Month: October 2012

How To Enforce Physical Placement in Wisconsin

nelsonda Custody and Placement , , , ,

When your child’s other parent will not allow you to exercise physical placement that is court ordered, you should file a Petition to Enforce Placement pursuant to Sec. 767.471, Wis. Stats. The requirements are simple: if you can show that you have had one or more periods of physical placement denied by the other parent, that you have had one or more periods of physical placement substantially interfered with by the other parent OR that you have suffered a financial loss due to the other parent interfering or denying you placement, you have grounds to file a motion or petition.

This petition is very effective because it guarantees you a court date within 30 days from the date you file the petition with the court. At the hearing, if the court finds that you have successfully shown one of the three necessary requirements, the court MUST issue an order granting additional periods of physical placement to replace those denied or interfered with, AND must award you a reasonable amount for legal costs and for attorney fees. The court MAY also issue an order specifying the times for placement (if the prior order was silent on this), find the other parent in contempt of court, grant an injunction ordering the other parent to follow the order that is already in place, or may order the other parent to compensate you for any financial loss you suffered due to placement being denied or interfered with.

Essentially, the court will give whatever sanctions and make whatever orders it deems necessary to enforce the court ordered placement schedule.  For the Petition form, click here.

Another option is to file a Motion for Contempt.  However, unlike a Petition to Enforce Placement, the court does not have to hear a Motion for Contempt within 30 days, nor does the court have to grant anything at this motion hearing.  You may want to file a Motion for Contempt if there are other issues you want to address or if you also want to file a Motion to Modify Placement (see below).  That way, all of your issues can be heard at the same time.

Please note: a Petition to Enforce Placement or a Motion for Contempt are not the same as a Motion to Modify Placement. While they are often thought of as similar, they are filed in very different circumstances. A Motion to Modify Placement is filed when you are asking the court to replace a prior placement schedule with a newly proposed schedule based on a substantial change in circumstances. Therefore, if you are looking to restore court awarded placement that has been denied, rather than to have it modified going forward, it is most effective to file a Petition to Enforce Placement. If you are looking to restore AND modify placement in the future, you will want to file both a Motion for Contempt and a Motion to Modify Placement.

If you have any questions regarding enforcement of physical placement, please contact our office at 414-258-1644 to schedule a free initial office consultation or visit our website for more information.

-Madeleine Thompson-Davies

Terminating Parental Rights in Wisconsin

nelsonda Child Support, Custody and Placement , , , ,

As a divorce attorney, I have been asked many times by clients if they can terminate the parental rights of the other parent.  I have also been asked by a parent whether they can voluntarily terminate his or her parental rights.  Usually, this question is posed out of frustration or anger at the other parent.  Or, one of the parents does not want to pay child support so they make this request.

In Wisconsin, the termination of parental rights of only one parent at the request of the other generally cannot happen unless there is an accompanying step-parent adoption.  In other words, the parental rights of a parent cannot be terminated unless there is a new parent ready and willing to step into that role.  Wisconsin’s policy is that a child is entitled to have two legal parents to support them.

And, the willingness of a step-parent to adopt is not enough to trigger a termination of parental rights if the other parent does not agree.  There are necessary grounds to be established for an involuntary termination of parental rights.  For example, the most common ground is abandonment which is defined as a failure to visit or communicate for a period longer than three (3) months, unless good cause is shown as to why the parent failed to visit or communicate (i.e. denial or interference of periods of placement).  Other grounds are failure to assume parental responsibility, abuse, incest, sexual assault, homicide or attempted homicide of the other parent and a parent who has a continuing disability.

Even if all of the above criteria are met, the court must then consider other factors when deciding to terminate parental rights.  These factors include what is in the best interests of the child, the child’s family relationships (i.e. grandparents),  the wishes of the child and whether the child can enter into a new stable family situation as a result of the termination.

Recently, a reader pointed out to us that a termination of parental rights can occur without a step-parent adoption.  While this is true, it is a rare situation where there are usually extreme or exigent circumstances such as when abuse, severe neglect or a serious crime against the custodial parent or child is involved.  Also, if the state is involved, as in where a parent or parents have been deemed to be unfit for an extended period of time, a termination of parental rights is sometimes granted.  These are not typically situations, however, which generally impact upon divorce or family matters.  We are not experts in these other types of cases and, therefore, cannot provide any further information.  If you believe your situation falls under one of these categories, we encourage you to seek the advice of an experienced attorney in that area.

Permanently terminating a parent’s rights to his or her children is a serious and life-changing event for both parent and child.  Frustration with your ex-spouse or an unwillingness to see your children or pay child support is not enough to trigger this most serious of actions.  Under Wisconsin law, the rights of the child are paramount and a child is entitled to two legal parents.  This is true regardless of the feelings of one parent towards the other and regardless if a parent has no interest in the child(ren) and/or does not want to pay child support.

Please see our other blog post on this for additional information:  https://wisconsinfamilylaw.info/2016/07/12/termination-of-parental-rights-frequently-asked-questions

-Teri M Nelson