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A weekly feature on proposed changes to state and local law.

In a nutshell

Under current law, in cases of divorce or other family action, a court must determine the legal custody of a child based on the child’s best interest. There is a presumption that joint custody is in the child’s best interest.

The court also must provide for regularly occurring, meaningful periods of time with each parent that maximizes the amount of time the child spends with each parent.

The court may deny periods of time with a parent only if it would endanger the child’s physical, mental or emotional health.

When determining custody and time spent with each parent, the court is required to consider several factors, including the wishes of the child and parents, the relationship between the child and parents, the amount and quality of time that each party has spent with the child in the past, and the child’s adjustment to the home, school, and community.

This bill (AB211) requires the court to presume that it is in the child’s best interest to spend an equal amount of time with each parent, unless the court finds otherwise by clear and convincing evidence.

The bill also makes the geographic separation of the parents an additional factor for the court to consider.

The case for it

Rep. Kathy Bernier, R-Chippewa Falls, said, “the presumption has been skewed toward the mother for many, many years.”

Several years ago, when her son was going through a divorce, “he was put through the mill by a cut-throat attorney” and had to prove he was a fit father to be able to visit his infant child, Bernier said, adding, “I had to go up and prove I was a fit grandmother” so her son could have visits with his child in her home.

The proposed legislation would give “a little more direction” to judges, who would start with the premise that both parents are fit, but would also have access to all other court information, along with the history and background of the parents.

“It’s a fairness issue,” she said, adding that fathers should have the same rights as mothers unless there’s a reason to consider otherwise.

The case against it

“Right now, Wisconsin, like most states, puts the best interest of children first,” said Tony Gibart, public policy coordinator for the Wisconsin Coalition Against Domestic Violence.

“This bill would flip that on its head,” putting parents’ rights to have the child 50 percent of the time first, Gilbert said.

The measure would put blinders on the courts, he said, adding that a court would be able to consider the individual circumstances of a case only if one of the parents challenges the 50-50 standard.

Because it would put victims of domestic violence — who often do not have attorneys representing them in child custody cases — in the position of having to challenge the right of their abuser to 50-50 placement and meet a high burden of proof, many instances of domestic violence and child abuse would not be brought before the court, Gibart said, adding, “It will have a silencing and chilling effect on victims.”

To get involved

To contact your lawmaker about this or any other bill, call the legislative hotline, which is staffed from 8:15 a.m. to 4:45 p.m. weekdays at 608-266-9960 or 800-362-9472. To send an email, go to the Legislature’s website at, select Assembly and follow the link.

— Sandy Cullen


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