“If we have joint custody, does that mean either one of us can make decisions?” Family law attorneys hear this question all the time, and it usually means that a parent has stepped, or is about to step, on a landmine. A recent Court of Appeals decision, Marcott vs. Marcott, released February 27, 2014, makes it clear that the answer is “no”.
When Lonnie and Sara Marcott divorced, they agreed to joint custody, and that the children would spend the majority of their time at Sara’s house. Sara and Lonnie lived about 30 miles apart, and when their children started school they attended public school in the town where Sara lived. Shortly before the start of the 2012 school year, Sara moved to another town, slightly farther away from Lonnie’s house, and she enrolled the children in school there. She did not talk to Lonnie about this before changing schools, and Lonnie wasn’t happy when he found out about it.
Lonnie filed a motion with the court, asking that Sara be found in contempt of court for not getting his consent to change schools. The Trial Court and Court of Appeals agreed and found Sara in contempt of court, because she had not recognized Lonnie’s role as joint custodian of the children. The children were sent back to their old school, and Sara was ordered to pay Lonnie’s for the attorney fees and costs he incurred in bringing his contempt motion.
Parents that share joint custody share the right to make major decisions regarding their children, including education, religious training and consent to non-emergency medical care and procedures. Where parents share joint custody, neither party’s legal rights are superior to the other. Joint custody is the “default” setting for Wisconsin divorce cases, meaning that the court is expected to award joint custody unless the parties agree otherwise, or the judge makes specific findings as to why joint custody is not in the best interests of the children.
[While some jurisdictions use the word “custody” to describe which parent has the children at any given time, Wisconsin calls that “placement.” A parent can have joint custody, even if he or she has very little placement time.]
Sara tried to argue that, because her rights were equal to Lonnie’s, she could choose where the children attended school, especially since they had always gone to school where she lived. However, joint custody does not give each parent the power to act independently; instead, it means that they have to work together in making these major decisions. Lonnie was entitled to be involved in the school decision.
Where parents with joint custody cannot agree on a major decision, they are sent to work with a mediator to see if they can iron out their differences. If they cannot, Wisconsin law gives a judge the authority to give one parent the right to make the decision. However, there is a vast body of research that supports the idea that children do best when their parents work together, and the result in Marcott is in line with that research.
Dan Bestul is a Wisconsin divorce and family law attorney practicing primarily in Green and Lafayette Counties. He can be reached by e-mail at bestul@swwilaw.com.