Legal Custody: The Basics

September 14, 2009

Parents who are divorcing are usually concerned about their “custody” rights.  In Wisconsin, the term “legal custody” is not the same as “physical custody.” 

Legal custody  is the legal terminology describing the legal right to make major decisions about your children and their upbringing.  The law specifically sets forth some of the major decisions, including:

  • decisions regarding consent to marry;
  • consent to enter military service;
  • consent to obtain a driver’s license;
  • authorization for routine health care;
  • choice of school; and
  • choice of religious upbringing.

This is not an exhaustive list of major decisions.  The Court may determine that other decisions affecting a child’s life are major decisions.  For example, the choice of a work-related child care provider is typically viewed as a major decision. 

Wisconsin law presumes that legal custody should be granted to parents jointly.  Joint legal custody means that both parents have an equal right to be an involved participant in major decision-making.  

However, upon request, if the Court finds that it would be in the best interests of a child, the sole legal custody may be awarded to one parent.   If a parent is granted sole legal custody, that parent alone has the right to make major decisions. 

Joint legal custody requires cooperation and communication between parents.  This can be a challenge.  Unless the Court has specifically granted one parent with joint legal custody the sole right to make certain types of major decisions, both parents must agree.

If the parents disagree, it is best for them to try to resolve the disagreement.  Involving third parties is always more time consuming and involves more emotional and financial cost. 

Typically, the first alternative is to seek the assistance of a mediator.  Wisconsin law requires that legal custody disputes are mediated.  Most Wisconsin counties have mediation services readily available to parents facing a dispute about legal custody issues, for relatively low-cost.   Parents may also be referred to co-parenting counseling, where they will learn communication tools in dealing with one another.

If parents are unable to agree upon major decisions, even with the assistance of a third party, they will have to go to Court.  Then, the Judge will decide which parent will be the ultimate decision-maker, at least as to the disputed issue.   In many cases, although a parent may technically “win” or “lose” the case, it is the child who really loses.

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Have a (Parenting) Plan

June 29, 2009

Many people, particularly dads, come into the office with the idea that they would like to have “50/50” in regards to custody and physical placement arrangements.  Shared parenting is a lofty goal.   However, for some people, it is difficult to come up with concrete details as to how a shared parenting proposal would actually work in practice.

This is where the Parenting Plan can be helpful.    A Parenting Plan is a relatively new creature of law.  It is designed to explain to all parties and the Court exactly how a parent’s proposed legal custody and physical placement will operate in real life.  It covers many parenting topics, including:

  • Education
  • Health care
  • Child care
  • Holidays
  • Transportation

Section 767.41 (1m) of the Wisconsin Statutes requires moms and dads to file a Parenting Plan with the Court under certain circumstances.  But whether or not a parent is required to file a formal plan, it is a good idea for parents to review the questions addressed within the plan and be prepared to answer them, whether it be to an attorney, Guardian ad Litem or Judge.   Knowing answers to these questions helps parents organize their thoughts and communicate more clearly. 

Prepared, knowledgeable and organized parents are in a better position to achieve results in Court.   It also prepares them be more effective co-parents with their exes in the long run.  Isn’t that what children of divorce deserve?

What happens to Spot?

May 21, 2009

For many families with pets, the pets are truly a part of the family.  Unfortunately, the law largely treats animals as nothing more than property.  Despite prior proposals to the contrary, Wisconsin law does not have any special provisions for pet custody.  Divorcing spouses are often unable to agree upon what happens to a beloved pet or pet.  There is no uniform way that Wisconsin courts will handle such a dispute.  As with so many divorce issues, the outcome is going to depend upon case-specific facts.

Even though there are no special provisions in the law, pet custody arrangements may still be enforced by Court order if approved by the Judge assigned to the case.  These are some of the proposed agreements I have seen approved by Courts:

  • Dividing multiple pets between spouses.  This tends to arise in families with more than one cat, and only works well if the pets do not develop separation anxiety due to being apart from one another.

 

  • Having the pet travel back and forth between the parents’ homes with the human children.  This occurs mainly with dogs.  Some parents believe that the consistency of having a beloved dog with a child as she travels is comparable to having one’s siblings with them.  This can be problematic if one parent is not really devoted to the dog, however.

 

  • Giving one spouse the pet, with rights to visitation for the other spouse.

It is important to keep in mind that sharing custody of a pet often entails working out the right to make decisions (such as when it would be appropriate to euthanize a pet), medical issues (are you going to treat the arthritis with prescription medication?) and payments of grooming, boarding or vet expenses.   One can expect to encounter some of the same issues that tend to arise in co-parenting human children.   As a result, sharing pet custody means there must be an ongoing relationship between spouses, even after the divorce is final, and even if there are no children involved.  

Pet disputes are often difficult to resolve even with the assistance of attorneys or mediators.  If negotiation fails, the Court will decide what happens.  However, Courts are often not equipped to decide what is best for pets and will usually simply choose a “winner” – the person who gets the pet.  

In my experience, Judges tend to give weight to the person who has registered a pet, paid the vet bills, or provided the majority of the past care.  Chances are that the person who bore the brunt of the burden of caring for the pet could be awarded the animal as part of the property division.

The law provides no magic solution for couples caught in these battles.  Should the Wisconsin law be changed to provide greater Court authority to determine pet custody issues?

Under Wisconsin law, parents are required to attend at least one session of mediation whenever legal custody and/or physical placement is at issue, with little exception.  The purpose of mediation is to try to help parents resolve their disagreements without having to go through a full-blown custody battle.  

Most parents are able to reach agreement in mediation, which shields children from much of the emotional trauma a prolonged custody battle brings.  To maximize the potential for success, parents need to be prepared to discuss a variety of topics regarding their children at mediation.  At a minimum, parents should be prepared to discuss the following topics:

  • The legal custody arrangement you are requesting, and why you feel it is best for your child.
  • The physical placement (physical custody) arrangements you want in place and why you believe those arrangements are best for your child.  Be thoughtful about a specific proposed schedule and how you suggest transportation be handled.  
  • A holiday and vacation schedule.
  • Your relationship with your child, the activities you enjoy doing together, your philosophy of discipline.
  • The other parent’s relationship with the child.
  • Your child’s personality, routines, likes and dislikes, friends, teachers, activities, health care providers, etc.
  • Where you work and the hours of your employment.
  • Proposed child care providers when you and/or the other parent are unavailable.
  • How the child will be able to contact the other parent, and vice versa during periods of physical placement.
  • How you are following through with the child’s religious commitment, if any.
  • Concerns you have regarding the fitness of the other parent, including any abusive behavior, drinking and drug issues, lack of past contact and concern, etc.
  • Concerns you have regarding any other members of the other parent’s household and how your concerns affect the best interests of your child. 
  • How you intend to address problems you may have had in the past.
  • Actions you intend to take to address concerns raised by either the other parent or the mediators.
  • How you have communicated with the other parent, and how that could change/improve in the future.

Focus on what is best for your child or children.  Try to refrain from bad-mouthing the other parent.  If your circumstances dictate that you must raise serious concerns about the other parent, be prepared to cite specific examples of conduct.

For advice on issues specific to your case, you should contact an experienced divorce and family law attorney.

Not having their children with them each and every day is often one of the most difficult adjustments divorcing parents must make.  Holidays tend to be difficult for all divorced and separated parents.  Often, family get-togethers serve as painful reminders of what once was, and what has been lost.  This is magnified when a parent must spend a holiday away from a child.  

As part of developing a post-divorce parenting plan, parents (or the Court, if the parents cannot agree) must determine which parent will have the kids on which holidays.  Most people would like to keep as many family traditions as possible intact for their children.  It is important for children to experience holiday traditions on both sides of their extended families.

The holidays that can be addressed in a court order are limited only by the parents’ imagination.  In my practice, parents usually choose to address the following holidays:

  • New Year’s Eve;
  • New Year’s Day;
  • Easter;
  • Mother’s Day;
  • Memorial Day;
  • July 4;
  • Labor Day;
  • Halloween;
  • Thanksgiving;
  • Christmas Eve;
  • Christmas Day;
  • The child’s birthday

There is usually no doubt that mothers will always have the children on Mother’s Day and fathers will always have the children on Father’s Day.  In my opinion, this is as it should be.   These holidays were established so that each family could honor its mother and its father, respectively.  The beauty of this cultural tradition is that in most situations, each parent has a special day with the children.

Once in a while a parent will try to convince the Court that it is/was more important for the child to see an extended family member, rather than the designated, celebrated, parent.  Stepparents and grandparents may be very important influences in a child’s life, and they deserve recognition on Mother’s Day and Father’s Day (phone calls, emails, gifts or cards).  There is a great editorial on newsday.com this morning celebrating the blended family – “The perfect blend for Mother’s Day.”  But, I cannot recall an instance when the Court decided that someone else should have the kids on Mothers Day or Father’s Day.  So for all of the moms out there, have a happy Mother’s Day!

The other day, the ABA Journal published an article online about a Canadian case, entitled “Wean Toddler from Breast Milk or Use Machine, Judge Rules.”  In that case, the Judge decided that in order to facilitate dad spending time with the child, mom could either wean the nearly three year old or use a breast milk pump.

That got me thinking about the controversial role breastfeeding can play in placement disputes here in Wisconsin.  It can be a hot-button issue in the context of custody litigation.

Many times, mothers of young children balk at the concept of extended placement, or even overnight placement, with fathers if they are nursing.  Essentially, the argument is that breastfeeding is so important that it would be contrary to the child’s best interests to disrupt it, or at least to disrupt it too much.   The American Academy of Pediatrics strongly promotes breastfeeding for all of its benefits to both mother and child.   Additionally, mothers who breastfeed tend to promote the intense mother-child bond that develops as a result of the physical closeness.

On the other side of the coin, the father-child bond is just as important to facilitate and maintain, particularly when children are newborns and infants.  Nursing often means that children are unable to be away from their mothers for more than a few hours at a time, without either supplemental nutrition or bottle feeding with stored breastmilk.  Fathers wonder how they will bond with their children if they only see them for a few hours at a time, or are prohibited from having them overnight.  As a result, fathers may claim mothers use nursing as a weapon to keep them from from their children. 

These issues are often very difficult for Judges and Court Commissioners to deal with.  Their decisions have to be based on the facts of individual cases.   However, my own experience in the courtroom tells me that it is becoming more and more likely that judicial officials here will tell moms they had better start pumping.

Is this the right answer?  I don’t know that there is one magic answer to this dilemma.  It has to depend on the situation at hand.  Important factors will include:

  • Age of the child
  • Medical needs of the child
  • Whether or not mom works outside the home (if so, she is presumably already pumping — and that can cut both ways)
  • The placement proposals of each parent

Hopefully, whatever decisions are reached, they are in the best interests of the child.

If you live in Wisconsin, have a child and were never married to the other parent, you need a formal determination of paternity in order to establish certain legal rights and responsibilities.   This is true even if the father’s name is on the birth certificate, and even if the child is given the father’s last name.  This is true even if the parents are living together.  This is true even if the parents have a great co-parenting relationship without the “benefit” (hassle) of legal intervention.

If you are a father, here is some of what you are missing:

  • You have no legal custody rights;
  • You have no rights to physical placement (physical custody);
  • Your child has no right to inherit from you;
  • Your child has no right to receive social security benefits based upon your earnings record in the event of your death or disability;
  • You have no legal input in the selection of your child’s last name;
  • You have no right to collect child support;
  • You have no right to collect reimbursement for child-related expenses;
  • You have no right to claim the child as a dependent/exemption for income tax purposes

If you are a mother, here is some of what you are missing:

  • You have no right to collect child support;
  • You have no right to collect reimbursement for child-related expenses;
  • You have no right, as the child’s custodian, to receive social security benefits for the child in the event of the father’s death or disability

In Wisconsin, paternity can be established in one of two ways:  a voluntary acknowledgement of paternity or a formal court adjudication of paternity.  Many of my clients have called the voluntary acknowledgement paperwork the “blue form” they received in the hospital.  This is different from the birth certificate paperwork.   A voluntary acknowledgement has a binding, legal effect and is filed with the State of Wisconsin with other vital records.  For more information on voluntary acknowledgements, visit http://dcf.wisconsin.gov/bcs/path.htm.

If a voluntary acknowledgement is not possible, a court action may be started to have the Court make a formal adjudication of paternity.  Fathers and mothers both have standing to begin a paternity case.   If a parent is receiving public assistance (welfare benefits), the State of Wisconsin will typically file a paternity case in the courts.  Private divorce & family law attorneys, like me, also frequently assist clients in establishing paternity. 

For more information about establishing paternity, visit: