Custody · Wisconsin · checked 2026-08-21

Custody in Wisconsin.

The starting point the law actually sets, what the judge has to weigh, and the deadlines that catch people out.

Is 50/50 the default in Wisconsin?

Shared decisions are presumed. Equal time is not.

Wisconsin presumes joint LEGAL custody and separately requires the court to MAXIMIZE placement time — two different things that are constantly conflated. On legal custody, Wis. Stat. § 767.41(2)(am): "Except as provided in par. (d), the court shall presume that joint legal custody is in the best interest of the child." Sole legal custody is available under § 767.41(2)(b) only if the court finds it in the child's best interest AND either both parties agree to sole custody with the same party, or at least one party requests it and the court specifically finds that one party is not capable of performing parental duties or does not wish an active role, or that conditions exist that would substantially interfere with joint legal custody, or that "[t]he parties will not be able to cooperate in the future decision making required under an award of joint legal custody." Section 767.41(2)(c) bars giving sole legal custody to a parent who unreasonably refuses to cooperate with the other. On PLACEMENT, there is no presumption of equal time. What § 767.41(4)(a)2 requires is that the court "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." "Maximize" is not "equalize." There is, however, a findings requirement with real force: Wis. Stat. § 767.41(6)(a) provides that "[i]f the court grants physical placement to one parent for less than 25 percent of the time, as determined under s. 49.22(9), the court shall enter specific findings of fact as to the reasons that a greater allocation of physical placement with that parent is not in the best interests of the child." Twenty-five percent, not fifty, is the line at which a Wisconsin judge has to explain.

Use the state’s own words

Wisconsin uses "legal custody" and "physical placement," and the difference is not cosmetic. Wis. Stat. § 767.001(2)(a) defines legal custody as "the right and responsibility to make major decisions concerning the child, except with respect to specified decisions as set forth by the court or the parties in the final judgment or order." Section 767.001(2m) defines "major decisions" to include "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." Section 767.001(5) defines physical placement as "the condition under which a party has the right to have a child physically placed with that party and has the right and responsibility to make, during that placement, routine daily decisions regarding the child's care, consistent with major decisions made by a person having legal custody." Section 767.001(1s) defines joint legal custody as the condition where "both parties share legal custody and neither party's legal custody rights are superior," except as to decisions the court or the parties specify. Wisconsin does not use "custody" to mean where the child lives, and it does not use "visitation."

How Wisconsin decides

Decisions against where the child lives

Wisconsin's split is the cleanest in this group and the two are decided under separate rules. Legal custody is allocated under Wis. Stat. § 767.41(2), where joint legal custody is presumed. Physical placement is allocated under Wis. Stat. § 767.41(4), which requires the court to "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." Section 767.41(4)(b) adds that "[a] child is entitled to periods of physical 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." Section 767.41(6)(b) lets a court order joint legal custody but give one party sole power over specified decisions while both keep equal rights on the rest.

What the judge must weigh

767.41 Custody and physical placement. 767.41 (5) Factors in custody and physical placement determinations. (am) Subject to pars. (bm) and (c), in determining legal custody and periods of physical placement, the court shall consider all facts relevant to the best interest of the child. The court may not prefer one parent or potential custodian over the other on the basis of the sex or race of the parent or potential custodian. Subject to pars. (bm) and (c), the court shall consider all of the following factors, which are not necessarily listed in order of importance, in making its determination:

1. The wishes of the child’s parent or parents, as shown by any stipulation between the parties, any proposed parenting plan or any legal custody or physical placement proposal submitted to the court at trial.
2. The wishes of the child, which may be communicated by the child or through the child’s guardian ad litem or other appropriate professional.
3. The cooperation and communication between the parties and whether either party unreasonably refuses to cooperate or communicate with the other party.
4. Whether each party can support the other party’s relationship with the child, including encouraging and facilitating frequent and continuing contact with the child, or whether one party is likely to unreasonably interfere with the child’s continuing relationship with the other party.
5. The interaction and interrelationship of the child with his or her siblings, and any other person who may significantly affect the child’s best interest.
6. The interaction and interrelationship of the child with his or her parent or parents and the amount and quality of time that each parent has spent with the child in the past, any necessary changes to the parents’ custodial roles, and any reasonable lifestyle changes that a parent proposes to make to maximize placement with the child.
7. Whether any of the following has or had a significant problem with alcohol or drug abuse: a. A party. b. A person with whom a parent of the child has a dating relationship, as defined in s. 813.12 (1) (ag). c. A person who resides, has resided, or will reside regularly or intermittently in a proposed custodial household.
8. The child’s adjustment to the home, school, religion, and community.
9. The age of the child and the child’s developmental and educational needs at different ages.
10. Whether the mental or physical health of a party, minor child, or other person living in a proposed custodial household negatively affects the child’s intellectual, physical, or emotional well-being.
11. Whether any of the following has a criminal record or whether there is evidence that any of the following has engaged in abuse, as defined in s. 813.122 (1) (a), of the child or any other child or neglected the child or any other child: a. A party. b. A person with whom a parent of the child has a dating relationship, as defined in s. 813.12 (1) (ag). c. A person who resides, has resided, or will reside regularly or intermittently in a proposed custodial household.
12. Whether there is evidence of interspousal battery, as described under s. 940.60 or 940.61 (1) or s. 940.19, 2023 stats., or s. 940.20 (1m), 2023 stats., or domestic abuse, as defined in s. 813.12 (1) (am).
13. The reports of appropriate professionals if admitted into evidence.
14. Any other factor that the court determines to be relevant.

(bm) If the court finds under sub. (2) (d) that a parent has engaged in a pattern or serious incident of interspousal battery, as described under s. 940.60 or 940.61 (1) or s. 940.19, 2023 stats., or s. 940.20 (1m), 2023 stats., or domestic abuse, as defined in s. 813.12 (1) (am), 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. (c) Except as provided under ch. 324, if a parent is a service member, as defined in sub. (2) (e) 1., the court may not consider as a factor in determining the legal custody of a child whether the service member has been or may be called to active duty in the U.S. armed forces and consequently is, or in the future will be or may be, absent from the service member’s home.

Recently changed. Two 2025 acts touched this chapter. 2025 Wisconsin Act 24 recodified the battery statutes, so every cross-reference to interspousal battery now reads “s. 940.60 or 940.61 (1) or s. 940.19, 2023 stats., or s. 940.20 (1m), 2023 stats.” — anything still quoting the old “s. 940.19 or 940.20 (1m)” is out of date. 2025 Wisconsin Act 81 changed the relocation threshold from 100 miles to 100 driving miles and defined the term.

Authority: Wis. Stat. § 767.41(5) — Factors in custody and physical placement determinations. Published by Wisconsin Legislature. The publisher states: “"2023-24 Wisconsin Statutes updated through 2025 Wis. Act 247 and through all Supreme Court Orders and Controlled Substances Board Orders filed before and in effect on August 5, 2026. Published and certified under s. 35.18.”.

What the child wants

Considered, with no age set by statute and no separate weighting rule. It is factor 2 in Wis. Stat. § 767.41(5)(am): "[t]he wishes of the child, which may be communicated by the child or through the child's guardian ad litem or other appropriate professional." The delivery mechanism matters in practice: Wis. Stat. § 767.407(4) provides that "[u]nless the child otherwise requests, the guardian ad litem shall communicate to the court the wishes of the child as to the child's legal custody or physical placement," while also making clear the guardian "shall consider, but shall not be bound by, the wishes of the minor child." So in most Wisconsin cases the child speaks to the court through the guardian ad litem rather than from the witness stand. One place age does appear: if a parent is convicted of intentionally killing the child's other parent, Wis. Stat. § 767.451(4m)(b) requires the court to consider the wishes of the child before allowing any placement.

Where there has been violence or abuse

Wis. Stat. § 767.41 (2) (b) 2. c.c. The parties will not be able to cooperate in the future decision making required under an award of joint legal custody. In making this finding the court shall consider, along with any other pertinent items, any reasons offered by a party objecting to joint legal custody. Evidence that either party engaged in abuse, as defined in s. 813.122 (1) (a), of the child, as defined in s. 813.122 (1) (b), or evidence of interspousal battery, as described under s. 940.60 or 940.61 (1) or s. 940.19, 2023 stats., or s. 940.20 (1m), 2023 stats., or domestic abuse, as defined in s. 813.12 (1) (am), creates a rebuttable presumption that the parties will not be able to cooperate in the future decision making required.

Wis. Stat. § 767.41 (2) (d) 1.1. Except as provided in subd. 4., if the court finds by a preponderance of the evidence that a party has engaged in a pattern or serious incident of interspousal battery, as described under s. 940.60 or 940.61 (1) or s. 940.19, 2023 stats., or s. 940.20 (1m), 2023 stats., or domestic abuse, as defined in s. 813.12 (1) (am), pars. (am), (b), and (c) do not apply and there is a rebuttable presumption that it is detrimental to the child and contrary to the best interest of the child to award joint or sole legal custody to that party. The presumption under this subdivision may be rebutted only by a preponderance of evidence of all of the following: a. The party who committed the battery or abuse has successfully completed treatment for batterers provided through a certified treatment program or by a certified treatment provider and is not abusing alcohol or any other drug. b. It is in the best interest of the child for the party who committed the battery or abuse to be awarded joint or sole legal custody based on a consideration of the factors under sub. (5) (am).

Wis. Stat. § 767.41 (2) (d) 2.2. If the court finds under subd. 1. that both parties engaged in a pattern or serious incident of interspousal battery, as described under s. 940.60 or 940.61 (1) or s. 940.19, 2023 stats., or s. 940.20 (1m), 2023 stats., or domestic abuse, as defined in s. 813.12 (1) (am), the party who engaged in the battery or abuse for purposes of the presumption under subd. 1. is the party that the court determines was the primary physical aggressor. Except as provided in subd. 3., in determining which party was the primary physical aggressor, the court shall consider all of the following: a. Prior acts of domestic violence between the parties. b. The relative severity of the injuries, if any, inflicted upon a party by the other party in any of the prior acts of domestic violence under subd. 2. a. c. The likelihood of future injury to either of the parties resulting from acts of domestic violence. d. Whether either of the parties acted in self-defense in any of the prior acts of domestic violence under subd. 2. a. e. Whether there is or has been a pattern of coercive and abusive behavior between the parties. f. Any other factor that the court considers relevant to the determination under this subdivision.

Wis. Stat. § 767.41 (2) (d) 3.3. If the court must determine under subd. 2. which party was the primary physical aggressor and one, but not both, of the parties has been convicted of a crime that was an act of domestic abuse, as defined in s. 813.12 (1) (am), with respect to the other party, the court shall find the party who was convicted of the crime to be the primary physical aggressor.

Wis. Stat. § 767.41 (2) (d) 4.4. The presumption under subd. 1. does not apply if the court finds that both parties engaged in a pattern or serious incident of interspousal battery or domestic abuse but the court determines that neither party was the primary physical aggressor.

Wis. Stat. § 767.41 (5) (bm)(bm) If the court finds under sub. (2) (d) that a parent has engaged in a pattern or serious incident of interspousal battery, as described under s. 940.60 or 940.61 (1) or s. 940.19, 2023 stats., or s. 940.20 (1m), 2023 stats., or domestic abuse, as defined in s. 813.12 (1) (am), 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.

Wis. Stat. § 767.41 (6) (f)(f) If the court finds under sub. (2) (d) that a party has engaged in a pattern or serious incident of interspousal battery, as described under s. 940.60 or 940.61 (1) or s. 940.19, 2023 stats., or s. 940.20 (1m), 2023 stats., or domestic abuse, as defined in s. 813.12 (1) (am), the court shall state in writing whether the presumption against awarding joint or sole legal custody to that party is rebutted and, if so, what evidence rebutted the presumption, and why its findings relating to legal custody and physical placement are in the best interest of the child.

Wis. Stat. § 767.41 (6) (g)(g) If the court finds under sub. (2) (d) that a party has engaged in a pattern or serious incident of interspousal battery, as described under s. 940.60 or 940.61 (1) or s. 940.19, 2023 stats., or s. 940.20 (1m), 2023 stats., or domestic abuse, as defined in s. 813.12 (1) (am), and the court awards periods of physical placement to both parties, the court shall provide for the safety and well-being of the child and for the safety of the party who was the victim of the battery or abuse. For that purpose the court, giving consideration to the availability of services or programs and to the ability of the party who committed the battery or abuse to pay for those services or programs, shall impose one or more of the following, as appropriate: 1. Requiring the exchange of the child to occur in a protected setting or in the presence of an appropriate 3rd party who agrees by affidavit or other supporting evidence to assume the responsibility assigned by the court and to be accountable to the court for his or her actions with respect to the responsibility. 2. Requiring the child’s periods of physical placement with the party who committed the battery or abuse to be supervised by an appropriate 3rd party who agrees by affidavit or other supporting evidence to assume the responsibility assigned by the court and to be accountable to the court for his or her actions with respect to the responsibility. 3. Requiring the party who committed the battery or abuse to pay the costs of supervised physical placement. 4. Requiring the party who committed the battery or abuse to attend and complete, to the satisfaction of the court, treatment for batterers provided through a certified treatment program or by a certified treatment provider as a condition of exercising his or her periods of physical placement. 5. If the party who committed the battery or abuse has a significant problem with alcohol or drug abuse, prohibiting that party from being under the influence of alcohol or any controlled substance when the parties exchange the child for periods of physical placement and from possessing or consuming alcohol or any controlled substance during his or her periods of physical placement. 6. Prohibiting the party who committed the battery or abuse from having overnight physical placement with the child. 7. Requiring the party who committed the battery or abuse to post a bond for the return and safety of the child. 8. Imposing any condition not specified in subds. 1. to 7. that the court determines is necessary for the safety and well-being of the child or the safety of the party who was the victim of the battery or abuse.

Wis. Stat. § 767.405 (8) (b)(b) A court may, in its discretion, hold a trial or hearing without requiring attendance at the session under par. (a) if the court finds that attending the session will cause undue hardship or would endanger the health or safety of one of the parties. In making its determination of whether attendance at the session would endanger the health or safety of one of the parties, the court shall consider evidence of the following: 1. That a party engaged in abuse, as defined in s. 813.122 (1) (a), of the child, as defined in s. 813.122 (1) (b). 2. Interspousal battery as described under s. 940.60 or 940.61 (1) or s. 940.19, 2023 stats., or s. 940.20 (1m), 2023 stats., or domestic abuse as defined in s. 813.12 (1) (am). 3. That either party has a significant problem with alcohol or drug abuse. 4. Any other evidence indicating that a party’s health or safety will be endangered by attending the session.

Wis. Stat. § 767.41 (1m) (o)(o) If there is evidence that either party engaged in interspousal battery, as described under s. 940.60 or 940.61 (1) or s. 940.19, 2023 stats., or s. 940.20 (1m), 2023 stats., or domestic abuse, as defined in s. 813.12 (1) (am), with respect to the other party, how the child will be transferred between the parties for the exercise of physical placement to ensure the safety of the child and the parties.

Authority: Wis. Stat. § 767.41 (2) (d) 1.–4., § 767.41 (2) (b) 2. c., § 767.41 (5) (bm), § 767.41 (6) (f) and (6) (g), § 767.41 (1m) (o), and § 767.405 (8) (b). Published by Wisconsin Legislature. The publisher states: “"2023-24 Wisconsin Statutes updated through 2025 Wis. Act 247 and through all Supreme Court Orders and Controlled Substances Board Orders filed before and in effect on August 5, 2026. Published and certified under s. 35.18.”.

The paperwork and the people

The parenting plan

767.41 Custody and physical placement. 767.41 (1m) Parenting plan. Unless the court orders otherwise, in an action for annulment, divorce, or legal separation, an action to determine paternity, or an action under s. 767.001 (1) (e), 767.501, 767.804 (2), or 767.805 (3), in which legal custody or physical placement is contested, a party seeking sole or joint legal custody or periods of physical placement shall file a proposed parenting plan with the court if the court waives the requirement to attend mediation under s. 767.405 (8) (b) or if the parties have attended mediation and the mediator notifies the court under s. 767.405 (12) (b) that the parties have not reached an agreement. Unless the court orders otherwise, the proposed parenting plan shall be filed within 60 days after the court waives the mediation requirement or the mediator notifies the court that no agreement has been reached. Except for cause shown, a party required to file a proposed parenting plan under this subsection who does not timely file a proposed parenting plan waives the right to object to the other party’s parenting plan. A proposed parenting plan shall provide information about the following questions:

(a) What legal custody or physical placement the parent is seeking.
(b) Where the parent lives currently and where the parent intends to live during the next 2 years. If there is evidence that the other parent engaged in interspousal battery, as described under s. 940.60 or 940.61 (1) or s. 940.19, 2023 stats., or s. 940.20 (1m), 2023 stats., or domestic abuse, as defined in s. 813.12 (1) (am), with respect to the parent providing the parenting plan, the parent providing the parenting plan is not required to disclose the specific address but only a general description of where he or she currently lives and intends to live during the next 2 years.
(c) Where the parent works and the hours of employment. If there is evidence that the other parent engaged in interspousal battery, as described under s. 940.60 or 940.61 (1) or s. 940.19, 2023 stats., or s. 940.20 (1m), 2023 stats., or domestic abuse, as defined in s. 813.12 (1) (am), with respect to the parent providing the parenting plan, the parent providing the parenting plan is not required to disclose the specific address but only a general description of where he or she works.
(cm) With specific detail, what proposed variable costs are expected to be incurred by or on behalf of the child.
(d) Who will provide any necessary child care when the parent cannot and who will pay for the child care.
(e) Where the child will go to school.
(f) What doctor or health care facility will provide medical care for the child.
(h) What the child’s religious commitment will be, if any.
(i) Who will make decisions about the child’s education, medical care, choice of child care providers and extracurricular activities.
(j) How the holidays will be divided.
(k) What the child’s summer schedule will be.
(L) Whether and how the child will be able to contact the other parent when the child has physical placement with the parent providing the parenting plan, and what electronic communication, if any, the parent is seeking.
(Lm) Whether equipment for providing electronic communication is reasonably available to both parents.
(m) How the parent proposes to resolve disagreements related to matters over which the court orders joint decision making.
(o) If there is evidence that either party engaged in interspousal battery, as described under s. 940.60 or 940.61 (1) or s. 940.19, 2023 stats., or s. 940.20 (1m), 2023 stats., or domestic abuse, as defined in s. 813.12 (1) (am), with respect to the other party, how the child will be transferred between the parties for the exercise of physical placement to ensure the safety of the child and the parties.

Wis. Stat. § 767.405 (8) (c)(c) The initial session under par. (a) shall be a screening and evaluation mediation session to determine whether mediation is appropriate and whether both parties wish to continue in mediation. At the initial session, the mediator shall discuss with each of the parties information included in proposed parenting plans under s. 767.41 (1m).

Wis. Stat. § 767.405 (8) (d)(d) At least 10 days before the initial mediation session, each party shall submit a proposed parenting plan containing all the information required under s. 767.41 (1m) to the director of family court services for the county in which the action is pending or the assigned mediator. The parties may exchange proposed parenting plans before the initial mediation session. For purposes of the exchange and submission under this paragraph, a party may provide a copy of the party’s proposed parenting plan electronically.

Wis. Stat. § 767.451 (6m)(6m) Parenting plan. In any action to modify a legal custody or physical placement order under sub. (1), the court may require the party seeking the modification to file with the court a parenting plan under s. 767.41 (1m) before any hearing is held.

Authority: Wis. Stat. § 767.41 (1m) (Parenting plan), with § 767.405 (8) (c) and (8) (d). Published by Wisconsin Legislature. The publisher states: “"2023-24 Wisconsin Statutes updated through 2025 Wis. Act 247 and through all Supreme Court Orders and Controlled Substances Board Orders filed before and in effect on August 5, 2026. Published and certified under s. 35.18.”.

Mediation

Yes, at least one session. Wis. Stat. § 767.405(8)(a): "[I]n any action affecting the family, including an action for revision of judgment . . . in which it appears that legal custody or physical placement is contested, the parties shall attend at least one session with a mediator . . . and, if the parties and the mediator determine that continued mediation is appropriate, no court may hold a trial of or a final hearing on legal custody or physical placement until after mediation is completed or terminated." The first session is a screening and evaluation session to decide whether mediation is appropriate and whether both parties want to continue. Section 767.405(8)(b) is the escape hatch: "A court may, in its discretion, hold a trial or hearing without requiring attendance at the session . . . if the court finds that attending the session will cause undue hardship or would endanger the health or safety of one of the parties," and in deciding endangerment the court shall consider evidence that a party engaged in abuse of the child, interspousal battery or domestic abuse, that either party has a significant problem with alcohol or drug abuse, and any other evidence that a party's health or safety would be endangered. Note that this is discretionary, not automatic — you must raise it and give the court evidence.

If the court appoints someone to look into it

Wis. Stat. § 767.407 governs guardians ad litem, and Wisconsin's version is unusually substantive. The guardian ad litem must be an attorney admitted in Wisconsin, and "shall be an advocate for the best interests of a minor child as to paternity, legal custody, physical placement, and support," functioning independently "in the same manner as an attorney for a party." The guardian must consider the § 767.41(5)(am) factors, review any custody study, "investigate whether there is evidence that either parent has engaged in interspousal battery . . . or domestic abuse, and shall report to the court on the results of the investigation," review and comment on any mediation agreement and stipulation and on any parenting plan, and, unless the child asks otherwise, communicate the child's wishes to the court. Wisconsin courts have held that a circuit court may not determine primary placement over objection without appointing a guardian ad litem, and that neither parent can waive the child's right to that representation. On cost, Wis. Stat. § 767.407(6): the guardian "shall be compensated at a rate that the court determines is reasonable," and "[t]he court shall order either or both parties to pay all or any part of the compensation." On the guardian's motion, the court shall also order a party to pay for an expert witness the guardian shows is necessary. If BOTH parties are indigent the court may direct the county to pay; Wisconsin case law holds that if only one party is indigent, the court's only option is to order the non-indigent party to pay. Wisconsin also allows a status hearing on the guardian's work at any time more than 120 days after appointment, and again no sooner than 120 days after each such hearing.

Moving away

What you must do before you move

Wis. Stat. § 767.481, and the trigger is 100 DRIVING miles. If both parents have periods of physical placement and one intends to relocate and reside with the child "100 driving miles or more from the other parent," that parent "shall file a motion with the court seeking permission for the child's relocation." The motion must include a relocation plan stating the date of the proposed relocation, the municipality and state of the new residence, the reason for the relocation, a proposed new placement schedule covering the school year, summers, and holidays, and the proposed responsibility and allocation of transportation costs; any request for a change in legal custody; notice to the other parent that an objection and any alternate proposal must be filed and served "no later than 5 days before the initial hearing"; and an attached "Objection to Relocation" form furnished by the court. The motion is served by mail at the other parent's most recent address on file, and at any different address the moving parent actually knows about. There is an important carve-out in § 767.481(1)(d): if the parents ALREADY live more than 100 driving miles apart, no motion is required, but the relocating parent "shall serve written notice of his or her intent to relocate on the other parent at least 60 days before relocation," stating the date and the new address. The court schedules an initial hearing within 30 days, and "[t]he child may not be relocated pending the initial hearing." If the other parent was properly served and does not appear, or appears and does not object, the court shall approve the plan unless it finds the plan is not in the child's best interest. If the other parent objects, the court requires a written response within 5 business days, refers the parties to mediation unless mediation would cause undue hardship or endanger health or safety, appoints a guardian ad litem for the child, and sets a further hearing within 60 days.

Later on

Changing the order

767.451 Revision of legal custody and physical placement orders. Except for matters under s. 767.461 or 767.481, the following provisions are applicable to modifications of legal custody and physical placement orders:

Wis. Stat. § 767.451 (1) (a)(a) Within 2 years after final judgment. Except as provided under sub. (2), a court may not modify any of the following orders before 2 years after the final judgment determining legal custody or physical placement is entered under s. 767.41, unless a party seeking the modification, upon petition, motion, or order to show cause, shows by substantial evidence that the modification is necessary because the current custodial conditions are physically or emotionally harmful to the best interest of the child: 1. An order of legal custody. 2. An order of physical placement if the modification would substantially alter the time a parent may spend with his or her child.

Wis. Stat. § 767.451 (1) (b)(b) After 2-year period. 1. Except as provided under par. (a) and sub. (2), upon petition, motion or order to show cause by a party, a court may modify an order of legal custody or an order of physical placement where the modification would substantially alter the time a parent may spend with his or her child if the court finds all of the following: a. The modification is in the best interest of the child. b. There has been a substantial change of circumstances since the entry of the last order affecting legal custody or the last order substantially affecting physical placement. 2. With respect to subd. 1., there is a rebuttable presumption that: a. Continuing the current allocation of decision making under a legal custody order is in the best interest of the child. b. Continuing the child’s physical placement with the parent with whom the child resides for the greater period of time is in the best interest of the child. 3. A change in the economic circumstances or marital status of either party is not sufficient to meet the standards for modification under subd. 1.

Wis. Stat. § 767.451 (2)(2) Modification of substantially equal physical placement orders. Notwithstanding sub. (1): (a) If the parties have substantially equal periods of physical placement pursuant to a court order and circumstances make it impractical for the parties to continue to have substantially equal physical placement, a court, upon petition, motion, or order to show cause by a party, may modify the order if it is in the best interest of the child. (b) In any case in which par. (a) does not apply and in which the parties have substantially equal periods of physical placement pursuant to a court order, a court, upon petition, motion, or order to show cause of a party, may modify the order based on the appropriate standard under sub. (1). However, under sub. (1) (b) 2., there is a rebuttable presumption that having substantially equal periods of physical placement is in the best interest of the child.

Wis. Stat. § 767.451 (2m)(2m) Modification of periods of physical placement for failure to exercise physical placement. Notwithstanding subs. (1) and (2), upon petition, motion or order to show cause by a party, a court may modify an order of physical placement at any time with respect to periods of physical placement if it finds that a parent has repeatedly and unreasonably failed to exercise periods of physical placement awarded under an order of physical placement that allocates specific times for the exercise of periods of physical placement.

Wis. Stat. § 767.451 (3)(3) Modification of other physical placement orders. Except as provided under subs. (1) and (2), upon petition, motion or order to show cause by a party, a court may modify an order of physical placement which does not substantially alter the amount of time a parent may spend with his or her child if the court finds that the modification is in the best interest of the child.

Wis. Stat. § 767.451 (3m)(3m) Reinstatement of former physical placement allocation and schedule. If a party is a service member, as defined in s. 767.41 (2) (e) 1., and the court modifies an order of physical placement on the basis that the service member has been or will be called to active duty in the U.S. armed forces, notwithstanding sub. (1) the court shall require in the order that the allocation of periods of physical placement and, if applicable, the physical placement schedule that were in effect before the modification are reinstated immediately upon the service member’s discharge or release from active duty. This subsection does not apply to a temporary agreement or a temporary order under ch. 324.

Wis. Stat. § 767.451 (3r)(3r) Approval of stipulation for modifications contingent on future event. Notwithstanding sub. (1), in an action to modify a legal custody or physical placement order, the court may approve a stipulation for further modifications to legal custody or physical placement upon the occurrence of a specified future event, as defined in s. 767.34 (3) (a), that is reasonably certain to occur within 2 years of the date of the stipulation and incorporate the terms of the stipulation into any revised legal custody or physical placement order granted by the court. The court may not approve a stipulation under this subsection that is based on an anticipated behavior modification of a party.

Wis. Stat. § 767.451 (4)(4) Denial of physical placement. Upon petition, motion or order to show cause by a party or on its own motion, a court may deny a parent’s physical placement rights at any time if it finds that the physical placement rights would endanger the child’s physical, mental or emotional health.

Wis. Stat. § 767.451 (4m)(4m) Denial of physical placement for killing other parent. (a) Notwithstanding subs. (1) to (4), upon petition, motion or order to show cause by a party or on its own motion, a court shall modify a physical placement order by denying a parent physical placement with a child if the parent has been convicted under s. 940.01 of the first-degree intentional homicide, or under s. 940.05 of the 2nd-degree intentional homicide, of the child’s other parent, and the conviction has not been reversed, set aside or vacated. (b) Paragraph (a) does not apply if the court determines by clear and convincing evidence that physical placement with the parent would be in the best interests of the child. The court shall consider the wishes of the child in making the determination.

Wis. Stat. § 767.451 (5)(5) Reasons for modification. If either party opposes modification or termination of a legal custody or physical placement order under this section the court shall state, in writing, its reasons for the modification or termination.

Wis. Stat. § 767.451 (5m)(5m) Factors to consider. (a) Subject to pars. (b) and (c), in all actions to modify legal custody or physical placement orders, the court shall consider the factors under s. 767.41 (5) (am), subject to s. 767.41 (5) (bm), and shall make its determination in a manner consistent with s. 767.41. (b) In determining the best interest of the child under this section, in addition to the factor under s. 767.41 (5) (am) 11., the court shall consider whether a stepparent of the child has a criminal record and whether there is evidence that a stepparent of the child has engaged in abuse, as defined in s. 813.122 (1) (a), of the child or any other child or neglected the child or any other child. (c) In an action to modify a legal custody order, if a party is a service member, as defined in s. 767.41 (2) (e) 1., the court may not consider as a factor in making a determination whether the service member has been or may be called to active duty in the U.S. armed forces and consequently is, or in the future will be or may be, absent from the service member’s home.

Wis. Stat. § 767.451 (6)(6) Notice. No court may enter an order for modification under this section until notice of the petition, motion or order to show cause requesting modification has been given to the child’s parents, if they can be found, and to any relative or agency having custody of the child.

Wis. Stat. § 767.451 (7)(7) Transfer to department. The court may order custody transferred to the department only if the department agrees to accept custody. If the court orders custody transferred to the department, the order transferring custody shall include the findings and order specified in s. 767.41 (3) (am).

Wis. Stat. § 767.451 (8)(8) Petition, motion, or order to show cause. A petition, motion, or order to show cause under this section shall include notification of the availability of information under s. 767.105 (2).

Authority: Wis. Stat. § 767.451 (Revision of legal custody and physical placement orders). Published by Wisconsin Legislature. The publisher states: “"2023-24 Wisconsin Statutes updated through 2025 Wis. Act 247 and through all Supreme Court Orders and Controlled Substances Board Orders filed before and in effect on August 5, 2026. Published and certified under s. 35.18.”.

If you were never married

Paternity must be established first, and then the same rules apply. Wis. Stat. § 767.89(3)(b) requires a paternity judgment to contain "[o]rders for the legal custody of and periods of physical placement with the child, determined in accordance with s. 767.41" — the same statute, the same joint-legal-custody presumption, the same fourteen factors. Wisconsin also offers a route that avoids a contested paternity trial: under Wis. Stat. § 767.805(1), a statement acknowledging paternity on file with the state registrar, after the deadline to rescind has passed, "is a conclusive determination, which shall be of the same effect as a judgment, of paternity." Once that acknowledgment is on file and not rescinded, § 767.805(3)(a) allows an action concerning custody, child support, or physical placement to be brought, and § 767.805(4)(a) requires the resulting order to contain legal custody and physical placement orders "determined in accordance with s. 767.41." One limit worth knowing: § 767.805(1m) provides that "[a] minor may not sign a statement acknowledging paternity." We could not confirm Wisconsin's default rule on who holds legal custody in the period before paternity is acknowledged or adjudicated.

The number that actually governs Wisconsin placement is 25 percent, not 50. Wisconsin does not presume equal time. What it does is require the court to "maximize" each parent's time, and — this is the lever — Wis. Stat. § 767.41(6)(a) requires the judge to write specific findings explaining why more time is not in the child's best interest whenever one parent gets less than 25 percent of the time. Ask for those findings by name. The presumption of joint LEGAL custody is real and strong, but it is about decisions, not days. Second: if you already have substantially equal placement, Wisconsin protects it. Section 767.451(2)(b) creates a rebuttable presumption that substantially equal placement is in the child's best interest when someone tries to change it. Third, two deadlines can quietly cost you your case. You must file a proposed parenting plan within 60 days of the mediation waiver or the mediator's no-agreement notice, and if you do not, you "waive the right to object to the other party's parenting plan." And in a relocation case, an objection must be filed and served no later than 5 days before the initial hearing. Finally, for parents facing an abuse finding: Wisconsin's presumption against custody can be rebutted only by proving BOTH successful completion of a certified batterer treatment program and that custody serves the child's best interest. There is no version of that rebuttal that skips the program.

What we could not confirm

We could not confirm Wisconsin's default rule on who holds legal custody of a child before paternity is acknowledged or adjudicated. If you are an unmarried father in Wisconsin, ask the clerk of circuit court or the child support agency about signing a Voluntary Paternity Acknowledgment, and remember that until it is on file and unrescinded, you may not have an enforceable custody or placement right. We also could not confirm the name or link of an official Wisconsin parenting plan form; the statute lists exactly what the plan must cover, so use that list, and ask your county's family court services office whether it has a local form.

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Sources last checked21 August 2026

Page published21 August 2026

What this means. This is when the sources on this page were last read against their originals — statutes, court rules, official schedules — taken from the date this page was built from its sources. It is not the date the page was last edited. Adding a link or fixing a typo does not move it; re-reading the statute does. Law changes without notice, so treat anything time-sensitive as needing a fresh check. Where we get something wrong we publish it at thecusp.app/corrections with the date, what changed, and how long the error was live.