Understanding the difference between custody and physical placement of a child

When couples separate or divorce, two of the most pressing family matters are child custody and placement. Most people assume that child custody and physical placement (formerly known as “visitation rights”) are the same thing — but they are not, and understanding the difference is critical.

Legal custody can be granted to one party (sole legal custody) or both parties (joint legal custody). In Wisconsin, it is presumed that joint legal custody is in the best interest of the child except in cases where there is a proven pattern or serious incident of domestic abuse.

Anyone granted legal custody of a child has the right and responsibility to make legal decisions concerning the child, such as consent to enter the military, to get married, obtain a driver’s license, choose a school or religion and to receive non-emergency health care. Joint legal custody means that both parties equally share these rights and responsibilities.

Physical placement provides the parent with the right to have the child physically live with him/her for set “periods of placement.” When the child is with that parent, the parent has the right and responsibility to make daily decisions regarding the child, such as bed time, extracurricular activities, discipline, social activities, study hours, etc.

If a child lives with one parent for the majority of the time, that parent has “primary placement.” Primary placement does not mean the parent has sole placement rights. If a child resides with both parents for equal amounts of time, it is up to the parents whether one of the parents is noted as the primary physical placement party or not.

It is very important to note that in Wisconsin, the court does not presume a 50/50 placement is in the best interests of the child. Rather the law indicates that the Court should “maximize the time with both parents” based on many factors such as the specific needs of the families, the historic caretaker role, etc. Some parties split time during the week, some alternate weeks, some opt to have their child on the weekends, etc.

We’ve had clients ask us if it’s legal for a child to live with one parent without having legal custody or a placement order in place. The answer is yes. If the child was born outside of the marriage, and the parties have not sought to establish custody, the mother is the legal custodian of the child. If the couple was married and separate/divorce without establishing legal custody or placement, both parents have equal rights to custody and placement. However, if one of the parents runs with the child or conceals the child’s whereabouts, it is considered a criminal act —unless that parent and child are fleeing imminent physical harm.

It should be noted that we highly recommend having legal custody and placement established by the courts because if one of the parents does not honor the schedule or will not return a child, police may not be able to assist if a court order has not been previously issued.

Questions? Contact Tlusty, Kennedy & Dirks, S.C. by calling 715-359-3188 or please fill out the form below:

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