Post Judgment Considerations for Child Custody, Physical Placement, and Child Support in Wisconsin

          Multi Ethnic People Holding The Word Change

Given the nature of custody, placement, and child support issues, parents can often find themselves going back to Court to request changes, or modifications, to an initial or previous order in their divorce or paternity matter. These matters are often referenced as “post judgment” matters. In Wisconsin, there are specific rules that apply to post judgment matters that are different than what parties may have encountered previously when they originally addressed these issues. The list below outlines some important rules and considerations for parents who may wish to initiate, or are involved in, a post judgment matter for child custody, placement or child support:

  1. When was your initial order entered by the Court?
    1. If a party is requesting a change to custody and placement within 2 years from the date of the original judgment, that party must provide substantial evidence that the change is necessary because the current conditions are physically or emotionally harmful to the best interest of the child. This rule makes a change to custody or placement much more difficult before the first two (2) years after the court’s initial order. The intended goal is to provide a cooling off period to help encourage parties to work together and avoid over using the Court system to settle their parenting disputes as well as provide stability for the children.
    2. If the initial order was entered over two (2) years ago, the Court can modify the current order if it finds that the request is in the child’s best interest, and that there has been a substantial change of circumstances since the last order.

 

  1. What is a “substantial change in circumstances” to change custody or physical placement?
    1. The term, “substantial change in circumstances” is very broad. It could mean a variety of things, such as, the parties’ inability to communicate, a change in work hours that effects a parents availability, a move, a change in a child’s medical or developmental needs, or a combination of several factors that makes the current custodial, or physical placement order unworkable. However, merely the passage of time or the aging of the children is generally not considered to be a substantial change in circumstances.

 

  1. What is the point of court ordered mediation?
    1. The Court requires parties attempt mediation in an effort to facilitate an agreement between the parties to avoid further litigation. Many parties are able to come to an agreement on some, if not all, issues in mediation. This benefits everyone involved because both the parties, and the Court, will save the time and the money necessary to proceed through the Court system. The only exceptions to mediation are if there have been domestic violence between the parties, child abuse allegations or one of the parties is impaired due to drugs, alcohol or mental illness.

 

  1. Why was a Guardian ad Litem appointed?
    1. If the parties cannot reach an agreement in mediation, the statutes require that the Court appoint a Guardian ad Litem (an attorney) in order to help determine what is in the best interest of the child or children. The Court relies on the Guardian ad Litem to conduct an investigation in order to provide a recommendation as to what solution to the parties’ issues is in the best interest of the children.
    2. In certain circumstances, such as in cases of domestic violence, the Court may decide to bypass mediation, and immediately appoint a Guardian ad Litem.
    3. There is usually a fee associated with the appointment of a Guardian ad Litem that both parties must pay. The Court will also set an hourly pay rate for the Guardian ad Litem as well. The county pay rate varies by county.

 

  1. What if I simply want to change the child support amount?
    1. If there has been a substantial change in circumstances, then a party may file a motion with the court to change child support. Child support will not automatically change simply because one parties’ income has changed. If you want child support to be changed, you must file a motion with the court. It is important to determine first whether there has been a substantial change in circumstances and what any new child support amount should be before you file a motion.
    2. A substantial change of circumstances to change child support is a very broad standard. It can mean that a party may have received a raise, changed jobs, lost their job, etc. It could also mean that the placement arrangement with the child or children has changed, which would also alter the support amount. Or, if one of your children has reached the age of majority and/or graduated from high school.
    3. If you believe that the other party has had an increase in income, you should request that they provide to you paystubs or some form of income documentation so that you can determine if you should ask the court for a change in child support.

Modification or Enforcement of a Court Order in a Wisconsin Divorce

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.