Deployed Parents and Children’s Custody and Placement Arrangements in Wisconsin

As of March 11, 2022, a new law in Wisconsin called the “Uniform Deployed Parents Custody and Visitation Act” expands parents’ ability to delegate custody and placement responsibilities for a child when one parent is deployed in military service. The deploying parent must notify the other parent of the upcoming deployment. A documented exchange of plans outlining how each parent plans to fulfill their custody and placement responsibilities during the deployment is required to be made if the parents do not reside in the same household.

Frequently, the deployed parent requests that his or her placement time be awarded to a third party such as a step-parent or a grandparent.  However, in that event, both parties must agree in a signed, written agreement, to give temporary custody and/or placement responsibilities to a nonparent during a parent’s deployment. The individual who accepts temporary custody or placement must also agree to the specific arrangements in writing. The parents’ agreement should include the frequency and method of contact between the deploying parent and the child or children. If more than two individuals are given legal custody rights, a process to resolve any custodial disputes should be included in the written agreement.

In some situations, parents may not agree as to what, if any, temporary custody or placement arrangements should be made when facing a parent’s deployment. In that situation, the law allows either parent to  file a motion to address the issues of temporary custody and placement during a deployment. It does not matter if there is not an existing family case such as divorce or paternity that addresses custody and placement. A new case may be created with the court to make these temporary orders. It is also possible that temporary child support may be set up during the parent’s absence. In addressing these issues, the court must also make clear that the custody and placement arrangement made for the nonparent is only temporary. A process to end this authority, whether by stipulation from all parties, or the end of the deployment, should also be ordered by the Court.

These new legal changes are intended to provide helpful options to families wherein a parent faces deployment. The Court will certainly be taking into consideration the best interest of the children involved, and hopefully minimize any disruption to the relationship between the children and the deployed parent. If you have questions, or concerns, regarding how this new law may affect you in your family law matter, please call us at (414) 258-1644 to schedule a free initial consultation to discuss your case.

Stipulations or Partial Agreements Entered Before Divorce or Legal Separation Judgments in Wisconsin

In Wisconsin,  2021 Wisconsin Act 204 has been signed into law which changes how the courts may enter initial orders regarding custody, placement, and child support for minor children, maintenance, property division, or other related matters. This new law is now incorporated into the Wisconsin Statutes as §767.333. Starting March 20, 2022, a Court may approve as a final order (referred to as an “initial” order in the statute) a stipulation, or partial agreement, regarding custody, placement, child support, maintenance, property division or other related agreements before the judgment of divorce, legal separation, or annulment.

This is important because these agreements will be considered final even if there has not been a judgment of divorce, legal separation, or annulment yet granted. This means that the court would then apply post-judgment statutory standards regarding modification of final orders if a party is requesting a change in the order, even though the underlying divorce, legal separation, or annulment may not be final. Depending on the issues that are agreed upon in the stipulation, this statute notes the specific legal requirements  to address post-judgment motions to modify these final orders.

Because of the finality associated with these types of stipulations, the statute requires that before the court enters the stipulation as a final order of the court, there must be a hearing before the court, on the record, where the court confirms that the parties understand the terms of the stipulation, and the Court also ensures that the parties intend for the stipulation to be considered final. It is helpful to note that this hearing must be held with both parties present, either physically present, or attending by phone, video, or electronic means, to enter these stipulations as final orders.

This change in the statute is very important in cases involving custody and placement issues for minor children. Often, parties are unaware that their initial agreements, incorporated into the Judgment of Divorce, Legal Separation, or Annulment, cannot be modified within two years of that judgment unless that party requesting the modification can prove, with substantial evidence, that not making that change to custody or placement would be physically or emotionally harmful to the best interest of the child or children. After two years from that initial judgment, a party requesting a modification must show a substantial change of circumstances since the last order affecting placement or custody. Given these requirements, it is much more difficult to change custody and placement within that two-year timeframe.

For example, if it takes an additional six months for the Court to issue a final judgment of divorce because there were issues that had to be determined in a trial, but the Court entered a stipulation regarding custody and placement as final orders in the middle of the case under the new statute, then as of the date of divorce, the parties would already be six months into that two-year timeframe.

This can also mean that Partial Agreements regarding property division or other financial matters become final and cannot be changed after the court approves that Agreement.  This is sometimes disadvantageous if a divorce is not yet finalized because circumstances can change.  You may or may not want to lock in a financial agreement prior to the final divorce judgment.  In either case, it important to be aware of what the consequences of entering into that Partial Agreement.

Given the change in the law, it is important to understand what you are agreeing to before entering a stipulation, or a Partial Marital Settlement Agreement, in your divorce, legal separation, or annulment matter. It is important to know what such stipulations may mean, if they are final, and what finality means if something changes after entering these stipulations. If you have questions, or concerns, regarding how this new law may affect you in your family law matter, please call Nelson, Krueger & Millenbach, LLC at (414) 258-1644 to schedule a free initial consultation to discuss your case.

Can Third Parties Use A Parent’s Placement Time?

Stepparents, grandparents, aunts, and uncles are third parties who play pivotal roles in children’s lives – but does that mean that they can exercise placement time?  The short answer is no.  Physical placement is defined in Wisconsin as the time period in which a parent has their child with them under their care.  Since third parties are not parents, they cannot exercise placement or be your substitute during that time, even if they are a third party who is near and dear to your child.

But most of the time, third parties can babysit and spend meaningful time with your child.  So where do the courts draw the line?  Courts want to ensure that when a child is left alone with a third party, it is for no longer than a few hours without one of the parents exercising their placement time.  For example, it is generally acceptable to ask a family member to babysit your child for a few hours, or even a day, during your placement time when you are working.  On the other hand, it is generally unacceptable to leave your child with that same family member for a days or weeks or let them “use your placement time” so that you can go on vacation or move to a different state.  Doing so may be grounds for a petition to enforce placement action or even a modification of placement motion.

The courts provide a remedy for times when a parent isn’t fully exercising their placement and is having someone else exercise placement for them.  Wisconsin statutes provide that a court can modify a physical placement order if it finds that a parent has “repeatedly and unreasonably failed to exercise periods of physical placement.”  This is sometimes called the “use it or lose it” statute.  Not exercising your placement time could be grounds for the other parent to modify a placement schedule in their favor.

 If you are in a situation where a third party is exercising placement time of your child, please give us a call Nelson, Krueger & Millenbach at (414) 258-1644 to schedule a free initial consultation.

COVID VACCINE FOR CHILDREN AND DIVORCE

It’s safe to say that the COVID-19 pandemic has caused significant problems in many ways – but what about in the legal field?   The pandemic has raised a series of questions relating to family law: specifically, custodial decisions.  Parents are facing unique challenges in making the important decisions in their children’s lives such as whether to mask, virtual or in-person schooling, and most importantly, whether to administer the COVID vaccine to their children. This is further complicated if the parents are divorced.

The CDC recommends that everyone who is five years and older receives the COVID-19 vaccine.  However, some parents share different views over the safety, efficacy, and necessity of the vaccine.  What further complicates this issue is that vaccine administration is considered a custodial decision.  Sole legal custody means that one parent has the authority to make major decisions in a child’s life.  Joint legal custody means that both parents are required to make those major decisions together.  Sometimes, two parents may share joint custody but with one parent having final decision-making authority on certain issues, such as medical treatment.  But if the parents share equal medical decision-making authority, both parents have an equal say in whether their child should be vaccinated.

So how can parents resolve this problem?  As always, the ideal is compromise.   Both parents can sit down and understand why the other is for or against vaccinating their child.  Maybe one parent is not comfortable with the vaccine because the child is young, and they can agree that the child receives it when they reach a certain age.  If this doesn’t work, mediation can be a cheaper, timelier, and more efficient avenue for the parties than going to court.  Compromise may also be the most beneficial option for a child’s health, safety, and well-being.

The last case scenario for parents is filing a petition to modify legal custody with the court – however, it is rare for a judge to rule on whether a child should or should not get a vaccination.  In this type of proceeding, a judge may consider factors such as whether the parties have agreed on medical decisions in the past, the child’s pediatrician’s recommendations, whether the parents have allowed their child to receive other vaccinations, and how their schooling would be affected by vaccination.  Ultimately, it’s best for the parents to figure out the decision among themselves and put aside personal beliefs to do what’s best for their child.

Wisconsin Passes New Law Allowing for Contingent Placement Orders

In the past, the courts in Wisconsin have found that orders based upon contingent events – meaning future events which have not yet occurred – were unenforceable as a matter of public policy.  However, under the newly passed 2021 Wisconsin Act 20, the courts are now allowed to enter, and enforce, placement orders to change based on a contingent, or future, event.  The law states that parties can modify a current placement order by stipulation based on the occurrence of a specified future event that is reasonably certain to occur within two years of entering into the agreement.  Previously, placement could not change in an agreement based upon a future event.

For instance, both parties can be reasonably certain that a four-year-old child will enter kindergarten within two years of coming to a placement agreement.  The parties can now agree that their placement schedule will change when that event occurs.  Parties can stipulate to something like one party having primary placement until the child enters kindergarten.   

Note that the act only applies to contingent events and not behaviors.  Specifically, the act states that parties can’t stipulate to contingent behaviors like a parent entering an anger management course, receiving drug or alcohol treatment or therapy, or incarceration. This means that the parties can’t assume that one parent is going to change their behavior and stipulate to changing their placement order based on successful change.

What does this mean for you?  The Act allows parents and the court to address the foreseeable benchmarks in a child’s life in their stipulation. In turn, this may reduce litigation and may save parents both time and money.  Less litigation may also mean less stress on a child.  However, be wary that this law may be a narrow exception to the general rule against a contingent agreement.  Ultimately, the contingency law permits parties to make great strides in stipulating to anticipated changes in their placement orders.

Do you have any questions about contingent custody and placement?  Contact Nelson, Krueger & Millenbach, LLC at (414) 258-1644 for a free consultation.

Be Careful of What You Post on Social Media During Your Family Law Case

Woman chatting with her boyfriend via smartphone app. She broken heart sitting and crying. Unhappy depressed girl in flat design.

Going through any family law action is an extremely emotional experience that may make you throw your decision-making skills out the window. Recently, we have seen parties release some of these emotions by posting on Social Media (Facebook, Instagram, Twitter, Snapchat, etc.). While social media is a fun way to share your life with your friends or followers, it should not be used to discuss what is going on with your divorce or paternity case.

You should be very careful of what you post on social media during your family law case. Nothing that you post on social media is private and it may be used against you in the legal process. While you may have your account on “lockdown” or “private” that does not always mean that your account is, in fact, private. Friends, family members, or followers can screenshot your account and send your “private” posts to the other party and their attorney.

Below, I am going to discuss some things to ABSOLUTELY NOT POST on your social media accounts during your pending divorce, paternity or post-judgment proceeding.

  1. Anything to do with your legal case.

Remember this is a highly stressful time and you may not be in the clearest state of mind, so what you post, while it may make perfect sense to you, could be taken out of context and could potentially cause you more problems than you intended. Anything that you post on social media can be used against you in your proceeding, no matter how you intended the post to be conveyed.

2. Bad mouthing the other party, making threats and/or using profanity.

You may think that bad mouthing the other party may embarrass them into “giving in” to your wants, but in reality, the court may deem you as abusive, harassing, unreasonable or uncredible. In fact, if you make threats against or negative statements about the other party during the proceeding, that may be grounds for the other party to file a harassment injunction against you.

Threats to judicial officials (Judges/Commissioners), guardian ad litem and opposing counsel, can be criminal felony charges under Wisconsin Statute Section 940.203. Think twice before posting anything that could be construed as a threat to anyone who is involved in your  court proceeding, especially the other party.

3.  Additional income or side jobs.  

If you are in a child support or divorce proceeding and you claim to be unable to pay the other party and you post a picture of your recent trip to Turks & Caicos, the court may infer that you have funds available to pay support, property division payments, or attorney fee contributions. If you claim that you are unable to seek employment for reasons and are unable to pay the other party, please do not post on Facebook that you have an alternative  income stream such as a cash only business. Not only could the court impute an income to you, but the court will make you verify that income and could lead to possible tax implications.

4. Drugs and/or partying.

Posts of you partying or doing drugs may be used against you during your proceeding to show that you are an unfit parent. For example, do not post pictures of you drinking on days that you are scheduled to have placement of your children. This could ultimately lead to you losing placement time of your children and could potentially have other legal ramifications against you.

It may be best to take a break from social media while your case is pending, or to have a neutral party such as a friend review any posts you want to make.

Overall, it is best to take a step back from social media during your legal proceeding, because the consequences of  one negative or questionable post, may outweigh any gratification from making the post.


How to Establish Paternity in Wisconsin (Update)

What is paternity and why is it important? It allows you to be legally involved in the child’s life. It also allows you to be named on the child’s birth certificate. Establishing paternity/parentage allows the parent to gain rights to the child and also gives the parent responsibilities related to the child. Determining parentage gives the parent the right to ask the court for custody (the ability to make decisions for your child, for example, where the child goes to school and where the child can attend church) and to have physical placement such as overnight visits with your child. Along with these rights, the child can receive child support, be added to your health insurance, can receive your social security benefits if you become disabled or die, and can inherit from you.

Wisconsin has two ways to establish paternity: 1) voluntary paternity acknowledgment; and 2) court order.

Voluntary Paternity Acknowledgement

The easiest way to establish paternity, when you are not married, is with the Voluntary Paternity Acknowledgement form. This form can be signed if both the mother and the father are over the age of 18 and both agree that the man is the father. All hospitals in Wisconsin have this form and will notarize it at the hospital. Be aware, this form cannot be used if the child was conceived while the mother was married to another man. This form has to be filed with the State and, if it is not rescinded, there can be significant legal ramifications. We would strongly recommend that you do not sign the Voluntary Paternity Acknowledgement unless you are absolutely sure you are the father! If you are not 100% sure, you should seek legal advice before signing the Acknowledgement.

Court Order

If you are named the possible father of a child and you do not agree, a court hearing will be scheduled. During this hearing, your rights and responsibilities will be explained to you. If you would like genetic testing to determine if you are the parent, this would be the time to ask for it. The child support agency pays for the genetic tests until paternity is established. You may be ordered to pay for the tests if the tests show that you are the parent. If you are not determined to be the parent, you will not be charged for the tests. You have the right to object to the test results in court although the current tests are extremely accurate so this would be difficult to do. Under Wisconsin law, the genetic test must show a 99% or greater probability of paternity in order to be presumed the father.

If the mother is married at the time the child is born, the husband is presumed to be the father.  In order to overcome that presumption and adjudicate another man, there are a wide variety of legal steps and  ramifications which are not easily addressed in a blog.  We would encourage you to seek counsel in this situation.

If you are concerned about the paternity of your child or are listed as a possible father in a paternity action, please contact Nelson, Krueger and Millenbach, LLC, for a free consultation to discuss your case with an experienced family law attorney.

Guidelines for Parents Who Are Sharing Custody of Children During the COVID19 Pandemic

The American Academy of Matrimonial Lawyers (AAML) in conjunction with the Association of Family Conciliatory Courts has put out seven guidelines for parents who are sharing placement of their children during the pandemic. Wonderful advice from the top family lawyers and mental health professionals in the nation.

From the leaders of groups that deal with families in crisis:

Susan Myres, President of American Academy of Matrimonial Lawyers (AAML)
Dr. Matt Sullivan, President of Association of Family and Conciliation Courts (AFCC)
Annette Burns, AAML and Former President of AFCC
Yasmine Mehmet, AAML
Kim Bonuomo, AAML
Nancy Kellman, AAML
Dr. Leslie Drozd, AFCC
Dr. Robin Deutsch, AFCC
Jill Peña, Executive Director of AAML
Peter Salem, Executive Director of AFCC

1. BE HEALTHY.

Comply with all CDC and local and state guidelines and model good behavior for your children with intensive hand washing, wiping down surfaces and other objects that are frequently touched, and maintaining social distancing. This also means BE INFORMED. Stay in touch with the most reliable media sources and avoid the rumor mill on social media.

2. BE MINDFUL.

Be honest about the seriousness of the pandemic but maintain a calm attitude and convey to your children your belief that everything will return to normal in time. Avoid making careless comments in front of the children and exposing them to endless media coverage intended for adults. Don’t leave the news on 24/7, for instance. But, at the same time, encourage your children to ask questions and express their concerns and answer them truthfully at a level that is age-appropriate.

3. BE COMPLIANT with court orders and custody agreements.

As much as possible, try to avoid reinventing the wheel despite the unusual circumstances. The custody agreement or court order exists to prevent endless haggling over the details of timesharing. In some jurisdictions there are even standing orders mandating that, if schools are closed, custody agreements should remain in force as though school were still in session.

4. BE CREATIVE.

At the same time, it would be foolish to expect that nothing will change when people are being advised not to fly and vacation attractions such as amusement parks, museums and entertainment venues are closing all over the US and the world. In addition, some parents will have to work extra hours to help deal with the crisis and other parents may be out of work or working reduced hours for a time. Plans will inevitably have to change. Encourage closeness with the parent who is not going to see the child through shared books, movies, games and FaceTime or Skype.

5. BE TRANSPARENT.

Provide honest information to your co-parent about any suspected or confirmed exposure to the virus, and try to agree on what steps each of you will take to protect the child from exposure. Certainly both parents should be informed at once if the child is exhibiting any possible symptoms of the virus.

6. BE GENEROUS.

Try to provide makeup time to the parent who missed out, if at all possible. Family law judges expect reasonable accommodations when they can be made and will take seriously concerns raised in later filings about parents who are inflexible in highly unusual circumstances.

7. BE UNDERSTANDING.

There is no doubt that the pandemic will pose an economic hardship and lead to lost earnings for many, many parents, both those who are paying child support and those who are receiving child support. The parent who is paying should try to provide something, even if it can’t be the full amount. The parent who is receiving payments should try to be accommodating under these challenging and temporary circumstances.

Adversity can become an opportunity for parents to come together and focus on what is best for the child. For many children, the strange days of the pandemic will leave vivid memories. It’s important for every child to know and remember that both parents did everything they could to explain what was happening and to keep their child safe.

 

Holiday Placement Tips for Parents

The holidays are here at last and we all have one desire: To celebrate with family and friends. Children and adults alike share this interest; however, it doesn’t always come so easy for those who are caught in the middle of a custody and/or placement dispute. Many parents are subject to custody and placement arrangements with their children but it does not always quell the symptoms of co-parenting disputes. If you or someone you know is faced with a holiday placement dispute, there are several things to remember when trying to keep the peace.

First, always be cognizant of the placement schedule set in your court order. It is important to remember that the normal placement schedule and the holiday schedule operate separate from one another. In the case of a holiday placement dispute, the holiday schedule set forth in the court order will always take precedence over the normal placement schedule (unless the parties agree otherwise). If the parties agree to deviate from the court ordered holiday placement schedule, make sure that this is reduced to writing to avoid any future (s)he said/(s)he said” problems.

Unfortunately, even if a court order sets out a specific schedule for holiday placement, that does not necessarily prevent issues from popping up between the parents. One parent may decide to act contrary to the holiday schedule and keep the child from the other parent. In this case, there are a few different options the other parent may have here. Option one would be for the parent being denied placement to keep a journal highlighting each time a dispute or not agreed upon deviation from the schedule arises. This journal should contain detailed notes about what happened on specific dates. This is helpful to provide to your attorney should you decide to take the issue into court. Option two would be to involve law enforcement. The parent being denied placement will need to provide authorities with a copy of the placement schedule proving that the other parent is withholding placement and the schedule should be followed. In most cases, contacting law enforcement should be a last resort unless there is a legitimate threat to the safety of the child.

In most cases, the court order will feature a specific holiday placement schedule; however, what happens when the original court order does not specify a holiday placement schedule? It is understood that courts typically like to see an alternating placement schedule. For example, if mom were to have placement on Christmas day this year, dad would get Christmas day placement next year and the pattern would continue this way. From the perspective of the Court, Christmas Eve is generally seen as a separate holiday from Christmas day. To allude to the previous example, during a year where mom might have Christmas Day placement, dad would likely have placement on Christmas Eve. It is important for both parents to put equal effort into exercising placement schedules that will be most beneficial for their children.

The most important thing to remember is that the children should always come first. The children are most affected in placement disputes so parents should be mindful to keep a positive atmosphere for the children. That being said, all of us at Nelson, Krueger & Millenbach would like to wish you and your family a safe and happy holiday season.

New Grandparent’s Rights Rule in Wisconsin

This spring, in the highly anticipated case, Michels v. Lyons, the Wisconsin Supreme Court changed how the circuit court interprets the Wisconsin grandparent’s rights law. The Wisconsin grandparent’s rights law allows for the circuit court to award visitation to grandparents under certain conditions. This law has been somewhat controversial as the courts must balance the interests of parent’s deemed to be fit making decisions for their children, and the importance of the relationship between grandparents and children. This law applies to paternity and divorce cases where the parents are not married.

In the Michels v. Lyons case, the Wisconsin Supreme Court determined that the Grandparent’s Visitation Statute, Wis. Stat. 767.43, is constitutional which means that grandparents continue to have the right to ask the court to order visitation with their grandchildren. However, in order for the circuit court to award visitation to a grandparent, the grandparent must overcome the court’s presumption that the parent’s visitation decision is in the child’s best interest and prove, with clear and convincing evidence, that the parent’s decision regarding visitation with the grandparents was not in the child’s best interest.

In other words, it is the grandparent’s responsibility to prove to the court, at the highest level of proof required in a civil case, that the parent’s decision (usually to reduce or stop visitation between their child and the child’s grandparent) is not in the child’s best interest. The Court made it more difficult for the courts to substitute what their judgment, or a grandparent’s opinion, of what is in the child’s best interest for visitation for that of a fit parent’s judgment. This can be an uphill battle for a grandparent seeking court ordered visitation.

However, it does not mean that a grandparent cannot succeed in a motion to set grandparent visitation. There has always been an assumption that fit parent’s decisions as to visitation between a child and a grandparent is what is in the child’s best interest. The change is that in a motion for grandparent visitation it is the grandparent’s responsibility to prove that the parent’s decision is not in the child’s best interest. This is a more difficult thing to prove.

There are many fact scenarios where the Court could see that grandparents could be successful. For example, if the minor child has resided with the grandparent for a period of time, or provided care to the minor child on a consistent basis. If a parent decides to cut off all contact between a minor child and a grandparent, especially in such a situation where there is an established relationship in the examples above, it may be appropriate for the circuit court to order visitation in that situation. Grandparents visitation cases may be more common when a parent decides to reside with a grandparent to get back on their feet after the end of a relationship, or during and after a divorce. Depending upon several factors, it may be more likely to see the relationship between a grandparent and grandchild reach a level envisioned by the Court to meet the burden of proof necessary to award court ordered visitation.

This new standard in the grandparent visitation cases places a greater emphasis on fit parents’ decisions regarding visitation between a grandparent and their minor child. However, it still contemplates many situations where there should be visitation ordered by the circuit court when this parental decision can be proven by clear and convincing evidence to not be in the child’s best interest. The Court acknowledges the importance of preserving a relationship between a grandparent and a grandchild.  However, these relationships must be balanced with a fit parent’s decision. If you are involved in a situation regarding grandparent’s visitation, whether you are a grandparent, or a parent, call us at (414) 258-1644 to schedule a free initial consultation to discuss your case.

Child Custody and Moving with a Child (UCCJEA)

 

Due to the high mobility of our society, it is relatively easy for people to move from from one place to another. Sometimes, this move requires a relocation to another state. An important consideration for those contemplating a move is, how might this affect your family law case? If you have a case involving custody or placement/visitation, it is important to consider how moving with a child may impact which jurisdiction is appropriate for modifying and enforcing custody and placement/visitation. Far too often, parents living in different states will attempt to modify or enforce a child custody order without considering that only one court can have jurisdiction to issue a decision. If mom lives in Florida, and dad lives in Washington, which court has the right to render a decision? What if the original order was issued in Wisconsin, but nobody lives there any longer?

To provide clarity with how all 50 states should determine jurisdiction in child custody cases, the National Conference of Commissioners on Uniform State Laws implemented the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Although not all states have adopted the UCCJEA, more than 30 states have enacted their own versions of the UCCJEA. In effect, the UCCJEA specifies which court should decide a child custody case when there is a dispute between two or more jurisdictions.

Before launching into a hypothetical to dissect the UCCJEA a bit further, wewill explain some terms frequently referred to in the UCCJEA which you may not be familiar with. First and foremost is the term “jurisdiction”. What is jurisdiction? In essence, jurisdiction is the power and authority for an entity to make legal decisions and judgments. In the context of the UCCJEA, we are discussing which court has jurisdiction over a child custody matter. Next is the term “home state”. A home state is the state where the child lived with a parent or person acting as a parent for at least 6 months immediately before the custody action was filed. The home state is important, because the UCCJEA directs courts to heavily prioritize home state jurisdiction above other jurisdictional considerations.

When analyzing the UCCJEA and applying it to your case, you may need to ask yourself – what is it I’m trying to do? Are you trying to modify the current orders, or are you trying to enforce them? It may be that you don’t even have the initial orders yet, which means there is nothing to modify or enforce. If this is the case, then you should consult with a family law attorney to determine how, when, and where the initial orders should be decided.

Since most individuals trying to tackle UCCJEA-related issues already have the initial orders,we will focus a hypothetical on modification and enforcement. For those unfamiliar with those terms, “modification” refers to an attempt to change the current orders. “Enforcement” refers to an attempt to enforce, or carry out the current orders without necessarily changing them.

For our hypothetical, let’s say that we have two parents, Harry and Susan, who were divorced in Wisconsin. Harry and Susan had a daughter, and through the divorce the Wisconsin court granted them joint custody and a 50/50 shared equal placement schedule. Two years after the divorce, Susan moves from Wisconsin to New York for a new job, leaving their daughter with Harry. Since Susan lives in New York, and Harry lives in Wisconsin, it is not feasible for them to observe their 50/50 shared equal placement schedule due to the distance. Shortly after she moves, Susan and Harry   begin arguing over where their daughter should live. Eight months after moving to New York, Susan files a modification with a New York court, trying to modify their prior placement order so that she gets 70% of the placement and Harry gets 30%. Harry, not agreeing with Susan’s proposed modification, files his own modification in Wisconsin requesting that he get 70% of the placement and Susan gets 30%. The question is – which court has the authority to make the modification, New York or Wisconsin?

To answer this question, we have to consider several factors. Amongst these factors are (1) who still lives in Wisconsin, (2) where were the most recent orders issued, (3) does the childstill have a “significant” connection with Wisconsin, (4) where is the relevant evidence in the case available, and (5) has there been a waiver of jurisdiction by any courts?

(1) Who still lives in Wisconsin? In our hypothetical, Harry and their daughter still live in Wisconsin. This is the first and possibly the most crucial component to determining which state has jurisdiction under the UCCJEA.

Alternatively, if nobody lived in Wisconsin when Susan filed her modification in New York, it is likely that Wisconsin has lost its exclusive, continuing jurisdiction to modify the order and it’s possible that New York may be the correct jurisdiction for litigating the modification. Or, it would be just as possible that another state has jurisdiction, depending on where the child has been residing.

(2) Where were the most recent orders issued? In our hypothetical, the most recent order was issued in Wisconsin through the divorce. This increases the likelihood that Wisconsin is the correct jurisdiction, because a Wisconsin court issued the last order.

Alternatively, if a Wisconsin court is not the most recent to issue an order, whether or not it is the correct jurisdiction for Harry and Susan’s modification depends on why they were not the most recent court to issue an order.

(3) Does the child still have a “significant” connection with Wisconsin? Since Harry and their daughter still live in Wisconsin, it is presumed that they have a significant connection with Wisconsin through their residency. As such, Wisconsin is likely the proper jurisdiction to hear the modification.

(4) Where is the relevant evidence in the case available? Often, evidence is a crucial factor in determining the outcome. In the family law context, relevant evidence for a modification of placement may include testimony from the child’s doctors, teachers, coaches, childcare providers, or other family members. Although this is not the most important factor in determining the correct jurisdiction, it is a consideration. In our hypothetical, Harry and Susan’s daughter has never lived in any state other than Wisconsin. It is highly likely that relevant evidence will be more readily available in Wisconsin than in New York. These facts support the idea that Wisconsin is the appropriate jurisdiction.

(5) Has there been a waiver of jurisdiction by any courts? Sometimes, a court may determine that it no longer has jurisdiction to hear a matter. Often, this is because none of the parties live in that jurisdiction any longer, and thus their connection with the jurisdiction has been severed. In our hypothetical, the Wisconsin court has not yet waived its jurisdiction. As such, Wisconsin is the proper jurisdiction to hear Harry’s modification.

Due to the facts of the hypothetical, it is likely that Wisconsin retains jurisdiction over the matter, and Harry’s modification filed in Wisconsin will proceed in front of a Wisconsin court. Susan’s modification filed in New York would then be denied for a lack of jurisdiction. Despite this result, it is possible that the New York court may still want to hold one or more hearings on Susan’s modification while jurisdiction is being determined.

Cases where parents live in separate states are complicated for various reasons, and UCCJEA related issues are highly complex and fact specific. If you or a loved one are experiencing legal issues related to the UCCJEA, contact our experienced legal team here at Nelson, Krueger & Millenbach, LLC at (414) 258-1644 for a free consultation.

 

Handling The Holidays When Parents Have Family Law Issues

We have addressed this topic in our blog several times before. However, as the holidays are approaching again, we believe that it is an extremely relevant and important topic which deserves additional attention.

Managing holiday schedules can be cumbersome for any parent. When parents of minor children are facing family law issues or divorce, scheduling family gatherings during the holidays is often more complicated. In divorce, courts focus on the best interests of the children to determine child custody and placement matters. It may be difficult for parents who are at odds with each other to apply that standard in the way that courts do during a contentious divorce. Focusing on the children, however, in making holiday arrangements, instead of focusing on parental disputes, may provide a positive framework for easing strains in scheduling holiday events. Here are some tips parents may use to help keep the peace during the holidays:

Plan ahead – with communication

It is important to make arrangements well in advance of the holidays, while communicating the details with the other parent. Leaving sufficient time to work out disputes, possibly with the help of a lawyer, can help to avoid unwanted consequences. Realize that your attorney may have his or her own family obligations during the holidays. Waiting to the last minute to discuss arrangements with the other parent is likely to produce conflict which cannot be easily resolved.

Follow any court ordered parenting time schedules

While circumstances may change as the holidays approach, any court ordered placement plan should be followed in absence of an alternative agreement. If disputes or deviations from the plan unexpectedly arise, makes notes about what happened to have a record to accurately explain the facts to your lawyer when the holidays are over.

Avoid badmouthing the other parent

Badmouthing the other parent, or allowing the children to speak poorly about the other parent, should always be avoided. Be mindful of the fact that your child will have a continuing relationship with  the other parent. Moreover, your child should not be placed in the middle of your dispute with the other parent. It is important to understand that your child may miss the other parent, and other extended family members, when separated during a holiday. You should support your child during a difficult time. Allowing the child time to connect with the other parent over the phone or through other electronic means can ease tensions.

Keeping positive sends a strong message to children

Spend your parenting time positively with your child to foster a loving environment. Focusing on your child and remaining positive during the holidays can help you to create new memories that your children will cherish.

If you are considering filing for divorce, or expect your spouse to file after the holidays are over, it may be prudent to seek guidance. If you have any questions regarding your family law matter, please contact our office at 414-258-1644 to schedule a free initial office consultation.

New Wisconsin Statute Changes Procedures to Move a Child’s Residence

Governor Walker recently signed into law a Bill that changes the procedures that parents must follow in order to move or relocate with a child when both parents are granted any periods of physical placement. This change went into effect April 5, 2018, and affects any new actions, filed with the Court, requesting to move with a child. The new statute, Section 767.481, Wisconsin Stats., applies to cases that are originally commenced on or after April 5, 2018, or cases in which legal custody or physical placement order is modified on or after April 5, 2018. However, it is still somewhat unclear as to which cases this new statute applies to, and to which cases the previous statute still applies.

The previous move or relocation statute required that a parent seeking to move more than 150 miles or out of state to follow strict guidelines to provide notice to the non-moving parent of the intended move. The new statute requires that a parent seeking to move more than 100 miles from the other parent, regardless of whether or not that move includes crossing state lines, must file a motion with the court and include the following relocation plan:

  1. The date of the proposed relocation.
  2. The municipality and state of the proposed new residence.
  3. The reason for the relocation.
  4. If applicable, a proposed new placement schedule, including placement during the school year, summers, and holidays.
  5. The proposed responsibility and allocation of costs for each parent for transportation of the child between the parties under any proposed new placement schedule.

The new law also outlines how the parent not requesting a move must object to the move, which must be filed no less than 5 days before the initial court hearing. Also, parents are not required to file a motion if the parents already live more than 100 miles apart, however there are provisions requiring written notice in the event of a proposed moved.

The parties will attend an initial hearing within 30 days of the motion regarding the proposed move.  The Court will make a determination as to whether the proposed move is in the best interest of the child, or not. There are certain requirements outlined in the statute for the objecting parent to comply with such as the court may refer the parties to mediation, appoint a guardian ad litem, or set the matter for a further hearing to be held within 60 days of the initial hearing. The court can also temporarily allow the party child to move. The statute also outlines factors that the court shall consider in making a final decision to allow the child to move with the relocating parent at the final hearing.

This new relocation statute has a far reaching effect on how the court will now approach a parent’s request to relocate with minor child.  It is now even more difficult to move with a child out of state.  It is also unclear as to how the courts will interpret this new statute. These new requirements may have a direct effect on whether you, or your child’s other parent may move more than 100 miles away. If you are considering moving your residence with your child’s or believe that your spouse intends to move with your minor child, call us at (414) 258-1644 to schedule a free initial consultation to discuss your case.

 

 

Holiday Tips for Parents Going Through Family Law Matters

Now that the holidays are upon us, we want to remind parents who are going through family law matters of some helpful tips to ensure peaceful holidays for your family:

  1. Do not wait until the actual holiday to confirm plans/details. Be sure that you and the other parent are on the same page well before the actual holiday, so you do not have any conflict.  Keep in mind attorneys take off time over the holidays too so allow plenty of time to be able to contact your attorney, or so that your attorney can contact the other attorney, in order to resolve any disputes.
  2. If you have a disagreement about placement and the holiday is now upon you, follow your court ordered agreement and keep the peace. Take detailed notes of what happened and connect with your attorney about any concerns or violations of the court orders after the holidays.
  3. Unless there is a legitimate safety concern for your children, police contact should be a last resort, especially over the holidays.
  4. Do not speak ill of your ex in front of your children or around your children. This includes not speaking ill of your ex even to other family members at a family gathering while your children are in ear shot, or allow friends or family to make such comments around your children. There is no reason while your children need to hear about your conflict over the holidays.
  5. Do allow your children to talk about their other parent with you. Holidays are difficult for children when parents are separated, especially if this is new to the children. You should, however, support your children if they tell you that they miss their other parent. Consider allowing a phone call or Facetime chat, so that your children can connect with the other parent.  Perhaps in return, your ex will give you the same courtesy when you are not with your children during a holiday.
  6.  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. Maximize your holiday placement time with your children by spending quality time with them creating memories and new traditions.

If you have any questions regarding your family law matter, please contact our office at 414-258-1644 to schedule a free initial office consultation.

Happy Holidays to you!

 

Tips for Divorced Co-Parents Before the School Year Begins

For parents with children, summer is often a time to relax and recharge before another busy school year begins. One of the best things you can do for your children who are traveling between two homes is to use the summer time to work with the other parent to prepare for the upcoming school year.

  1. If you have a different schedule in the summer vs. the school year, be sure to have a clearly defined “school year” placement schedule and “summer” placement schedule in your legal paperwork. That way, both parents know definitively when to switch from one schedule to the other. A suggestion: “the school year will be defined as one (1) week before school begins, not including the first day of school, until one (1) week after school ends, not including the last day of school.”
  2. Depending on how old your children are and how your children are doing in school, discuss strategies for how you will stay on top of homework, studying and assignments at each of the households. While it is great if parents could be on the same page with all of this, many parents who have separated “parent” differently. For example, in one home it may be the rule that all homework must be done right after school before you can play outside, etc. Whereas, in the other home the rule may be that you can play outside right when you get home from school, but you cannot watch any TV after dinner until all of your homework is done. While it would be best to have the children have the same routines at both homes, that may not be achievable. So, it is important that the children at least have the same expectations (i.e. homework must be completed before bed) at both homes and that the parents are committed to be on the same page for that big picture goal.
  3. Make sure that you decide how involved your children will be in extracurricular and/or school-related activities before the school year begins. Many parents in Wisconsin have joint custody, which means you have equal rights to make major legal decisions, including decisions about school, for your children. Therefore, it is important to connect with the other parent before school/activities begin to make sure you are on the same page with how involved or uninvolved your children will be after school and on the weekends. This is particularly important when one parent wishes to sign a child up for a sport that may have practice every day and tournaments/games on weekends. That almost always means that some of the scheduled activities fall over the other parent’s time, which needs to be approved by that parent. By working this all out ahead of time, you protect your children from conflict or from having to be involved in a disagreement between the parents where ultimately one parent becomes the “bad guy” to the children. The “bad guy” is usually the parent who is not in agreement with the activity the child wants to do- even if there are valid reasons for disagreement.
  4. Prepare early on for how you will successfully spare the school staff and coaches from uncomfortable encounters with you and the other parent. For example, if one parent cannot or does not behave appropriately around the other parent, discuss early (and privately) with your children’s teachers that each parent will be scheduling their own parent/teacher conference. If one parent cannot or does not behave appropriately around the other parent at your child’s soccer game, divvy out the games as soon as the schedule comes out and plan to attend only games that the other parent will not be attending. In an ideal situation, ex-spouses will be able to be around each other and behave appropriately for the sake of their children. However, this is not always the case. So, it is important to strategize ways to avoid putting your children or their teachers/coaches in uncomfortable situations.

 

If you wish to speak with an attorney about co-parenting strategies and helpful ways to address these issues in legal documents, please call our office at 414-258-1644 for a free ½ hour consultation with one of our skilled attorneys.

The Role of Guardians ad Litem in Family Court Matters

In family court matters, a Guardian ad Litem (“GAL”) is an attorney who is appointed by the Judge to represent the concept of the “Best Interest of the Child.” This is different and easily confused with “representing the child.” It is important that the GAL provides the child the opportunity to have a voice and make that child’s voice known. However, it is equally as important that the GAL make it clear to the parties and the child that the child does not have the benefit or the burden of making the choice in these matters.

Further (and unlike a mediator), the GAL does not have to remain neutral in a matter. This means that the GAL’s recommendation may align with one parent’s position and not the other parent’s if the independent evaluation and investigation that was conducted by the GAL leads him/her to that position.

The appointed GAL has a duty to be a part of and approve all decisions that impact custody, placement, paternity, support, sharing of variable expenses, tax exemptions, school attendance, therapy, daycare, health care, transportation, extracurricular activities, insurance, uninsured expenses, child support or any other issue which affects the best interests of the child.

While the GAL is expected to advocate for the best interests of the child, the GAL is not expected to be a private investigator, social worker, therapist, etc. As a legal advocate, the GAL may file motions on behalf of the best interest of the child, referring the child or other members of the family to therapy or counseling, or requesting psychological evaluations of the parties and/or the child.

The GAL should convey recommendations to the parties and/or their counsel before court (if possible) and should provide a brief status of the work that is being done on the case at each court appearance.

The GAL should work with the parties to attempt to resolve the issues related to the children outside of court, as there are almost no circumstances where a trial on these issues is in the best interests of the child.

Since Guardians ad Litem are appointed by the Judge on your matter, you often do not have a say as to which GAL is assigned to your case. However, with any GAL it is important to cooperate with his/her investigation, and to present all information and evidence that you believe the GAL must know in order to make a sound recommendation for the best interests of the child.

If you are considering a court action that will eventually involve a Guardian ad Litem or you are in the middle of a court action involving a Guardian ad Litem, please feel free to contact our office at (414) 258-1644 for a free consultation to discuss how to best prepare for and navigate a GAL investigation.

 

Post Judgment Modifications and Enforcement of Court Orders in Wisconsin

 

Change ahead warning sign over blue sky

In Wisconsin, spousal support (maintenance/alimony), child support, custody and placement (visitation) arrangements may be modified at any time under certain circumstances.  Situations can change which may require the court to modify your order. A change in financial circumstances may warrant a modification of child support or maintenance; whereas a physical or emotional change in your children, a change in schedule or a move may warrant a modification of placement.   There may also be times where you need the court’s assistance in enforcing orders.  If you have concerns regarding a modification or enforcement of a court order, the experienced lawyers at Nelson, Krueger & Millenbach, LLC can assist you in evaluating your case and navigate you through the process. Give the a call for your free office consultation.

What changes can warrant a modification?

 There are many situations which may warrant a modification.  The court will look at requests to modify placement and custody differently depending on how long it has been since the original order was made.   When considering a request to modify or change placement the court will look at;

  • Physical or emotional harm to the child
  • Changes in the child(ren)’s behavior and or grades
  • A substance or physical abuse problem
  • Move to a new city or state

When looking at financial modifications (i.e. child support, maintenance or family support), changes in income, job status, graduation of child or placement change may all be reasons to modify an existing order.

What can I do if the other party is not following court orders?

If your ex-spouse is not following the court order, you have options available to you.  Our attorneys are experienced in litigating contempt issues in Milwaukee, Waukesha and the surrounding areas.  There are remedies available to you.  If you are due child support or a medical bill payment, the court can garnish wages or even order jail time for non-compliance.  If placement is being withheld, the law allows for you to be awarded your attorney fees as well as make up time with your child(ren).  Give the attorneys at Nelson, Krueger & Millenbach, LLC a call at 414-258-1644 to set up a free office consultation to see how we can help you in your post-judgment divorce or family law issue.

Post Judgment Considerations for Child Custody, Physical Placement, and Child Support in Wisconsin

          Multi Ethnic People Holding The Word Change

Given the nature of custody, placement, and child support issues, parents can often find themselves going back to Court to request changes, or modifications, to an initial or previous order in their divorce or paternity matter. These matters are often referenced as “post judgment” matters. In Wisconsin, there are specific rules that apply to post judgment matters that are different than what parties may have encountered previously when they originally addressed these issues. The list below outlines some important rules and considerations for parents who may wish to initiate, or are involved in, a post judgment matter for child custody, placement or child support:

  1. When was your initial order entered by the Court?
    1. If a party is requesting a change to custody and placement within 2 years from the date of the original judgment, that party must provide substantial evidence that the change is necessary because the current conditions are physically or emotionally harmful to the best interest of the child. This rule makes a change to custody or placement much more difficult before the first two (2) years after the court’s initial order. The intended goal is to provide a cooling off period to help encourage parties to work together and avoid over using the Court system to settle their parenting disputes as well as provide stability for the children.
    2. If the initial order was entered over two (2) years ago, the Court can modify the current order if it finds that the request is in the child’s best interest, and that there has been a substantial change of circumstances since the last order.

 

  1. What is a “substantial change in circumstances” to change custody or physical placement?
    1. The term, “substantial change in circumstances” is very broad. It could mean a variety of things, such as, the parties’ inability to communicate, a change in work hours that effects a parents availability, a move, a change in a child’s medical or developmental needs, or a combination of several factors that makes the current custodial, or physical placement order unworkable. However, merely the passage of time or the aging of the children is generally not considered to be a substantial change in circumstances.

 

  1. What is the point of court ordered mediation?
    1. The Court requires parties attempt mediation in an effort to facilitate an agreement between the parties to avoid further litigation. Many parties are able to come to an agreement on some, if not all, issues in mediation. This benefits everyone involved because both the parties, and the Court, will save the time and the money necessary to proceed through the Court system. The only exceptions to mediation are if there have been domestic violence between the parties, child abuse allegations or one of the parties is impaired due to drugs, alcohol or mental illness.

 

  1. Why was a Guardian ad Litem appointed?
    1. If the parties cannot reach an agreement in mediation, the statutes require that the Court appoint a Guardian ad Litem (an attorney) in order to help determine what is in the best interest of the child or children. The Court relies on the Guardian ad Litem to conduct an investigation in order to provide a recommendation as to what solution to the parties’ issues is in the best interest of the children.
    2. In certain circumstances, such as in cases of domestic violence, the Court may decide to bypass mediation, and immediately appoint a Guardian ad Litem.
    3. There is usually a fee associated with the appointment of a Guardian ad Litem that both parties must pay. The Court will also set an hourly pay rate for the Guardian ad Litem as well. The county pay rate varies by county.

 

  1. What if I simply want to change the child support amount?
    1. If there has been a substantial change in circumstances, then a party may file a motion with the court to change child support. Child support will not automatically change simply because one parties’ income has changed. If you want child support to be changed, you must file a motion with the court. It is important to determine first whether there has been a substantial change in circumstances and what any new child support amount should be before you file a motion.
    2. A substantial change of circumstances to change child support is a very broad standard. It can mean that a party may have received a raise, changed jobs, lost their job, etc. It could also mean that the placement arrangement with the child or children has changed, which would also alter the support amount. Or, if one of your children has reached the age of majority and/or graduated from high school.
    3. If you believe that the other party has had an increase in income, you should request that they provide to you paystubs or some form of income documentation so that you can determine if you should ask the court for a change in child support.

Common School Related Issues in Divorce and Paternity Cases

Multiethnic Group of Children with Back to School ConceptCustody related school issues: When one parent has sole custody of a child, they do not need the other parent’s permission when making major legal decisions for that child, including school related decisions. However, when parents have joint custody of a child and do not agree on, for example, where a child will go to school, there is now a “school issue” in the case.

The court considers a number of factors when making a decision regarding where a child will go to school if the parents cannot agree on a school, such as: where the child primarily resides, how old the child is, how “rooted” the child is in the current school district, what grade the child is in (will there be a natural break in the child’s schooling anyways that would require a change? i.e. Middle school to high school), the child’s involvement in the school, the child’s social life and how it would be affected, the proposed school placement parent’s ability to care for the child before and after school, and the reason the parent is requesting the school choice change (personal or for the child’s benefit).  The court can also consider the proposed school districts and schools themselves as to how they compare to one another.  While the above is not an exhaustive list of what the court can and will consider, this list includes some of the common considerations. Further, this decision is almost always made with the help of a Guardian ad Litem’s recommendation.

To read more on the factors Guardian ad Litem’s and the court considers when making custodial decisions, such as school choice, please see our blog titled “Custodial Issues Regarding School in Wisconsin” at  https://wisconsinfamilylaw.info/2014/07/24/custodial-issues-regarding-school-in-wisconsin/ .

Money related school issues: Another common set of school issues arise when parents are confused or disagree on how much each parent must contribute to school related costs and fees and what exactly qualifies as a “school related cost and fee.”

School related costs and fees are typically considered “variable expenses,” which are expenses that are above and beyond daily expenses and are, therefore, not covered by guideline child support amounts. Determining the percentage of variable expenses that each parent pays is typically determined by the amount of placement that each parent has.  For example, if you have 50% of the placement of your child each year, you likely will pay 50% of the variable expenses for your child; if you have 35% placement of your child, you will likely pay 35% of the variable expenses for your child, and so on. Of course, there are exceptions to this, but this is the general relationship that variable expenses have with placement.

Tuition, registration fees, graduation fees and school supply costs are some examples of what typically qualifies as a “school related cost and fee.” However, when parties do not define exactly what does and does not qualify, parties may disagree about what specific fees and costs require contribution from the other parent.

Often times, an issue comes up where the parties had previously agreed to send their children to private school during the marriage, but one parent no longer agree to same.  If one parent objects to private school on the basis that he or she cannot afford the tuition costs, the court will usually find in that parent’s favor and not force them to pay expensive tuition that they can no longer afford after a divorce.

It is important to include in your divorce agreement detailed language on what percentage of variable expenses, including school fees and costs, that each parent will pay, and what exactly qualifies as a “school fee and cost” to avoid disagreements related to these school issues in the future.

If you have a school issue in your pre- or post-judgment divorce or paternity matter, it is important that you have an attorney help navigate you through these issues. If you wish to meet with one of the attorneys at our office, please call 414-258-1644 to schedule a free half-hour consultation.

 

Termination of Parental Rights- Frequently Asked Questions

alcoholismWhile our firm does not specifically handle termination of parental rights cases, we frequently are asked questions about this area of law. Therefore, this blog is intended to provide general responses to frequently asked questions regarding what does and does not trigger this type of action in Wisconsin.

It is important to know that in nearly all cases of termination of parental rights in Wisconsin, except in very limited circumstances as discussed below, there must be an accompanying step-parent adoption.  The court does not want to leave a child without two legal parents.  The general philosophy is an indifferent or even bad parent is better than no parent. Your child has inheritance rights and rights to see extended family, even if they seemingly receive no current benefit from their parental relationship.

Here are the answers to some of the specific questions we often receive:

Refusal or failure to pay child support: Frustrated parents who are not receiving child support from the other parent for the benefit of their children will sometimes ask if they can terminate the other parent’s rights to the child. Likewise, parents who are court ordered to pay child support and wish to stop that obligation will ask if they can terminate his/her parental rights to avoid a child support obligation. The answer is no to both of these questions. Refusal or failure to pay child support is not a trigger to this type of action.  The obligation to support your children remains no matter what kind of parent is on the other side.  The court will not allow your child to go without support just because the parent is a bad parent.

Failing to see the child(ren): If one parent is not seeing the child(ren) consistently it may prompt the parent who cares full-time for the child to seek a termination of the other parent’s rights. Generally speaking, however, this cannot happen unless abandonment is proven (failure to see or communicate with the child for longer than six (6) months without good cause) AND there is an accompanying step-parent adoption.  So, the simple fact that a parent is not seeing their child may not be a trigger to this type of action.

“Bad parenting”: The same idea applies here as it does for failing to see the children. Unless there is another parent willing to step in to the child’s life so the child has two legal parents, the court is unwilling to terminate rights due to someone being a “bad parent.” Further, the court does not entertain the idea of terminating a parent’s rights simply because one parent thinks the other parent is not a good parent. If, however, the issue of “bad parenting” is a serious issue (such as the parent committed child abuse) this could be a trigger to a termination of parental rights action.

Some of the grounds that do trigger a termination of parental rights action are mentioned above (i.e. abandonment and abuse). Some other grounds are: failure to assume parental responsibility, incest, sexual assault, homicide or attempted homicide of the other parent and a parent who has a continuing disability.

Like all areas of law, each case has specific and unique facts that may not fall squarely in these general overviews. As such, we suggest that you retain an attorney to help you navigate this most serious of actions.

For additional information about this type of matter, please see our previous blog related to this topic. https://wisconsinfamilylaw.info/2012/10/02/terminating-parental-rights-in-wisconsin/