Child Custody and Placement - Who Wins?

NOTE TO READERS:  January is commonly considered "Divorce Month" because more divorces are filed in the month following the holidays than in any other month of the year. By now, many of those couples are getting into the difficult decisions, such as custody, and realizing they're not reaching an amicable solution on their own. 


My husband and I are divorcing, and we both want sole custody of our only child. We aren’t able to resolve this ourselves, and it will probably end up in court. Since I’m the mother, isn’t it most likely I’ll win?

There was a time when women nearly always received custody of minor children in a divorce, but that day has passed, according to Maureen Kinney, a Johns, Flaherty & Collins attorney. 

"Now the statutes are clear: age and sex are not determining factors for deciding custody," she said. "The presumption now is there will be joint custody." It is only if there is evidence of child abuse, spousal battery, or domestic abuse that sole custody may be given. 

Parents sometimes confuse custody and placement, which are separate issues. Legal custody gives the right to make major decisions for the child regarding education, health care, religion, and his or her general welfare.

Placement has to do with how much time a child spends with each parent, during which a parent can make routine daily decisions concerning the youngster. The law now requires maximum time be spent with each parent, but that is not the same as equal placement. The court recognizes a child’s developmental or educational needs at different ages. 

Another issue affecting physical placement is when one parent wants to move out of state or some distance from the home of the child. A judge may not prevent that parent from moving, but may give legal custody to the other parent. 

Beyond issues of legal custody and placement, Kinney said she is saddened by power-play battles between parents. "The other parent may have been a jerk as a husband or a wife," she said, "but that doesn’t make him or her a bad parent." 

Looking at the complicated schedules children of divorced parents sometimes have, Kinney said, "I wonder how we’d like it as adults." 

For more information about family law in Wisconsin, contact Maureen Kinney at 608-784-5678.