Child custody and placement are terms that you have heard during a family law action. Parties use these two terms interchangeably. They do not recognize that the terms each address something distinctive. Most clients assume that child custody and placement are the same thing, however, they are not, and understanding the terms is critical.

What is Custody?

Custody is major decision making for a child’s health, religion, schooling, obtaining a driver’s license, military applications, or marriage. These decisions can be made by one or both parents depending on whether there is joint or sole custody.

Under joint legal custody, both parents have a right to make major decisions about their children. Neither one has a “superior” right, so parents must make these major decisions together after discussing them. In Wisconsin, it is presumed that joint legal custody is in the child’s best interest, except where there is a proven pattern or one serious incident of domestic abuse.

Under sole legal custody, only one parent (designated by the court’s order) has the right to make major decisions about the child.

What is Placement?

Physical placement means where the child resides on a daily basis. The placement parent has the right and responsibility to make routine daily decisions regarding the child(ren)’s care.

The court does not presume a 50/50 placement is in the best interest of the child. The court’s goal is to set a placement schedule that allows children to have regular, meaningful placement with each parent and maximize the amount of time children spend with each parent. Children get time with both parents unless the court finds it would endanger the children’s physical, mental, or emotional health. Placement schedules can be 50/50, 90/10, or anywhere in between.

In most cases, both parents are awarded some form of shared physical placement. The actual placement arrangement may take one of three basic forms:

  1. Primary placement: In Wisconsin, the person with primary placement has the majority of the overnight placement of the child/children on a daily basis.
  2. Shared placement: Under Wisconsin law, if a parent has at least 25% or 92 over nights of physical placement per year, placement is considered shared.
  3. Split Placement. Split Placement is unusual, but in that instance, some children live primarily with one parent, and the other child or children live primarily with the other parent.

Courts Must Consider Numerous Factors in Making Custody and Placement Orders

Courts must consider many factors in determining what custody and placement arrangement is best for the children. Some of these factors include:

  • The parents’ wishes
  • The children’s wishes which may be communicated by the child through the child’s guardian ad litem or another appropriate professional.
  • The children’s interaction with their parents and/or siblings.
  • The time parents have spent with the children in the past.
  • The lifestyle changes parents would make to spend time with children in the future.
  • The children’s adjustment to their home, school, religion, and community.
  • The children’s age and developmental/educational needs.
  • The mental or physical health of the parents and children.
  • The need for regular an meaningful time with parents to provide predictability and stability for the children.
  • The availability of public or private childcare services.
  • The parents’ cooperation and communication (or lack thereof) with each other
  • Whether each parent can support the other parent’s relationship with the children.
  • Whether one parent will interfere with the children’s relationship with the other parent.
  • Whether there is evidence that a parent engaged in child abuse.
  • Whether there is evidence of domestic abuse.
  • Whether either party has or had significant problem with alcohol or drug abuse.
  • 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.

Custody and placement are tailored to the unique needs of each family based upon their circumstances. They may share joint custody and share placement or have a sole custody and primary placement order, depending on their needs.