When determining legal custody and periods of physical placement, the court will take into account all relevant factors that are important to the child’s best interests.
The court may not prefer one parent or potential custodian over another on the basis of the parent’s or potential custodian’s gender or race, unless the court finds that the preference is justified.
When determining its judgment, the court will take into consideration the following factors: WI Stat § 767.41
- The wishes of the child’s parent or parents, as shown by any stipulation between the parties, any proposed parenting plan or any legal custody or physical placement proposal submitted to the court at trial.
- The wishes of the child, which may be communicated by the child or through the child’s guardian ad litem or other appropriate professional.
- The interaction and interrelationship of the child with his or her parent or parents, siblings, and any other person who may significantly affect the child’s best interest.
- The amount and quality of time that each parent has spent with the child in the past, any necessary changes to the parents’ custodial roles and any reasonable life-style changes that a parent proposes to make to be able to spend time with the child in the future.
- The child’s adjustment to the 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 custodial household negatively affects the child’s intellectual, physical, or emotional well-being.
- The need for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child.
- The availability of public or private child care services.
- The cooperation and communication between the parties and whether either party unreasonably refuses to cooperate or communicate with the other party.
- Whether each party can support the other party’s relationship with the child, including encouraging and facilitating frequent and continuing contact with the child, or whether one party is likely to unreasonably interfere with the child’s continuing relationship with the other party.
- Whether there is evidence that a party engaged in abuse of the child.
- Whether any of the following has a criminal record and whether there is evidence that any of the following has engaged in abuse of the child or any other child or neglected the child or any other child:
- A person with whom a parent of the child has a dating relationship.
- A person who resides, has resided, or will reside regularly or intermittently in a proposed custodial household.
- Whether there is evidence of interspousal battery or domestic abuse.
- Whether either party has or had a significant problem with alcohol or drug abuse.
- The reports of appropriate professionals if admitted into evidence.
- Such other factors as the court may in each individual case determine to be relevant.
If the court determines that a parent has engaged in a pattern or serious incident of interspousal battery or domestic abuse, the court’s primary concern in determining legal custody and periods of physical placement shall be the child’s safety and well-being, as well as the safety of the parent who was the victim of the battery or abuse.
Wisconsin courts use the same best-interest-of-the-child considerations to determine joint or sole legal custody. Unless a court finds that one parent has engaged in a pattern or major incidence of interspousal assault or domestic abuse, courts establish a rebuttable presumption that the parties will be incapable of cooperating in future decision-making.
Paternity Rights
After establishing paternity, Wisconsin custody statutes apply to both parties regardless of marital status. A paternity test is required if paternity has not been proven by voluntary paternity acknowledgment or other means. Once paternity is proved in Wisconsin, the parents can discuss custody and placement.
Termination of Parental Rights
“Termination of parental rights”, according to Wisconsin Statutes, is defined as the pursuant to a court order, all rights, powers, privileges, immunities, duties and obligations existing between parent and child are permanently severed.
When determining the child’s best interests under the termination of parental rights, the court shall consider the following, but is not limited to: WI Stat § 48.426
- The likelihood of the child’s adoption after termination.
- The age and health of the child, both at the time of the disposition and, if applicable, at the time the child was removed from the home.
- Whether the child has substantial relationships with the parent or other family members, and whether it would be harmful to the child to sever these relationships.
- The wishes of the child.
- The duration of the separation of the parent from the child.
- Whether the child will be able to enter into a more stable and permanent family relationship as a result of the termination, taking into account the conditions of the child’s current placement, the likelihood of future placements and the results of prior placements.
Modification of Custody
The court may modify the amount of child support payments upon a parent’s request if, after examining the following considerations, the court determines that the percentage standard is unjust to the child or to either of the parents: WI Stat § 49.345
- The needs of the child.
- The physical, mental, and emotional health needs of the child, including any costs for the child’s health insurance provided by a parent.
- The standard of living and circumstances of the parents, including the needs of each parent to support himself or herself at a level equal to or greater than.
- The financial resources of the parents.
- The earning capacity of each parent, based on each parent’s education, training, and work experience and based on the availability of work in or near the parent’s community.
- The need and capacity of the child for education, including higher education.
- The age of the child.
- The financial resources and the earning ability of the child.
- The needs of any person, including dependent children other than the child, whom either parent is legally obligated to support.
- The best interests of the child, including, but not limited to, the impact on the child of expenditures by the family for improvement of any conditions in the home that would facilitate the reunification of the child with the child’s family, if appropriate, and the importance of a placement that is the least restrictive of the rights of the child and the parents and the most appropriate for meeting the needs of the child and the family.
- Any other factors that the court in each case determines are relevant.
You cannot obtain a modification of a custody order until two years have gone since the initial order was issued, unless the individual requesting the modification can demonstrate that the modification is essential. It is only when the current circumstance is physically or emotionally detrimental to the child that a modification is required.