divorce mediation wisconsin

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

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.