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Joint Decision Making

We field a lot of questions with persons who have been divorced who don’t seem to have a full understanding of what joint custody of minor children means. They wind up making a decision about the child, without consulting or informing the other parent, and once their ex spouse learns of the decision, they wind up in court on a contempt hearing.

Joint custody means basically, under Wisconsin law, that both parents have equal input and say so involving the children’s upbringing, including schooling decisions, health related and religious decisions.

Sec. 767.001 (1s) defines “joint legal custody” as the condition under which both parties share legal custody and neither party’s legal custody rights are superior, except with respect to specified decisions as set forth by the court or the parties in the final judgment or order.

Sec. 767.001 (2m) “Major decisions” are defined as decisions regarding consent to marry, consent to enter military service, consent to obtain a motor vehicle operator’s license, authorization for non emergency health care and choice of school and religion.

Further, under current Wisconsin law, there is a preference in the law as to Joint Custody. Sec. 767.41 (2) states;

(2) CUSTODY TO PARTY: JOINT OR SOLE; (a) Subject to pars. (am) to (e), based on the best interest of the child and after considering the factors under sub. (5) (am), subject to sub. (5) (bm), the court may give joint legal custody or sole legal custody of a minor child.

(am) Except as provided in  par. (d), the court shall presume that joint legal custody is in the best interest of the child.

When a couple are divorced and are awarded joint legal custody of their minor children, it means that the parties are required to communicate and discuss major issues involving the minor children, as specified in the statute. Routine day to day decisions such as what a child might wear to school, what they should be eating, what time they need to go to bed, are routinely made by the parent who has placement at the time. Those are not considered major decisions as defined under the statute.

However, when a parent starts to make unilateral decisions involving the child, such as indoctrinating them in a religious belief that is against the best wishes of the other parent, enrolling them in a school that is different than the school they attended last school year or deciding they need to see a psychologist because they are having issues, those are all major decisions that a parent cannot unilaterally make. Joint custody doesn’t mean parents must agree on everything; it only means they are required to talk and openly discuss those issues; even a married couple don’t always agree on everything all the time when it comes to their children.

Where after the divorce, the parties do communicate on a major issue and cannot reach an agreement, the remedy is filing a motion with the court to address the issue. The court may decide to appoint a guardian ad litem to advocate for the child, if the issue is serious enough. The court may decide to make a decision, such as school choice, or has the option under the law of terminating joint custody on that specific issue and awarding sole custody (sole decision making) to the other parent.

What can happen to you if there is a violation of joint decision making? You may find yourself behind the eight ball when the other parent files a contempt motion against you for interfering with their custody rights. The court can sanction the parent, including costs and fees, and even impose a possible jail sentence if the infraction is serious enough, and the parent doesn’t cure the problem by cooperating. Further, compounding the remedies and seriousness of the issue, is the court’s option to terminate joint custody altogether and afford the other parent sole decision making on the issue that there has been interference on, or if there has been a pattern and practice of interference on all decision making, simply terminate joint custody altogether.

If you are going through a divorce or are already divorced and have questions on joint custody of minor children, call one of our experienced family lawyers today for help.


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Milwaukee/Tosa – 933 N Mayfair Rd, Suite 300, Milwaukee, WI 53226

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Downtown Milwaukee – 1433 N Water St, Floor 4 – Suite 428, Milwaukee, WI 53202

Menomonee Falls – 11414 W Park Pl – Suite 202, Milwaukee, WI 53224

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Waukesha – N19 W24400 Riverwood Dr Suite 350, Waukesha, WI 53188

Kenosha – 1213 55th Street Suite 101 Kenosha, WI 53140

Appleton – 5497 W Waterford Ln Suite E Appleton, WI 54913

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