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/

Wisconsin Supreme Court Resolves Issues Regarding Grandparents and Stepparents Rights

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

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

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

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.