Month: July 2012

Grandparent Visitation in Wisconsin

nelsonda Custody and Placement , , ,

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

nelsonda General Divorce , , , , ,

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.

Can I Appeal My Divorce Decision in Wisconsin?

nelsonda General Divorce , , , ,

In Wisconsin, a judge entering orders regarding divorce or other family issues has great discretion.  There are statutory guidelines they must follow but there are very few laws that they cannot deviate from for just cause.  Family court is a court of equity which means that the judge is required to enter orders that are fair and equitable to both parties.  This gives the judge wide latitude when making decisions in family cases in Wisconsin.

You always have the right to appeal a decision, which must be done within a certain time period following the entry of order.  The time period varies based on certain factors but, generally, between 45 to 90 days.  In Wisconsin, cases first are heard by the Court of Appeals which consists of a panel of 3 judges in different districts around the state.  An appeal can take up to a year to complete.

However, due to the discretion granted to family court judges in Wisconsin, it is very difficult to win an family law appeal unless the judge made a mistake or entered an order which was clearly erroneous.  The most common mistake that a judge can make is that he or she fails to make sufficient findings which would support his or her decision.  Or, that the judge misunderstood or misapplied the law.

This is rare and even if you win your appeal, the court of appeals cannot substitute its own orders for the circuit judges.  This means that while the appellate court will provide some guidance or direction based on its interpretation of the law regarding the issues, it will simply remand the case, or send it back, to the circuit court to correct its mistake.  Therefore, even if you “win” your appeal, the case is still not over and the results are not guaranteed.  For example, after getting the case back, the judge could enter the same order(s) but with more specific findings.  If the judge clearly made an error, however, you may end up with a different order or findings.

The time and expense of an appeal is rarely worth it on a family case.  Most family law attorneys are unwilling to even appeal a case.  You should consult with your attorney or another attorney who is experienced in appellate work to determine whether your case is likely to succeed on appeal and, if so, what the cost would be.  Based on that, you could then decide if you wish to pursue an appeal.