SHARED PHYSICAL PLACEMENT IN DIVORCE

                                                       What does it mean?

                                                                                  by

                                                                 Attorney Richard Mozinski

                  For additional information: link to Radosevich, Mozinski, Cashman & Olson LLP

 

Divorcing parents of minor children are inevitably faced with dividing placement of the children between two households.  This is one of the most challenging issues in a divorce.  There has been a significant evolution in this area of the law in recent years.

 

Traditionally, divorcing parents adopted an arrangement where one parent was given 'primary' placement and the other 'non-primary' or 'secondary' placement.  The placement rights of the 'secondary' parent were also referred to as 'visitation' rights.  Under those traditional placement arrangements, one parent received the majority of the time with the children, while the other was allocated time on alternating weekends, holidays, and for special events.  However, what was once typical is no longer the norm.

 

Society is changing.  In today's world, both parents are usually employed.  This change is now acknowledged by the law.  In addition, the philosophy of child raising after divorce has evolved to recognize the value and importance of active involvement by both parents.  Wisconsin Statutes now dictate that both divorcing parents should have "regularly occurring and meaningful periods" of placement with the children that "maximize the amount of time" the children spend with each parent.  When this standard is applied, it often results in a shared placement arrangement.

 

Wisconsin law directs that placement be in the 'best interests' of the children.  What has changed is that there is now a presumption that the 'best interests' of the children include a more equal sharing of the children's time.  This change occurred in large part due to 'Father's Rights' groups lobbying the Wisconsin legislature.

 

Some believe shared placement automatically means 'shared and equal placement'.  However, 50/50 placement is only one possibility.  Many other time allocations also qualify.  Dividing placement 60/40 is considered shared.  In fact, under changes in Wisconsin's Child Support Law, a placement arrangement of 75/25 can be considered 'shared time', provided the 25% parent has the children overnight.

 

There are a number of factors that must be considered in deciding whether shared physical placement is in the children's best interest and, if so, in what proportion.  Those factors include 1) the pre-divorce history of child-rearing duties; 2) any reasonable life-style changes a parent proposes to be able to spend more time with the children in the future; 3) work schedules and demands of both parties; 4) the age of the children; 5) distance between the parents' houses as well as the distance between each home and the children's school; and 6) the degree of cooperation and communication between the parents.  Many other factors could also be relevant, depending on the case.  Those include the importance of other family members such as grandparents, the children's friends, medical or emotional needs of the children or parents, and the children's wishes.  A child's desire to spend more time with one or the other parent becomes a greater factor as the child grows older.  However, the child does not have the final say until age eighteen.