Parents in divorce or separation situations often face confusion over these two terms. In Wisconsin, legal custody refers to a parent’s right to make major decisions concerning their children. By Wisconsin statute, major decisions include “consent to marry, consent to enter military service, consent to obtain a motor vehicle operator’s license, authorization for nonemergency health care and choice of school and religion.” See Wis. Stat. Sec. 767.001(2m). Parents may also agree to make other decisions, like choice of childcare providers, participation in extracurricular activities, or authorization of elective health care procedures, “major decisions” that can only be decided by the parent(s) with legal custody.
In Wisconsin, custody can be joint or sole. Joint legal custody means both parents will make major decisions together and neither parent’s rights are superior to the other’s rights. Sole legal custody means only one parent has the authority to make major decisions. Courts may only award sole legal custody if it determines this award is in the child’s best interest and one of the following conditions is found:
- Both parties agree to sole legal custody with the same parent.
- At least one parent requests sole legal custody (the other may disagree) and:
- The court finds one party is not capable of performing parental duties or does not wish to have an active role in raising the child; or,
- One or more conditions exists that would substantially interfere with the exercise of joint legal custody; or,
- The parents will not be able to cooperate in the future decision making required under an award of joint legal custody.
See Wis. Stat. Sec. 767.41(2).
When determining legal custody, courts presume joint legal custody is in the child’s best interest. However, if there is evidence of abuse, courts presume that it is not in the child’s best interest to award any custody to the abusive parent.
Some parents agree to a third type of custody arrangement where both parents share joint legal custody, but one parent is given impasse decision-making authority over certain major decisions. This means that if the parents cannot agree on a major decision, the parent having impasse authority will make the decision after both parents have discussed the matter and attempted to reach a mutual resolution.
Remember that legal custody involves making major decisions only. Routine daily decisions, like meals, bedtimes, television schedules, are generally left to the parent with physical placement of the children. If you have any questions about legal custody, feel free to contact our law firm and speak with one of our attorneys.