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.

Divorce from the Child’s Perspective

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