Divorced or separated parents often confuse the concepts of legal custody and physical placement. This is probably partly due to the understandable belief that “custody” implies “possession,” and partly because practically each state uses different terms for the same ideas. In Wisconsin, however, these two terms have very different meanings and possible outcomes. “Legal custody” is defined as the right to make major decisions for a child, including consent to marry and get a driver’s license, to authorize heath care, and choice of school and religion. The definition of custodial decisions can be expanded to decisions on enrollment in activities, participation in sports, accelerating or holding back school advancement, and so on. There are three types of custodial authority that can be granted by a judge: joint, sole, and impasse-breaking authority. In sole custody, only one parent has the authority to make these decisions. In joint custody, both parents have that authority. With impasse-breaking authority, both parents can make the decisions, but if they disagree, the designated parent’s wishes govern. Joint custody is presumed in Wisconsin, and is granted in most cases. Sole custody or impasse authority is generally reserved for situations in which a parent cannot be trusted to make good decisions for a child, whether because of mental illness, immaturity, or irresponsibility. As can be imagined, these situations are rare, but extremely serious, and often involve serious questions regarding the child’s safety and development.
Physical placement is simply the amount of time that a child spends with each parent. Unlike with joint custody, equal placement time is not presumed. For example, joint custody can be granted to a parent who has placement only a few times per year. Because joint custody is typically granted, the majority of parental disputes occur over placement. Placement also more clearly impacts parents’ and children’s daily lives, and for a parent who sees the children less than he/she would like, is often a source of extreme frustration. Childcare responsibilities that made sense while parents lived together often become impossible after a split. A stay-at-home parent may need to take a job to pay expenses, requiring either daycare or the other parent to take a bigger role. Or a parent who typically worked late may have to change work hours now that the other parent is no longer in the home to provide childcare on evenings and weekends. If a parent cannot make changes in lifestyle or work responsibilities, he/she may be granted only limited placement, even if he/she is an otherwise good and loving parent. Parents worry, with some justification, that their bond with the children will be weakened if their time with the children is limited. As a result, parents often fight very strongly to retain as much time with the children as possible.
Parents understandably are worried and unsure about how their relationship with the children will be affected after the separation. In most cases, a reasonable agreement can be worked out. However, since the issues are so important, it is vital to work with an experienced family lawyer to understand and enforce your rights and, in some cases, ensure the children’s safety and well-being. It is far better to establish fair and reasonable arrangements at the beginning than suffer unnecessarily from an inappropriate custody/placement situation. I am happy to consult with all parents facing such difficult decision
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