Custody and Placement

Can my Child Decide Who to Live With in Wisconsin?

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Many parents want to know if their child can decide who they want to live with in a divorce or in a placement dispute.  Or, they ask at what age a child can decide who they want to live with.  In Wisconsin, the answer to that question is that children can never make the decision as to who they want to live with, at any age.

There are many reasons for this.  Primarily, however, the courts have determined that children are not emotionally mature enough to make such a momentous decision.  Further, parents should not be placing their children in the middle and forcing them to choose between two parents who they love.

Wisconsin statutes do provide that the judge must consider the wishes of the child when making a determination on placement.  However, that does not mean that children get to decide or make that decision.  Ultimately, it is up to the parents or the courts to make a placement decision.

The older the child gets, the more weight their wishes are given.  This is especially true for a child who is mature and/or has valid or legitimate reasons for feeling the way that they do.  However, parents often mistake strong feelings for maturity.  This is not the case.  I have had cases where the court does not listen to very immature teenagers (age 17) who want to live with one parent or the other for invalid reasons (a parent is too strict or a parent is trying to influence them).  I have also had cases where the court does listen to a mature younger child (age 12) who has very valid reasons for wanting to live with one parent over the other (abuse, alcohol, neglect, etc).

More importantly, if a parent is trying to influence their child too much or drag their child into a divorce or placement dispute, this will be construed negatively against them.  Parents want to be very careful about this or it could be used against them in a placement dispute.  Children, especially teens, often have strong feelings about a lot of things but that changes frequently.  Despite what they may say, however, they do not want to be placed in a position of having to choose between their parents.  If there are legitimate concerns about the other parent, such as neglect or abuse, then this should be pursued.  However, if the sole reason to change placement is simply because that is what the child allegedly wants, this is most likely not going to succeed in Wisconsin.

Sometimes, there is a situation where a child simply will not go with the other parent for placement.  The courts usually feel strongly that you are the parent and your children must listen to you and follow a court order.  After all, children do not get to decide whether to go to school, do their homework or a myriad of other tasks that they must do.  Parents must be able to control their children.  If the relationship between the child and the other parent has broken down to the point that the child will not go for placement, then counseling is in order to repair that relationship.  The reasons for this breakdown are important, of course, and the court will take those reasons into consideration.  Ultimately, however, the child does not get to decide whether to follow a court order or not.  Understandably, this often puts the placement parent in a difficult position.

If you have questions or concerns about a placement dispute, please feel free to contact us at 414-258-1644 to schedule an appointment.  We offer free initial consultations and can review the facts of your case to evaluate your placement dispute.

The Marital Presumption of Paternity in Wisconsin

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In Wisconsin, there is a presumption of paternity based on the fact that the parties are married. Even if the parties have been separated for months, or even years, Wisconsin law presumes that any child “of the marriage” is the child of both parties.

The marital presumption can be overcome by results of genetic testing that show that a man, other than the husband, has a 99% probability of being the father.

In marriages where there is a dispute of this nature, the court will almost always appoint a Guardian ad Litem to investigate the matter. Guardian ad Litem’s are appointed on cases where there is a placement or custody dispute, and their job on the case is to represent the best interests of the child.

The Guardian ad Litem will typically recommend that the court order genetic testing at the first appearance for the mother, the child, and the husband to find out if the child is related to the husband. This is ordered immediately, because the parties must present an Order for Genetic Testing to the Child Services Agency to do genetic testing through the court.

If the genetic testing proves that the child is not the husband’s, the Guardian ad Litem typically advises the mother begin a paternity action against the biological father, so that the child has a legal father in his or her life. A court will not typically overcome the marital presumption unless there is an adjudication of a legal father.

Please note, if the couple is LEGALLY separated (meaning the couple has been granted a legal separation by the court), then there is no presumption that the husband is the father.

If you are concerned about the paternity of your child and are subject to the marital presumption in Wisconsin, it is in your best interest to seek legal counsel to resolve this issue as soon as possible.

Non-Marital Children: Overcoming the Marital Presumption in Wisconsin

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In Wisconsin, if a child is born during a marriage, the husband is presumed to be the father. But what happens in situations where, for example, the parties have been separated for several months while your divorce is pending, and the wife becomes pregnant with someone else’s child. Can the presumption be overcome?

The answer is: not automatically. If your divorce has not been finalized, the child is considered “born to the marriage,” and is presumed to be the husband’s.

This is why the wife is asked during divorce proceedings, “are you currently pregnant?” If she is, the court will usually not grant the divorce. The idea behind this is that the child is entitled to a legal father who shall be responsible (financially, if not otherwise) for the child. Therefore, the court is highly reluctant to make a ruling that would leave the child without a legal father.

Husbands who are the legal fathers have notoriously found this presumption to be unfair, with the argument being that the presumption takes away the father’s due process rights. The Supreme Court of the United States addressed this argument over 20 years ago and found that the presumption that the mother’s husband is the child’s father does not, in fact, violate a father’s due process rights.

The presumption may be overcome, however, if another man who is biological father, even though not yet the legal father takes a genetic test, and the results show a statistical probability of that man’s parentage as 99.0% or higher. If this turns out to be the case, the court will likely order the wife to commence a paternity action against the biological father. Once paternity is established, the presumption against the husband can be overcome and the divorce can be granted.

Therefore, in situations where a child is born of the marriage but is not the husband’s biological child, it is wise for the wife, or her attorney, to commence a paternity action against the biological father immediately. In the alternative, if the wife is arguing that the child is, in fact, the husband’s child biologically, the husband or his attorney can ask the court to order genetic testing, if the husband has a doubt.

Please note, in most cases where paternity of the child is at issue in a marriage, the court appoints a Guardian ad Litem for the best interests of the minor child. The Guardian ad Litem will make recommendations for the best interests of the child, such as requiring the husband and alleged biological father to undergo genetic testing that will work towards figuring out who the biological father of the child is, and who will be found to be the legal father of the child.

5 Useful Holiday Tips for Divorced Parents

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    1. If you have a disagreement about placement, look at your divorce decree/marital settlement agreement, and follow it TO THE LETTER.  Do not put yourself at risk of being found in contempt over the holidays. Follow your court ordered agreement and address with your attorney any concerns or violations that happened AFTER the holidays.
    2. Do not speak ill of your ex in front of your children.  Even if your ex dropped off the children 15 minutes late, do not speak negatively of him or her in front of your children. It is not productive for your co-parenting relationship and it has a negative effect on your children
    3. Do not get into a texting/phone war.  If you have issues with your ex regarding placement, send a well thought out e-mail or get on your Our Family Wizard account. Nothing will be resolved through misinterpreted texts, or nasty telephone conversations.
    4. DO allow your children to talk about your ex with you, and speak positively (or at least neutrally) about him or her with the children.  Children can sense when parents are not getting along. For example, if they ask if Santa is coming to Mommy’s house, do not respond by saying “Not a chance. He’s flying over and dropping coal as he goes.” Again, this is NOT productive.
    5. 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. Do not dwell on the fact that you were not awarded the overnight you wanted. Instead, maximize your placement by spending quality time, when you do have time with your children.

      6.  

Mediation and Domestic Abuse

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In Wisconsin, mediation is required in all family law cases where there is a dispute regarding placement and/or custody of minor children. The definition of mediation is when the two parties meet outside of the courtroom, with a neutral third party, to work out the contested issues in their case rather than litigate them.

The problem with mediation for a couple where domestic violence is present is that mediation implies that the parties are on a level playing field. When there has been domestic violence in a relationship, the abuser and the victim are not equal, and mediation can be more harmful than helpful. Victim advocates have weighed in on this issue and do not recommend mediation in cases when there has been domestic violence present, because there is a power relationship between the parties which may go unnoticed by the mediator.

Take, for example, a wife (victim) who goes to mediation with her husband (abuser). The husband speaks to the wife calmly and cooperatively in front of the mediator. He asks the wife to please be reasonable and to work with him. In fact, he suggests that they stop using court avenues altogether and meet once a week around the kitchen table to discuss the children’s placement schedule. To the mediator, the husband seems agreeable and reasonable. However, to the wife, the kitchen table brings up the memory of the last time she was at the kitchen table with her husband, when he threw her on top of it and abused her. Silenced by fear, the wife simply sits there or, out of fear, gets up and leaves the mediation. In this example, it is likely that the mediator’s notes would categorize the wife as disagreeable or unable to work on the issues reasonably while the husband is found to be agreeable and cooperative. Knowing the domestic violence present in this example, we know that the mediator’s notes are incorrect but there is nothing to do after the mediation is concluded to change the mediator’s conclusion.

The court is allowed to make an exception for mediation if it would endanger the health or safety of one of the parties. Therefore, it is important for an abuse victim to raise this issue before the court. The court may, either with or without a hearing, agree to then waive mediation.

Definitive evidence of potential harm is the existence of a domestic abuse injunction. If a victim files an injunction against the abuser, this is compelling evidence upon which the court can waive mediation. The reality, though, is that many victims do not file injunctions for a number of reasons. An injunction is not required to waive mediation, however. If you do not have an injunction but still are fearful for your safety, you should inform the court so as to avoid this situation entirely.

Therefore, if you are a victim of domestic violence, either with or without an injunction legally protecting you, we recommend that you inform the people who can best help you going forward in your court case. This includes, but is not limited to: your attorney, the Guardian ad Litem, the mediator and the social worker.

-Madeleine Thompson-Davies

Tips for a Better Co-parenting Relationship After Divorce

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For couples with children, divorce does not end a relationship but instead changes its focus. Although they no longer relate to one another in the context of marriage, in order to provide the best possible care for their children, divorced parents must learn to forge a new relationship as co-parents. The following tips may help smooth the transition for divorcing parents and help them provide a stable, healthy environment for their children.

 

Foster mutual respect

 

Particularly in the immediate aftermath of a painful breakup, when divorced spouses may still be dealing with strong and difficult feelings toward one another, co-parenting can seem like a daunting task. However, regardless of what your feelings may be toward your ex, kids need a strong and loving relationship with both parents. Therefore, it is important to promote and encourage a strong relationship between your children and the other parent. Resist the urge to be competitive, and take care not to vent your frustrations or speak disparagingly of your ex in front of your children.

 

Communicate

 

Another important part of a successful co-parenting relationship after djivorce  is keeping the lines of communication open between yourself and the other parent. Communicating frequently and openly will help both parents stay in the loop about the children and help create continuity between households. In addition, regular communication between co-parents helps nip misunderstandings and miscommunications in the bud, preventing them from growing into larger conflicts that may be disruptive to parents and children alike.

 

It can be helpful to set regular times to touch base with a co-parent about things like school, homework, scheduling, holiday plans and health issues. If speaking face to face is too difficult, particularly at first, try touching base by phone, email or instant messaging. With time and patience, collaborating with your ex on parenting issues will most likely become easier.  See our blog on using Our Family Wizard as an effective tool.

 

Establish boundaries

 

As important as communication is for successful co-parenting, it is just as important for you and your ex to establish reasonable boundaries and show respect for one another’s privacy. Tempting as it may be, avoid grilling your kids for details about your ex’s personal life after divorce.  Also resist the urge to micromanage or criticize your ex’s parenting skills — even when he or she does things in a way that you would not choose. If you make an effort to choose your battles and keep things in perspective, your ex-spouse will be more willing to extend you the same courtesy.

 

Minimize conflict during the divorce process

 

Couples with children and others who wish to minimize the negative impact of divorce often benefit from a process known as collaborative divorce . Unlike traditional divorce litigation, which is fundamentally adversarial, collaborative divorce is based on cooperation and communication between the spouses, with a shared goal of reaching a mutually agreeable outcome. At the beginning of the collaborative divorce process, both spouses sign a contract that states they agree to resolve the divorce without resorting to litigation.

 

For couples who are interested in collaborative divorce but are not necessarily ready to sign a contract, cooperative divorce offers a similar solution. The process of cooperative divorce is essentially the same as collaborative divorce, except that the spouses retain the option of going to court as a last resort.

 

If you have any questions regarding divorce, please contact our office at 414-258-1644 to schedule a free initial office consultation or visit our website for more information.

Our Family Wizard: A Tool for Productive Communication Between Parents

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While it is certainly the goal for parents to communicate amicably during or following a divorce, that is often not the case. Tools like Our Family Wizard (“OFW”) help accomplish productive communication, even when parties are unable to have effective communication directly. OFW is a user friendly program, available through a website (listed below), where parents pay $99.00 for a year subscription to the program, and then are able to set up their private communication webspace.

OFW has an “information bank” where parents can keep current on their child’s medical records and school records. The “message board” is a place where parents can type messages directly to each other to inform the other parent about activities the children may have, or placement schedules. Reminders may also be set on this program so that parents are notified of important events that are scheduled through OFW. Parents may also create an expense log on OFW, which can be used for example, to avoid the hassle of calling the other parent every time a bill is incurred that is court ordered to be split.

If you have an attorney, or there is a Guardian ad Litem appointed to your case, either of them may also view this communication. This is great for attorneys and Guardian ad Litem’s because it eliminates the “he said/she said” battle that often occurs in divorce cases, and holds each parent responsible for what they enter into the program. Further, the court has access to this information, so both parents are likely to keep all communication appropriate and productive.

More and more, courts are ordering parents to activate OFW accounts in an effort to avoid conflict and enforce healthy communication between parties. Courts typically use OFW as a “third party mediator” for parents who have trouble communicating with one another directly. However, even in less contentious cases, this program is an effective tool in keeping the parents organized and allows parents to resolve their issues on their own. It helps expose to the court parents who are not communicating well, and it highlights parents who are communicating effectively.

Although there are several other ways in which OFW is helpful, the most important, as a family attorney and Guardian ad Litem, is that OFW helps shield children from the divorce. The children have less exposure to argumentative telephone communications and seeing mean e-mails from one parent to another when all communication is done in one place that is password protected and for the parents, attorneys and courts eyes only.

Please check out http://www.ourfamilywizard.com/ofw to get more information about OFW and to find out what the program can do for you and your family as you go through your divorce.

How To Enforce Physical Placement in Wisconsin

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When your child’s other parent will not allow you to exercise physical placement that is court ordered, you should file a Petition to Enforce Placement pursuant to Sec. 767.471, Wis. Stats. The requirements are simple: if you can show that you have had one or more periods of physical placement denied by the other parent, that you have had one or more periods of physical placement substantially interfered with by the other parent OR that you have suffered a financial loss due to the other parent interfering or denying you placement, you have grounds to file a motion or petition.

This petition is very effective because it guarantees you a court date within 30 days from the date you file the petition with the court. At the hearing, if the court finds that you have successfully shown one of the three necessary requirements, the court MUST issue an order granting additional periods of physical placement to replace those denied or interfered with, AND must award you a reasonable amount for legal costs and for attorney fees. The court MAY also issue an order specifying the times for placement (if the prior order was silent on this), find the other parent in contempt of court, grant an injunction ordering the other parent to follow the order that is already in place, or may order the other parent to compensate you for any financial loss you suffered due to placement being denied or interfered with.

Essentially, the court will give whatever sanctions and make whatever orders it deems necessary to enforce the court ordered placement schedule.  For the Petition form, click here.

Another option is to file a Motion for Contempt.  However, unlike a Petition to Enforce Placement, the court does not have to hear a Motion for Contempt within 30 days, nor does the court have to grant anything at this motion hearing.  You may want to file a Motion for Contempt if there are other issues you want to address or if you also want to file a Motion to Modify Placement (see below).  That way, all of your issues can be heard at the same time.

Please note: a Petition to Enforce Placement or a Motion for Contempt are not the same as a Motion to Modify Placement. While they are often thought of as similar, they are filed in very different circumstances. A Motion to Modify Placement is filed when you are asking the court to replace a prior placement schedule with a newly proposed schedule based on a substantial change in circumstances. Therefore, if you are looking to restore court awarded placement that has been denied, rather than to have it modified going forward, it is most effective to file a Petition to Enforce Placement. If you are looking to restore AND modify placement in the future, you will want to file both a Motion for Contempt and a Motion to Modify Placement.

If you have any questions regarding enforcement of physical placement, please contact our office at 414-258-1644 to schedule a free initial office consultation or visit our website for more information.

-Madeleine Thompson-Davies

Terminating Parental Rights in Wisconsin

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As a divorce attorney, I have been asked many times by clients if they can terminate the parental rights of the other parent.  I have also been asked by a parent whether they can voluntarily terminate his or her parental rights.  Usually, this question is posed out of frustration or anger at the other parent.  Or, one of the parents does not want to pay child support so they make this request.

In Wisconsin, the termination of parental rights of only one parent at the request of the other generally cannot happen unless there is an accompanying step-parent adoption.  In other words, the parental rights of a parent cannot be terminated unless there is a new parent ready and willing to step into that role.  Wisconsin’s policy is that a child is entitled to have two legal parents to support them.

And, the willingness of a step-parent to adopt is not enough to trigger a termination of parental rights if the other parent does not agree.  There are necessary grounds to be established for an involuntary termination of parental rights.  For example, the most common ground is abandonment which is defined as a failure to visit or communicate for a period longer than three (3) months, unless good cause is shown as to why the parent failed to visit or communicate (i.e. denial or interference of periods of placement).  Other grounds are failure to assume parental responsibility, abuse, incest, sexual assault, homicide or attempted homicide of the other parent and a parent who has a continuing disability.

Even if all of the above criteria are met, the court must then consider other factors when deciding to terminate parental rights.  These factors include what is in the best interests of the child, the child’s family relationships (i.e. grandparents),  the wishes of the child and whether the child can enter into a new stable family situation as a result of the termination.

Recently, a reader pointed out to us that a termination of parental rights can occur without a step-parent adoption.  While this is true, it is a rare situation where there are usually extreme or exigent circumstances such as when abuse, severe neglect or a serious crime against the custodial parent or child is involved.  Also, if the state is involved, as in where a parent or parents have been deemed to be unfit for an extended period of time, a termination of parental rights is sometimes granted.  These are not typically situations, however, which generally impact upon divorce or family matters.  We are not experts in these other types of cases and, therefore, cannot provide any further information.  If you believe your situation falls under one of these categories, we encourage you to seek the advice of an experienced attorney in that area.

Permanently terminating a parent’s rights to his or her children is a serious and life-changing event for both parent and child.  Frustration with your ex-spouse or an unwillingness to see your children or pay child support is not enough to trigger this most serious of actions.  Under Wisconsin law, the rights of the child are paramount and a child is entitled to two legal parents.  This is true regardless of the feelings of one parent towards the other and regardless if a parent has no interest in the child(ren) and/or does not want to pay child support.

Please see our other blog post on this for additional information:  https://wisconsinfamilylaw.info/2016/07/12/termination-of-parental-rights-frequently-asked-questions

-Teri M Nelson

What is the Difference Between Child Custody and Physical Placement?

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As a new family law attorney, part of my challenge has been understanding when and how to use different legal terms involved in family law cases. Two of the terms that stump new attorneys, and clients as well, are “custody” and “physical placement.” Attorneys who have been practicing for some time tend to use the terms interchangeably, but have an internal recognition that they each address something distinctive. While they are often coupled together in legal documents, they are treated as two separate legal terms of art, and addressed in court as such.

In Wisconsin, legal Custody, or “child custody,” regards the right and responsibility of either parent, both parents, or another such person granted legal custody of the child, to make major decisions concerning the child(ren). Such decisions include: where the child goes to school, what religion the child practices, whether or not the child may obtain a driver’s license, or receive healthcare for nonemergency reasons (such as orthodontia). In Wisconsin, there is a presumption of joint legal custody, or shared custody, which is disturbed only if there is evidence that one of the parents should have primary or sole custody. Primary or sole custody is when one parent, typically the parent with primary placement of the child, has the chief decision-making authority for decisions concerning the child. Sole custody is the condition under which only one of the parents has legal custody.

Physical Placement in Wisconsin is the condition under which a party has the right to have a child/children physically placed with that party and has the right and responsibility to make, during that placement, routine daily  decisions regarding the child(ren)’s care, consistent with major decisions made by a person having legal custody. There are a few standard placement schedules (e.g. “50/50 placement”) that parents often work from, but every placement schedule is created on a case-by-case basis, addressing the specific schedules and needs of the parents and children alike.

The most common situation is when the parents agree to the presumption of joint legal custody, but have disagreements over the physical placement schedule of the child(ren). In Wisconsin, if the parents cannot agree on a physical placement schedule, then the court is required to order mediation. Depending on the county your case is in, the first mediation session may be free. If that does not work, the court is then required to appoint a Guardian ad Litem (GAL) who is an attorney appointed to represent the best interests of the child(ren).  He or she conducts an investigation and then makes a recommendation as to what they believe is in the best interest of the child(ren).  Depending on the county, the court may also order a custody study to determine the condition of the child’s home, each parents performance of parental duties and responsibilities relating to the child, and any other matter relevant to the best interest of the child. The court then uses these recommendations, other evidence the parents provide and the wishes of the child to make a determination on placement. The same process is used if the parents cannot agree on who will be awarded legal custody for the child.

If you have any questions regarding legal custody and physical placement, please contact our office at 414-258-1644 to schedule a free initial office consultation or visit our website for more information.

 

-Madeleine Thompson-Davies

Kids in a Divorce

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The Huffington Post has dedicated an entire section to divorce, which I thought was rather interesting. Huffington Post Divorce.  There are many articles dealing with topics ranging from stories regarding specific divorces to money and relationship advice.  What a great resource for someone going through a divorce!

One of the features was a link to various blogs written on the topic of divorce.  The very first one that jumped out at me was blog written by a 16 year old on the topic of his cheating dad.  (To read blog, click here.)  This is a brutally honest story of how infidelity and an absentee dad has ripped apart this kid’s family.  He says:  “When your parents divorce, all that changes. Especially if infidelity and lies were the foundation of your father leaving. Because how do you make believe everything is fine when the shrapnel is still in your skin?”  Wow!

I have often said that parents don’t give kids enough credit.  Kids are extremely perceptive and they get what is going on.  Often, the parent at fault refuses to acknowledge this and blames the other parent for the anger or estrangement of the child towards them.  You can’t just walk away from your family, especially when infidelity is involved, and expect that everything will be ok.  Kids often hold on to even the smallest grievances.  They certainly aren’t going to ignore and forgive this behavior very easily.

On the other hand, because they are often very aware of what is going on and have their own anger and feelings on the matter, the “wronged” parent does not need to discuss his or her own feelings with their children.  Children have enough to deal with themselves; they don’t need to be burdened with the guilt and anger of their parents too.

If parents would only treat their children as emotionally aware and feeling individuals, I firmly believe a lot of the issues and problems that arise in a divorce with children would be minimized.  Children should know what is going on and why it is happening.  However, you do not need to share your emotional upheaval with your children.  They have enough of their own.  You do not need to enlist them to be on “your side”.  And, you do not need to share with them intimate details or disparge the other parent.  After all, he or she is still their parent and your children love them no matter what.

Kids are people too and the sooner both parents acknowledge that and accept responsibility for their own actions, the less damaging the divorce will be to the children and to their relationship with their parents.

-Teri M Nelson

 

Grandparent Visitation in Wisconsin

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Are you a grandparent who hasn’t been able to see your grandchildren for some reason? Do you have any “rights” to seek visitation from the court?

In Wisconsin, the courts strongly protect the rights of parents to raise their children as they see fit, without outside interference. The statutes do permit grandparents, or those who have had a “parent-like” relationship with the child, to petition the court for visitation. This is only true, however, if there is an action affecting the family (divorce, legal separation, paternity) pending.

If there is no action pending and the parents are still married, grandparents are not allowed to petition the court for visitation. Unless the parents are unfit or incompetent, there is no recourse for grandparents who want to see their grandchildren. In those instances, your best course of action as a grandparent is to repair or attempt to repair the circumstances which led to the breakdown in your relationship with your child or grandchild in the first place.

This protection of parental rights carries through to an action for divorce or legal separation where the standard for grandparent visitation is a bit different than a situation where the parents where never married. The statute simply states that visitation can be granted if it is in the best interests of the child. However, there is no definition or qualifying standards to determine what that means. This gives the court very broad discretion in those instances. The US Supreme Court has ruled, however, that courts must apply a presumption that a fit parent’s decision regarding non-parental visitation is in the best interest of the child. The Wisconsin courts have upheld this presumption. What that means is that if both parents (married or formerly married) have refused to allow grandparent visitation, it is going to be difficult to ask the court to interfere with that decision.

In a divorce, the courts usually find that grandparents should see the children during their own child’s placement time. Parents have little enough time with their children when their time is already divided between two people. The courts are going to be very reluctant to divide the time three ways. If the relationship between the parent and the grandparent is broken down to the point where the parent will not allow the grandparents to see the child on his or her own time, the court is going to be reluctant to interfere with that decision based on the above presumption.

However, if a parent is not seeing the child(ren) for some reason, which does not afford the grandparents the opportunity to see their grandchildren, then the court is likely to order some visitation to preserve the child’s relationship with their grandparents.

In a paternity case (where the parents were never married), the courts are much more likely to grant a grandparent visitation. The statute sets forth a different standard. Best interests apply but the statute also allows visitation more broadly in situations where grandparents have had a relationship in the past or have attempted to maintain a relationship in the past but now are prevented from doing so by the parent with legal custody. The court must find, however, the grandparents will not interfere with the custodial decisions of the parent. In the case of the benevolent grandparents who only want to see their grandchildren, this virtually guarantees some kind of visitation.

The difficulty comes in when you have interfering grandparents or grandparents who have attempted to control or take over parental decisions. In those instances, the court may be reluctant to give grandparents the opportunity to interfere or damage the parental relationship with the child which it protects above all else.

If you are a grandparent seeking visitation with your grandchild or grandchildren, make sure that you do not attempt to interfere with the relationship between parent and child. Keep in mind that you do not have any “rights” over your grandchildren except to have a relationship with them. Your actions are going to be scrutinized by the court to determine whether visitation with you is in the best interest of the child(ren). If you cause problems or take actions which can be interpreted to be contrary to parental decisions, you very well may be giving the court just cause to deny visitation. You should consult with an experienced family law attorney to determine if you have a basis to petition the court for visitation and what actions you should take which would lead to the best chance of success in your case.

If you have any questions about grandparent visitation and would like to meet with one of our lawyers for a free initial office consultation, please call us at 414-258-1644. You can also visit our website for more information.

How to Win a Custody Battle

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There is one sure-fire way to win a custody battle.  Ready for it?  Here it is: don’t act like you are trying to win a custody battle.  What??  You read that correctly.  Trust me, I have 20 years of family law experience.  I know what I am talking about.  I have a fool-proof method which I share with my clients – listen to my advice, act like a grown-up, act like you care about your kids, think before you react, admit your shortcomings and do something about them.  There, you’ve won your custody case.

In Wisconsin, the standard for making a custody or placement determination is what is in the best interests of the children.  By the way, I refer to it as a custody battle because that is the common term but, usually, it is a placement dispute.  Custody is legal decision making only.  Placement is where the child resides, with whom and what type of visitation will be ordered.  With regards to the best interests of the children, you can read the research but it is very clear – kids do best when their parents don’t fight and communicate.  Simple, right?  If it was simple, I would be out of a job.

It seems counter-intuitive to not fight.  You need to fight for your rights!  You are “entitled” to what you want.  You know best for your kids because ____ (insert excuse).  Your soon-to-be-ex is a _____ (insert expletive).  You have to let the kids know what is really going on!  You have to defend yourself!  Wait – who is this about again?  You or the kids?  Of course this isn’t about the kids – it’s about you.  This is the attitude you need to “divorce” yourself from (pun intended).

No one is perfect.  Not one single person on this earth is a perfect person, perfect spouse, perfect parent.  Why not acknowledge that?  Don’t be defensive – it is true of everyone.  All you need to do is to find out or admit your failings and fix them.  This isn’t a criminal case – an admission of guilt doesn’t send you to the slammer.  There is not one judge, Guardian ad Litem, social worker who will think less of you for admitting that you are not perfect and to be willing to fix your problems.  This is especially true if your spouse never learns this lesson.

The next step is to figure out what is best for your kids.  Is it in your kids best interest to have a healthy and strong relationship with both parents?  Of course it is!  That does not translate to counting days, power, control, whatever.  Just because you’re the mom, doesn’t make you genetically predisposed to being a better parent. Aren’t your kids entitled to have a strong relationship with their dad? Just because you’re dad, doesn’t give you “rights” over your kids.  What about your kids’ rights?

I always tell my clients that they need to come to court with “clean hands.”  In a custody battle, this means always, always trying to be the best parent you can be.  Act like an adult.  Encourage the relationship between the child(ren) and the other parent.  Communicate in a civil and constructive way (by email, if possible, so you have written documentation).  Be flexible even when it is not convenient.  DO NOT, under any circumstances, discuss your divorce with your children!!!

Even if all of this means that you are taken advantage of by the other parent, even if this means that you feel like they are winning and you are losing, you will be far better off in the long run.  The judges, court commissioners, Guardian ad Litem and social workers will all respect you and think you are a wonderful parent.  Because you are being a wonderful parent if you do these things.  YOU are putting the kids ahead of you. YOU are looking out for the best interests of the kids.

And, in the long run, this will win you your custody battle, even if there isn’t one.  It is hard to fight about or with someone who is unwilling to create the battle in the first place.  And, if the other parent still insists on fighting with someone who is behaving this way, they are the ones who will look bad and you will prevail in the end.

Trust me.

–Teri M Nelson

Can I Travel With My Child Out Of State in a Divorce?

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If you are fortunate to be able to take your child on a vacation during a divorce, do you need permission from the other parent? What about after the divorce? The short answer is that, in Wisconsin, you can take your child out of state on vacation without permission from the other parent.  There is a common misconception that you need permission from the other parent for a vacation.

However, if by doing so, the other parent will not have his or her scheduled placement, that is a different situation.  Most of the time, there will be a court order which allows at least a week or two of vacation.  If there is a court order, providing that you give notice, you are allowed to take vacation regardless if the other parent agrees or not.  However, sometimes during the pendency of the divorce, there may not be a temporary order which allows a vacation.  If there is no court order, you would either need permission from the other parent to forego their regular placement or you would need to take your vacation over your own placement periods.

You should make sure there is a vacation provision in your final judgment of divorce.  As long as there is a court order, the other parent does not have the right to restrict or veto your vacation.  The only condition would be that they should know where their child(ren) are going to be and have contact information in case of an emergency.

The only exception to the above is if you are traveling out of the country.  Federal law mandates that either both parents must be present or, if only one parent is present, written consent is necessary from the other parent or from the court. If the other parent refuses to cooperate and give permission, you can file a motion with the court requesting that the court enter an order allowing the travel.

I sometimes have clients who are the non-traveling parent and want to withhold consent for whatever reason.  I tell them to keep in mind that they are only hurting the child(ren) by denying them the opportunity for a vacation.  A few missed days of placement is well worth the benefit to the child.  And, it may benefit you in the future if you want to take your own vacation.

-Teri M Nelson

What is the Difference Between Sole Legal Custody and Joint Legal Custody of My Children?

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In Wisconsin, legal custody means the ability or authority to make all major decisions making concerning a minor child.  For example, the consent to marry, consent to enter military service, consent to obtain a motor vehicle operator’s license, authorization for non-emergency health care and choice of school and religion).  The emphasis is on “major” and parties usually face these types of decisions over where the children will attend school or daycare and major medical decisions such as medication and elective surgery.

The presumption in Wisconsin is for joint legal custody.  This means most of the time, the court will order joint custody over the minor children.  If the parties have joint legal custody of a child, both parties must jointly agree on all major decisions.   However, with respect to the right to make routine daily decisions regarding the child’s care, the party who has physical placement of the child at the time the decision is to be made.

Parents often argue or disagree about such things as haircuts, clothing, whether to give children over-the-counter medications, bed times, homework, non-physical discipline or punishments, etc.  Unfortunately, these are not considered to be major decisions and, therefore, there is no easy way to resolve those types of disputes.  Each parent has the right to make decisions regarding those “minor” issues when the children are in his or her placement.

If a party is awarded sole (full) legal custody of a minor child, they do not have to obtain permission from the other parent.  However, it is not very common for a party to be awarded sole custody.  The only time this occurs is if a parent is unwilling or unable to performing parental duties, if there is a compelling reason not to award joint custody or if the parties are unable to cooperate in the future.  Common examples of some reasons a court would order sole custody include drug or alcohol addiction, incarceration, abuse of the child or other parent, mental illness or simply being absent such as parents who are uninvolved or live out of the state.

To discuss your case and your custody questions, contact us at 414-258-1644 to schedule a free initial office consultation or visit our website at Nelson, Krueger & Millenbach, LLC for more information.

What If I Do Not Agree With the Guardian ad Litem’s (GAL) Recommendation in Wisconsin?

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When a Guardian ad Litem (GAL) makes his or her recommendation one parent is not going to be happy with the outcome.  If you are have received a less than favorable recommendation, don’t panic.  The GAL is not your judge and accordingly, will not be rendering decisions in your case.    You need to remember that the recommendation of the GAL becomes his or her “client” and therefore he or she needs to present evidence to support it.  Just like your lawyer needs to present exhibits and witnesses to support your position, the GAL needs to present evidence and witnesses to support his or her recommendation.  While judges do give GAL recommendations great weight, it is against public policy to simply rubber stamp the recommendation without a full hearing. 

The GAL should expect that a parent will respectfully challenge him or her by asking the basis for the recommendation.   The litigants have a right to see the documents and talk to the people who were the reason for the recommendation.   You also have to remember that your attorney will be afforded the opportunity to cross examine the GAL’s witnesses at trial. Therefore, if you feel that a GAL’s witness made an error your attorney can rectify that error at trial, if not before. 

It is also important to remember that a GAL should not make a final recommendation until the completion of trial.  Therefore, any recommendation made prior to trial is a “preliminary’ recommendation.   You have the ability to change the GAL’s recommendation by heeding his or her advice prior to the start of trial.  

–Rebecca K. Millenbach

What is a Guardian ad Litem in Wisconsin?

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When parents cannot reach an agreement regarding custody and placement of their children in family cases in Wisconsin, the Judge will appoint a Guardian ad Litem (or GAL. for short) to represent the best interests of the children.  The GAL is a neutral attorney selected by the Judge in a divorce, paternity or post-judgment case to advocate for the best interests of the children.  The Judge will make orders regarding the payment of GAL fees which is generally an equal division.  GAL’s bill for the time spent working on a case based on hourly rate determined by the Judge.

A GAL will review evidence and interview witnesses, including the parents, children themselves, medical professionals, teachers, etc., to form a recommendation regarding the custody and placement of the children.  This recommendation is based on what the GAL determines to be in the best interest of the children.  The recommendation is shared with the parents and the Court.  Often, this recommendation is helpful to the parents in reaching an agreement settling custody and placement issues prior to a Trial.

If the parents are unable to reach an agreement after receiving the GAL’s recommendation, the Court will schedule a Trial during which the Judge makes an ultimate decision regarding custody and placement of the children.  The GAL participates in the trial as an advocate for the best interests for the minor children.

For further details, please see us at Nelson, Krueger & Millenbach, LLC  or contact us for a free initial office consultation.

–Alison H.S. Davis

How is Paternity of a Child Established in Wisconsin?

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A paternity case is when the parents of a child were never married.  The purpose of a paternity case is to establish parental rights over a child and to set custody, placement and child support orders.

What rights does an alleged father have during the pregnancy of the mother?

Until paternity can be established either by a DNA test or an acknowledgment of paternity, an alleged father has no rights to the child.

What does “adjudication” mean and how does an alleged father become adjudicated?

Adjudication is the formal recognition of an alleged father as the legal father of a child born to unmarried parents.  Prior to an adjudication, an alleged father has no rights to a child.

Adjudication can occur one of two ways:

  1. If both the mother and alleged father are certain of the paternity of the child, then a Voluntary Acknowledgment of Paternity may be signed. This document is presented at the hospital after the birth of the child.  If the alleged father is not present at the birth, the document can be obtained by contacting Wisconsin Vital Records. http://dcf.wisconsin.gov/bcs/path.htm
  2. If one or both of the parties are unsure of the paternity of the child, then a DNA test should be conducted to confirm or exclude the alleged father as the legal father of the child.

How does an alleged father obtain placement and custody rights to a child?

Once a man is adjudicated as the legal father of a child, the Court will order “terms” relating to the custody, placement and support of the child.  Simply being adjudicated does not give a father any rights to custody or placement, nor does adjudication mandate the payment of child support. The process of establishing custody, placement and support can be resolved by the agreement of the parties or a paternity action having been filed with the Court.  A judgment of paternity must be entered and approved by the court before a father has enforceable rights for custody and placement.

What factors will the court consider when ordering custody?

There is a presumption in Wisconsin statutes that parties should share joint legal custody of a child.  Legal Custody is the right to make legal decisions regarding a child.  The Court may order sole legal custody to one parent in cases of domestic abuse or if the Court determines that joint legal custody is not in a child’s best interest.

What factors will the court consider in determining placement?

There are a number of factors that the Court will consider when determining placement.  The age of the child, distance the parents live from each other, work schedules, parents’ ability to communicate, and best interest of the child are only some examples of what the Court will consider when determining placement.  A Court will not automatically award primary placement to the mother simply because she is the mother.  The statute requires that the Court maximize the amount of meaningful time each parent has with the child.  This provision does not necessarily, however, require that the court order equal time.   Please see our Custody and Placement FAQ’s for additional information.

What if I disagree with the placement schedule ordered by the court?

At the first hearing, if the parents cannot agree on a placement schedule, they will be ordered to participate in mediation.  If mediation is unsuccessful, either a custody study and/or a guardian ad litem will be appointed.  The Guardian ad Litem will complete an investigation and make a recommendation to the Court as to what he/she believes to be in the best interest of the child.

Will child support be ordered?

Yes.   Once a father is adjudicated, the obligation to support the child will be addressed by the court.

How much child support will I have to pay?

Please see our Blog Post on Child Support or visit us at our website by clicking here.

Modification or Enforcement of a Court Order in a Wisconsin Divorce

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Can you change a court order in a divorce in Wisconsin?  If so, how is this done?  What if someone isn’t following court orders?  How can you enforce an order?

Orders regarding property division are permanent and generally cannot be changed unless you file a Motion to Reopen.  A waiver of maintenance at the time of the divorce judgment is also a final order and cannot be changed except upon extreme or unusual circumstances.

However, spousal support, child support, custody and placement (visitation) arrangements do not have to be permanent. They can be outdated, changed or violated. When this happens, individuals must ask the court to grant a modification or to enforce the decree.  You must do those by filing a Motion with the court.

The court will entertain a request for a modification of an order if, after a required period of time, there has been a substantial change in your life or the life of the other party that justifies altering the decree. Any of the following may qualify as a significant change:

-A substantial change in either spouse’s income or employment status

-A new health problem which impacts the ability to work

-Moving to a new location

-Substance abuse problems or criminal activity

The exception to this rule is for a period of two (2) years after an original custody or placement order, you must show that the current custody or placement arrangement is harmful to the child(ren).

If one party asks for a modification and the other party doesn’t agree, this dispute can be resolved through negotiation or through the courts.  At Nelson, Krueger & Millenbach, LLC, we always try to minimize conflict and are local leaders in using collaborative and cooperative techniques to resolve disputes.  However, we will also vigorously represent you in court whenever necessary.

If one party fails to pay child or spousal support or refuses to honor the custody and placement (visitation) order, the law provides a remedy through a finding of contempt.  Again, a Motion must be filed with the court. If the violation involves child or spousal support, the court can garnish wages or force the violator to pay in other ways.  Sometimes, the violator is sentenced to a jail term as well. 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.

If a placement order is not being followed, you can file a Petition to Enforce Placement to force the other party to comply with the court order.  The court again has broad discretion to enforce a placement schedule, including awarding make-up time, changing the schedule or awarding attorneys fees and costs.

Returning to court is not an ideal option for anyone. However, there are remedies available to you in the event you need to modify or enforce a court order.  The attorneys at Nelson, Krueger & Millenbach, LLC can assist you with any of these options and advise you as to the likely or possible results so you can make an informed decision as to whether you want to return to court through a post-judgment action.  At Nelson, Krueger & Millenbach, LLC, we handle modifications, disputes and enforcement cases with compassion and diligence. Our lawyers are prompt, detail-oriented and persistent. For a free initial office consultation, contact us at (414) 258-1644.

Child Custody and Placement in Wisconsin

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WISCONSIN CUSTODY AND PLACEMENT FAQ’s

  1. WHAT IS THE DIFFERENCE BETWEEN CUSTODY AND PLACEMENT OF MY CHILDREN?Legal custody in Wisconsin simply means the right of a parent to make major decisions, such as school, medical and religion, for the minor children. In Wisconsin, the presumption is that there will be joint legal custody. This means that both parents have an equal say in what happens to the children regarding major decisions. Major decisions cover such matters as non-emergency health care and choice of school and religion. Others include parental consent to marry, obtain a driver’s license, or join the military. The court can only award sole custody to one party if it finds that one party is incapable of cooperating or exercising custodial duties, conditions exist which would prevent the exercise of joint custody or there has been domestic or child abuse.

    Placement means physical placement or visitation. In other words, who the child spends time with and for what amount of time. The primary consideration in making this determination is what is in the best interest of the children. There are numerous factors that the court must take into account when determining the placement schedule. These factors are then applied to the specific facts of your case.

    The attorneys at Nelson & Davis, LLC will be able to evaluate the facts of your case and advise you as to the best course of action or the likely result of a placement dispute.

  2. DOES THE COURT ALWAYS AWARD EQUAL, SHARED PLACEMENT?There is a misconception that certain types of placements schedules are mandated or presumed. Just as there is no preference as to the mother or the father for placement, there is no presumption or requirement for equal placement. The court must make a decision based on the criteria and factors referenced above. The law in Wisconsin is simply that the court shall set a schedule in which there are regular and meaningful periods of placement that maximizes the amount time the child spends with each parent. The court is also prohibited from considering one parent over the other based on sex or race. However, it may be determined that it is in the best interests of the child to be primarily placed with one parent or that there should be some form of a shared placement schedule.
  3. IS THERE A NORMAL OR STANDARD PLACEMENT SCHEDULE?As stated above, there is no presumption as to specific kind of schedule. There are many factors that this decision is based upon including work schedules, schedules of the children in terms of school and activities, proximity of the residences of the parents, the child’s adjustment or ability to adjust to transitions, etc.

    The starting point to many schedules is usually alternating weekends which are from Friday until either Sunday evening or Monday morning. If one parent does have the majority of the time, it is also fairly common for the other parent to have at least one evening or overnight period of placement during the week. A placement schedule is considered to be shared if one parent has 25% of the overnight placement time or more. Shared placement schedules are usually discussed in two week blocks of time.

    There are many options when scheduling placement. Schedules can vary based on the unique needs of your family. Placement orders can be very general and flexible or very specific. The attorneys at Nelson & Davis, LLC will be able to discuss scheduling options and suggest a variety of placement schedules to fit your goals in your case.

  4. WHAT HAPPENS IF WE CANNOT AGREE ON PLACEMENT?There is a specific procedure that parents must follow in a custody or placement dispute. Clearly, it is better for both you and your children to resolve matters outside of this procedure which is time consuming and costly. However, that is not always possible.

    First, except in unusual situations, both parties must attend mediation. Mediation is a process in which the parties meet with a neutral, third-party who is trained in dispute resolution. Discussions and statements made in mediation are confidential and cannot be used against in you in your divorce or paternity case. You have the option of attending mediation through the county of your residence which is often available at no or very low cost. Or, you can hire a private mediator. There are very good mediators available in southeast Wisconsin and many people are able to resolve their custody and placement disputes through this process. Sometimes, mediation is deemed not to be appropriate. This usually only happens when there is domestic or child abuse or one party refuses, or is unable, to participate. If a party refuses to attend mediation, the court would generally consider that a factor which would negatively impact upon his/her custody or placement position.

    Second, if mediation fails, a Guardian ad Litem must be appointed. A guardian ad litem, commonly referred to as a G.A.L., is an attorney who is appointed to represent the best interests of your child. The G.A.L. does not represent either you or your child but, instead, is charged by the court with conducting an investigation and making a recommendation as to what he or she thinks is in your child’s best interests. They will usually meet with the parties, talk with the children and talk with other potential witnesses or resources such as friends, relatives, teachers, therapists, etc. The court does not always follow the recommendation of a G.A.L., but usually does strongly consider it. Both parties are required to pay the G.A.L. fees, which includes a deposit as well as his or her hourly fees.

    Third, in some counties such as Waukesha and Washington, a custody/placement study may also be required. During a custody/placement study, the court will appoint a social worker from the county social services department to conduct an investigation which is separate from the investigation done by the G.A.L. The difference between a custody/placement study and a G.A.L. investigation is that the social worker may testify at a trial or hearing while the G.A.L. is an advocate for your child’s interests and, therefore, may not testify. The social worker also makes recommendations based upon their investigation which may include a referral for services such as counseling, psychiatric or alcohol/drug evaluations, anger management counseling or parenting classes. Both parties also are usually required to pay one-half of this cost which varies depending on the county.

    Many people are able to resolve their placement disputes with the assistance of a G.A.L. or the custody/placement study social worker. However, in the event the parties are unable to do so, a trial or hearing is conducted and the court decides what the placement schedule and custody will be. The attorneys at Nelson, Krueger & Millenbach, LLC will advise you as to what the likely result and cost will be for a trial.