Physical placement disputes are often some of the most contested issues in family law cases.

The current physical placement standard directs courts to maximize the time children spend with each parent consistent with their best interest. This strikes a thoughtful and flexible balance that a more inflexible presumption of equal placement cannot match. By focusing on the unique circumstances, needs, and family dynamics of each case, the existing framework preserves both parental involvement and judicial discretion. This ensures that children remain the center of the placement decision, not the parents.

A shift to presumptive equal placement risks prioritizing symmetry over suitability, potentially undermining the individualized assessment that safeguard children’s well-being; thereby diminishing the court’s ability to craft arrangements truly responsive to a family’s particular situation. In this context, the present standard remains the most effective and child-focused approach. Wisconsin’s present statute strikes the right balance between the rights of parents and children’s needs and interests.

Physical Placement

In Wisconsin “physical placement” means the “condition under which a party has the right to have a child physically placed” with each party. In other words, it is the actual time a child is in a parent’s care.

Physical placement also includes the right and responsibility to make routine daily decisions regarding the child’s care so long as the decisions are consistent with the legal custody designation.^[1] Legal custody, which is not the focus of this article, generally means the right and responsibility to make major decisions concerning a child, such as “decisions regarding 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.”^[2]

The present physical placement structure has roots in a 1999 legislative change, which was effective as of May 2000. Since this change, courts in Wisconsin are required to “set a placement schedule that allows a 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.”^[3]

Children in Wisconsin are also entitled to have placement with both parents “unless, after a hearing, the court finds that physical placement with a parent would endanger the child’s physical, mental or emotional health.”^[4]

Furthermore, if a court grants a parent less than 25 percent placement, the court must state specific findings of fact as to why it is not in the child’s best interest to award at least 25 percent placement to both parents.^[5] This creates a clear record for the parents, attorneys, any court that may be asked to modify placement in the future (and for possible appeal).

The legislative change created, for the first time, a presumption of maximizing placement.

Maximizing Placement and the Best Interest of Children Standard

The “maximizing of placement” standard was a new concept to Wisconsin that attempted to strike the proper balance among

• the constitutionally protected rights of parents to raise their children without undue state interference;
• the best interests of their children, who are the innocent victims of a family breakup; and
• protecting and promoting the rights of children to have two loving, involved parents in their lives when safe and possible.

Further, the law does not focus solely upon the rights of the parents – the court must also weigh the best interest of the child factors.^[6] The best interest factors are the focus of the placement analysis and, when introduced, a substantial step toward neutrality and fairness in the pursuit of optimal placement schedules.

The present statute also considers domestic abuse. “If the court finds … that a parent has engaged in a pattern or serious incident of interspousal battery … or domestic abuse … the safety and well-being of the child and the safety of the parent who was the victim of the battery or abuse shall be the paramount concerns in determining legal custody and periods of physical placement.”^[7]

The rights of the parents as well as the rights and safety of children are considered. This means that uninvolved parents or domestic abusers did not gain a new bargaining chip to trade for a better financial settlement. This provides family court judges the necessary discretion to fashion placement schedules that work for the children.

The maximizing of placement takes into consideration 14 best interest of the child factors.^[8] One of the factors is the amount and quality of time each parent has spent with the child in the past. However, as part of the 1999 legislative reforms, parents can show they have made or are willing to make reasonable lifestyle changes that will allow them to spend more time with their child.^[9] Thus, even if one parent has been primarily responsible for childrearing activities and the other has been primarily responsible for earning income, that parent may present evidence that they are willing to make changes, such as adjusting a work schedule, that will allow them to be more actively involved in raising the child in the future. This, among balancing the other best interest of the child factors, demonstrates one way the present statute provides courts needed flexibility if called upon to set a physical placement schedule.

While some believe the “maximization” language creates a presumption of equal placement, the Supreme Court held that the maximization requirement does not mandate an equal placement schedule.^[10]

With the introduction of the maximization and best interest analysis, Wisconsin statutes demonstrate that placement awards have trended toward deliberate equality when allocating placement. The effect of the present statutory scheme has been to undo any preconceived notion of deference to mothers. It has had the effect of granting more rights and opportunities to fathers who may, at times, have felt discounted in the process of allocating physical placement.

The result has been a dramatic growth of shared placement, especially in divorce cases. It is not just shared placement schedules that have expanded. Equal placement schedules have seen the largest growth, which have increased fivefold.^[11] Indeed, recent evidence suggests half of divorcing parents in Wisconsin have shared placement of their children.^[12] Consequently, we have seen a substantial increase in equal placement schedules.

The Present Standard Strikes an Appropriate Balance

Notably, the 1999 placement reforms initially included items such as gutting the best interest of the child standard, creating a rebuttable presumption if favor of joint or equal placement, and eliminating the role of guardian ad litem in family courts.^[13]

Unfortunately, the concept of a rebuttable presumption of equal physical placement has returned. There is a proposal to create a presumption of equal placement in Wisconsin SB 161/AB 151. Such legislation represents a step backward from the 1999 placement reforms.

Each set of circumstances in a divorce situation are different. The parties and the children have different needs from one case to the next. The parties have different capacities to provide those needs from one case to the next. In fact, when psychologist Kenneth Waldron was asked whether a particular schedule serves the best interests of a child, his response was, "it depends."^[14] This reinforces that each individual placement schedule needs to reflect the various and unique factors affecting a child.^[15]

If a presumption of equal placement continues to be pursued, Wisconsin will risk placing children into problematic situations. The new bill risks placement arrangements that bear no relationship to a child’s needs or safety, especially if domestic abuse is present, or to the parents' abilities to provide for the child’s needs. Wisconsin's legislators need to be wary of this fact and avoid the temptation to try and make custody decisions "easy."

An equal placement presumption can subvert the best interests of the child standard. While it may seem easy to simply presume an award of equal placement, there is no doubt that the custodial and best interest factors can and should influence a final placement schedule.

At present, the statute imposes an equal burden on parents to present their evidence and prove their cases when the court sets an initial placement schedule. Both parties present their evidence and arguments as to why they believe their preferred placement schedule both maximizes each parent’s time with the child and is in the best interest of the child.

The presumption of equal placement necessarily places the party arguing against equal placement with the burden at trial. Self-represented litigants, who are well over 60 percent of all divorces (80 percent in some areas of the state) will likely not know how to overcome this presumption at trial. This presumption would give significant advantage to the party in favor of equal placement, especially if that party has greater financial means to hire an attorney or financially drag out litigation. A consequence may be that the parties are left with less financial resources for a child, less money available for support of a child, and increase the burden on the taxpayer who supports the public welfare system and the court system.

A presumption of equal placement may also lead to greater risk that children are placed in less than desirable environments since best interest factors are less likely to be presented to the court by litigants, attorneys, guardians ad litem, or though custody studies or other professionals. It also decreases the incentive for a historically less-engaged parent to improve as a parent to better meet the needs of a child.

Moreover, if parents perceive that their chances in contested litigation are minimal due to the burden to overcome a presumption of equal placement, they will have a greater incentive to forego litigation and accept a placement schedule that may, ultimately, be harmful to the best interest of the child. It is easy to see how changing the focus away from child-driven factors can have a dramatic impact on how a parent views their chances in court and, consequently, the placement schedule they ultimately accept.

Survivors of domestic abuse may be particularly susceptible. Victims may be less willing to bear the emotional and financial cost of litigating to rebut a presumption of equal placement and be more willing to give in to a domestic abuser’s demands and creating a situation where they must frequently interact with their abuser without the safeguards in often put in place under the “paramount” factor of domestic abuse.^[16]

The presumption of equal placement risks becoming a "hammer" that discourages parents from pursuing what they believe to be in a child’s best interest. An equal placement presumption would be a shift away from child-driven analysis which could become a legislatively directed settlement tool.

Equal placement presumptions fail to recognize that parents can oftentimes have a genuine and reasonable disagreement about certain issues involving the raising of their children. These types of disagreements arise even for intact families.

However, in families that are intact, there is usually a compromise worked out between the parents based upon their own internal desire to reach agreement with each other. Yet, in divorced families the same cannot always be said. These "reasonable disagreement" situations may not lend themselves to a legislatively encouraged equal placement solution; again, by shifting the burden to the parent who is challenging the presumption instead of placing parties on equal footing with respect to initial placement determinations.

Another problem is that a presumption of equal placement presupposes that parents are motivated by the best interest of the children. It can also disincentivize parties to meaningfully participate in mediation when there are contested issues regarding placement, which is, with limited exception, mandatory.^[17] Therefore, a party may be encouraged to be intransigent during mediation, while they, like many other parents, would have been inclined to think about the best interest of their children and reach placement agreements. In these situations, the presumption of equal placement may encourage a parent to put their own needs ahead of their children’s needs and best interests.

The implications of shared or even equal placement trends for stability of placement arrangements are also unclear. As noted, a presumption of equal placement may discourage actual negotiation as to what placement schedule serves a child’s best interests. It may encourage a more parent-centric approach in setting initial placement schedules that break down over time and are more often challenged and modified.

The present research already indicates that the dramatic growth in shared placement may lead to parents choosing or being steered into arrangements that, in practice, may be difficult for some parents to maintain – whether due to financial, logistical, or other reasons, such as domestic abuse. However, there has been very little research since the 2001 Wisconsin study on the subject of placement stability.^[18] This shows the tension in the physical placement law between a need for predictable and stable results and an equally compelling need to freely consider variations in each family situation which, if structured properly based on the individual family’s circumstances, lead to a longer-lasting more stable placement for the child.

Conclusion

Ultimately, there is no one-size-fits-all solution to placement disputes. The present statutory factors that a family court must consider in making an initial award of physical placement are not exhaustive.

The court in Kerkvliet noted that "there is no hard-and-fast rule or formula ... for determining what combination of factors will ultimately assure the future welfare of a child. …”^[19] This is because each and every placement dispute is distinct; which highlights the importance of the ability of the court to use its discretion in fashioning a placement schedule that meets the needs of the child under the circumstances.

While it could certainly be debated that a presumption of equal placement is the only way that all parties can be assured that a trial court's prejudices will not influence its decisions, it is equally true that such bright line rules could diminish a child's ability to cope with the breakup of their family.

Wisconsin's presumption of maximizing placement was a positive development in the placement standard. It strikes the proper balance among the constitutionally protected rights of parents to raise their children without undue state interference, the best interests of their children, and protecting and promoting the rights of children to have two loving, involved parents in their lives. This balance protects and promotes the rights of children to have, when safe and possible, two loving, involved parents in their lives.

Since it does not focus solely upon the rights of the parents, uninvolved parents have not gained a new bargaining chip to trade for a better financial settlement. Family court commissioners and judges need to be given the discretion to fashion placement schedules that work for children.

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.

Endnotes

[1] Wis. Stat. § 767.001(5). ↩

[2] See Wis. Stat. § 767.001(2) & 2(m). ↩

[3] Wis. Stat. § 767.41(4)(a)2. ↩

[4] Wis. Stat. § 767.41(4)(b). ↩

[5] Wis. Stat § 767.41(6)(a). ↩

[6] Wis. Stat. § 767.41(5). ↩

[7] Wis. Stat. § 767.41(5)(bm). ↩

[8] Wis. Stat. § 767.41(5). ↩

[9] Helling v. Lambert, 2004 WI App 93, 272 Wis. 2d 796, 681 N.W.2d 552, 03-1097. (A trial court may consider whether a parent’s particular lifestyle choices have an impact on the best interests of a specific child. Findings regarding instability in living conditions must be based upon evidence specific to the individual case, not generalizations. A court’s finding that a parent’s living situation was unstable based primarily upon the trial court’s negative view of the parent’s unmarried status was improper.) ↩

[10] Landwehr v. Landwehr, 2006 WI 64, 291 Wis. 2d 49, 715 N.W.2d 180 (holding, Sub. (4) (a) 2. does not require a court to grant each parent equal placement if the court determines that the placement should be modified. In making modification determinations, the circuit court is to maximize the amount of time a child spends with the child’s parents within an overall placement schedule, taking into account the best interests of the child, the presumption of the status quo under s. 767.325 (1) and (2) [now s. 767.451], the general factors listed in this section, and the particular factors listed under sub. (5) (am) when relevant to the child. With respect to the modification of legal custody and physical placement orders, maximizing the amount of time cannot be equated with the notion of equal placement); Keller v. Keller, 2002 WI App 161, 256 Wis. 2d 401, 647 N.W.2d 426, 01-2970. (holding that the law requires the court to provide for placement that allows the child to have regularly occurring, meaningful periods of physical placement with each parent, that is not tantamount to a presumption of equal placement); Arnold v. Arnold, 2004 WI App 62, 270 Wis. 2d 705, 679 N.W.2d 296, 03-1547. (Holding, while natural parents have a natural right to care and custody of their children, they do not have a fundamental right to equal placement periods after divorce.) ↩

[11] See Judi Bartfeld, “Shared Placement: An Overview of Prevalence, Trends, Economic Implications, and Impacts on Child Well-Being,” Institute for Research on Poverty, University of Wisconsin-Madison, December 2011, pg. 6, CSPR-11-12-T13; citing, Cook and Brown, 2005; Steven T. Brown and Patricia Cook, “The Use of Child Support Guidelines in Wisconsin: 1996–2007.” Report to the Wisconsin Department of Children and Families. Institute for Research on Poverty, University of Wisconsin-Madison, 2011. ↩

[12] Judith Barfeld, Trisha Chanda, and Lawrence Berger, “2018-2020 Child Support Policy Research Agreement Task 11B: Stability of Placement Arrangements Among Divorced Wisconsin Families with Sole Mother and Shared Placement Orders,” Institute for Research on Poverty, University of Wisconsin-Madison, June 2021, p. 2, CSPR-18-20-T11B; citing Meyer, Cancian & Cook, “The Growth in Shared Custody in the United States: Patterns and Implications,” Family Court Review 55(4), 2017, pp. 500-12. ↩

[13] See Christopher Walther, “Historical Notes on Wisconsin's New Custody, Placement and Paternity Reform Legislation,” 20 Wis. J. Fam. L. 34 (2000). ↩

[14] Kenneth H. Waldron, “Don't Split the Baby, Physical Placement and the Developmental Needs of Children,” seminar, May 26, 1995. ↩

[15] Waldron, “Don't Split the Baby.” (Citing 17 separate factors that should be considered when fashioning a schedule that will reflect the child's best interests. Those factors are: age of the children, sex of the child, temperament of the child, past experiences of the child, children with special needs, siblings, supports for the child, supports for the parents, geographic distance between homes, work hours of parents, financial resources, personal needs of the parents, conduct problems, parenting strengths and weaknesses, consistency and stability, communication and cooperation between parents, and access to both parents.) ↩

[16] Wis. Stat. § 767.41 (5)(bm). ↩

[17] Wis. Stat. § 767.405(5). ↩

[18] Barfeld, et al., “Stability of Placement Arrangements,” p. 3. ↩

[19] Kerkvliet v. Kerkvliet, 166 Wis. 2d 930, 935,480 N.W.2d 823 (Ct. App. 1992). ↩