What Does Custody Really Mean?

When it comes to how children are affected by the breakup of their parents, there is perhaps no word more misunderstood than «custody.» In any action affecting children, the court is required to make orders regarding both custody and placement. Although counterintuitive, «custody» has nothing to do with where the children are and which parent the children are with on a day-to-day basis.

Instead, legal custody in Wisconsin means «the right and responsibility to make major decisions concerning the child.» Major decisions include, but are not limited to, consent to marry, consent to enter military service, consent to obtain a driver’s license, authorization for non-emergency health care, and the choice of school and religion. In short, the type of decisions that legal custody contemplates are big and usually once or twice-in-a-lifetime decisions.

By court order, legal custody is either sole or joint. Thus, while the phrase is sometimes used, there is no such thing in the Wisconsin law as «50/50 custody.» Any time a judge is called upon to make a decision regarding custody, he or she must start with the presumption that it is in the child(ren)’s best interest for the parties to have joint legal custody, meaning that both parents share legal custody and neither parent’s decision-making rights are superior. This forces the parents to work together and come to a unanimous agreement before any major decisions are made.

However, there are circumstances that allow a judge to award one parent sole legal custody, which is the condition under which one parent has the right and responsibility to make major decisions concerning the child(ren). If one parent requests sole legal custody and the other parent does not agree to it, the court can order sole legal custody only if the court finds that sole legal custody is in the best interest of the child(ren) and makes one of the following findings:

• One parent is not capable of performing parental duties and responsibilities or does not wish to have an active role in raising the child(ren);
• One or more conditions exist that would substantially interfere with the exercise of joint legal custody;
• The parties will not be able to cooperate in the future decision making that is required under an award of joint legal custody.

Evidence of domestic violence creates a rebuttable presumption that the parties will not be able to cooperate in future major decision making. In the event that there has been domestic violence between the parents, the decision that the court has to make regarding legal custody becomes much more complicated and fact-specific.

As above, any court order in a divorce or paternity action is going to specify whether legal custody is sole to one parent or joint to both parents. By way of compromise, in a joint legal custody arrangement, the parties are allowed to stipulate (or the court could order) that parent A’s rights to make decisions on a specific issue are superior to parent B’s rights. For example, the parties could be awarded joint legal custody except that one parent would have impasse breaking authority or the «final say» regarding choice of religion.

In short, custody is a term that refers to decision making for major decisions only. Legal custody does not address routine daily decisions (what time to get up, what time to go to bed, what to eat), which are left to the discretion of the parent having placement on any given day.