Courts make custody and placement decisions in all kinds of legal actions affecting the family, including divorce, legal separation, paternity (including voluntary acknowledgment of paternity), and child support actions. Parents can also reach their own custody and placement agreements and ask the court to approve them. Either way, it is important to understand these terms and to know your rights as a parent. The family law lawyers at Hawks Quindel can help you advocate for the custody and placement determinations you seek for your family.
Legal Custody: The Right to Make Major Decisions about Your Children
Legal custody refers to a parent’s right and responsibility to make major decisions about children. Major decisions include decisions that relate to schools, religion, and non-emergency healthcare. Legal custody can be “joint” or “sole.”
- Under joint legal custody, both parents have a right to make major decisions about their children. Neither one has a “superior” right, so parents should try to make these major decisions together after discussing them.
- Under sole legal custody, only one parent (designated by the court’s order) has the right to make major decisions about the children.
How Do Courts Decide Whether to Order Joint or Sole Custody?
As a starting point, courts must presume joint legal custody is in the best interests of the children, unless one parent has engaged in domestic violence.
Courts can grant one parent sole custody if the parents jointly request it. Courts can also grant sole legal custody if one parent asks for it and the court finds special circumstances exist, including that the other parent can’t perform their parental duties or doesn’t want to be involved in raising the child, or that the parents will not be able to cooperate in joint decision making.
As listed below, courts consider numerous other factors in making custody decisions.
Physical Placement: The Right to Time with Your Children
Physical placement refers to the time during which children are with a parent. During a parent’s periods of physical placement, the parent has the right to make routine daily decisions about the children’s care, as long as they are consistent with the major decisions of the parent(s) having legal custody.
How Do Courts Decide What Placement Schedule to Order?
Court orders include a placement schedule which outlines when the children are to be with each parent. The court’s goal is to set a placement schedule that allows children to have regular, meaningful placement with each parent, and to maximize the amount of time children spend with each parent (taking into account geographic separation). Children get time with both parents unless the court finds it would endanger the children’s physical, mental, or emotional health.
Courts cannot deny a parent’s physical placement just because the parent failed to meet any financial obligation to the children.
As listed below, courts consider numerous other factors in making placement decisions.
Courts Must Consider Numerous Factors in Making Custody and Placement Orders
While joint custody and shared placement are starting points, 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 and the children’s wishes.
- 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 and meaningful time with parents to provide predictability and stability for the children.
- The availability of public or private child care 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.
Can Parents Change the Court’s Custody or Placement Order?
If the change would be substantial, the answer depends on how long it has been since the court entered the custody or placement order:
- If it has been less than two years, the parent asking the court to change the order must show the change is necessary because the current arrangement is physically or emotionally harmful to the child.
- If it has been more than two years, the court can modify the order if the change is in the children’s best interest and if there has been a substantial change in circumstances since the entry of the last order. However, the parent asking for a change must overcome a presumption that continuing the current arrangement is in the children’s best interests.
If you have questions about or are interested in changing the custody or placement orders in your family law matters, please contact the family law attorneys at Hawks Quindel.
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