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  • Family Law Section Blog
    February 15, 2021

    On Shared Placement: ‘Regular’ and ‘Meaningful’ May Not Mean Equal Time

    Comm. Mark R. Fremgen

    There is no right to equal periods of placement when considering child custody agreements, writes Mark Fremgen. Each situation is different, and placement agreements should involve all relevant facts when deciding the best interests of the child.

    It is not unusual for parents to come to family court and demand their “right” to equal placement, or more likely “50-50” placement. Or in many cases refer to “my placement” or “her placement,” etc.

    It comes as a surprise to the litigants that there is no right to equal periods of placement. In fact, the law specifically suggests otherwise.

    However, the statute does direct courts to order “regular” and “meaningful” periods of placement with each parent that considers the requisite facts, the geographic distances, the unique needs of the children, and the circumstances of each home.

    What this looks like is different in each individual case, because by its very nature, a placement schedule with one family is likely to be different from a placement schedule with another family.

    Hung Up on Labels

    The problem with placement in family court is labels.

    Too often, the parties – including the attorneys – want to label the placement: primary placement, secondary placement, weekend placement, shared placement, equal placement, and the most unfortunate label, visitation.

    Mark Fremgen Mark Fremgen, John Marshall 1990, is a Dane County Circuit Court commissioner in Madison.

    Visitation is a separate connotation for third-party periods of placement (grandparents, step parents, other relatives), yet parties often come to court and refer to the other parent’s placement as “visitation.”

    In the true context of parenting, third parties get visitation and parents get placement. But, too often, the parties are hung up on the label.

    There is some reasonableness to the concern over labels, since child support is determined based on labels, to some degree.

    Although it would be more appropriate to set child support based on the percentage of overnights (in Wisconsin, the threshold for comparing the parents’ incomes for establishing support begins at 25% of the overnight placement) – regardless of whether the order refers to it as primary or shared placement, it is often this label that dictates how parents perceive child support orders.

    What makes matters worse is that the Child Support Enforcement Agency define parents, for purposes of addressing child support, as “custodial” and “noncustodial” – more labels that tend to offend parents and interfere in placement disputes.

    Equal Placement Not a Presumption

    Shared placement does not necessarily mean “equal,” nor does it preclude an equal schedule of placement.

    Despite complaints from court critics and those who perceive that courts disapprove of shared placement, most of the cases before the court generally involve some form of shared placement. And many of these cases involve stipulated agreements on shared placement.

    Equal placement schedules come in different forms: week on/week off, 2-2-3, 2-5, or even month-to-month placement schedules (I had a couple who, living apart, agreed to year-to-year shared placement with the child home-schooled in the individual parent’s home state).

    The paramount concern to the court in all cases involving placement is to find a schedule that appears to be in the best interests of the child.

    We are cognizant of our roles in ensuring that each parent continues to play a role in the child’s life and has regular and meaningful periods of placement. However, the goals of the parents can often interfere in what is truly in the best interests of the child.

    Geographic Distance Complications and Child’s Best Interests

    One of the more difficult issues courts face when addressing “meaningful” and “regular” periods of placement is the geographic distance between the parents.

    Cases involving geographic distances seem to be the most prevalent cases that pit the parent’s wants with the child’s best interests. Placement schedules can be difficult to establish when the parents live significantly apart geographically.

    There are certainly exceptions to any rule, but in general, it is difficult to maintain a week on/week off schedule with one parent in Green Bay and the other parent in Chicago. Even intrastate shared placement is virtually impractical, especially once the child reaches the school age.

    An Example

    I recall a case I had some years ago with one parent residing in Waupaca and the other residing in Morrison, a small town just south of Green Bay. The parents had been divorced for less than a year, and had agreed in their stipulation to a 2-2-3 schedule in which the mother had the child every Monday and Tuesday and the father had the child every Wednesday and Thursday, and they rotated the weekends Friday to Sunday.

    The distance was not unmanageable. On a good day it would take about one and half hours to go from one parents home to the other. However, the child was 8 years old and enrolled in school in Waupaca (also part of the parties’ agreement). The parent in Morrison would have to be up with the child, showered, clothed, and fed, by 6 a.m. in order to have her to the school by the first bell at 7:40 a.m.

    Once the weather got bad and travel was difficult, the child was tardy on a relatively consistent basis when the father had his weekday overnight placement. In fact, even during the nicer fall weather with no travel issues, the child was tardy on a regular basis.

    The mother sought to modify the placement schedule. The father’s response was to leave by 5 a.m. and return the child to the mother’s home to have her timely get ready and off to school. The father was able to maintain this schedule, but what was lost on him, initially, was the impact on the child getting up between 5 a.m. and 5:30 a.m. on a school day. She had a difficult time staying awake during the day at school. She was not functioning properly at school or at home, due to fatigue. In addition, in order to placate the parent’s agreed schedule, the child was on the road for up to three hours, weather permitting, every Wednesday, Thursday, and Friday.

    This example was not a case in which the father wanted to reduce his child support liability by having shared placement. The parents, at the time of the divorce, were amicable and wanted to encourage placement with each parent without realizing the toll they were placing on their daughter.

    The father initially felt that the mother and the court were attempting to eliminate his role as a parent by reducing his placement to weekends. But after some months of litigation and the involvement of a guardian ad litem – who shared some of the child’s comments about how she dreaded going to her father’s home simply because of the emotional toll from the travel and fatigue at school – the father realized that the agreed-to shared placement schedule was not best for the child and agreed to modify to just weekends.

    Other Factors

    Geographic distance may be more or less difficult, depending on some of the other child-related factors.

    That is, parents with a young child, infant, or toddler may be able to manage the frequent travel without disrupting the child’s routine or negatively impacting on the child’s daily functioning. Whereas those same parents may need to rethink or adjust the schedule once the child is in school.

    The number of school activities is an additional factor that may interfere with a substantially shared placement schedule. It is difficult, if not impossible, for intact families to coordinate all of the transportation to and from extra-curricular activities with their children. Consider how difficult this will be for a child with separated parents, who alternates between two homes separated by some significant distance, who will need to effectively manage his or her school and extra-curricular activities.

    It is certainly fair for courts to ensure that parents are able to maintain some semblance of parental normalcy upon separation, but without an undue burden placed on the child.

    ‘Our Placement’

    If geographic distance were the only factor to consider in a placement order, the courts could easily manage these conflicts.

    However, developing a reasonable and workable placement schedule requires the consideration of so much more: the age of the child, school issues, the child’s level of sophistication, emotion concerns, special needs, and the parent’s work schedules.

    Ultimately, the only way that a placement schedule will work – regardless of labels and regardless of the geographic distance between the two homes – is for the parents to recognize the importance of the child’s best interests, and to fully understand that there is no “his placement” or “her placement,” there is only “our placement” (mom, dad, and child).

    This article was originally published on the State Bar of Wisconsin’s Family Law Section Blog. Visit the State Bar sections or the Family Law Section web pages to learn more about the benefits of section membership.





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    Family Law Blog is published by the Family Law Section and the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Donna Ginzl and review Author Submission Guidelines. Learn more about the Family Law Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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