When parents get divorced, establishing paternity, or facing custody and placement disputes, they must seek court intervention.

Many parents expect that equal (50/50) shared placement of the children is the standard placement schedule that every court uses unless there is evidence that one party is a “bad parent.” Even some legal professionals or court officials seem to be operating under this assumption.

In one of my cases, a guardian ad litem started off his very first conversation with my client by stating that my client was going to have to accept that he was going to recommend 50/50 placement because the other parent did not have a criminal record. In another case, a court official told me that the current statute regarding placement is just the legislature’s way of creating a presumption of 50/50 placement without having the statute spell it out explicitly. However, case law supports a different conclusion in interpreting the language used in the statute.

The current statute, Wis. Stat. section 767.41(4)(a)(2) reads:

In determining the allocation of periods of physical placement, the court shall consider each case on the basis of the factors in sub. (5)(am), subject to sub. (5)(bm). The court shall set a placement schedule that allows the child to have regularly occurring, meaningful periods of physical placement with each parent and that maximizes the amount of time the child may spend with each parent, taking into account geographic separation and accommodations for different households.

In addition, Wis. Stat. section 767.41(5)(am) lays out factors that a guardian ad litem and the court should consider when determining the best interest of the children.

Keller v. Keller

In Keller v. Keller, the trial court order was reversed and remanded by the appellate court because it was determined that the trial court did not use the correct standard to determine placement of the child:

… the trial court believed there is, essentially, a statutory presumption of equal placement. The trial court started with the presumption or "policy" that equal placement is in the child's best interest and then placed the burden on the party opposing equal placement to show that such an arrangement would not be in the child's best interest … there is no provision establishing a presumption of joint placement. While the physical placement statute, Wis. Stat. section 767.24(4)(a) 2, requires the court to provide for placement that allows the child to have regularly occurring, meaningful periods of physical placement with each parent, this is not tantamount to a presumption of equal placement.^[1]

Is Equal Shared Placement a Constitutional Right?

In 2004, the Wisconsin Court of Appeals heard two cases back-to-back in which one party was arguing that they had a constitutional right to equal shared placement of their children. For each case, the court determined:

Parents have a fundamental right to the care and custody of their children…But this does not mean parents have an absolute fundamental right to equal placement after divorce.^[2]

… [W]hile parents do have a natural right to care and custody of their children, this does not mean that parents have a 'fundamental right' to 'equal placement periods' ​after divorce.”^[3]

Landwehr v. Landwehr

In Landwehr v. Landwehr, a party argued, in part, “when both parents are available, willing, and able to accommodate equal placement, and when the parents are located near each other, Wis. Stat. section 767.24(4)(​a)2. mandates equal placement because a child's time with his or her parents cannot otherwise be ‘maximized.’”^[4]

However, the Wisconsin Supreme Court did not find that the use of the term “maximize” created a mandate for equal placement. The Court stated, in part:

We therefore conclude that interpreting the term "maximize" to mandate equal placement would be a distortion of the term as it is used within this statutory scheme. The proposed interpretation ignores the additional statutory directives and would allow the "maximizing" principle to trump the statutory emphasis on the child's best interest and other relevant considerations, rendering numerous provisions of the Wisconsin statutes irrelevant and meaningless.^[5]

The Landwehr court determined that that while the statute mandates that the court “maximize” the amount of time the child spends with each parent, the court must do this in conjunction with other considerations, such as the best interest of the child factors enumerated in Wis. Stat. section 767.41(5)(am).

In Practice

Factors such as geographical distance, work schedules, the age of the child, and whether there is domestic abuse and/or child abuse within a case can all affect determinations of what placement schedule would be appropriate for a particular family.

For example, a parent may be is determined to exercise equal shared placement but live an hour away from the children’s school. In that scenario, the children may have to spend hours in the car each day and wake up extra early for school. If they are very young and the parent works a typical workday, the children may not arrive home with that parent until shortly before bedtime. The court may question whether that placement time is “meaningful” if most of it is spent in the car or away from the parent.

In some cases, post-separation abuse directed from one party to the other may have an effect on the court’s determination of what placement schedule is appropriate. According to Domestic Abuse Intervention Programs, post-separation abuse can include behaviors such as using children as spies, coercing the children to ally with them, disrupting children’s sleep and feeding patterns, discrediting the other parent, and using violence in front of the children. The court may determine that placement time used to further these behaviors may not be “meaningful” or may not be in the best interests of the children.

Conclusion

Unfortunately, there is not a one-size-fits-all provision in the Wisconsin statutes to determine what placement schedule is in the best interests of the children in a family case.

When deciding on an appropriate placement schedule, legal professionals and court officials must take into account all factors in a particular case rather than prioritizing the fallacy that the presumption of equal shared placement takes precedent above all else.

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

Endnotes

[1] Keller v. Keller, 2002 WI App 161, at 11-12. ↩

[2] Lofthus v. Lofthus, 2004 WI App 65, at 10. ↩

[3] Arnold v. Arnold, 2004 WI App 62, at 11. ↩

[4] Landwehr v. Landwehr, 2006 WI 64, at 10. ↩

[5] Id. at 23. ↩