set up a free initial consultation, to discuss your case and your options.

Published by David Kowalski

Attorney David Kowalski is the founding owner of Kowalski, Wilson & Vang, LLC, handling all family law cases from divorce, paternity, child custody, termination of parental rights, restraining orders, and guardianships.

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