Custody and Placement

Holiday Tips for Parents Going Through Family Law Matters

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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

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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

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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

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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

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          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

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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

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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/

Wisconsin Supreme Court Resolves Issues Regarding Grandparents and Stepparents Rights

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Grandparents And Granddaughter Walking On Winter BeachUntil recently, Wisconsin case law supported an interpretation of Wis. Stat. § 767.43(1) that required a grandparent, great-grandparent, or stepparent to prove “a parent-like relationship” with the child in order to secure visitation rights. However, the Supreme Court of Wisconsin’s ruling in the recently decided Meister* case made it clear that only a person other than a grandparent, or stepparent filing a motion for visitation must prove “a parent-like relationship.”

The Court, through this decision, eliminated an additional and unintended barrier for grandparents and stepparents who are seeking visitation rights. This change in the interpretation of the law will open the door to more grandparents, great-grandparents and stepparents who wish to seek visitation rights. Regardless of this barrier being eliminated, it does not guarantee that the grandparents or stepparents will prevail. The Court must “consider the constitutional rights of the parents” and “decide, in its sound discretion, whether the facts and circumstances of the case warrant granting, modifying, or denying a visitation petition in the best interest of the child.”

It is important to note that the above applies to children born to married parents. For children of unmarried (and subsequently never married) parents, the visitation statute still requires that a grandparent or stepparent show they have “maintained a relationship with the child or have attempted to maintain a relationship with the child but have been prevented from doing so by a parent who has legal custody of the child.” Again, however, this type of relationship does not have to be “parent-like” in nature.

If you are a grandparent, great-grandparent or stepparent seeking visitation rights of a child, it is important that you have an attorney navigate you through this evolving area of the law. If you wish to speak with an attorney at our office, please call 414-258-1644 for a free ½ hour office consultation.
* In re the Marriage of Meister, Nancy and Jay. 2016 WI 22.

Children Testifying in Custody and Placement Proceedings

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Child Custody BattleIn the family court setting, parents often find themselves disagreeing as to their children’s physical placement going forward. In Wisconsin, the court is required to consider a variety of factors, outlined in the statutes, in order to determine what is in the best interest of the child as part of a custody and placement determination.  One of these factors includes the requirement that the court must consider the wishes of the parties’ children. Most often, those wishes are incorporated in the Guardian ad Litem’s recommendation to the Court. As a result, this often leads to the question of whether the children have a voice, or a choice, in the proceedings, and whether they can meet with the Judge.

There are many concerns with revealing a child’s wishes for placement. It is important to remember that children are not small adults, or always able to know what is in their best interests, regardless of their level of maturity. This is why the Court will appoint a Guardian ad Litem: to determine what is in the best interest of the child. It can be very harmful to children to pressure them into making such a decision, and forcing them to choose between their parents. This also leaves the child vulnerable to retribution or pressure from an unhappy parent. For these reasons, it is extremely unlikely that the Judge will meet with the child, let alone have a child testify in court as to their wishes in a custody and placement proceeding.  In fact, in the combined experience of our firm, we cannot recall the last time this was done in any of our cases, if ever.

Further, it is important to note that children do NOT get to decide where they are going to live or how much time they spend with each parent in Wisconsin.  The court is required to at least hear what their wishes are but there are numerous other statutory factors that the court must consider as well.  Therefore, as a whole, the wishes of a child usually play a minor role, if any, in the decision of the court.   As a result, except in unusual situations, any testimony by a child in a custody or placement proceeding would likely have limited value.  This is why it is almost unheard of to have a child testify in court in these matters.

In Wisconsin, the Court appoints the Guardian ad Litem to conduct an investigation as to what is in the child’s best interest because the Judge does not have the resources to conduct that investigation. The Court also trusts that the Guardian ad Litem will protect the child from being placed in the middle of the parent’s placement and custody dispute. If you find yourself in a contentious custody and placement dispute that you fear your child may be placed in the middle of or if you feel your child’s best interest will not be sufficiently represented in court, call us at (414) 258-1644 to schedule a free initial consultation to discuss your case.

Therapy and Counseling For Children In a Divorce

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Concept for consultation with psychologistIt is very common during, or even after, a divorce that parents and children alike need someone to talk to about their feelings and emotions. As family law attorneys, we understand that a portion of our job will deal with helping clients manage their emotions, however, we are not trained as therapists or counselors. Therefore, we often suggest that families seek outside counseling to handle the emotions of a divorce. Specifically, if children are involved, we urge clients to tend to their children’s emotional needs during the divorce. If meeting the children’s emotional needs in a divorce includes involving them in therapy or counseling (whether by the wishes of one or both parents, by recommendation of the Guardian ad Litem or by order of the court), we offer the following tips:

  1. Present a united front for the children regarding therapy. Often times children are resistant to therapy and see it as a form of “discipline” or that they are being sent because something is “wrong” with them. Therefore, it is important to explain to your children that therapy is not a choice; therapy is a requirement. Like any ailment that requires medical attention or treatment, depression, sadness and anger require the same attention. So, therapy is being required for the children’s health and happiness. Your words as the parents and adults, not the children’s, are the final say on this issue.
  1. That is not to say that you, as parents, should not be compassionate if your children are resistant to therapy. It is important to be understanding, yet consistent with the expectation of attending therapy. One way to do so is to present to the children the positives about therapy (i.e. it is a safe place to discuss feelings) and talk through the negative feelings they have towards therapy.
  1. Do not “grill” the children on what is discussed in therapy. Therapy is intended to be a “safe” forum for children to discuss and work through their feelings about the divorce. They need this therapy to be a safe place and know that what they tell the therapist is confidential.
  1. Do not threaten to “tell” the therapist on the children if they are misbehaving or acting inappropriately. Rather, talk to the children about their behaviors and indicate that it may be helpful to involve the therapist in a productive way to help both the parents and the children look at ways to cohabit better.
  1. Do not blame one parent or the other for the reason the child is in therapy. The children are in therapy to help cope with the emotions that they feel as they go through the divorce process. Remember, this was not their choice to have their parents divorce. So, it is important that the children feel supported by both parents in their therapy.

If one parent objects to the children attending therapy and the court needs to decide this issue, it is almost certain that the court will order the therapy.  Children going through a divorce or contested family law situation can almost always benefit from counseling.  The courts typically err on the side of caution and allow an expert to become involved.  Counselors are generally very honest and will tell the parents when and if counseling is appropriate.  Therefore, objections are generally futile and only portray the objecting parent in a bad light – as someone who does not care about the welfare and well-being of their child.

Just as a therapist is there to help manage counseling needs, an attorney is there to guide you through the legal process. It’s important to direct the right question to the appropriate expert.  When you do have family law-related legal needs, please do not hesitate to call our office at 414-258-1644 to meet with one of our attorneys for a free half-hour consultation.

The Importance of an Appropriate E-mail Address in Family Law Cases

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Envelope and pink email symbol. 3D renderIt has been said that an email is like a “virtual handshake” between two people. It is a way to introduce yourself to someone and it speaks to your professionalism. Therefore, it is important to create an appropriate e-mail address when you begin any legal process if you do not already have one.

In family law cases, your e-mail address is important because it can be used more than just to communicate confidentially to your counsel. You may be ordered to communicate by e-mail to the other party on your case and the e-mails may ultimately be presented in court. This means that the court would have a chance to review the e-mails and your e-mail address.

Below are a few “do not” and “do” tips in regard to e-mail addresses:

DO NOT: set up an e-mail address that insults, incites or patronizes the other party. Creating an e-mail address that does any of the above makes you look foolish, immature and could negatively impact your case. For example, if custody is an issue in your case and your e-mail address insults your ex (the other parent of your child) a Guardian ad Litem or Judge may construe this as the insulting party’s inability to have productive co-parent communication with his/her ex. Also, do not set up an email that negatively reflects upon you such as referring to inappropriate activities.

Examples of inappropriate emails: ihatemyex@emailserver.com
ilovedrinkingandpartying@emailserver.com

DO: set up a personal e-mail address that is your own (i.e. not shared with a new spouse or partner and not your work e-mail address). The easiest way to accomplish this is to make your e-mail address your name, in some form, and to be the only person who uses that account.

If you already have an appropriate email, make sure you change the password at the start of the divorce and there is no way to for your spouse to access same. Email has become the primary form of communication with all parties, including your attorney, in family law cases. It is important to make sure that this form of communication is protected and private.

The takeaway point of this blog is that you understand that your e-mail is likely to be shared and made public during your family law matter. Therefore, it is important to make sure that it is professional and noninflammatory. If you wish to have an attorney help guide you through your family law matter and help you conduct yourself in an appropriate manner throughout your proceedings, please call our office to schedule a free 30 minute initial office consultation to discuss your matter with one of our attorneys.

Divorce from the Child’s Perspective

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Please stop fighting!I recently read an article that discussed divorce from a child’s perspective. Since a significant portion of my caseload is Guardian ad Litem appointments (where I am appointed by the court as the attorney for the child’s best interests), I am frequently tasked with speaking with children whose parents are in the process of divorce or other custody and/or placement disputes. In my work as Guardian ad Litem, I see first-hand what divorce is like from the child’s perspective. As such, it is important as parents going through a divorce, to be mindful of the below requests and thoughts that children wish their parents knew during a divorce:

1. We can love both of you 100%. Just because we love being at dad’s house and love our dad, does not mean that we don’t love you and being at your house mom. This also means that when we miss dad when we are with you, it’s not because we love you any less. Please do not make us feel like we have to choose who we like more or less. Also, please do not make us feel that we cannot share with you that we are enjoying our time with both parents. This is a tough time for us, so please allow us to be happy.

2. We notice when you are civil with one another and appreciate it. We know that you are not getting along well. Otherwise, you would still be together and not going through a divorce. However, the fact that you can still both attend our sporting events and school concerts and be nice to one another for our sakes means a lot to us.

3. We are not informants. Period. When you ask us questions about what happens at mom’s house or about mom’s new boyfriend, we know it is because you want “dirt” on mom. When you put us in a position to be an informant, it will go one of two ways: 1) we will tell you what you want to hear at the expense of being truthful. We are so scared to hurt you that we will say anything to make you feel better about yourself, or 2) we will shut down and not tell you anything because we feel betrayed that you have asked us to be the conduit of information for what happens at mom’s house. Can’t you just respect that it is difficult enough for us to go back-and-forth between two different homes, with two different styles of parenting, much less have to worry that we will be interrogated about the other parent’s house? Either way that we react, our relationship with you becomes less pure when you put us in this investigative position.

4. Do not use us as pawns. We are not chess pieces. Do you really want your children to grow up feeling used, manipulated and duped? This is how we feel when you use us as leverage against the other parent. And if you think we do not know that you do it, you are wrong.

5. Do not overshare. No matter our age, we do not need to know every dirty detail. We may ask you to tell us. In fact, we may beg you to tell us everything and say we want to know why you hate dad and why you filed for divorce. The reality is, however, no matter how awful or hurtful dad’s behavior was to you, you still chose him to be our other parent. So, be careful how much you share with us. If you need to talk to someone, please see a therapist or confide in a close friend. We are children; we are not therapists.

If you are going through a divorce and you have children, it is important that you have an attorney who is sensitive to the needs of your children and encourages you to continually put your children first. If you wish to speak with an attorney at our office, please call us at (414) 258-1644 to schedule a free thirty (30) minute office consultation..

-Attorney Madeleine Olmstead

 

The Domestic Abuse Presumption in Custody Cases

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Drawing shows young girls inner feelings about being abusedUnder Wisconsin law there is a presumption that joint custody is in the best interest of the child. A presumption under the law means that the court will enter that order unless someone shows grounds as to why it should not be ordered. There are typically statutory factors which the court must consider when making that determination. However, the presumption for joint custody does not apply in cases where a court finds the required amount of evidence that a parent has engaged battery or abuse to the other parent.

When a case has a “domestic abuse component,” the law says the court should not award an abusive party joint or sole custody. This presumption may be overcome only if the person found to be the abuser provides evidence of all of the following: 1) evidence of completion of a batterers treatment program, and evidence that he/she is not abusing alcohol or any other drug, and 2) that it is in the best interest of the child for the offending parent to be awarded joint or sole custody taking into account all of the factors that are considered when determining the appropriate custody and physical placement for the child.

In cases where there is evidence that both parties have engaged in domestic abuse, the court will determine who was the “primary physical aggressor.” Whomever is the primary physical aggressor is the parent who will not be awarded joint custody. If the court finds that neither party was the primary physical aggressor, then the domestic abuse presumption does not apply to either parent, and the presumption of joint custody applies again.

If you are the victim of domestic abuse and you are in the middle of family law related legal proceedings, it is imperative that you bring these issues to the court’s attention at your first opportunity. This is particularly important in pre-judgment divorce and pre-judgment paternity proceedings. If you raise the concern at a later date in a post-judgment divorce or post-judgment paternity matter, when an order for joint custody is already in place, and the concern is based on facts that were available to you at the time of the divorce or initial paternity matter, the court may conclude that you have already waived your right to challenge the presumption of joint custody.

To be clear, you may not seek application of the domestic abuse presumption in post-judgment matters based on facts that were available and known to you prior to entering into a joint custody arrangement. However, if new instances of abuse happen after the entry of an order, you may request that the domestic abuse be applied in a future proceeding if the new facts and instances support an application of the domestic abuse presumption and apply the presumption is in the best interest of the children.

If you are accused of domestic abuse or there is a domestic violence injunction has been granted against you, it is important that you immediately take the necessary steps to show the court you are suitable to have joint custody and make parenting decisions for your child. These steps include, but are not limited to, completing a batterers treatment program, refraining from abusing drugs and/or alcohol, and being an appropriate parent in all other aspects.

Complicated as this may seem, the message is clear: make sure that your attorney and the court are aware of any issues of domestic abuse and interspousal battery present in your matter prior to a final order. That way, if you are the victim of the abuse, you may seek timely application of the presumption in your matter and allow the court to make a custodial decision that is in the best interest of your child. Similarly, if you are found to have engaged in acts of domestic violence, it is important that you find an experienced family law attorney who will work with you to best protect your interests.

If you have issues of domestic abuse in your case, it is important that you have an attorney help guide you through your divorce or paternity and help you seek application of the appropriate laws and presumptions. If you wish to discuss your matter with one of our attorneys, please call our office to schedule a free initial office consultation.

Grandparent Rights in Wisconsin: Can I File an Action?

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Sad senior couple in parkIn Wisconsin, grandparents may be afforded the legal right to have visitation with their grandchildren. The process to obtain these rights may be difficult, therefore it is helpful to have an attorney navigate you through this process.

When the parents have been married, and have subsequently divorced, grandparents may request “reasonable visitation rights” in the existing family law action. In order to be successful in this type of action, the grandparent must successfully demonstrate three factors: (1) he/she has maintained a parent-child relationship with a child, (2) the child’s wishes to have a relationship with the grandparent, and (3) the visitation with the grandparent is found to be in the child’s best interest.

When the parents are unmarried, the grandparent may file an independent suit or petition if they have maintained a relationship with the child or have attempted to do so, but were prevented from having a relationship with the child by the child’s custodial parent. In these cases, there must be a determination of who is the father of the child (a paternity determination). If the requirements are met, then the court will consider other factors, such as the best interest of the child, the wishes of the child, and whether the grandparent will abide by decisions made by the child’s parents concerning the child’s “physical, emotional, educational or spiritual welfare,” if that grandparent is afforded visitation rights.

There are also other actions available to grandparents seeking visitation when one or both parents are deceased or when the biological grandchild has been adopted. Nelson, Krueger and Millenbach, LLC does not handle guardianship cases or adoption cases, so if this is your situation, you should seek advice from an attorney experienced in these areas of the law.

If you wish to speak with an attorney regarding grandparents rights in a divorce action or in a paternity matter, please contact Nelson, Krueger and Millenbach, LLC, at 414-258-1644 to schedule a free half-hour consultation.

How to Speak with Children About Divorce

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When you are going through a divorce, it is easy to become distracted by your own emotions and forget that your children are being effected as well.

Linda Hassan Anderson, Vice President of KinderCare, wrote a blog which highlights what parents should do when talking with children about divorce.  Among her suggestions were the following tips:

  1. Talk to your children together. Approaching your children about your divorce through a united front will show the children that even if you are not able to continue the marriage, you are able to continue co-parenting your children.
  2. Consider the timing and place you tell your children about the divorce.  They will remember the conversation and how they were told, so a private and familiar location is best.
  3. Answer the questions that you can.  You may not have an answer for everything the children are concerned or confused about, but be on the same page with how you will answer questions.  Less is more when it comes to the details of your divorce, however honest simple answers can help the children process what is going on.
  4. Give your children space and time to process, while still checking with them.  The children will also experience many different emotions throughout the divorce process and after, so it is important to acknowledge and assure the children that it is okay for them to have the feelings that they are experiencing.  If your children experience depression or just need someone outside of the family to speak with, counseling or therapy may be a helpful outlet for them.

Following the above tips and assuring your children that you love them, may help ease the pain of the divorce the process and help the children adjust.  For assistance on how, when and what to tell your children regarding your divorce, it is worth considering meeting with a child specialist or co-parent counselor.

Additionally, if you wish to speak with an attorney to help you navigate your divorce, please contact our office at 414-258-1644 to schedule a free initial office consultation or visit our website for more information.

 

Custodial Issues Regarding School in Wisconsin

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Legal custody can be granted to one parent or both parents.  The court may award joint legal custody to both parents or sole custody to one parent.

The presumption in Wisconsin is that joint legal custody is in the best interests of the child.  Joint legal custody provides both parents an equal opportunity and responsibility to make decisions for the child.  For parents who have joint legal custody, no one parent’s decision is superior to the other parent.  In cases where there is domestic abuse, severe drug or alcohol abuse, mental health issues, or other serious situations where the parties cannot communicate, one parent may be awarded sole legal custody.  The court is very hesitant to grant sole custody unless there is compelling evidence presented that shows eliminating decision-making rights for one parent is in the best interest for the child.

In some cases, the court may award joint legal custody with one parent having final decision making for all or some of the custodial decisions. This is sometimes referred to as “veiled sole custody,” and therefore is not popular with the court unless good reason is given for the request.

Major decisions include, but are not limited to, consent to marry, consent to enter military service, consent to obtain a driver’s licenses, authorization for non-emergency health care, and choice of school or religion.

One of the most controversial custodial decisions is school choice.  When parents no longer reside together, or never did reside together, there are often geographical issues that naturally arise that affect school choice.  For example, one parent may reside in the marital home and in the district where the children have been going to school for a number of years, while the other parent has moved to another county where they believe the children would receive a better education or be afforded better opportunities.  When the parents cannot agree on where the child should go to school, it is likely the court will appoint a Guardian ad Litem to address this issue.  The Guardian ad Litem’s job is to make a recommendation to the court of what he/she believes is in the best interest of the child.

Taking one example, if one parent is exercising primary placement of the child and has been the school placement parent since the parents split up, the court is likely to find it is in the best interest of the child to continue the current placement schedule.  However, if the school placement parent’s work hours change and that parent can no longer take the children to and from school and be there for the children after school, there may be reason for the court to find that a school change would be appropriate and in the best interests of the child.

The court is required to consider a number of factors when deciding the appropriate custodial arrangement for a family.  The extensive list of the required factors is the following:  the wishes of the child’s parents, the wishes of the child, the interaction and relationship with all members of the child’s family, the amount and quality of time that each parent has spent with the child in the past, any necessary changes to the parents’ custodial roles and any reasonable life-style changes that a parent proposes to make to be able to spend time with the child in the future, the child’s adjustment to the home, school, religion and community, the age of the child and the child’s developmental and educational needs at different ages, whether the mental or physical health of a party, minor child, or other person living in a proposed custodial household negatively affects the child’s intellectual, physical, or emotional well-being, the need for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child, the availability of public or private child care services, the cooperation and communication between the parties and whether either party unreasonably refuses to cooperate or communicate with the other party, Whether each party can support the other party’s relationship with the child, including encouraging and facilitating frequent and continuing contact with the child, or whether one party is likely to unreasonably interfere with the child’s continuing relationship with the other party, whether there is evidence that a party engaged in abuse, whether a parent’s significant other, or person residing with them has a criminal record, has engaged in abuse of the child or any other child or neglected the child or any other child, has engaged in interspousal battery, has a significant problem with alcohol or drug abuse, the reports of appropriate professionals if admitted into evidence and such other factors as the court may in each individual case determine to be relevant.

When the court is consider making a school choice decision, there are usually a number of other considerations included in a court’s ultimate determination.  For example, 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 aforementioned is not an exhaustive list of what the court can and will consider, but includes some common considerations.

Please note, while many parties focus on school ratings, the court does not typically focus on same.  The reason being, the evidence brought forward regarding school ratings (unless very drastic) is often being used by the parents to further a different underlying motivation for the school change.

Please be advised, if the school you wish to have your child attend would require you to move more than 150 miles for more than 90 days, then you have to notify the other party and wait to see if the other party objects to same.  For more information on this specific topic, please see our blog about  moving with a child at https://wisconsinfamilylaw.info/category/custody-and-placement/.

Can I Move Out of State With My Child in Wisconsin?

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***NOTE:  THE LAW IN WISCONSIN HAS CHANGED. PLEASE SEE OUR UPDATED BLOG POST ON THIS TOPIC:  New Wisconsin Statute Changes Procedure s to Move a Child’s Residence

The law in Wisconsin is that you cannot move with your child(ren) more than 150 miles from your residence or out of state without providing notice to the other parent, with a divorce or paternity case pending.  The exception to this is if the other parent does NOT have visitation or placement rights which, of course, is rare.

You must provide sixty (60) days advance written notice to the other parent explaining when and where you intend to move and the reasons for said move.  Make sure you have some proof of notice such as a certified mail receipt.  If the other parent objects, he or she can file an objection with the court but must do so within fifteen (15) days of receiving your notice. It is wise to make no definite plans to move until you learn whether or not the other parent will object.

If there is an objection, the court can prevent the child(ren) from moving. The law in Wisconsin is somewhat complicated but states that the court can either prevent the move or modify the custody and placement provisions if the court finds all of the following:

∙ The modification is in the best interest of the child.
∙ The move or removal will result in a substantial change of circumstances since the entry of the last order affecting legal custody or the last order substantially affecting physical placement.

This means that the court could award placement/custody to the other party if you move. It would depend on what type of relationship the other parent has with your children and how much he/she sees the children but the court could transfer custody and/or placement to him or her if the court believes it would be in the best interests of the children.

The court arrives at this decision by considering the following factors:
∙ Whether the purpose of the proposed action is reasonable.
∙ The nature and extent of the child’s relationship with the other parent and the disruption to that relationship which the proposed action may cause.
∙ The availability of alternative arrangements to foster and continue the child’s relationship with and access to the other parent.

If you wish to move less than 150 miles away, your current placement schedule may still be affected. For example, the current placement schedule may not be workable due to the distance and either party may ask the court to modify the placement schedule based on a substantial change in circumstances. However, the court could still determine that it is not in the best interests of the children to move and/or change schools. Therefore, if the other parent’s residency permits, the court could still award placement to the other parent so that the children could remain in their current school district. Again, it is best to wait to make definite plans until you can be sure the other parent agrees or the court will agree that the children may move and change schools.

To be clear, YOU can always move. The question of whether you can move with your child, however, is one that must be decided by the court after following the steps described above.

If there is no divorce or paternity case pending or a judgment previously entered, there are no restrictions on a move.  However, you should note that (a) you cannot conceal the whereabouts of a child from the other parent and (b) the other parent could always file an action and then request that the child be returned to the State of Wisconsin.  If you are concerned about this type of situation, it would best to speak to an experienced family law attorney about the facts of your case.

If you have any questions regarding moving with your child(ren), please contact our office at 414-258-1644 to schedule a free initial office consultation or visit our website for more information.

Holiday Placement with Children

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With the holiday season upon us, we often see placement disputes.  It is important to follow your judgment of divorce or paternity when it comes to holiday placement.  The holiday schedule set forth in the court order takes precedence over regularly scheduled placement and should be followed except upon mutual agreement.

If you do not have a specific holiday schedule, the courts typically find that holidays should alternate which means whoever had the last holiday has the next upcoming holiday.  Christmas Eve and Christmas Day are separate holidays and each parent should see the children on one of those days.  The same is true with New Year’s Eve and New Year’s Day.  However, if the family of one parent has a typical tradition (i.e. always Christmas Eve), then that parent should receive that holiday assuming the other parent also doesn’t have family traditions on that day.

Please keep in mind that in disputes, the children are the ones who suffer.  They have the right to spend holidays with both parents and to see and spend time with both sides of their families.

Happy holidays to you.

How Do You Modify Custody or Placement in Your Divorce or Paternity Judgment?

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Often times the circumstances surrounding the agreements made at the time of your divorce do not remain the same indefinitely. This is especially the case when children are involved.

There are specific time limits that must be followed in order to modify your Divorce or Paternity Judgment accurately. A final judgment may be modified for different reasons at different times. A “final judgment,” for the purposes of requesting a modification, in a divorce proceeding includes the Findings of Fact, Conclusions of Law and Judgment of Divorce and a Marital Settlement Agreement. For a paternity case, it includes the Findings of Fact, Conclusions of Law and Judgment of Paternity.

If you want to modify custody (decision-making rights) and physical placement for your child and it is within two years of the final judgment on your paternity or divorce case, you will need to file a Motion to Modify with the court, and it is your burden to show by substantial evidence that the current custody and physical placement is harmful to the physically or emotionally harmful to the best interest of the child.

After two years has passed from the final judgment, you can file a Motion to Modify with the court if there has been a substantial change of circumstances since the entry of the last order affecting legal custody or the last order substantially affecting physical placement , and modifying the current order is in the best interest of the child.

A “substantial change of circumstance” can include, but is not limited to: a considerable change in either spouse’s income or employment status, a new health problem which impacts the ability to work, moving to a new location, and substance abuse problems or criminal activity.

If your final judgment is no longer current and new circumstances warrant a modification, please contact Nelson, Krueger and Millenbach, LLC, to discuss your case with an experienced family law attorney.

Contempt of Court in Wisconsin

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If a party intentionally and without legal justification disobeys a court order, this is called being in contempt of court and the law provides a remedy through a finding of contempt.

In family or divorce actions, the most common examples of contempt are when one party fails to pay child or spousal support or if one party refuses to honor the custody and placement (visitation).

In Wisconsin, to address or obtain relief from the court for the contempt, the party who is harmed by the violation of the court order must file a Motion with the court describing the contempt in order to have the matter heard. This Motion must be personally served on the violator at least five (5) business days before the date of the hearing.

If the violator is found in contempt, the court has the authority to order the violator to correct the contempt and also to order sanctions or penalties as a result of failing to comply with the court order. This may involve more than one hearing because the court must allow the offender an opportunity to obtain counsel. The court must also set “purge conditions” which is an opportunity to purge or correct his or her contempt by setting tasks to be completed or payments to be made in order for the violator to avoid further punishment. Some of the sanctions available to the judge are payments, wage garnishment, attaching or seizing assets or even jail time.

The court also has broad discretion to come up with other, more creative solutions to force the violator to comply with the terms of the decree. For example, if a party was court ordered to sell the marital residence by a certain date but did not do so, the court may give the violator a certain period of time to sell the home in order to avoid a finding of contempt. If the violator is successful in selling the home in the time ordered by the court, the violator completed the appropriate purge condition and would not be found in contempt.

The harmed party may also ask the court to order that the violator be responsible for paying the harmed party’s attorneys fees and other expenses associated with the Motion. The court will often do so as a way to punish the offender.

It is important to note that if a violator is found not to have an ability to pay or comply with the court order, for whatever reason, then he or she cannot be found in contempt. For example, if someone becomes ill and cannot work, then they are not in contempt for failing to pay support because they do not have the ability to pay. Or, if someone tries to sell a home pursuant to court order but cannot do so, they are not in contempt because they did try to comply with the order.

If you are in a contempt situation, whether you are the party seeking relief or the party who is out of compliance with the court order, it is best to consult with an experienced family law attorney to assist you for the best possible results. For more information or a free initial consultation if you are in our practice area, visit our website at www.nkmfamilylaw.com or contact us at 414-258-1644.