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What is Legal Custody?

What is Legal Custody?

A common misconception among parents is that legal custody is akin to physical placement. Here in Wisconsin, however, custody and placement are very different.  Legal custody is awarded to allow parents to make major decisions for their child regarding education, religion, health care, etc.

When determining legal custody in either a contested or uncontested case, the Wisconsin courts have created a presumption that joint legal custody is in the best interests of the child (see here.)  Overcoming such a presumption can sometimes be difficult, yet there are certainly situations where joint custody would not serve the best interests of the child.  Those situations, which may be found under Wisconsin Statute 767.41(2)(b)(2), are as follows:

  • One of the parties has the inability to perform their parental responsibilities
  • One of the parties does not wish to have an active role in raising the child
  • One or more conditions exist at that time that would substantially interfere with the exercise of joint legal custody
  • The parties will not be able to cooperate in the future decision making required under an award of joint legal custody
    • This last may include situations where there is abuse (past or present)

In addition to joint or sole custody, the family courts may award what is called impasse custody.  This can best be described as a hybrid of joint and sole custody, encouraging both parents to discuss a major decision—yet which, when they cannot agree, allows for one of the parents to make the final determination.  While this can be viewed as a ‘power’ move, it does have its application in contentious cases. The goal of impasse authority is to promote the idea of co-parenting, while giving tie-breaking authority to a particular parent over specific aspects of the child’s life.

Going through a divorce or child custody case can be challenging. The emotional sensitivity that parents bring to the situation is often enough to cloud judgment.  If you find yourself in this predicament, it may be advantageous to engage an experienced family-law attorney who can guide you through the process. To schedule a free consultation and learn more about your case, give us a call today at (920) 383-1116.