May 16

What’s the Difference Between Custody & Placement, and Why You Should Care.

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By far the biggest area of litigation in divorce law involves fighting over the kids. This should not be surprising, as our children’s’ wellbeing tends to be vastly more important and emotional to most parents than who gets the riding lawnmower. The failsafe way to resolve a dispute over an asset is to sell it and divide the proceeds, while there is no default method of resolving disputes over child placement and custody. It’s much more complicated and difficult.

The first thing we have to do is understand the difference between “custody” and “placement.” The most commonly misunderstood word in all of divorce law is “custody.” Most people, including some lawyers, use it as an all-inclusive term. Some even use “custody” and “placement” interchangeably despite that they have two very different, although related, meanings.

“Custody,” is defined in Wisconsin as the right and responsibility for making major decisions affecting your children’s lives. (Wis. Stat. §767.001(2). Major decisions include such things as:

  1. Non-emergency medical care
  2. Consent to marry
  3. Permission to enter military service
  4. Permission to obtain a driver’s license
  5. Religious or spiritual training
  6. Schooling (home school, public, private or parochial school)

I’ll go into more detail on some of these things in future posts. For now, it’s important to note what is not included as a major decision. For example, what happens if Tommy trips and cuts his lip while he’s at Dad’s house for the weekend? Does Dad have to call Mom to discuss whether they should get stitches? No. If it’s an emergency, Dad can take Tommy to the emergency room and get his lip stitched up, although he should call Mom as soon as he can to let her know what’s happening.

What a parent feeds their child while the child is with them is also not a major decision. Every so often a client will call me to complain that their ex is feeding the kids foods of which the client disapproves. Unless the child has a food allergy or celiac disease or some other kind of condition that requires careful monitoring of their diet, a parent can feed them anything they want within reason, and there is nothing the other parent can do about it. I understand it can be frustrating for a parent who is careful to feed their kids a balanced diet when the other parent gives them pizza and hot dogs, but so far, at least, courts have been loathe to get into those battles.

It is important to keep in mind that legal custody is a two-edged sword. The right to make major decisions for your child is an important privilege. Many parents have no problem jumping at the opportunity to exercise their legal custody rights. However, the other edge of that sword is that once you accept the privilege of making the major decisions for your child, you also have the responsibility, or obligation, for making those decisions with the best interests of your children, and not your own interests, in mind. That is where the problems arise. I have seen too many cases where a parent crows loudly that they want the right to exercise legal custody type decisions over their children, but when it comes time for them to actually put that into action they either shrink from the obligation or make a decision that may be expedient for them but disastrous for their child. In extreme circumstances, parents who fail to meet their obligations in this regard can even lose their custody rights. It should be no surprise that in many such cases we learn that the parent was more intent on pursuing their own selfish agenda than in doing what was best for their children.

“Placement” refers to where the children physically are at any one time, and to the right to make routine, daily decisions for your children. Sometimes lawyers and judges inadvertently add to the confusion by using the terms “physical placement” or “physical custody.” “Placement,” as a legal concept, simply refers to where the children physically live. The parent with whom the children live most of the time has primary placement. That parent has the right and responsibility to make routine decisions regarding the child’s daily care. The other parent exercises secondary placement, which, many people commonly refer to as visitation, and can make the same routine decisions during their time with the kids. Routine, daily decisions about a child’s diet, clothing, grooming, etc., are not custodial decisions. Disagreements between parents over these things take an inordinate amount of time to sort out and often distract parents from the real issues.

In most cases, the court will grant custody rights jointly to the parents. This is called “joint legal custody.” Courts will do this unless there is a very good reason to deny one of the parents those rights. For example, if a parent has a significant alcohol or drug abuse issue, has engaged in abuse of the other parent or the child, or if there is evidence of interspousal battery, a court could decide that the other parent should have sole legal custody rights. (Wis. Stat. §767.41(5) (am)). In addition, a court will award custody rights to one parent if:
• The parents agree, or
• If the court finds that one of the parents is incapable of performing their parental duties and obligations or does not want to do so, or
• That there is a condition that would substantially interfere with the parents exercising joint legal custody, or
• The parents are unable to cooperate in future decision making for their child (Wis. Stat. §767.41(2)(b)).

The law has evolved regarding the allocation of placement between parents. Wisconsin law no longer favors mothers over fathers: that notion is as antiquated as old Leave It to Beaver reruns. The current law requires the court to fashion a placement schedule “that maximizes the amount of time the child may spend with each parent” while taking into account logistical issues and geographical separation between the parents (Wis. Stat. §767.41(4)(a) 2). Some courts have interpreted this to mean that we start with the assumption that the parents will share equal placement. I disagree with that interpretation, because the statute does not require equal placement, but maximum placement with each parent per the unique circumstances of that family.

The court decides what it believes is in the best interests of the children. Judges do not make their decision in a vacuum, however. In contested cases, they employ a Guardian ad Litem, who is an attorney who represents the best interests of the children, to investigate the family dynamic and make a recommendation to the Court. I’ll write about that in more detail in a future post. Other experts and sources, such as child psychologists, teachers, clergy, extended family members and family friends, can be brought in to add information and give their opinion. Of course, both parents will have an opportunity to present their cases to the court, so they can present whatever they think is relevant and appropriate. The court listens to everyone, considers the recommendations of the parties and the Guardian ad Litem, and in the end, renders the best decision they can.

In my experience, the majority of these disputes ultimately settle without bringing the case before the judge. As a mentor of mine once said, the worst agreement is better than the best order. I think what he meant by that is that if the parents can come together and reach an agreement of their own making, even if the agreement is flawed, there is a far better probability that things will work out better for them than if they fight it out in court and have to live with a judge’s decision that may disappoint or anger one or both of them. I prepare my cases as if I am going to trial even though I know that most of the time we will settle them. That way, I know that we have covered our bases and made the best presentation possible for our clients. Once most people realize they have little to gain in a tug of war with their ex, with the kids as the rope, they come to their senses and settle their differences. At least, most reasonable people do that. There are always those people who, for whatever reason, are convinced that they must have “their day in court.” That’s their right, even if they’re wrong.

Alf Langan

Solo practitioner attorney since 1991 based in Green Bay, Wisconsin, specializing in estate planning, family law, and criminal defense. B.A. from Northwestern University: J.D. from St. Louis University School of Law. Licensed to practice in Wisconsin, Illinois, U.S. Tax Court, U.S. Federal District Court (E.D., Wisconsin).

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