Custody issues are, understandably, some of the most hard-fought and contentious issues in family law. Every parent only wants what is best for their children, but during a divorce, parents will often disagree about precisely what that means. Some people believe that is a foregone conclusion that the mother will always be awarded the primary custodian of the children. Fathers often wonder if it is possible for them to be awarded custody and the attitude of the law in this state toward such requests.
In Wisconsin, child custody is determined depending on what is in a child’s best interest. The factors to be considered in custody and physical placement determinations are detailed in Wisconsin statute 767.41(5). There is a long list of factors, including such issues as the age of the child, the child’s adjustment to the home and community, the relationship between the parent and child, the willingness of each parent to encourage a good relationship with the other parent, the existence of domestic violence, and whether either parent has significant problems with drug or alcohol abuse. Notably absent from the list contained in the statute is the gender of either parent. In other words, the best interest factors specifically omit the gender of the parent seeking custody from the consideration. There is no presumption in Wisconsin law that the mother will automatically be named custodian of the child. Moreover, Wisconsin law presumes it will be in a child’s best interest that the parents be named joint custodians of the child, which means they will both participate in the major decisions for the child, such as religion and schooling.
In reality, the parent who can demonstrate that he or she has historically been the primary caretaker for the child and has a more intimate relationship with the child will have the advantage in court when requesting primary residential placement. In many households, that happens to be the mother. However, the law does not presume that it will be. The mother and father enter court on equal footing, and both must produce proof that his or her proposal for custody and parenting schedules are in the child’s best interest. Accordingly, if the father produces proof that he is the more appropriate person to have primary placement of the child, then there is no legal bar to him being awarded custody.
If you have questions about custody and how a court makes a best-interest determination, contact us today. We can talk with you about your children, your case, and the first steps you need to take to achieve what is best for your children.