When parents separate, their children are affected in many ways. Who will make decisions for the children? Where will the children live? When will each parent see the children? Since parenting is subjective, answering these questions and determining what is best for your children may be different for each spouse. It is difficult to put your wishes and desires aside to determine what is best for your child. That is where the Court steps in. If the parents cannot agree on what is best, the Court will order the parents to mediation. This is where a neutral third-party, skilled in mediation, assists the parents in reaching a final agreement on legal custody and physical placement.There are times, however, that mediation fails, and Guardian ad Litem is appointed to represent the best interests of your child. The Guardian ad Litem will make recommendations to the Court as to what they believe is in your child’s best interest. This is usually not the preferred route because an individual, who is not part of your life,is making a life-changing decision.

It is essential to retain an attorney skilled in legal custody and physical placement matters in Racine county or Kenosha county if you and your spouse cannot agree on legal custody and physical placement. Your child’s well-being is at stake.

At Heather L Nelson law, S.C, we know how to present your legal custody and physical placement positions and concerns to the Court, Guardian ad Litem, Family Court Worker, and opposing counsel. We will work tirelessly to achieve the best possible outcome in negotiations and Court. We understand that anything we say to opposing counsel or the Court is a reflection of you that can impact your future relationship with the other party. Therefore, we present only the facts and evidence needed to achieve the desired outcome.

What is legal custody?

Legal custody refers to a parent’s rights to make “major decisions” on a behalf of a child. “Major decisions” include but are not limited to religion, education, non-emergency healthcare, a child’s right to obtain a driver’s license, and consent for a minor child to marry. In all initial determinations, the court presumes that joint legal custody is in your child’s best interest unless there has been a pattern or serious incident of interspousal battery or domestic violence. Pursuant to Wisconsin Statutes sec. 767.41(2)(b), a party may be awarded sole legal custody if it is in the child’s best interest and (1) both parties agree that the same party should have sole legal custody, (2) the court finds that one party is not capable of performing parental duties or does not wish to have an active role in raising the child, (3) one or more conditions exist that substantially interfere with the exercise of joint legal custody, or (4) the parties will not be able to cooperate in future decision making.

What is physical placement?

Physical placement or visitation refers to the periods of time a child will spend with each parent. The Court encourages the parties to reach their own agreement on a physical placement schedule, as the parties are in the best position to determine what is best for their children. However, if the parties are unable to do so, the Court intervenes.

Usually, the Court first orders the parties to mediation, where a neutral third-party skilled in mediation assists the parties in reaching a resolution. If, however, this fails, the Court will appoint a Guardian ad Litem. A Guardian ad Litem interviews the parties and investigates the allegations and arguments supporting each party’s position. Once the Guardian ad Litem has investigated the claims, they will make a recommendation as to what they believe is in the children’s best interest.

During a hearing, the Court listens to the facts and evidence presented by each party and the Guardian ad Litem, if one is appointed. After hearing the argument of each party, the Court orders a physical placement schedule that they believe is best for your children based on that very limited information. As an experienced physical placement attorney, Heather L. Nelson knows what and how to present the relevant facts in your case to the Court. This is extremely beneficial to you because then the Court will have the information necessary to make a good decision.

Who is a Guardian ad Litem?

If parents are unable to agree on legal custody or physical placement and mediation has failed, the Court appoints a Guardian ad Litem, at your expense. The fee for a Guardian ad Litem can range depending on how much work they do in your case.

A Guardian ad Litem is an attorney who represents the best interests of your children. They will likely interview both parents and the children, depending on their age. They investigate any allegations each parent has made about the other and weighs the “best interest” factors to make a legal custody or placement recommendation to the Court.

As a prior Guardian ad Litem in Racine county, attorney Heather L. Nelson understands the interview process as well as what allegations are given serious weight when making a final recommendation regarding legal custody and physical placement.

In Racine County, you may also have a Family Court Worker appointed in your case. A Family Court Worker assists the Guardian ad Litem with the investigation. The Family Court Worker also makes a recommendation to the Court as to what they believe is in the children’s best interests, which may align or differ with the Guardian ad Litem’s recommendation.

How does the Court decide what is in the “best interest” of my child?

The “best interests” factors are considerations the Court uses when determining legal custody and physical placement of your child. Each factor is weighed differently in each case, as the Court has the discretion of what weight to place against each factor.

Pursuant to Wisconsin Statutes sec. 767.41(5)(am), the following 16 factors are the “best interest” factors:

  1. 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.
  2. The wishes of the child, which may be communicated by the child or through the child’s guardian ad litem or other appropriate professional.
  3. 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.
  4. 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.
  5. The child’s adjustment to the home, school, religion and community.
  6. The age of the child and the child’s developmental and educational needs at different ages.
  7. 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.
  8. The need for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child.
  9. The availability of public or private child care services.
  10. The cooperation and communication between the parties and whether either party unreasonably refuses to cooperate or communicate with the other party.
  11. The availability of public or private child care services.
  12. The cooperation and communication between the parties and whether either party unreasonably refuses to cooperate or communicate with the other party.
  13. 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.
  14. Whether there is evidence that a party engaged in abuse, as defined in s. 813.122 (1) (a), of the child, as defined in s. 813.122 (1) (b).
  15. Whether any of the following has a criminal record and whether there is evidence that any of the following has engaged in abuse, as defined in s. 813.122 (1) (a), of the child or any other child or neglected the child or any other child:
    1. A person with whom a parent of the child has a dating relationship, as defined in s. 813.12 (1) (ag).
    2. A person who resides, has resided, or will reside regularly or intermittently in a proposed custodial household.
  16. Whether there is evidence of interspousal battery as described under s. 940.19 or 940.20 (1m) or domestic abuse as defined in s. 813.12 (1) (am).
  17. Whether either party has or had a significant problem with alcohol or drug abuse.
  18. The reports of appropriate professionals if admitted into evidence.
  19. Such other factors as the court may in each individual case determine to be relevant.

At what age can my child decide where they will live?

A child can choose where they want to live at age 18. Minor children are still within the jurisdiction of the Court and where they reside is based on the 16 “best interest” factors. A child’s wishes of where to reside is just one factor.

What happens to the children if there was domestic violence between the parties?

If there is domestic violence between the parties, the court will take extra precautions to protect the victim of domestic violence and the children if they were exposed or part of the violence.

If the Court finds that a party has engaged in a “pattern or serious incident of interspousal battery…or domestic abuse” there is a rebuttable presumption that joint legal custody is not in the child’s best interest. Therefore, under these circumstances, a victim of abuse may be awarded sole legal custody, at least temporarily. Wis. Stat. sec. 767.41(2)(d).

When awarding placement to the party that engaged in the pattern or serious incident of interspousal battery… or domestic abuse, the Court provides for the safety and well-being of the child and victim in their orders. This may mean that the perpetrator exercises their physical placement time in a supervised setting, all exchanges take place at a neutral third-party location, or other appropriate means. Wis. Stat. sec. 767.41(6)(g).