There are a lot of differing opinions about whether one custodial parent may make a major decision for a child independently and without the involvement and consent of the other custodial parent. The history of joint custody and placement in Wisconsin is an evolving one.

Father to Mother to Equal

In summer 1983, the Marquette Law Review published an article that compared approaches to joint custody and shared parental responsibility in both Wisconsin and Florida. At that time, the definition of joint custody was found in Wis. Stat. section 767.24(1)(b)(1981-82). It provided that:

the court may give the care and custody of such children to the parties jointly if the parties so agree (emphasis added) and if the court finds that a joint custody arrangement would be in the best interest of the child or children. Joint custody under this paragraph means that both parents have equal rights and responsibility to the minor child and neither party’s rights are superior.¹

The statute, however, failed to distinguish between joint legal custody and joint physical custody (i.e., placement).

A whole host of case law did little to clarify consistent application of the statute. The article’s author, Atty. Lewis Kapner, covered the historical context of joint custody, noting that in the 1800s the father was the preferred custodial parent as “head” of the house and “natural” guardian in case of divorce, a preference that continued until the early 20th century in Wisconsin.

By 1921, the Wisconsin Supreme Court deviated from this preference and awarded “permanent custody” to the mother of two young boys, despite both parents being of equal means and capability. Once the courts in Wisconsin abandoned the father preference rule, the pendulum in fact swung the other way, and courts began to favor mothers.

By 1971, the legislature passed Wis. Stat. section 767.24 (previously 1971 Wis. laws 415, 416) that explicitly required equality of parental treatment in the award of custody.

However, as noted above, the statute continued to leave much to be desired as it required both parents to agree to the award of joint custody before the court could award it.²

The 1987 Overhaul: Clarifying Joint Custody

The 1987 Wisconsin Act 355 undertook an overhaul of the child custody statute, after determining that the existing statute “did not adequately stress the importance of the best interest of the child” and “encouraged the use of joint child custody as a bargaining chip by permitting one parent to veto joint custody.”

The resulting statutory changes created independent definitions for "legal custody," "sole legal custody," "joint legal custody," and "physical placement."

Wis. Stat. section 767.001(1) defines joint legal custody as the condition under which both parties share legal custody and neither party's legal custody rights are superior, except with respect to specified decisions as set forth by the court or the parties in the final judgment or order.

One of the highlighted factors required to be taken into account was an analysis of whether the parties would be able to cooperate in the future decision-making envisioned by an award of joint legal custody.

In other words, the point of joint custody is the recognition that parents could (and should) cooperate and agree. Neither party’s rights are superior,³ and for a parent to get a superior right to unilaterally decide a major issue, an exception would need to be “set forth by the court” in the final judgment.⁴

Joint and Equal: Wendt

In January 2020, Samantha and Jacob Wendt filed a joint petition for divorce, ultimately stipulating to joint legal custody and shared placement of their son. They agreed not to award either parent with any superior custodial rights. In their parenting plan they stated they would settle disputes via “open discussion.”

In August 2021, wife filed a contempt motion alleging husband had intentionally violated the divorce judgment by unilaterally enrolling their son in therapy without her knowledge or consent.

Although all parties agreed that the therapy was nonemergency health care – which constituted a “major decision” as identified in section 767.001(2m) – the circuit court ultimately determined that joint legal custody under the statute did give each parent “the opportunity to exercise decisions regarding legal custody” but “does not say both parties have to agree.”

The matter was appealed to the District II Court of Appeals, who reversed and remanded based upon an error of law.⁵

In its summary disposition order,⁶ the Court of Appeals stated that “joint legal custody clearly contemplates and requires cooperative decision-making on ‘major decisions’ – joint and equal decision-making – and refusals to cooperate must be reasonable.”⁷

The court rejected the idea of joint and several decision-making as a matter of law, and determined that circut court's decision was grounded on an “incorrect interpretation of the applicable statutes.”⁸

Wendt Is Correct, and Yet ...

Based upon the history and evolution of joint legal custody in Wisconsin, this author believes the Wendt appeal was a correct statement of law and should be adopted by practitioners.

Nonetheless, while the thought process in Wendt is good, the actual holding is not helpful for practitioners, because it cannot be cited for any reason.

This article was originally published on the State Bar of Wisconsin’s Family Law Section Blog. Visit the State Bar sections or the Family Law Section web pages to learn more about the benefits of section membership.

Endnotes

¹ Prior to 1977, Wisconsin trial courts were statutorily required to award custody to one parent only.

² Further, the court was not obligated to accept the joint custody stipulation of the parents and had to independently satisfy itself that the joint custody proposal would serve the best interests of the child. In re marriage of Abel v. Johnson, 400 N.W.2d 22 (Wis. Ct. App. 1986).

³ And even where a superior right is carved out, the parent with that right has the burden of proving to the court that the other parent’s egregious behavior is inconsistent with that right. In re marriage of Wood v. Dehahn, 214 Wis.2d 221, 571 N.W.2d 186 (Wis. Ct. App.1997).

⁴ See unpublished case In re the finding of contempt In re the marriage of Marcott v. Marcott, 2013 AP 96 (Wis. Ct. App. 2014). “... (T)he divorce judgment granted the parties joint legal custody regarding all major decisions enumerated in Wis. Stat. section 767.001(2m), including choice of school. Stated differently, the judgment of divorce did not exclude [father’s] right as a joint legal custodian to participate equally in the decisions regarding choice of school for the children. Accordingly, under the terms of the judgment of divorce, [mother] and [father] had equal rights in deciding where to send the children to school. Thus, based on [mother’s] own admissions, she intentionally violated that part of the judgment of divorce granting joint legal custody by unilaterally sending the children to a school in the Auburndale school district, with seeking and obtaining [father’s] consent.”

⁵Samantha Pearl Wendt v. Jacob Daniel Wendt, 2022 AP 724 (Wis. Ct. App. 2023).

⁶ Wis. Stat. section 809.21 allows the court to dispose of an appeal summarily on briefs only without oral argument. Further, section 809.22 outlines when a case may be heard without oral argument, including when there is established law or legal authority that is not significantly challenged, or when the arguments are without merit. This summary disposition order was not published and may not be cited as legal precedent, which further supports this author’s opinion that the appellate court’s decision in Wendt was not “new” law, but rather a reiteration of existing precedent.

⁷Wendt, 2022 AP 72, p. 6.

⁸ Wendt, 2022 AP 724, p. 7.