Matters of legal custody (sometimes known as parental responsibility) and physical placement (sometimes known as time-sharing) in a divorce are generally settled by an agreement and court order. In a Wisconsin divorce, a court determines custody rights by making findings regarding the best interests of the child. The court may also adopt an agreement made by the parents. Due to various parenting styles, it is not always clear to the parties of a divorce what constitutes the best interests of their own child.
There is a distinction between legal custody and physical placement. According to the State Bar of Wisconsin, legal custody is concerned with the legal authority to make big decisions for the child. Physical placement is concerned with the time that a child is physically staying with the parent. During physical placement, a parent has a right to make day-to-day decisions for the child.
Though it may seem obvious from the outset that a child’s best interests are of primary concern, parents can easily and, perhaps, understandably forget that their own preferences take a backseat. For example, a parent may not think a decision regarding legal custody and physical placement is fair because he or she has less time to spend with the child than the other parent or less authority to make major decisions. However, an equitable division of time with the child is not determined the same way that equitable division of property may be.
The Wisconsin legislature has made several presumptions about what constitutes the best interests of the child. According to section 767.41 of Wisconsin statutes, there is a presumption that it is in the best interest of a child for both parents to be able to make major decisions in a child’s life, that is, to have joint custody. However, a presumption can be rebutted, or overcome, by sufficient evidence that one parent is without the ability to meet the standard necessary to make decisions for the child or there has been domestic violence that would prevent the parents from cooperating as necessary for joint custody.