Know Your Legal Rights is a bimonthly column published by the State Bar of Wisconsin. It was written by members of the Wisconsin Bar Association’s Lawyer Referral and Information Service (LRIS), which connects Wisconsinians with attorneys across the state. Learn more at wislaw.org.
By Attorney AnnMarie Sylla, Schott, Bublitz & Engel, sc, Waukesha
I recently watched “Mrs. Doubtfire” – a classic 1990s family-friendly comedy that also tackles the serious issues of divorce and child custody. (Spoilers ahead.)
I was expecting to get a bit nostalgic and enjoy Robin Williams clean comedic routine. But this time, the dramatic scenes of the parents’ argument over their imminent divorce and conflicting parenting styles within earshot of the children and the judge’s decision awarding sole custody to the mother struck me differently.
On the one hand, this is a fictional film set in California, and the laws that dictate how a court determines custody and placement may be very different than Wisconsin.
On the other hand, the fictional judge’s decision is based on what he alone has determined to be in the children’s best interests — despite the father’s efforts toward co-parenting (albeit unconventionally), financial stability, and a desire to spend meaningful time with his children to spend – seemed all too realistic. The film ends with the mother agreeing to exercise joint custody anyway, believing the judge’s decision to allow the father minimal supervised visitation was too harsh. But as the credits rolled, it was hard not to think, “If this story were non-fiction, how much damage could the judge’s verdict have caused?”
Custody vs. Placement in Wisconsin
When the relationship between two parents comes to an end, whether through an amicable separation or a contested divorce, there are numerous decisions to be made about the upbringing of their child. When parents cannot agree on these important decisions, the law gives the court immense responsibility (and tremendous discretion) to decide what is in the best interests of the child.
Family court judges must begin with the assumption that, in most situations, joint custody is in a child’s best interests, which means that each parent should have equal decision-making authority over consenting to marriage, obtaining a driver’s license, and approving non-emergency medical care care, school choice and religious education.
Similarly, placement plans are designed to maximize meaningful time with each parent, taking into account the child’s desires, the degree of cooperation between the parents, the child’s age and developmental needs, and other factors. Disputes over physical placement tend to be more involved in cases than disputes over legal decision-making authority.
Despite uniform laws governing the entire state, courts across Wisconsin handle custody and placement issues quite differently. Even within the same district, there can be a wide range of what each family court judge considers important or relevant to making particular decisions, which can lead to inconsistency and unpredictability for the parties.
Look at the details
Sometimes courts look too broadly at the facts or focus too narrowly on the proceedings of a case, and therefore do not fully consider or understand how a joint custody order or placement plan actually applies to or affects a particular family. There are many details that the parties should fully consider when determining how to co-parent that, if handled appropriately, can reduce the likelihood of a problematic court order. For example:
Work: Does one parent traditionally work 8am to 4pm, but the other works from home or has more flexibility with their workday? What happens if a parent has to move or the work shift suddenly changes?
Day care center or school: How consistent is the child’s daily routine in the coming weeks, months or years? what’s in summer How will the child’s schedule change as they get older?
Transportation: Does a parent occasionally travel to work? Does the other parent live across town? Does the school bus go to both parents’ houses?
Medical Needs: Does the child need medication? Which parent takes care of the refill? Who is responsible for scheduling check-ups and attending appointments?
Extracurricular Activities: Do the parents agree on what activities the child can participate in? Is the child engaged in activities on certain days of the week and not others, and how does this affect parental time?
Time with friends and other family members: Does the child have half-siblings or step-siblings? Does the extended family live out of state and need more time to travel over the holidays?
Control your own destiny
Ultimately, family court judges must make decisions about custody and placement issues, sometimes based on imperfect or incomplete information in the form of evidence or even a party’s conduct in the courtroom.
This can have serious consequences, especially for the child. So maybe the lesson to be learned from “Mrs. Doubtfire” should be: When the parties make arrangements that they believe are in their child’s best interests, rather than letting a judge make these important decisions, they are far more likely to be satisfied with the outcome and, more importantly, with a successful cooperation -parents.
AnnMarie Sylla is a family law attorney with Schott, Bublitz & Engel, sc in Waukesha, Wisconsin, representing individuals in southeastern Wisconsin in divorce, paternity and other custody and placement disputes. She is a member of the Wisconsin Bar Association’s Attorney Referral and Information Service, which connects Wisconsin residents with attorneys across the state. Learn more at wislaw.org.
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