Ideally, the parents will come to an agreement and present a united front in court. But when that is not possible, a conflict between the rights of the parents may be inevitable.
A qualified Fox Point parental rights attorney can represent you in helping to sort out questions regarding paternity, child custody, and child placement. The family law team at Karp & Iancu, S.C., assists parents with a wide range of legal matters. So if you are looking to establish your legal rights as a parent or assert those rights under an existing court order or agreement, we can provide you with skilled, professional legal advice.
Do Wisconsin Courts Favor Mothers Over Fathers?
One of the most common questions that come up with respect to Wisconsin parental rights is, “Do the courts favor mothers over fathers?” The answer to this question can be more complicated than you think. While a court is not supposed to favor one parent over another based on their sex or gender, the reality is that when the paternity of a child is in dispute, the law does tend to favor the mother’s position.
The reason for this is fairly simple to understand. As a matter of law, the person who gives birth to the child is the mother. She does not need to “prove” maternity. And if the mother is married at the time she gives birth, the husband is legally assumed to be the father. So in that scenario, both parents have equal rights right from the start.
But if the mother is not married, paternity is not automatically established. The mother and putative father can sign a voluntary acknowledgment of paternity, which is generally sufficient to make it official. But if either parent disputes paternity, legal action is generally necessary. This applies to cases where the mother seeks to establish paternity in order to request child support, or the putative father is looking to establish their own custody and/or placement rights.
So long as paternity remains in dispute, a Wisconsin court will likely grant the mother sole custody and placement until the issue is resolved. Once a child’s father is established as a matter of law, however, he has the same rights to seek custody and visitation as the mother.
Custody Differs from Placement in Wisconsin Family Law
The terms “child custody” and “child placement” are often used when discussing parental rights in Wisconsin. These are not the same thing. Although people will often use “child custody” as an all-encompassing phrase, the legal definition of custody in Wisconsin only refers to a parent’s right to make certain major decisions regarding a child’s life. For example, a parent with custody can decide where the child will attend school.
When the parents are married and live together, they are presumed to have joint custody over their children. A court may also establish joint custody under the terms of a divorce or an order establishing paternity. In some cases, the court may decide it is in the child’s best interest for one parent to have sole custody, meaning that parent can exercise decision-making authority without the approval of the other parent.
Child placement, in contrast, refers to the period of time that a child spends in a parent’s care. If a child spends at least 25 percent of their evenings with one parent, that is considered shared placement. If one parent has the child for more than 75 percent of nights, that is considered primary placement. A child placement order will typically set forth what times the child spends with each parent, including any vacations or holidays. Placement can also affect how much child support one parent must pay to the other.
What Are My Child’s Best Interests?
The rights of the parents are always secondary to a child’s best interest. This can be a difficult concept to grasp since there is no single hard-and-fast rule as to what is in a child’s best interest. A judge must look at the specific facts of a child’s case before making that determination.
Wisconsin law does provide some guidelines as to how the court should make its decision. Some of the more important factors that a judge must consider include:
- the stated wishes of the child and the parents;
- the extent to which the parents are able to cooperate and foster a positive relationship between the child and both parents;
- how the child interacts with any siblings and other family members;
- any history of drug or alcohol abuse in the family;
- any history or evidence of domestic violence or abuse;
- how well the child is adjusted to their school, religious organization, and community;
- the extent to which either parent’s mental or physical health may affect their ability to care for the child;
- whether either parent, or a person that the parent is dating or living with, has a criminal record; and
- the reports of any professionals, such as a psychologist or a court-appointed litigation guardian, who file a report with the judge.
This is not an exhaustive list. Indeed, the law permits a judge to consider “any other factor” they deem relevant to a best interest determination.