In Wisconsin, courts award a combination of custody -- legal and physical -- according to the child’s best interests. Legal custody is the right to make important decisions for the child, while physical custody, called physical placement in Wisconsin, is the day-to-day care of the child. The child’s visitation with the noncustodial parent is referred to as “periods of placement.” When the custodial parent moves, the noncustodial parent has the option of challenging the move, but the move, if allowed, may impact periods of placement and child support.
Wisconsin calculates child support payment amounts by taking a percentage of the noncustodial parent’s monthly income as described in the state’s statutory guidelines. In circumstances where the parents share physical placement of the child, a child support award incorporates other factors such as the parents’ gross incomes and the number of annual overnights the child spends with the noncustodial parent. Child support is typically established at the time the couple divorces, according to the situation at the time of the divorce. Support can be modified when circumstances change.
When parents receive custody as part of a divorce, a parent wishing to move out of state with a child -- or 150 miles away within Wisconsin -- must give written notice to the other parent at least 60 days prior to the move if the other parent has been awarded any periods of placement, or visitation time. If the parent proposing to move has sole or joint legal custody of the child and the child resides with that parent for the majority of time, the noncustodial parent can attempt to stop the move by filing paperwork with the court. The court can order the custodial parent to come to court to show the move is appropriate, and the court can modify the custody order to take into account the distance caused by move.
Burden of Proof
When one parent has greater custodial rights than the other, Wisconsin courts presume that it is in the child’s best interests to stay with the custodial parent, but the noncustodial parent has the opportunity to show how this presumption is unreasonable under the circumstances. In other words, not in his child’s best interests. If he is successful, the court can prohibit the moving parent from moving with the child. If the custodial parent still wishes to move, the court can award physical placement of the child to the former noncustodial parent. If the parents share both legal custody and physical placement, no presumption exists; therefore, both parents have the burden of showing the move is -- or is not -- in the child’s best interests. The court may appoint a custody evaluator or Guardian Ad Litem to help the judge determine what is in the best interests of the child. These advisers further research the child’s situation and make recommendations to the court.
If the court allows the custodial parent to move with the child, the noncustodial parent must continue paying child support; the court may modify the periods of placement to fit the best interests of the child in light of the move and other factors. The noncustodial parent will likely have increased child support payments, since his number of overnights with the child will likely decrease.