Contested Child Custody and Placement Cases

Society has created many laws regarding how children are to be respected and treated. Many laws are based on the assumption that children are healthiest and happiest when they have a good relationship with each parent. Therefore, when parents are getting a divorce or paternity judgment, the law requires that the court must provide when parents will be with their children and what decisions will be made by each parent.

Because children’s well-being depends on the quality of the relationship with both parents, it is important that all parents understand the legal terms, laws, and court orders regarding their children.

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What is legal custody?

Legal custody is the legal right to make major decisions concerning your children. Major decisions include such decisions as elective health care, choice of school, choice of religion, consent to marry, consent to obtain a driver’s license, and consent to enter the military service. Other types of decisions can be included as major decisions upon agreement or order of the court. Orders can be for joint legal custody or sole legal custody. Legal custody is different from physical placement (see below)

What is the difference between joint legal custody and sole legal custody?

Joint legal custody between parents means that both parents have the equal right to make major decisions concerning their child(ren). Neither parent’s right to make major decisions about the child(ren) is greater than the other parent’s right. Sole legal custody means only one parent has the right to make the major decisions concerning the child(ren). (The court also can order that one parent or the other has the sole right to make certain types of decisions, such as health care.)

What happens if we have joint legal custody and can't agree on a major decision?

Since neither of your rights to make a major decision is superior to the other’s, you each could make decisions that contradict the other’s. For example, if you couldn’t agree on which school to send your child(ren) to, one of you could enroll the child(ren) in one school and the other could enroll the children in another school. You then could send the children to one school one day and the next school the other day. This obviously is not good for the child(ren).It is better for the child(ren) if parents, rather than each insisting on the right to make the decision, try to resolve the disagreement. One good way to resolve a disagreement regarding a major decision is for both parents to discuss the matter with a mediator. A mediator can help you reach a decision that addresses both parents’ concerns. Most counties provide at least one mediator to help people through situations like this. For more information, call your county’s Family Court Commissioner’s office or Clerk of Court. If you are unable to come to an agreement in mediation, then you may file a motion to ask that the court decide who gets to make the decision. You would each present your arguments to the court and, after hearing the arguments (and maybe appointing an attorney to represent the children’s best interests), the court would choose which of you would get to make the decision. Many people prefer not to have the court make the decision, however, because then neither parent has any control over the decision.

What is physical placement?

Physical placement is the time that the child(ren) are with you (or in your care) during which you have the right to make the routine daily decisions regarding the child(ren)’s care.Most court orders provide a placement schedule of the times the child(ren) are to be with each of you. Some court orders are very detailed, including the time when placement of the child(ren) switches from one parent to the other. Other court orders are less detailed, providing for placement within a range such as “two nights per week.” It is important to build in some flexibility in your orders.

What decisions are considered routine daily decisions?

Many routine daily decisions arise in the course of raising a child, such as the child’s bedtime, study time, diet, extracurricular activities, whether the child can attend a party, household discipline, and so on.Legally, the right to make routine daily decisions is that of the parent with whom the child is with at the time the decision must be made. The only legal restrictions on the parent making routine daily decisions are that the decisions made 1) must be consistent with any major decisions that have been made under the legal custody provisions, and 2) must not break any laws regarding safety. Often, however, whatever the legal rights of the parents are, children do best when parents can agree to similar rules and routines in both households. It is often helpful for everyone to come to an understanding that you will each respect the other’s right to know about your child(ren). Both parents benefit from the sense of knowing that the children are safe and well-cared for, and the child(ren) benefit by having two parents coordinating their upbringing.

What are my rights to information about my children?

Every parent has a right to their children’s school, medical, and dental records. The only exceptions to this rule are if a court specifically orders that a parent does not have access to the records or denies a parent any time whatsoever with a child.

How can I get information about my children without relying on the other parent to give it to me?

To get school, medical, and dental records (including report cards, notices of parent/ teacher conferences, health notices, prescription information, and so on), you may contact the school or doctor directly. They are required to provide you with this information under section 767.24(7), Wisconsin Statutes. You may want to provide the school and doctor with self- addressed stamped envelopes to make it easier for them to send you copies of records. There may be a fee for copying the records.

What happens if the other parent won't let me see my children?

First, find out the times that the court order states the children are to be with you. If the order best provides for specific times, you may want to remind the other parent of this order or give the other parent a copy of the order. If the order does not provide for specific times, you may want to ask the court to change the order to provide for specific times so that your rights to see your children are clarified. (See below.)If the other parent still does not let you have the children during the times the order requires, you may ask the court for help in enforcing the order. You may do this by filing a “Petition to Enforce Physical Placement Orders” or an “Order to Show Cause for Finding of Remedial Contempt.” Most counties will have forms you can fill out in order to bring these motions. Ask your county Family Court Commissioner’s office or Clerk of Court for more information.

What is a 'petition to enforce physical placement'?

A petition to enforce physical placement is a request to the court for help in enforcing a placement order. When you submit a properly filed petition, a hearing will be scheduled. The court also may appoint an attorney (called a guardian ad litem) to investigate and represent the best interests of your children. At the hearing, you and the other parent (and the guardian ad litem, if one has been appointed) each will have the chance to present evidence to support your positions. If the court finds that the other parent has, without a good reason, either intentionally denied or interfered with your court-ordered time with your children, the court must give you additional placement to make up for the missed time. Additionally, the court must award you a reasonable amount of costs and attorney fees. In addition, if the court feels it is necessary , the court also may 1) make a more specific placement schedule; 2) find the other parent in contempt; 3) issue an injunction ordering the other parent to follow the placement schedule or be subject to fines or imprisonment.

What is an order to show cause for remedial contempt?

An order to show cause for remedial contempt is another type of request to the court for help in enforcing an order. Upon submission of a properly filed request, a hearing will be scheduled. You and the other parent each will present evidence you may have to support your positions. If the court finds that the other parent has, without good reason, failed to follow a court order, that person will be deemed to be in contempt. The court then will decide what sanctions are appropriate, such as a payment to compensate for loss, imprisonment up to six months in jail, a fine of up to $2,000 for each day the contempt continues, or anything else the court finds appropriate.The sanction will not happen right away, however. The court is required to give the other parent a last chance to start obeying the court order (and often make up for the past failure to abide by the order). This opportunity is called the purge. If the parent does not satisfy the purge conditions, however, then the sanction will be imposed against the parent.

What if my order does not specify times the children are to be placed with me?

If the order does not provide specific times for placement, you may want to have the order changed to provide for specific times.

How do I get an order changed?

There are two main ways to get an order changed. The first way is to come to an agreement with the other parent. Put the agreement in writing and ask the court to approve it. Courts will approve most agreements for placement, as long as the agreement appears to be reasonable and voluntary. However, unless the court approves an agreement, it is not an order and the parties are not required to follow it. If you and the other parent have difficulty in reaching an agreement, a mediator may be able to assist you. Most counties provide a mediator to assist people in resolving disputes regarding their children. You may get information about your county’s mediator(s) by calling your county Family Court Commissioner or Clerk of Court. The second way to get an order changed is to file a “Motion to Change the Placement Schedule” to ask the court to make a new order. Upon submission of a properly filed motion, the court usually will appoint an attorney (called a guardian ad litem) to represent the children’s best interests. The court also will ask a trained expert to investigate and recommend the specific placement schedule that is in the children’s best interests. This investigation can take several months to a year. After learning the placement schedule recommendations of the guardian ad litem and expert, and before the hearing is held, some people come to a written agreement. Most agreements are adopted by the court. If the parents and guardian ad litem do not reach an agreement, then the court will schedule a hearing, at which the parents and guardian ad litem will present evidence. After the hearing the court will make a decision based on the evidence presented.If your placement schedule does not have specific days and times for you to see your children, and the other parent won’t let you see your children at all, you also may file a petition to enforce physical placement. (See above.)

What if I don't think it is good for the children to be with the other parent or step-parent?

It is best to discuss your concerns with the other parent and try to work something out that is mutually acceptable. Remember, while parents have the legal right to determine what occurs inside their home (as long as it is consistent with the major legal decisions and the children’s safety), it usually is better for children if both parents can be sensitive to each other’ s concerns and work together in sharing information and routine decision making. Of course, while good for the children, this may not be easy for parents to do, especially when one or both have new partners. If you continue to have concerns that are unaddressed, you may request the assistance of a mediator to deal with those concerns. You may request mediation by contacting our firm or your county’s Family Court Commissioner or Clerk of Court. If mediation does not resolve your concerns, you may file a “Motion to Change the Placement Schedule.” However, if the sole basis for your motion is that you do not like the other parent’s parenting style, this motion will be difficult to win. The court will find, absent evidence of actual harm, that it is best for children to have a substantial relationship with both parents.

What will happen if I refuse to let the other parent see our children?

If a court order provides certain times that the children are to be placed with the other parent and you violate that order, you could be held in contempt of court (see above). Or the court could grant the other parent relief under a petition to enforce physical placement (see above). Additionally, you may be charged with committing a felony crime, depending on the circumstances of your situation.There are certain situations where it might be justifiable to violate a court order, for example, to protect you or the children from immediate abuse or harm. However, it is advisable to speak to an experienced family law attorney before intentionally disobeying any court order.

What happens if the other parent refuses to take our children as provided in the order?

It is difficult to force a parent to spend time with children if the parent does not want to. If a parent is not taking the children for placement as provided in the order, you may want to ask the other parent why and whether there is any problem that could be worked out so the parent could take the children as provided in the order. Or maybe the order could be changed to accommodate changes in your lives since the order was last made. However, if the other parent still refuses to take the children for placement as provided in the order, and if you lose money as a result, you may file a petition to enforce placement orders to require the other parent to pay you the money you lost. You will need to prove to the court how much money you lost, that the other parent intentionally failed to take the children as ordered, that the failure was “unreasonable,” and that the parent didn’t give you adequate notice that he or she would not be taking the children. (The court decides what is unreasonable and what is “adequate notice” depending upon the specific circumstances of your case. A failure that would be “reasonable” would be that the car broke down on the way to placement or a medical emergency suddenly arose. “Adequate notice” might be considered to be enough time to find a babysitter.)If a parent “repeatedly” and “unreasonably”, fails to take the children as provided in the court order, you may file a motion to change placement and ask the court to order a placement schedule consistent with what is actually happening. (Again, the court decides what is “repeatedly” and “unreasonably” depending upon the specific circumstances of your case.) This is especially appropriate in cases in which a child support order had been reduced based on the children spending significant time with the child support payer. If the placement order is changed, you can, with a properly filed request, ask the court to change the child support order accordingly.

Where can I get further information?

If you have specific questions about how to raise your children in cooperation with the other parent (often called “co-parenting”), you may want to talk to a private counselor or therapist trained in divorce issues, or with a Family Court Counselor or mediator through the Family Court Commissioner’s office (if available in your county). For more information about the law, you may talk to an experienced family law attorney. Only an attorney can review the facts of your situation and give you legal advice.You also may want to hire an attorney to file motions or orders to show cause for you, although many county courthouses have “do-it-yourself” papers.