Month: September 2012

Wisconsin’s Harassment Restraining Order Explained

nelsonda Restraining Orders , , , , ,

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?

nelsonda Custody and Placement , , , , , , , , ,

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