Year: 2012

5 Useful Holiday Tips for Divorced Parents

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    1. If you have a disagreement about placement, look at your divorce decree/marital settlement agreement, and follow it TO THE LETTER.  Do not put yourself at risk of being found in contempt over the holidays. Follow your court ordered agreement and address with your attorney any concerns or violations that happened AFTER the holidays.
    2. Do not speak ill of your ex in front of your children.  Even if your ex dropped off the children 15 minutes late, do not speak negatively of him or her in front of your children. It is not productive for your co-parenting relationship and it has a negative effect on your children
    3. Do not get into a texting/phone war.  If you have issues with your ex regarding placement, send a well thought out e-mail or get on your Our Family Wizard account. Nothing will be resolved through misinterpreted texts, or nasty telephone conversations.
    4. DO allow your children to talk about your ex with you, and speak positively (or at least neutrally) about him or her with the children.  Children can sense when parents are not getting along. For example, if they ask if Santa is coming to Mommy’s house, do not respond by saying “Not a chance. He’s flying over and dropping coal as he goes.” Again, this is NOT productive.
    5. Above all, remember the holidays are about your kids.  Ensure to the best of your ability that you make the holidays positive for your children. Do not dwell on the fact that you were not awarded the overnight you wanted. Instead, maximize your placement by spending quality time, when you do have time with your children.

      6.  

Mediation and Domestic Abuse

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In Wisconsin, mediation is required in all family law cases where there is a dispute regarding placement and/or custody of minor children. The definition of mediation is when the two parties meet outside of the courtroom, with a neutral third party, to work out the contested issues in their case rather than litigate them.

The problem with mediation for a couple where domestic violence is present is that mediation implies that the parties are on a level playing field. When there has been domestic violence in a relationship, the abuser and the victim are not equal, and mediation can be more harmful than helpful. Victim advocates have weighed in on this issue and do not recommend mediation in cases when there has been domestic violence present, because there is a power relationship between the parties which may go unnoticed by the mediator.

Take, for example, a wife (victim) who goes to mediation with her husband (abuser). The husband speaks to the wife calmly and cooperatively in front of the mediator. He asks the wife to please be reasonable and to work with him. In fact, he suggests that they stop using court avenues altogether and meet once a week around the kitchen table to discuss the children’s placement schedule. To the mediator, the husband seems agreeable and reasonable. However, to the wife, the kitchen table brings up the memory of the last time she was at the kitchen table with her husband, when he threw her on top of it and abused her. Silenced by fear, the wife simply sits there or, out of fear, gets up and leaves the mediation. In this example, it is likely that the mediator’s notes would categorize the wife as disagreeable or unable to work on the issues reasonably while the husband is found to be agreeable and cooperative. Knowing the domestic violence present in this example, we know that the mediator’s notes are incorrect but there is nothing to do after the mediation is concluded to change the mediator’s conclusion.

The court is allowed to make an exception for mediation if it would endanger the health or safety of one of the parties. Therefore, it is important for an abuse victim to raise this issue before the court. The court may, either with or without a hearing, agree to then waive mediation.

Definitive evidence of potential harm is the existence of a domestic abuse injunction. If a victim files an injunction against the abuser, this is compelling evidence upon which the court can waive mediation. The reality, though, is that many victims do not file injunctions for a number of reasons. An injunction is not required to waive mediation, however. If you do not have an injunction but still are fearful for your safety, you should inform the court so as to avoid this situation entirely.

Therefore, if you are a victim of domestic violence, either with or without an injunction legally protecting you, we recommend that you inform the people who can best help you going forward in your court case. This includes, but is not limited to: your attorney, the Guardian ad Litem, the mediator and the social worker.

-Madeleine Thompson-Davies

Tips for a Better Co-parenting Relationship After Divorce

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For couples with children, divorce does not end a relationship but instead changes its focus. Although they no longer relate to one another in the context of marriage, in order to provide the best possible care for their children, divorced parents must learn to forge a new relationship as co-parents. The following tips may help smooth the transition for divorcing parents and help them provide a stable, healthy environment for their children.

 

Foster mutual respect

 

Particularly in the immediate aftermath of a painful breakup, when divorced spouses may still be dealing with strong and difficult feelings toward one another, co-parenting can seem like a daunting task. However, regardless of what your feelings may be toward your ex, kids need a strong and loving relationship with both parents. Therefore, it is important to promote and encourage a strong relationship between your children and the other parent. Resist the urge to be competitive, and take care not to vent your frustrations or speak disparagingly of your ex in front of your children.

 

Communicate

 

Another important part of a successful co-parenting relationship after djivorce  is keeping the lines of communication open between yourself and the other parent. Communicating frequently and openly will help both parents stay in the loop about the children and help create continuity between households. In addition, regular communication between co-parents helps nip misunderstandings and miscommunications in the bud, preventing them from growing into larger conflicts that may be disruptive to parents and children alike.

 

It can be helpful to set regular times to touch base with a co-parent about things like school, homework, scheduling, holiday plans and health issues. If speaking face to face is too difficult, particularly at first, try touching base by phone, email or instant messaging. With time and patience, collaborating with your ex on parenting issues will most likely become easier.  See our blog on using Our Family Wizard as an effective tool.

 

Establish boundaries

 

As important as communication is for successful co-parenting, it is just as important for you and your ex to establish reasonable boundaries and show respect for one another’s privacy. Tempting as it may be, avoid grilling your kids for details about your ex’s personal life after divorce.  Also resist the urge to micromanage or criticize your ex’s parenting skills — even when he or she does things in a way that you would not choose. If you make an effort to choose your battles and keep things in perspective, your ex-spouse will be more willing to extend you the same courtesy.

 

Minimize conflict during the divorce process

 

Couples with children and others who wish to minimize the negative impact of divorce often benefit from a process known as collaborative divorce . Unlike traditional divorce litigation, which is fundamentally adversarial, collaborative divorce is based on cooperation and communication between the spouses, with a shared goal of reaching a mutually agreeable outcome. At the beginning of the collaborative divorce process, both spouses sign a contract that states they agree to resolve the divorce without resorting to litigation.

 

For couples who are interested in collaborative divorce but are not necessarily ready to sign a contract, cooperative divorce offers a similar solution. The process of cooperative divorce is essentially the same as collaborative divorce, except that the spouses retain the option of going to court as a last resort.

 

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

Our Family Wizard: A Tool for Productive Communication Between Parents

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While it is certainly the goal for parents to communicate amicably during or following a divorce, that is often not the case. Tools like Our Family Wizard (“OFW”) help accomplish productive communication, even when parties are unable to have effective communication directly. OFW is a user friendly program, available through a website (listed below), where parents pay $99.00 for a year subscription to the program, and then are able to set up their private communication webspace.

OFW has an “information bank” where parents can keep current on their child’s medical records and school records. The “message board” is a place where parents can type messages directly to each other to inform the other parent about activities the children may have, or placement schedules. Reminders may also be set on this program so that parents are notified of important events that are scheduled through OFW. Parents may also create an expense log on OFW, which can be used for example, to avoid the hassle of calling the other parent every time a bill is incurred that is court ordered to be split.

If you have an attorney, or there is a Guardian ad Litem appointed to your case, either of them may also view this communication. This is great for attorneys and Guardian ad Litem’s because it eliminates the “he said/she said” battle that often occurs in divorce cases, and holds each parent responsible for what they enter into the program. Further, the court has access to this information, so both parents are likely to keep all communication appropriate and productive.

More and more, courts are ordering parents to activate OFW accounts in an effort to avoid conflict and enforce healthy communication between parties. Courts typically use OFW as a “third party mediator” for parents who have trouble communicating with one another directly. However, even in less contentious cases, this program is an effective tool in keeping the parents organized and allows parents to resolve their issues on their own. It helps expose to the court parents who are not communicating well, and it highlights parents who are communicating effectively.

Although there are several other ways in which OFW is helpful, the most important, as a family attorney and Guardian ad Litem, is that OFW helps shield children from the divorce. The children have less exposure to argumentative telephone communications and seeing mean e-mails from one parent to another when all communication is done in one place that is password protected and for the parents, attorneys and courts eyes only.

Please check out http://www.ourfamilywizard.com/ofw to get more information about OFW and to find out what the program can do for you and your family as you go through your divorce.

How to Obtain and Enforce a Domestic Abuse Restraining Order in Wisconsin

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The effectiveness of domestic abuse restraining orders is now being questioned after the tragic shooting of Zina Haughton and her co-workers in Brookfield, WI.  Zina, we now know, had obtained a restraining order against her husband several days prior to the incident.  So, what is a restraining order, how do you obtain one and how does it protect you?

In Wisconsin, you may seek two types of restraining orders which are also referred to as injunctions:  harassment or domestic abuse.  Harassment injunctions, which are explained in more detail in another post on this blog, are typically used between parties who are not in a domestic relationship although can be used in those situations as well.  Domestic abuse injunctions are reserved for domestic violence which is defined as physical harm or the threat of physical harm.

The procedure for obtaining an injunction is fairly simple.  You go to the clerk of courts office in the county in which you reside and request an injunction or restraining order.  In Milwaukee County, you will need to go to room 711.  You will be given a fill-in-the-blank form to complete which includes space for the reasons why you want the restraining order.  Although different counties may use different forms, this is an example of a typical Petition for a Temporary Restraining Order.  Make sure you write down every incident you can remember which is consistent with harm or the threat of harm. It doesn’t matter how long ago the incident occurred although a recent “trigger” is usually required.  It may help if you spend some time at home typing or writing up these incidents while you have more time.  You can then simply say “See attached” on the form.

Once you complete your form, you will be taken to see a family court commissioner or judge.  The commissioner or judge will listen to your story.  If he or she feels that there is a reasonable basis to grant you a restraining order, they will award you a temporary restraining order and give you a court date to return for a hearing for a permanent restraining order.  You will then need to serve the person against whom you are seeking the restraining order.  The clerk will direct you to the county sheriff’s office who will do this usually at low or no cost depending on your circumstances.  There is no fee to obtain a domestic abuse restraining order.

The temporary restraining order will remain in effect until the hearing date.  The sheriff who serves the papers will remove the other person from your home.  At the hearing, the other party can show up and contest the granting of the injunction.  In that event, there will need to be a formal hearing and you will need to testify and/or prove your allegations.  If the court commissioner or judge believes your testimony and finds that there are sufficient grounds to grant the injunction, you will be granted a restraining order for up to 4 years.  If the other person doesn’t show up on the hearing date and you have proof that he/she was served, the court will automatically grant you the restraining order.  This is an example of  what the final injunction will look like.

The restraining order is only as good as your enforcement of the restraining order.  You will need to make multiple copies and take them to the police departments of where you live and work.  You may also want to provide a copy to your employer and keep a copy with you at all times!  If the other party violates it, this is a criminal offense and they can be arrested and charged for the violation.  However, if you allow contact or allow the person to come to your home, it may be difficult to prosecute violations later on.  This also sends the wrong message to the abuser.  They may not believe that you are serious or they may believe that they can intimidate or influence you to not enforce the injunction.  It may be difficult to cut ties so abruptly with this person.  Victims also tend to “feel bad” for their abusers by taking such a drastic action.  However, at some point, you need to worry about yourself and/or your children, not the person who has caused you harm.  It is very important to establish from the beginning that you are serious and you will enforce the injunction.

Most people will abide by the injunction and realize the seriousness of the situation.  However, there are some people who will ignore it or attempt to contact you to discuss your “issues”.  Be firm and enforce your restraining order by reporting the contact to the police Doing so once or twice is usually an effective deterrent against future contact or violations.

Unfortunately, there are also individuals who don’t care and will attempt to do you harm anyway, such as in the Zina Haughton case.  If you suspect you are or will be in that situation, it is imperative that you take extra precautions!  For example, stay somewhere safe and unknown to the other party for a period of time.  Or, if you are in the home, change your locks immediately.  Arrange for an escort between your home, work and school, if possible.  Notify your local police to the issues or potential issues.  Make sure you stay alert to your abuser’s presence at all times and if you see him/her, call the police immediately!  This should result in an arrest but, even if they don’t arrest him/her, the police will speak to that person which alerts them to the fact that you do intend to enforce the injunction.

The American Bar Association has published a list of additional things you can do to protect yourself from domestic violence.  Following these tips and suggestions may save your life!

Ultimately, you will need to get on with your life.  However, emotions do tend to cool down after a while and eventually, that person will also want to get on with their life.  You just need to get through that initial period.  If you take every precaution, seek help and enforce your injunction, your chances of staying safe will be much higher.

What is the Mandatory Arrest Law in Wisconsin?

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The tragic shooting of Zina Haughton and her co-workers in Brookfield has highlighted the issue of domestic violence in Wisconsin.  Many people believe that this incident could have been prevented if only the Brown Deer Police Department had complied with the mandatory arrest law in Wisconsin.

What is the mandatory arrest law?  To summarize: in Wisconsin, if an officer has a reasonable basis to believe that domestic violence has occurred or will continue to occur, they MUST arrest the aggressor.  Domestic violence is defined as intentional infliction of physical pain, injury or illness or an act that may cause another person to fear imminent danger of those things.  To obtain a more detailed description of this law, see this checklist which was drafted by the Wisconsin Coalition Against Domestic Violence (WCADV).  The WCADV also publishes a fairly complete overview of state and federal domestic violence law.  To view, click here. 

What happened, then, with Zina Haughton and why was her husband never arrested?  It seems fairly obvious from the news reports that the statutory requirement for a mandatory arrest was met on at least 2 or 3 occasions.  The police department attempts to blame the victim by stating she refused to prosecute or recanted her story later.  This is a common response after reporting domestic violence, many times due to intimidation by the aggressor.  Therefore, the laws are written with this in mind and the decision to arrest is left to the police and prosecution, not the victims.

In our experience with domestic violence, local police departments vary greatly in their response and compliance with the mandatory arrest law.  There are instances, such as with this recent Wisconsin case, where clearly an arrest should be made which is not.  There are also instances where the police department strictly and foolishly enforces the law.  This detracts from the overall effectiveness of the law.  An even hand with some common sense should be the rule.  If there is evidence, such as a mark, bruise or scratch, there is no doubt that an arrest should be made regardless of the circumstances, cooperation of the victim or gender of the aggressor.  If there is no mark but the situation is clearly volatile, the police should, at a minimum, ask one party to leave the home for a period of time which they have the authority to do.  This very well may prevent the situation from escalating and/or domestic violence from occurring.

However, sometimes people use the police to try to gain an advantage in an upcoming or pending divorce or to punish their spouse or significant other for wrongdoing.  Police must be wary of this and if there is no evidence of any aggression or domestic violence, then an arrest is not warranted and should not be made.

The Journal Sentinel cites a lack of oversight and enforcement as the primary issue with Wisconsin’s mandatory arrest law.     They correctly point to the fact that police departments are not required to report to any central agency as to whether they are following the law and there is no remedy or consequences to the department if they fail to do so.  Perhaps the solution is to correct this loophole in the law.  Perhaps if the Brown Deer police department had to justify its actions, or lack thereof, Zina Haughton would still be alive.

Contact your legislator to voice your opinion on this issue or contact the WCADV to find out what you can do to help.

If you are a victim of domestic violence, seek help immediately before it is too late!  Contact the WCADV, a shelter, or other help agency. The WCADV publishes a directory of many of the resources available to abuse victims.

You can also seek the advice of an attorney or seek the protection of a restraining order.   To find out how to do this, see our other posting on this topic.

 

Protections against Domestic Violence in Wisconsin

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Recent events have highlighted the issue of domestic violence in Wisconsin.   First, Zina Haughton and her co-workers at the Azana Spa in Brookfield were shot and killed by her estranged husband.  Then, shortly afterwards, a man took his ex-wife hostage and shot at responding police in Waukesha.

Although severe, these are by no means isolated incidents.  Domestic violence is rampant and prevalent everywhere.  The Wisconsin Coalition Against Domestic Violence (WCADV) released a report showing that, in 2010, 58 people were killed in 39 incidents of domestic abuse. These totals were down from 2009, which saw 67 deaths and 57 incidents and marked the highest number of domestic violence homicides a ten years. In 2010, seven individuals killed themselves after taking the life of a current or former intimate partner.

Domestic abuse isn’t just necessarily physical violence, either.  The statutes defines domestic violence as any of the following engaged in by an adult person against his or her spouse or former spouse, against an adult with whom the person resides or formerly resided or against an adult with whom the person has a child in common:

1. Intentional infliction of physical pain, physical injury or illness.

2. Intentional impairment of physical condition.

3. A violation of s. 940.225 (1), (2) or (3) (Sexual abuse)

4. A physical act that may cause the other person reasonably to fear imminent engagement in the conduct described under subd. 1., 2. or 3.

Even though you may not want to believe that your partner or former partner will harm you or your children, the statistics show otherwise.  You must assume the worse when you are a victim of domestic abuse and take all appropriate precautions, including seeking help from the legal system.

There are two main ways to protect yourself against domestic violence through the legal system:  call the police and obtain a domestic abuse restraining order.  In the following blog posts, we discuss each of those options separately.

The American Bar Association has put out a checklist of additional things you can do to protect yourself from domestic violence.  Following these tips and suggestions may save your life! 

How Facebook and Other Social Media Sites Can Negatively Affect Divorce

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Social media makes it extremely easy to find information about other people’s lives. For example, Facebook allows its members to access other peoples’ photos, daily updates, and favorite hobbies, among other things. This is great when you want to see the pictures that your mother put on Facebook of your grandmother’s 70th birthday party, but be wary; people can also see the pictures from those uninhibited nights out that you do not want anyone to see.

While it is true that Wisconsin is a no-fault divorce state, meaning neither party needs to show wrongdoing to get a divorce, there are still consequences for wrongdoings, if there are children involved in the divorce proceedings.  If custody and placement are at issue, reckless photos and “updates” on these sites can be compelling pieces of evidence for the court.  Updates about expensive new purchases or vacations might add fuel to an argument that one party has the ability to pay more in support.

More and more clients are asking us if we can use inappropriate Facebook or Twitter postings and pictures against the opposing party in court. The answer is yes. For example, if we represent a client who has a picture printed from a social media site that the child’s mother does drugs in her home, this can be used as evidence to help show that court that she is unable to provide a safe environment for your child. Pictures and documentation exposing reckless (and illegal) behavior like this can be used in custody and placement arguments.  Even less egregious posts can show bad decision making by a parent or demonstrate a lack of credibility in Court.

All online posts, emails, tweets, texts, etc. can be used as evidence in Court!

It has been said numerous times before, and will be reiterated here: what you post on the internet and on social media sites is NOT private; no matter how strict your privacy settings are. If you choose to post something to a public forum, you forgo the argument about what you intended.

So when it comes to social media sites, remember what your parents used to tell you: if you cannot say anything nice, don’t say anything at all. And also remember the slightly modified lawyers version: If you cannot say anything nice, do NOT put it in writing, and certainly do not put it on a social media site.

How To Enforce Physical Placement in Wisconsin

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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

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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

Wisconsin’s Harassment Restraining Order Explained

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When an ex or other person has intentionally hurt you, caused you physical injury and pain, or has damaged your property, there is hardly a question that court involvement is appropriate, and often necessary. But what if that person is not an ex or a significant other? Or has not actually touched you? Are there any legal protections are available from the court in those instances? The short answer is yes.

In Wisconsin, this type of restraining order to file is called a harassment restraining order. Harassment restraining orders are one of the types of restraining orders available to individuals in Wisconsin. In addition, there are restraining orders for domestic abuse and child abuse.

Individuals are often hesitant to file harassment restraining orders, because the threshold is seemingly unclear. Take a situation where a person continually calls you simply to bother you; when is the threshold met? The legal basis for a harassment injunction in Wisconsin is a pattern of harassing conduct with no legitimate purpose.  What does this mean exactly?  For example, if a person is calling repeatedly or is attempting to harass or intimidate you and doing so serves no legitimate reason, a harassment restraining order may be granted by the court. The individual who files the harassment restraining order must specify (in a petition to the court) each kind of harassing behavior that the offending person has done.

Aside from the above listed conduct, other conduct that constitutes harassment is: (1) striking, showing, kicking, or otherwise subjective another person to physical contact or attempting or threatening to do the same, (2) engaging in an act that would constitute abuse, (3) sexual assault, or (4) stalking. Only one of the five types of conduct must be met to file a harassment restraining order.

The process to obtain a harassment restraining order is typically two-fold: first, the individual will file a petition seeking a temporary restraining order. If the individual filing the restraining order has no money (or is “indigent”), he or she may ask the court to be excused for paying any filing fees. If the individual filing is not indigent, he or she still may ask the court in the initial petition to the court to order the offending person to pay the court and legal fees. Usually you will talk to a court commissioner about your petition.  The court commissioner can either grant you a temporary restraining order, which takes effect immediately, or can simply schedule your petition for a hearing.  Either way, you move on to step two, where the court issues a date for an injunction hearing.   The defending party must then be served notice with this date, usually by the sheriff’s department.

At the hearing, you must testify about your allegations.  You may call other witnesses as well.  Your accuser has the right to respond by testifying or calling witnesses as well.  If the court finds that there are grounds for a permanent restraining order, the standard relief awarded by the court is that the offending person be prohibited from engaging in the specific conduct that constituted harassment, including being prohibited from contacting, or even coming near, the petitioner.

Please note, Wisconsin harassment laws are intended to protect individuals who are being harassed by people outside of their home. If you are experiencing abuse within your home from a spouse or otherwise, the more appropriate order is domestic abuse restraining order. Domestic restraining orders, unlike harassment restraining orders, may carry the punishment of removing the offending person from the home.

For more information about how to obtain restraining orders, please see our website.

 

 

What is the Difference Between Child Custody and Physical Placement?

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As a new family law attorney, part of my challenge has been understanding when and how to use different legal terms involved in family law cases. Two of the terms that stump new attorneys, and clients as well, are “custody” and “physical placement.” Attorneys who have been practicing for some time tend to use the terms interchangeably, but have an internal recognition that they each address something distinctive. While they are often coupled together in legal documents, they are treated as two separate legal terms of art, and addressed in court as such.

In Wisconsin, legal Custody, or “child custody,” regards the right and responsibility of either parent, both parents, or another such person granted legal custody of the child, to make major decisions concerning the child(ren). Such decisions include: where the child goes to school, what religion the child practices, whether or not the child may obtain a driver’s license, or receive healthcare for nonemergency reasons (such as orthodontia). In Wisconsin, there is a presumption of joint legal custody, or shared custody, which is disturbed only if there is evidence that one of the parents should have primary or sole custody. Primary or sole custody is when one parent, typically the parent with primary placement of the child, has the chief decision-making authority for decisions concerning the child. Sole custody is the condition under which only one of the parents has legal custody.

Physical Placement in Wisconsin is the condition under which a party has the right to have a child/children physically placed with that party and has the right and responsibility to make, during that placement, routine daily  decisions regarding the child(ren)’s care, consistent with major decisions made by a person having legal custody. There are a few standard placement schedules (e.g. “50/50 placement”) that parents often work from, but every placement schedule is created on a case-by-case basis, addressing the specific schedules and needs of the parents and children alike.

The most common situation is when the parents agree to the presumption of joint legal custody, but have disagreements over the physical placement schedule of the child(ren). In Wisconsin, if the parents cannot agree on a physical placement schedule, then the court is required to order mediation. Depending on the county your case is in, the first mediation session may be free. If that does not work, the court is then required to appoint a Guardian ad Litem (GAL) who is an attorney appointed to represent the best interests of the child(ren).  He or she conducts an investigation and then makes a recommendation as to what they believe is in the best interest of the child(ren).  Depending on the county, the court may also order a custody study to determine the condition of the child’s home, each parents performance of parental duties and responsibilities relating to the child, and any other matter relevant to the best interest of the child. The court then uses these recommendations, other evidence the parents provide and the wishes of the child to make a determination on placement. The same process is used if the parents cannot agree on who will be awarded legal custody for the child.

If you have any questions regarding legal custody and 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

Easy Access to Child Support Information in Wisconsin

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The Wisconsin Department of Children & Families website has a specific section devoted to Child Support. This portion of the website provides several services and other useful information to help make your child support case more simple. Whether you are the payor, or the recipient of child support, www.childsupport.wisconsin.gov allows you to sign up your case and in doing so, gain permission to view and print your payment history, update your personal information, and print payment coupons.

Along with the ability to manage your own child support case, the website is rich with general information. For example, there is a tab that gives an overview of Wisconsin child support services for parents. In that section you are given the option to watch videos about receiving child support, to read detailed information on financial management and  to explore what case management services are available to you. The website also provides several hyperlinks to forms, brochures and reports that may be relevant in your case.

The website is beneficial not only to parents who are in the middle of child support cases; it is also beneficial for employers. There is a tab for employers that explains how child support affects income, how employers must report child support, and it gives contacts, resources and tools for employers who want to easily stay abreast of their responsibilities in child support cases.

For lawyers, parents, and employers alike this website is useful, easy to navigate and it minimizes the stress a child support case can cause.

Can a Court Deviate from the Child Support Percentage Guidelines in Wisconsin?

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Calculating child support in Wisconsin is typically straightforward. A specific percentage of the payors total monthly income (gross, not net) is taken to support the child or children of whom the payor is obligated to support. When one parent has primary placement of the child (75% or more of the overnights in a year), child support is set at 17% for one child, 25% for two children, 29% for three children, 31% for four children, and 34% for five children or more.

But what happens when there is good reason to deviate from this equation? For example, what happens when a parent has primary placement of their disabled child, and this disability requires special accommodations that are not fairly covered by the typical child support percentage?

Or, the court can also deviate by setting child support lower than the percentage guidelines in certain situations.  For example, what happens when the payor has very low income or the payee has very high income or resources?  Or, when a payor has to incur excessive travel costs to exercise his or her placement with the children?  In these types of situations, the court will sometimes give a credit or reduction of the child support obligations of the payor.

Wisconsin law does provide for deviations in situations such as these. Deviations from the percentage standard may be awarded by the court, if the court finds, after considering a number of factors, the use of the percentage standard is unfair to the child or to any of the parties. The factors the court must consider are laid out in Wis. Stats. 767.511 (1m)(f) and the most typical the court considers in a deviation is the following:-The financial resources of both parents.

  •  The needs of each party in order to support himself or herself at a level equal to or greater than the poverty line (established under 42 USC 9902(2)).
  •  The desirability that the custodian remain in the home as a full-time parent.
  • The cost of child care if the custodian works outside the home, or the value of custodial services performed by the custodian if the custodian remains in the home.
  •  Extraordinary travel expenses incurred by exercising the right to periods of physical placement under the Wisconsin child custody statute
  • The physical, mental and emotional health needs of the child, including any costs for health insurance.
  • The child’s educational needs.

If a court deviates from the statutory standards, the court has to explain its deviation. In the example regarding a physically disabled child with extraordinary needs, a court could order a higher amount of child support due to the physical needs of the child and the costs to accommodate those needs which may exceed the “typical” costs for one child.

The amount of the deviation is solely at the discretion of the court and will be based upon all of the facts and circumstances presented.  If you believe that your child support is unfair and that one of the factors listed above applies to your case, please contact our office at 414-258-1644 to schedule a free initial office consultation or visit our website for more information.

Dividing Personal Property in Divorce

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“What? She gets the cabin AND the big screen TV?!”

 We’ve all heard the stories about nightmarish payouts during celebrity divorces (and Tiger thought that 9 iron to the temple hurt) as well as bitter fights over something as small as silverware. Personal property disputes during a divorce are common. Personal property generally refers to items such as furniture, tools, electronics and other items of value in your home.  Often, people attach much personal sentiment on these types of items of property.   Therefore, it becomes difficult to come to an agreement as to how to divide this property. As you can imagine, the longer the marriage, the more the memories, the tougher this task becomes. So how does it work?  How do you put value on property when the owner’s interpretation is clouded with personal attachment?

 Sometimes divorcing couples can come to an agreement regarding the division of personal property on their own or with some assistance from their respective legal counsel. Oftentimes, however, it becomes necessary to bring in a non-partisan expert who can accurately assess and appraise personal property at the forefront of the dispute. This can be an expensive endeavor (in Wisconsin, most personal property appraisals cost between $500 and $1,500) which yields disappointing results.  The expert who comes in to appraise your personal belongings does not care that the vase on the coffee table is great-grandma’s, nor does the expert care that you spent $8,000 on your home theater system five years ago.  The expert gives a subjective opinion as to the “rummage sale” value to your belongings. Therefore, great-grandma’s vase may only be valued at $20 and your home theatre system may not exceed $250.  Almost always there are values attached to items in a personal property appraisal that you will not agree with. 

 Also, the appraiser will not value every single item in your home.  They do not go through cupboards, drawers or boxes.  They usually will not climb up in your attic or climb over items stuffed into a garage.  They will only appraise visible items of value.  So, to some extent, it is up to you to catch missed items or point out items that you specifically want appraised ahead of time.

 Once the appraiser assigns values to these items, the party who has property of higher value must pay the other one-half of the difference.  However, the court or the other party cannot force you to accept items that you don’t want.  If there are items that neither party wants, the court will simply order that they be sold and the proceeds be divided.  Of course, there are then often issues with who will sell the items, at what price, etc.

 As a result of the above, when it comes to the division of personal property, it is best if the parties can agree how to divide everything.  Only you and your spouse are aware of the sentimental value that is attached to your personal belongings.   Only you and your spouse can reach an agreement that takes everything into consideration and is fair to both of you without going through the hassle, time and expense of an appraisal.

 To speak with an attorney understands all aspects of how personal property is valued or divided, contact us at 414-258-1644 to schedule a free initial office consultation or visit our website for more information.

 

Kids in a Divorce

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The Huffington Post has dedicated an entire section to divorce, which I thought was rather interesting. Huffington Post Divorce.  There are many articles dealing with topics ranging from stories regarding specific divorces to money and relationship advice.  What a great resource for someone going through a divorce!

One of the features was a link to various blogs written on the topic of divorce.  The very first one that jumped out at me was blog written by a 16 year old on the topic of his cheating dad.  (To read blog, click here.)  This is a brutally honest story of how infidelity and an absentee dad has ripped apart this kid’s family.  He says:  “When your parents divorce, all that changes. Especially if infidelity and lies were the foundation of your father leaving. Because how do you make believe everything is fine when the shrapnel is still in your skin?”  Wow!

I have often said that parents don’t give kids enough credit.  Kids are extremely perceptive and they get what is going on.  Often, the parent at fault refuses to acknowledge this and blames the other parent for the anger or estrangement of the child towards them.  You can’t just walk away from your family, especially when infidelity is involved, and expect that everything will be ok.  Kids often hold on to even the smallest grievances.  They certainly aren’t going to ignore and forgive this behavior very easily.

On the other hand, because they are often very aware of what is going on and have their own anger and feelings on the matter, the “wronged” parent does not need to discuss his or her own feelings with their children.  Children have enough to deal with themselves; they don’t need to be burdened with the guilt and anger of their parents too.

If parents would only treat their children as emotionally aware and feeling individuals, I firmly believe a lot of the issues and problems that arise in a divorce with children would be minimized.  Children should know what is going on and why it is happening.  However, you do not need to share your emotional upheaval with your children.  They have enough of their own.  You do not need to enlist them to be on “your side”.  And, you do not need to share with them intimate details or disparge the other parent.  After all, he or she is still their parent and your children love them no matter what.

Kids are people too and the sooner both parents acknowledge that and accept responsibility for their own actions, the less damaging the divorce will be to the children and to their relationship with their parents.

-Teri M Nelson

 

A High School Teacher’s Perspective on Students Surviving a Divorce or Separation

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Nelson & Davis, LLC invited Seth Larson, a high school teacher, as a guest writer on our blog to discuss his experiences with divorce in the classroom.

Divorce is tough. That is obvious. From the heart-wrenching start through the grueling and sometimes ugly process, everybody involved will feel the pain at some point. The only thing worse than going through a divorce, is going through a divorce with children. The effect it can have on your kids education and future can be irrecoverable, but it doesn’t have to be. As a high school teacher and coach of 10 years, I have witnessed students from split families struggle and I have also seen students excel. What it boils down to in the end is finding civility during and after the storm and putting your kids’ best interests ahead of any hostility for your spouse.

Often times we are inundated with stories about the negative affect divorce can have on children, most notably their academic and social well being. Looking back at my many experiences, divorce alone is NOT the reason children struggle. The majority of instances stem from two parents incapable of looking beyond their own personal resentment for one another and depriving their children of the fundamental support they need. I have had meetings with parents where the focus digresses from the student to their own personal issues, sometimes escalating into full-blown arguments. This not only humiliates children, but infuriates them. By focusing on your own agenda, you are trivializing your child’s best interest and pushing them away forcing them to find support in other places. I have also been on the other end of the spectrum where separated or divorced parents enforce consistent guidelines and expectations, giving their children the foundation they need to succeed. Any child who sees consistent structure and support from their parents, divorced or together, are given the opportunity they deserve to excel.

We all know that divorce is sometimes the healthiest and safest option for couples. Too often couples stay together “for the kids” and live in utter misery and resentment, creating an environment more damaging to their children then they realize.   If divorce is the route you are considering, or have already taken, do your kids a favor during this tough time and be adults. They only get one chance at youth, and success, divorce doesn’t take that away…bitterness does.

-Seth Larson, High School Teacher

Can I Obtain Cell Phone Records or Text Messages in a Divorce in Wisconsin?

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When people suspect that their spouse is cheating, they often ask if we can obtain their cell phone records to prove it.

If you are looking for documentation regarding telephone calls, this is readily available via subpoena but meaningless.  A phone call proves nothing.  However, now we are seeing more requests to obtain copies of text messages.  While it seems like this would be a simple task involving a subpoena and a small fee, the truth is that it is nearly impossible to preserve and obtain text messages directly from the carrier.

You may be able to get a log or history of text messaging details (date, time, number) fairly easily. However, most carriers only save the content of text messages for a period of 48-72 hours.  After this time, the text messages are forever purged from the server or database.  The amount of storage required to save every text message sent from every cell phone user prohibits retention of these messages for more than a short period of time.  In order for the carrier to save messages for more than their specified period, they need to be aware of the requirement to preserve the messages.  Every carrier differs in their expectation, but to save messages it requires that an attorney send a preservation letter to the carrier.  This preservation letter informs the carrier that it is necessary for them to retain the messages for greater than a 48-72 hour period.  Most carriers will only “preserve” the messages for two weeks.  If it is necessary to preserve texts for a longer period of time, numerous preservation letters are required.  Some carriers will honor preservation letters sent from an attorney.  Other carriers require a subpoena issued or signed by a judge or court official.  You would have to contact your carrier’s legal department on their requirements for preserving and certifying text messages.

A subpoena of text messages requires a proactive approach which, depending on your reasons for the text messages, may prove to be cost prohibitive or irrelevant.   The question then becomes, why do you want these records?  In Wisconsin, we have a no fault state.  It is completely irrelevant in a divorce that your spouse was cheating in your case.

If you suspect your spouse is cheating, the appropriate response is to confront your spouse and/or get into counseling, either individual or marital, immediately.  If counseling does not work or is not an option, then you need to consider whether you want to file for divorce.  If you file for divorce, you need to accept that Wisconsin is a no fault state and move on to the issues in your case rather than focus on adultery or alleged adultery which is not going to be relevant in your case.  Focus on making sure you that you and your children are protected in your divorce and that you obtain the best possible result for yourself.  Hire an experienced divorce attorney to assist you in this.

To discuss a divorce in Wisconsin, contact our office at 414-258-1644 to scheduled your free initial office consultation or visit our website for more information.

Grandparent Visitation in Wisconsin

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Are you a grandparent who hasn’t been able to see your grandchildren for some reason? Do you have any “rights” to seek visitation from the court?

In Wisconsin, the courts strongly protect the rights of parents to raise their children as they see fit, without outside interference. The statutes do permit grandparents, or those who have had a “parent-like” relationship with the child, to petition the court for visitation. This is only true, however, if there is an action affecting the family (divorce, legal separation, paternity) pending.

If there is no action pending and the parents are still married, grandparents are not allowed to petition the court for visitation. Unless the parents are unfit or incompetent, there is no recourse for grandparents who want to see their grandchildren. In those instances, your best course of action as a grandparent is to repair or attempt to repair the circumstances which led to the breakdown in your relationship with your child or grandchild in the first place.

This protection of parental rights carries through to an action for divorce or legal separation where the standard for grandparent visitation is a bit different than a situation where the parents where never married. The statute simply states that visitation can be granted if it is in the best interests of the child. However, there is no definition or qualifying standards to determine what that means. This gives the court very broad discretion in those instances. The US Supreme Court has ruled, however, that courts must apply a presumption that a fit parent’s decision regarding non-parental visitation is in the best interest of the child. The Wisconsin courts have upheld this presumption. What that means is that if both parents (married or formerly married) have refused to allow grandparent visitation, it is going to be difficult to ask the court to interfere with that decision.

In a divorce, the courts usually find that grandparents should see the children during their own child’s placement time. Parents have little enough time with their children when their time is already divided between two people. The courts are going to be very reluctant to divide the time three ways. If the relationship between the parent and the grandparent is broken down to the point where the parent will not allow the grandparents to see the child on his or her own time, the court is going to be reluctant to interfere with that decision based on the above presumption.

However, if a parent is not seeing the child(ren) for some reason, which does not afford the grandparents the opportunity to see their grandchildren, then the court is likely to order some visitation to preserve the child’s relationship with their grandparents.

In a paternity case (where the parents were never married), the courts are much more likely to grant a grandparent visitation. The statute sets forth a different standard. Best interests apply but the statute also allows visitation more broadly in situations where grandparents have had a relationship in the past or have attempted to maintain a relationship in the past but now are prevented from doing so by the parent with legal custody. The court must find, however, the grandparents will not interfere with the custodial decisions of the parent. In the case of the benevolent grandparents who only want to see their grandchildren, this virtually guarantees some kind of visitation.

The difficulty comes in when you have interfering grandparents or grandparents who have attempted to control or take over parental decisions. In those instances, the court may be reluctant to give grandparents the opportunity to interfere or damage the parental relationship with the child which it protects above all else.

If you are a grandparent seeking visitation with your grandchild or grandchildren, make sure that you do not attempt to interfere with the relationship between parent and child. Keep in mind that you do not have any “rights” over your grandchildren except to have a relationship with them. Your actions are going to be scrutinized by the court to determine whether visitation with you is in the best interest of the child(ren). If you cause problems or take actions which can be interpreted to be contrary to parental decisions, you very well may be giving the court just cause to deny visitation. You should consult with an experienced family law attorney to determine if you have a basis to petition the court for visitation and what actions you should take which would lead to the best chance of success in your case.

If you have any questions about grandparent visitation and would like to meet with one of our lawyers for a free initial office consultation, please call us at 414-258-1644. You can also visit our website for more information.

What is Important to Know About Any Divorce Lawyer You Think of Hiring

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Of all the things you have to consider about different divorce lawyers you meet with or are referred to, one of the issues you should definitely weigh is whether or not they have trial experience. Although it might seem as if all divorce proceedings are more or less the same, few things could be further from the truth. In fact, things become very different for a divorce lawyer when it’s no longer a matter of simply negotiating and it’s time to present your case in front of a judge.

Once that step is taken, a number of different things can happen that change the divorce from a legal and practical standpoint:

In court, issues surrounding the divorce can become heated. Often, a divorce only ends up in trial because the parties involved have been unable to negotiate an arrangement that everyone considers to be equitable and reasonable. At that point, face-to-face exchanges and back-and-forth arguments can become more prevalent, making it more difficult to achieve any real progress or find a resolution.

When that happens, a good divorce attorney will help you calm down, manage the situation, and keep working toward the issues you have identified as your biggest priorities.

An experienced divorce attorney will be able to better work with different judges and tactics. Every court case is affected by the different personalities involved, and it’s no different with the legal side of the divorce. Knowing a bit about the judges, other attorneys, and tactics that come up in court – and how they are likely to play out – can be an enormous advantage.

Having a divorce lawyer who is experienced in the courtroom can give you the edge in a situation where the outcome is incredibly important.

Your divorce attorney might suggest that you keep your case out of court. There are some situations where your best course of action is simply to avoid taking your divorce to court altogether and finding other ways to reach an agreement. When you have a divorce attorney who is experienced in a variety of different situations, including trial, they can help you spot the opportunities to protect your interests, as well as the best times to pursue different avenues.

In other words, a great divorce attorney won’t put you into a fight you can’t win, and will advise you well in advance of what your reasonable options are to prevent you from the bigger losses that might come during a trial.

Once divorce proceedings move into court, everything changes and the dynamic of the case becomes entirely different. That can be an opportunity for you to protect your money and interests, or it could mean that things are going in the wrong direction, depending on your situation and the quality of your legal representation. Remember that, and be sure to ask about a divorce attorney’s trial experience before you entrust a big portion of your future with them.

Do you need an experienced divorce attorney to stand up for you in negotiations with your spouse? Contact us at 414-258-1644 or visit our website for further information.