Physical Placement in Wisconsin Divorce and Custody Cases

Parenting time, legally referred to in Wisconsin as physical placement of the children, is one of the most critical issues addressed in divorce involving children, legal separation, and paternity cases. Wisconsin law emphasizes that children benefit from meaningful relationships with both parents, and the courts work to create placement schedules that serve the best interests of the child(ren).

This article explains how parenting time works in Wisconsin, how courts determine placement schedules, and what factors lawyers and parents must understand during legal proceedings.  

Legal Definitions in Wisconsin 

Wisconsin Statutes, specifically Chapter 767 "Actions Affecting the Family", govern custody and placement. Key definitions include: 

• "Legal Custody": The right and responsibility to make significant decisions concerning the child. "Major decisions" include, but are not limited to, decisions regarding consent to marry, consent to enter military service, consent to obtain a motor vehicle operator's license, authorization for nonemergency health care, and choice of school and religion.  

• "Physical Placement": is the conditions under which a party has the right to have a child physically placed with that party. That party has the right and responsibility to make, during that placement, routine daily decisions regarding the child's care, consistent with major decisions made by a person having legal custody.  

Presumptions Under Wisconsin Law 

Wisconsin Statutes presume that joint legal custody is in the best interests of the child (Wisconsin Statute 767.41(2)(am)). There are circumstances in which the Court may order sole legal custody to one parent: 

• When one party is not capable of performing parenting duties and responsibilities, or does not wish to have an active role in raising the child. 
• When one or more conditions exist at that time that would substantially interfere with the exercise of joint legal custody. 
• The parties are unable to cooperate in future decision-making. 

There is a rebuttable presumption that the parties will not be able to cooperate in future decision-making where there is evidence that either party engaged in abuse of the child, interspousal battery, or domestic abuse.  

In Wisconsin, a child is entitled to periods of physical placement with both parents. Wisconsin Courts will presume a placement schedule that allows a child to have regularly occurring, meaningful periods of time with each parent (Wisconsin Statute 767.41(4)(a)2). 

The Court will attempt to maximize the amount of time the child(ren) can spend with each parent, taking into account geographic separation. There is no presumption for equal, 50/50 physical placement.  

The Court may deny physical placement with a parent if, after a hearing, the Court finds that physical placement with a parent would endanger the child's physical, mental, or emotional health (Wisconsin Statute 767.41(4)(b)).  

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Factors Wisconsin Courts Consider When Determining Placement (Best Interest Factors)  

Under Wisconsin Statute 767.41(5), the Courts examine numerous "best interest" factors when determining legal custody and physical placement. These factors include: 

• The wishes of the parents, 
• The wishes of the child(ren), 
• The cooperation and communication between the parties, 
• Whether each party can support the other parent's relationship with the child, 
• The child's relationship with siblings, or other people who may impact the child, 
• The amount and quality of time that each parent has spent with the child in the past, 
• Whether a party or a significant other of a party has had significant problems with alcohol and/or drug abuse, 
• Child's adjustment to home, school, and community, 
• The age of the child, and the developmental and educational needs at different ages, 
• Mental or physical health of a party and any negative impact on the child's well-being, 
• A criminal record of a party, including any history of child abuse, 
• Evidence of domestic abuse and/or assault, 
• Reports of any professionals if admitted, and 
• Any other factor that the Court determines to be relevant.  

The Court will consider all of the above factors when making its determination. Not all cases are the same, and not all factors are relevant to all parties. When looking at your own unique situation, it is best to go through all of the above factors to determine which factors are more likely to be relevant to your case.  

Common Placement Schedules 

Placement schedules will vary depending on the unique facts and circumstances of each case. A placement schedule that works for one family may not work for another. Factors to consider: The schedule of the child, including daycare or school start stop times, extracurricular activities, scheduled doctor appointments, and/or other essential meetings.

The parents' schedule, including work start and stop times, the ability to get the child to and from daycare/school, and/or the ability to exchange the child with the other parent.

Equal Placement (50/50) 

This is frequently used when parents live close to each other, communicate effectively, and cooperate with one another. Typical Schedules include: 

• Week on/week off: This is typically more common with older children, with a single exchange time (e.g., weekly Sunday exchange at 5:00 PM). 

• 2-2-3 Rotation: In this schedule, the parents typically alternate the weekends and alternate days during the week. This allows for an equal schedule with the least time between when the children see both parents. See the example below:  

5-2-2-5 Rotation: This is the most common and useful equal placement schedule, as it allows for consistency from week to week. This is easier for parents and children to know which days will always be "mom days" and "dad days" while also allowing the parties to share weekends equally. See the example below:

Primary Placement with Shared Time  

One party may be awarded primary placement of the child, with the other parent getting periods of placement that are less than equal time. These schedules are often determined on a case-by-case basis. They typically include: 

• Every other weekend, for example, Friday after school until Sunday afternoon. 
• These schedules may also include one weekday evening, for example, Wednesday after school until appropriate times to return for bedtime and/or other activities. 
• These schedules may also include extended time during the summer months or during times when the child is not in school (e.g., holidays and spring breaks).  

 Supervised Placement ‍

When a child's safety requires it, often due to substance abuse, domestic violence, or mental health concerns, the Court may order supervised visitations. Supervised visits may be through: 

• a professional agency,  
• a therapeutic supervision with a therapist or family counselor, or  
• by a family member or other approved adult.  

As a reminder, physical placement may only be denied if the Court finds that physical placement with a parent would endanger the child's physical, mental, or emotional health (Wisconsin Statute 767.41(4)(b)). 

 Long-Distance Placement 

When parents live far apart, and it is not feasible to follow a shared placement schedule involving weekends with one parent and weekdays with the other parent, the Court may order unequal parenting time, such as: 

• School year with one parent, summers and school breaks with the other parent, and/or 
• Virtual placement to maintain continuity for the child and long-distance parent (such as video calls and phone calls). 

Parenting Plans in Wisconsin 

A proposed parenting plan is required when parents do not agree on custody or placement. Under Wisconsin Statute 767.41(m), the plan must address: 

• Proposed legal custody and physical placement that the parent is seeking, 
• A detailed physical placement schedule, 
• Transportation responsibilities, 
• Child-care arrangements, 
• Proposed holiday, vacation, and summer placement, 
• Health care and education decisions, 
• Methods of resolving future disputes, and 
• Communication expectations between the parents.  

The more detailed the plan, the better it can help prevent future disputes.  

Mediation Requirements in Wisconsin 

Suppose it appears that legal custody and/or physical placement will be contested. In that case, the Courts will most likely order that the parties attend at least one mediation session (Wisconsin Statute 767.405(8)(a)). Wisconsin strongly favors resolving custody and placement disputes through mediation rather than litigation.

The Courts do not have the flexibility to creatively come up with practical solutions for families that mediators and the parties have. The mediator can help parents reach an agreement that can be submitted to the Court as a stipulated order.  

The parties' divorce may involve issues related to property division and other financial matters. However, mediation regarding custody and placement should be focused solely on the children and what is in their best interests.

Property division, spousal maintenance, and child support are not typically allowed to be discussed in these mediation sessions unless agreed to ahead of time. 

Guardian ad Litem (GAL) Investigations and Involvement 

When parents cannot agree or reach an agreement throughout the court process, it may be necessary to appoint a Guardian ad Litem (GAL). Especially if there are allegations that involve safety, abuse, neglect, or high conflict between the parties, the Court can appoint a GAL under Wisconsin Statute 767.407. 

The GAL is an attorney representing the best interests of the child, not the parents. The Courts and Judges heavily weigh the GAL recommendations, although they are not binding. Their responsibilities include: 

• Interviewing the parents, children, and relevant third parties, 
• Reviewing school, medical, and counseling records, 
• Evaluating the parents' living environments, and 
• Making placement and custody recommendations to the Court.  

Modifying Physical Placement in Wisconsin 

Placement orders can be modified. The law sets different standards depending on when the modification occurs and the circumstances surrounding it. 

Within Two Years of the Final Order 

After parents get a final order for custody and placement (either through finalizing a divorce or finagling a parentage/paternity action), parents typically cannot modify the placement within two years. If a parent wishes to modify the placement within two years of entry of the final placement/custody order, the moving party would need to show that the current arrangement is physically or emotionally harmful to the child (Wisconsin Statute 767.451(1)(a)). 

After Two Years 

The standard for modification is easier for parents seeking to modify custody/placement after two years of entry of the final order. Instead of having to prove that the child is endangered (as is the standard for less than two years), a parent would only need to show 1) that there has been a substantial change in circumstances since entry of the last order, and 2) that modification would be in the best interests of the child.  

 When modifying after two years, there is a rebuttable presumption that: 

1) continuing the current allocation of legal custody, or decision-making, is in the best interests of the child, and  

2) continuing the current physical placement with the parent with whom the child resides for a greater period of time is in the best interests of the child.  

Enforcement of Placement Orders 

If a parent denies, or otherwise interferes with the other parents' court-ordered placement, remedies under Wisconsin Statute 767.471 include: 

• Compensatory placement (make-up time), 
• Civil penalties, 
• Attorney fees, and/or 
• Contempt of Court sanctions.  

The Court may also adjust future placement if one parent consistently undermines the child's relationship with the other parent.  

Conclusion 

Parenting time, legally known as physical placement, is governed in Wisconsin by a framework that prioritizes the child's best interests, while encouraging strong relationships with both parents. Whether parents reach an agreement through mediation or proceed to litigation, understanding Wisconsin's statutory standards, placement factors, and procedural requirements is essential.

Attorneys, parents, and the Courts must work carefully to design a stable, safe, and developmentally appropriate schedule that supports a child's ongoing connection with both parents.  

Contact O'Flaherty Law today to schedule a consultation. Let us guide you through the process with clear advice and trusted support.