Wisconsin
Child Custody Law

Wisconsin Child Custody Guide :: Table of Contents

What Is Child Custody?
Child Custody Factors Table
Wisconsin Child Custody Law Summary
How Child Custody Is Decided In Wisconsin
Wisconsin Child Custody Law Text

Child Custody General Information - What Is Child Custody?

Child custody is defined as the guardianship over a child, which covers both physical custody and legal custody. In a child custody dispute the court may award joint custody to both parents or sole custody to a single parent.

Child custody cases in Wisconsin can be either contested and resolved by court order, or noncontested and defined in a child custody agreement between the parents. A custody agreement or order will legally determine, at minimum, the following things:

Where the child lives (physical custody)
Who is involved in making parenting decisions (legal custody)
How the visitation schedule with non-custodial parents or relatives is arranged

This page describes how a contested child custody case is handled in the Wisconsin court system, and what factors are used to determine which parent gets custody.

Wisconsin Custody Court Considerations Table

Statutory Factors
Childs Wishes
Joint Custody Authorized
Favor Joint Custody
Cooperative Parent
Domestic Violence
Attorney or Guardian Ad Litem For Child

Wisconsin Child Custody Law Summary

After a breakup or divorce in Wisconsin, couples with children must come to a child custody agreement that describes which parent the children will live with, how visitation will be scheduled, and how the non-custodial parent will pay child support.

Some of the factors considered by Wisconsin in child custody cases include the child's wishes, willingness of the parent to cooperate with their partner and any history of domestic violence. Wisconsin considers joint custody orders to be in the best interests of the child where possible.

What Factors are Considered in Deciding Custody?

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.

The wishes of the child, which may be communicated by the child, through the child's guardian, or other appropriate professional.

The interaction and interrelationship of the child with his or her parent or parents, siblings, and any other person who may significantly affect the child's best interest

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 life-style changes that a parent proposes to make to be able to spend time with the child in the future.

The child's adjustment to the home, school, religion and community.

The age of the child and the child's developmental and educational needs at different ages.

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.

The need for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child.

The availability of public or private child care services.

The cooperation and communication between the parties and whether either party unreasonably refuses to cooperate or communicate with the other party.

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

Wisconsin Child Custody Factors - How Is Child Custody Decided In Wisconsin?

If the parents are on amicable terms they may agree to custody terms in a parenting agreement between themselves, or via a mediator. If child custody is disputed, however, they will have to receive a child custody order from a Wisconsin judge, who will attempt to make a custody decision that is in the "best interests of the child".

In the state of Wisconsin, a number of factors are taken into account by the courts when determining who gets child custody. This section describes Wisconsin's custody factors, considerations, and presumptions when evaluating a custody order.

Is there a set list of statutory factors for calculating child custody in the state of Wisconsin?

Wisconsin has a list of statutory factors that are considered by the court when determining a custody order. This list may include factors such as the child's age, the living situation of each parent, any history of abuse or neglect from either parent, etc. Although there is a statutory list of factors, consider other factors at its discretion depending on the particular circumstances of the case.

Do judges in the state of Wisconsin favor joint custody?

Judges in Wisconsin are authorized to order either joint or single-parent custody of a child subject to a custody dispute.

Courts in Wisconsin are presumed to generally favor custody orders granting joint custody between both the parents where possible. However, the judge will evaluate each case individually when determing whether joint custody is in the best interests of the child.

Do Wisconsin courts encourage parents to cooperate together to raise the child?

Wisconsin courts favor awarding custody to a cooperative parent who is willing to work together with the other parent regarding child visitation, scheduling, child support, and other co-parenting matters. Wisconsin law favors co-parenting as being in the best interests of the child, and the courts will favor a parent willing to cooperate over a parent who attempts to alienate their child from the other parent.

Are the child's wishes considered when determining custody in the state of Wisconsin?

In Wisconsin, the court does consider the child's reasonable wishes when determining which parent wins custody. The judge may take the child's age, maturity, and judgement into consideration when considering the child's custody preference.

Do Wisconsin courts consider domestic violence when determining custody?

Wisconsin has laws that explicitly permit the consideration of domestic violence in conjunction with child custody. This may mean that domestic violence is a statutory factor in custody determinations, that the court has a presumption against custody for abusers, or that special procedural considerations are imposed in cases involving domestic violence.

Do the courts in the state of Wisconsin have the right to hire an attorney or Guardian Ad Litem to represent the child?

Wisconsin has statutory authority for appointment of a guardian ad litem or attorney specifically to represent the child in a custody case. This person advocates for the best interest of the child, and is tasked with investigating the family situation and advising the court what custody situation would be in the best interests of the child.

| State Law Official Text

Section(s):
W IS . STAT. § 767.41 W IS . STAT. § 767.407

767.41 Custody and physical placement.

(1) General provisions.

(a) Subject to ch. 822, the question of a child's custody may be determined as an incident of any action affecting the family or in an independent action for custody. The effect of any determination of a child's custody is not binding personally against any parent or guardian unless the parent or guardian has been made personally subject to the jurisdiction of the court in the action as provided under ch. 801 or has been notified under s. 822.08, as provided in s. 822.06. Nothing in this chapter may be construed to foreclose a person other than a parent who has physical custody of a child from proceeding under ch. 822.

(b) In rendering a judgment of annulment, divorce, legal separation, or paternity, or in rendering a judgment in an action under s. 767.001 (1) (e), 767.501, or 767.805 (3), the court shall make such provisions as it deems just and reasonable concerning the legal custody and physical placement of any minor child of the parties, as provided in this section.(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, 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 parenting plan with the court if the court waives the requirement to attend mediation under s. 767.405 (8) (b) or if the parties attend 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 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 parenting plan under this subsection who does not timely file a parenting plan waives the right to object to the other party's parenting plan. A 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. 940.19 or 940.20 (1m), 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. 940.19 or 940.20 (1m), 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.

(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.

(g) How the child's medical expenses will be paid.

(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.

(n) What child support, family support, maintenance or other income transfer there will be.

(o) If there is evidence that either party engaged in interspousal battery, as described under s. 940.19 or 940.20 (1m), 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.(2) Custody to party; joint or sole.(a) Subject to pars. (am) to (e), based on the best interest of the child and after considering the factors under sub. (5) (am), subject to sub. (5) (bm), the court may give joint legal custody or sole legal custody of a minor child.(am) Except as provided in par. (d), the court shall presume that joint legal custody is in the best interest of the child.(b) Except as provided in par. (d) and subject to par. (e), the court may give sole legal custody only if it finds that doing so is in the child's best interest and that either of the following applies:1. Both parties agree to sole legal custody with the same party.2. The parties do not agree to sole legal custody with the same party, but at least one party requests sole legal custody and the court specifically finds any of the following:a. One party is not capable of performing parental duties and responsibilities or does not wish to have an active role in raising the child.b. One or more conditions exist at that time that would substantially interfere with the exercise of joint legal custody.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. 940.19 or 940.20 (1m), 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.(c) Except as provided in par. (d), the court may not give sole legal custody to a parent who refuses to cooperate with the other parent if the court finds that the refusal to cooperate is unreasonable.(d)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. 940.19 or 940.20 (1m), 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).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. 940.19 or 940.20 (1m), 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.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.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.(e)1. In this paragraph, “ service member" means a member of the national guard or of a reserve unit of the U.S. armed forces.2. If a party is a service member, 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.(3) Custody to agency or relative.(a) If the interest of any child demands it, and if the court finds that neither parent is able to care for the child adequately or that neither parent is fit and proper to have the care and custody of the child, the court may declare the child to be in need of protection or services and transfer legal custody of the child to a relative of the child, as defined in s. 48.02 (15), to a county department, as defined under s. 48.02 (2g), to a licensed child welfare agency, or, in a county having a population of 750,000 or more, the department of children and families. If the court transfers legal custody of a child under this subsection, in its order the court shall notify the parents of any applicable grounds for termination of parental rights under s. 48.415. If the court transfers legal custody under this section to an agency, the court shall also refer the matter to the court intake worker, as defined in s. 48.02 (3), who shall conduct an inquiry under s. 48.24 to determine whether a petition should be filed under s. 48.13.(am) If the court transfers legal custody of a child under this subsection, the order transferring custody shall include a finding that placement of the child in his or her home would be contrary to the welfare of the child and a finding that reasonable efforts have been made to prevent the removal of the child from the home, while assuring that the health and safety of the child are the paramount concerns, unless any of the circumstances specified in s. 48.355 (2d) (b) 1. to 5. applies. If the legal custodian appointed under par. (a) is a county department, the court shall order the child into the placement and care responsibility of the county department as required under 42 USC 672 (a) (2) and shall assign the county department primary responsibility for providing services to the child. The court shall make the findings specified in this paragraph on a case-by-case basis based on circumstances specific to the child and shall document or reference the specific information on which those findings are based in the court order. A court order that merely references this paragraph without documenting or referencing that specific information in the court order or an amended court order that retroactively corrects an earlier court order that does not comply with this paragraph is not sufficient to comply with this paragraph.(b) If the legal custodian appointed under par. (a) is an agency, the agency shall report to the court on the status of the child at least once each year until the child reaches 18 years of age, is returned to the custody of a parent or is placed under the guardianship of an agency. The agency shall file an annual report no less than 30 days before the anniversary of the date of the order. An agency may file an additional report at any time if it determines that more frequent reporting is appropriate. A report shall summarize the child's permanency plan and the recommendations of the review panel under s. 48.38 (5), if any.(c) The court shall hold a hearing to review the permanency plan within 30 days after receiving a report under par. (b). At least 10 days before the date of the hearing, the court shall provide notice of the time, place, and purpose of the hearing to the agency that prepared the report; the child; the child's parents, guardian, and legal custodian; and the child's foster parent, the operator of the facility in which the child is living, or the relative with whom the child is living.(d) Following the hearing, the court shall make all of the determinations specified under s. 48.38 (5) (c) and, if it determines that an alternative placement is in the child's best interest, may amend the order to transfer legal custody of the child to another relative, other than a parent, or to another agency specified under par. (a).(e) The charges for care furnished to a child whose custody is transferred under this subsection shall be pursuant to the procedure under s. 48.36 (1) or 938.36 (1) except as provided in s. 767.57 (3).(4) Allocation of physical placement.(a)1. Except as provided under par. (b), if the court orders sole or joint legal custody under sub. (2), the court shall allocate periods of physical placement between the parties in accordance with this subsection.2. 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.(b) 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.(c) No court may deny periods of physical placement for failure to meet, or grant periods of physical placement for meeting, any financial obligation to the child or, if the parties were married, to the former spouse.(cm) If a court denies periods of physical placement under this section, the court shall give the parent that was denied periods of physical placement the warning provided under s. 48.356.(d) If the court grants periods of physical placement to more than one parent, it shall order a parent with legal custody and physical placement rights to provide the notice required under s. 767.481 (1).(e) If the court grants periods of physical placement to more than one parent, the court may grant to either or both parents a reasonable amount of electronic communication at reasonable hours during the other parent's periods of physical placement with the child. Electronic communication with the child may be used only to supplement a parent's periods of physical placement with the child. Electronic communication may not be used as a replacement or as a substitute for a parent's periods of physical placement with the child. Granting a parent electronic communication with the child during the other parent's periods of physical placement shall be based on whether it is in the child's best interest and whether equipment for providing electronic communication is reasonably available to both parents. If the court grants electronic communication to a parent whose physical placement with the child is supervised, the court shall also require that the parent's electronic communication with the child be supervised.(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 the following factors 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 interaction and interrelationship of the child with his or her parent or parents, siblings, and any other person who may significantly affect the child's best interest.4. 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 life-style changes that a parent proposes to make to be able to spend time with the child in the future.5. The child's adjustment to the home, school, religion and community.6. The age of the child and the child's developmental and educational needs at different ages.7. 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.8. The need for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child.9. The availability of public or private child care services.10. The cooperation and communication between the parties and whether either party unreasonably refuses to cooperate or communicate with the other party.11. 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.12. Whether there is evidence 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).12m. Whether any of the following has a criminal record and 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 person with whom a parent of the child has a dating relationship, as defined in s. 813.12 (1) (ag).b. A person who resides, has resided, or will reside regularly or intermittently in a proposed custodial household.13. Whether there is evidence of interspousal battery as described under s. 940.19 or 940.20 (1m) or domestic abuse as defined in s. 813.12 (1) (am).14. Whether either party has or had a significant problem with alcohol or drug abuse.15. The reports of appropriate professionals if admitted into evidence.16. Such other factors as the court may in each individual case determine 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. 940.19 or 940.20 (1m), 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) 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.(6) Final order.(a) If legal custody or physical placement is contested, the court shall state in writing why its findings relating to legal

ustody or physical placement are in the best interest of the child.(am) In making an order of joint legal custody, upon the request of one parent the court shall specify major decisions in addition to those specified under s. 767.001 (2m).(b) Notwithstanding s. 767.001 (1s), in making an order of joint legal custody, the court may give one party sole power to make specified decisions, while both parties retain equal rights and responsibilities for other decisions.(c) In making an order of joint legal custody and periods of physical placement, the court may specify one parent as the primary caretaker of the child and one home as the primary home of the child, for the purpose of determining eligibility for aid under s. 49.19 or benefits under ss. 49.141 to 49.161 or for any other purpose the court considers appropriate.(d) No party awarded joint legal custody may take any action inconsistent with any applicable physical placement order, unless the court expressly authorizes that action.(e) In an order of physical placement, the court shall specify the right of each party to the physical control of the child in sufficient detail to enable a party deprived of that control to implement any law providing relief for interference with custody or parental rights.(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. 940.19 or 940.20 (1m), 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.(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. 940.19 or 940.20 (1m), 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.(7) Access to records.(a) Except under par. (b) or unless otherwise ordered by the court, access to a child's medical, dental and school records is available to a parent regardless of whether the parent has legal custody of the child.(b) A parent who has been denied periods of physical placement with a child under this section is subject to s. 118.125 (2) (m) with respect to that child's school records, s. 51.30 (5) (bm) with respect to the child's court or treatment records, s. 55.23 with respect to the child's records relating to protective services, and s. 146.835 with respect to the child's patient health care records.(7m) Medical and medical history information.(a) In making an order of legal custody, the court shall order a parent who is not granted legal custody of a child to provide to the court medical and medical history information that is known to the parent. The court shall send the information to the physician or other health care provider with primary responsibility for the treatment and care of the child, as designated by the parent who is granted legal custody of the child, and advise the physician or other health care provider of the identity of the child to whom the information relates. The information provided shall include all of the following:1. The known medical history of the parent providing the information, including specific information about stillbirths or congenital anomalies in the parent's family, and the medical histories, if known, of the parents and siblings of the parent and any sibling of the child who is a child of the parent, except that medical history information need not be provided for a sibling of the child if the parent or other person who is granted legal custody of the child also has legal custody, including joint legal custody, of that sibling.2. A report of any medical examination that the parent providing the information had within one year before the date of the order.(am) The physician or other health care provider designated under par. (a) shall keep the information separate from other records kept by the physician or other health care provider. The information shall be assigned an identification number and maintained under the name of the parent who provided the information to the court. The patient health care records of the child that are kept by the physician or other health care provider shall include a reference to that name and identification number. If the child's patient health care records are transferred to another physician or other health care provider or another health care facility, the records containing the information provided under par. (a) shall be transferred along with the child's patient health care records. Notwithstanding s. 146.819, the information provided under par. (a) need not be maintained by a physician or other health care provider after the child reaches age 18.(b) Notwithstanding ss. 146.81 to 146.835, the information shall be kept confidential, except only as follows:1. The physician or other health care provider with custody of the information, or any other record custodian at the request of the physician or other health care provider, shall have access to the information if, in the professional judgment of the physician or other health care provider, the information may be relevant to the child's medical condition.2. The physician or other health care provider may release only that portion of the information, and only to a person, that the physician or other health care provider determines is relevant to the child's medical condition.(8) Notice in judgment. A judgment which determines the legal custody or physical placement rights of any person to a minor child shall include notification of the contents of s. 948.31. 767.407 Guardian ad litem for minor children.(1) Appointment.(a) The court shall appoint a guardian ad litem for a minor child in any action affecting the family if any of the following conditions exists:1. The court has reason for special concern as to the welfare of a minor child.2. Except as provided in par. (am), the legal custody or physical placement of the child is contested.(am) The court is not required to appoint a guardian ad litem under par. (a) 2. if all of the following apply:1. Legal custody or physical placement is contested in an action to modify legal custody or physical placement under s. 767.451 or 767.481.2. The modification sought would not substantially alter the amount of time that a parent may spend with his or her child.3. The court determines any of the following:a. That the appointment of a guardian ad litem will not assist the court in the determination regarding legal custody or physical placement because the facts or circumstances of the case make the likely determination clear.b. That a party seeks the appointment of a guardian ad litem solely for a tactical purpose, or for the sole purpose of delay, and not for a purpose that is in the best interest of the child.(b) The court may appoint a guardian ad litem for a minor child in any action affecting the family if the child's legal custody or physical placement is stipulated to be with any person or agency other than a parent of the child or, if at the time of the action, the child is in the legal custody of, or physically placed with, any person or agency other than the child's parent by prior order or by stipulation in this or any other action.(c) The attorney responsible for support enforcement under s. 59.53 (6) (a) may request that the court appoint a guardian ad litem to bring an action or motion on behalf of a minor who is a nonmarital child whose paternity has not been acknowledged under s. 767.805 (1) or a substantially similar law of another state or adjudicated for the purpose of determining the paternity of the child, and the court shall appoint a guardian ad litem, if any of the following applies:1. Aid is provided under s. 48.57 (3m) or (3n), 48.645, 49.19, or 49.45 on behalf of the child, or benefits are provided to the child's custodial parent under ss. 49.141 to 49.161, but the state and its delegate under s. 49.22 (7) are barred by a statute of limitations from commencing an action under s. 767.80 on behalf of the child.2. An application for legal services has been filed with the child support program under s. 49.22 on behalf of the child, but the state and its delegate under s. 49.22 (7) are barred by a statute of limitations from commencing an action under s. 767.80 on behalf of the child.(d) A guardian ad litem appointed under par. (c) shall bring an action or motion for the determination of the child's paternity if the guardian ad litem determines that the determination of the child's paternity is in the child's best interest.(e) Nothing in this subsection prohibits the court from making a temporary order under s. 767.225 that concerns the child before a guardian ad litem is appointed or before the guardian ad litem has made a recommendation to the court, if the court determines that the temporary order is in the best interest of the child.(2) Time for appointment. The court shall appoint a guardian ad litem under sub. (1) (a) 1. or (b) whenever the court deems it appropriate. The court shall appoint a guardian ad litem under sub. (1) (a) 2. at the time specified in s. 767.405 (12) (b), unless upon motion by a party or its own motion the court determines that earlier appointment is necessary.(3) Qualifications. The guardian ad litem shall be an attorney admitted to practice in this state. No person who is an interested party in a proceeding, appears as counsel in a proceeding on behalf of any party or is a relative or representative of an interested party may be appointed guardian ad litem in that proceeding.(4) Responsibilities. The guardian ad litem shall be an advocate for the best interests of a minor child as to paternity, legal custody, physical placement, and support. The guardian ad litem shall function independently, in the same manner as an attorney for a party to the action, and shall consider, but shall not be bound by, the wishes of the minor child or the positions of others as to the best interests of the minor child. The guardian ad litem shall consider the factors under s. 767.41 (5) (am), subject to s. 767.41 (5) (bm), and custody studies under s. 767.405 (14). The guardian ad litem shall investigate whether there is evidence that either parent has engaged in interspousal battery, as described in s. 940.19 or 940.20 (1m), or domestic abuse, as defined in s. 813.12 (1) (am), and shall report to the court on the results of the investigation. The guardian ad litem shall review and comment to the court on any mediation agreement and stipulation made under s. 767.405 (12) and on any parenting plan filed under s. 767.41 (1m). Unless 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 under s. 767.41 (5) (am) 2. The guardian ad litem has none of the rights or duties of a general guardian.(4m) Status hearing.(a) Subject to par. (b), at any time after 120 days after a guardian ad litem is appointed under this section, a party may request that the court schedule a status hearing related to the actions taken and work performed by the guardian ad litem in the matter.(b) A party may, not sooner than 120 days after a status hearing under this subsection is held, request that the court schedule another status hearing on the actions taken and work performed by the guardian ad litem in the matter.(5) Termination and extension of appointment. The appointment of a guardian ad litem under sub. (1) terminates upon the entry of the court's final order or upon the termination of any appeal in which the guardian ad litem participates. The guardian ad litem may appeal, may participate in an appeal or may do neither. If an appeal is taken by any party and the guardian ad litem chooses not to participate in that appeal, he or she shall file with the appellate court a statement of reasons for not participating. Irrespective of the guardian ad litem's decision not to participate in an appeal, the appellate court may order the guardian ad litem to participate in the appeal. At any time, the guardian ad litem, any party or the person for whom the appointment is made may request in writing that the court extend or terminate the appointment or reappointment. The court may extend that appointment, or reappoint a guardian ad litem appointed under this section, after the final order or after the termination of the appeal, but the court shall specifically state the scope of the responsibilities of the guardian ad litem during the period of that extension or reappointment.(6) Compensation. The guardian ad litem shall be compensated at a rate that the court determines is reasonable. The court shall order either or both parties to pay all or any part of the compensation of the guardian ad litem. In addition, upon motion by the guardian ad litem, the court shall order either or both parties to pay the fee for an expert witness used by the guardian ad litem, if the guardian ad litem shows that the use of the expert is necessary to assist the guardian ad litem in performing his or her functions or duties under this chapter. If both parties are indigent, the court may direct that the county of venue pay the compensation and fees. If the court orders a county to pay the compensation of the guardian ad litem, the amount ordered may not exceed the compensation paid to private attorneys under s. 977.08 (4m) (b). The court may order a separate judgment for the amount of the reimbursement in favor of the county and against the party or parties responsible for the reimbursement. The court may enforce its orders under this subsection by means of its contempt power.History: Sup. Ct. Order, 50Wis. 2d vii (1971); 1977 c. 105, 299; 1979 c. 32 ss. 50, 92 (4); 1979 c. 196; 1979 c. 352 s. 39; Stats. 19

9 s. 767.045; 1987 a. 355; Sup. Ct. Order, 151 Wis. 2d xxv (1989); 1993 a. 16, 481; 1995 a. 27, 201, 289, 404; 1997 a. 105, 191; 1999 a. 9; 2001 a. 61; 2003 a. 130; 2005 a. 443 s. 25; Stats. 2005 s. 767.407; 2007 a. 20.If both spouses have ability to pay, each should be required to contribute to the payment of the guardian ad litem's fee, with the percentage to be paid by each to be determined in the court's discretion. Tesch v. Tesch, 63 Wis. 2d 320, 217 N.W.2d 647 (1974).When the guardian ad litem's report was timely disclosed to both parties, the trial court did not err in failing to introduce the report during a custody hearing. Allen v. Allen, 78 Wis. 2d 263, 254 N.W.2d 244 (1977).An increase of visitation rights from 24 days to 75 days per year had sufficient impact upon the welfare of the children to require the appointment of a guardian ad litem. Bahr v. Galonski, 80 Wis. 2d 72, 257 N.W.2d 869 (1977).The appointment of a guardian ad litem pursuant to sub. (1) and s. 891.39 (1) (a) is mandated when paternity is questioned and also when there are special concerns. Special concerns arise when a child's welfare is directly at issue, as is the case when an existing family is disrupted. Johnson v. Johnson, 157 Wis. 2d 490, 460 N.W.2d 166 (Ct. App. 1990).A guardian ad litem may not be called as a witness in a custody proceeding. The G.A.L. is to communicate with the court as a lawyer for a party and to present information by presenting evidence. Hollister v. Hollister, 173 Wis. 2d 413, 496 N.W.2d 642 (Ct. App. 1992).A guardian ad litem could act in a separate action involving the child outside of the court of original appointment even though another guardian ad litem had been appointed by the court when the separate action was brought. Interest of Brandon S.S. 179 Wis. 2d 114, 507 N.W.2d 94 (1993).The court's power to appropriate compensation for court-appointed counsel is necessary for the effective operation of the judicial system. In ordering compensation for court-ordered attorneys, a court should abide by the s. 977.08 (4m) rate when it can retain qualified, effective counsel at that rate, but should order compensation at the rate under SCR 81.01 or 81.02 or a higher rate when necessary to secure effective counsel. Friedrich v. Dane County Circuit Ct. 192 Wis. 2d 1, 531 N.W.2d 32 (1995).The denial of a child's request to intervene in a divorce action was correct. The guardian ad litem fulfills the requirement that a child is entitled to representation. Joshua K. v. Nancy K. 201 Wis. 2d 655, 549 N.W.2d 494 (Ct. App. 1996), 94-3420.Quasi-judicial immunity extends to a guardian ad litem's negligent performance in a divorce proceeding. Paige K. B. v. Molepske, 219 Wis. 2d 418, 580 N.W.2d 289 (1998), 96-2620.Under sub. (6), if only one of the parties is indigent, the court may not order the county or the indigent party to pay guardian ad litem fees. The court's only option is to order the non-indigent party to pay. Olmsted v. Circuit Court for Dane County, 2000 WI App 261, 240 Wis. 2d 197, 622 N.W.2d 29, 00-0620.The quasi-judicial immunity of a guardian ad litem described in Paige K.B. applies only to liability for the negligent performance of his or her duties, not as a shield against court-imposed sanctions for failure to obey a court order. Reed v. Luebke, 2003 WI App 207, 267 Wis. 2d 596, 671 N.W.2d 304, 02-2211.The guardian ad litem is an advocate for the child's best interest, not a fact-finder or a consultant for the court. A trial court may decide, in individual cases, to weigh the guardian's recommendation more heavily than the other statutory factors, but the court cannot rewrite the statute to create a fixed hierarchy of factors. Goberville v. Goberville, 2005 WI App 58, 280 Wis. 2d 405, 694 N.W.2d 405, 04-2440.A circuit court may not, when the issue is contested, determine the primary placement of a child without appointing a guardian ad litem for the child. Because the interests affected by the absence of a guardian ad litem are the child's and not the parties', neither parent is empowered to waive a child's right to have its best interests represented and advocated for in a placement proceeding, and the court will decline to address the issue on the basis of either waiver or the doctrine of invited error. State v. Freymiller, 2007 WI App 6, 298 Wis. 2d 333, 727 N.W.2d 334, 05-2460.The "why" behind appointing guardians ad litem for children in divorce proceedings. Podell, 57 MLR 103.