In Wisconsin, the legal terminology to describe physical custody of a child in Family Court matters is “physical placement.” During a parent’s periods (times) of physical placement, the child is either with the parent or under that parent’s care. The parent with physical placement has the right and responsibility to make routine, daily decisions about the child’s care. Examples of such routine decisions would be what the child eats for lunch, what the child wears to school that day and whether the child can go on a play date after school. These routine daily decisions are within the sole discretion of the parent with placement, as long as they do not contradict the “major” decisions which must be made jointly by parents with joint legal custody.

While state law does not require or presume that placement between parents be equal, it does require that the court maximize the amount of time that a child spends with each parent, while taking into consideration geography and individual household accommodations. All Court decisions are to be consistent with what the Judge deems to be the best interests of the child.

As a result, there are many different types of schedules for physical placement. In some families, one parent may have the majority of the placement time. This is often referred to as “primary” physical placement.   It is important to note that a designation of “primary” physical placement gives a parent no additional rights or responsibilities, other than that parent has more time in which he or she is responsible for routine decision-making.  Major decision-making is always controlled by the designation of legal custody.

In other families, the time is more evenly divided between parents, and this is usually called “shared” physical placement.   The time can be divided in any manner which makes sense for an individual family.  Some parents exchange the children weekly, while others do so every couple of days.  Parents should take their individual circumstances as well as the ages and needs of their children into account in developing a schedule. 

Regardless, in most cases, there is a “regular” or typical physical placement schedule, and then specified deviations for holidays and vacations. Some families have schedules for physical placement that are very detailed, indicating exact days, times, drop off locations and other particulars. Others are more flexible, which rely upon cooperation and good communication between parents. The greater the conflict between parents, the more specific the schedule should be. Ultimately, the way a schedule is designed is really only limited by the parents’ (or their attorneys’) imagination, subject to the approval of the Judge assigned to the case.

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.

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?

Most people find they do not want to go through a divorce without an attorney, particularly those mired in contentious cases.  Yet, in these difficult economic times, they do not want to pay massive legal bills.   There are things that clients can usually do to help control their legal costs.  These are my top five:

1.  Be Proactive.  Be your own detective.  Your divorce attorney will need a great deal of financial information about you and your spouse in order to properly prepare your case and give you advice.  If the attorney has to request this information from other sources, such as your spouse’s attorney, financial institutions and employers, it becomes very time-consuming and expensive.  The more documents you can uncover on your own and provide to your attorney, the better.

2. Be Patiently Organized.  Calling or emailing your attorney immediately with every question that pops into your mind may instantly put your mind at ease, but will likely end up costing you in the long run.  For non-emergency situations, I recommend that clients keep a running list of questions and concerns to bring forward during a phone call or office conference. 

3.  Choose Your Battles Wisely.  As a general rule, the more issues in dispute, the more costly and time-consuming the case becomes.  Think carefully about what is really important to you, and where you want to focus the greatest amount of resources.  For example, rather than fighting over the Tupperware, wouldn’t you rather make sure you get a fair share of your spouse’s 401(k)? 

4.  Cooperate With Your Attorney.  If your attorney asks you for information, provide it.  If your attorney wants to see you, make an appointment.  This may seem like a no-brainer, but often people who do not want to be divorced will try to avoid the entire process.  This can be a mistake for several reasons.  Most importantly (for purposes of this post), valuable resources may be wasted by your attorney trying to pin you down, rather than actually making progress on the substantive issues in your case.

5.  Be On Your Best Behavior.  This is not the time to get a drunken driving ticket, sell your snowmobile to your best friend, or bring your new boyfriend/girlfriend to the dance recital.  Follow your court orders, and don’t give your spouse and/or spouse’s attorney any new ammunition which can be used to fire off a nasty letter, or even worse, schedule additional court proceedings, thereby raising your legal fees and increasing your heartache in the process.

While these tips are usually quite effective, your attorney can advise you on the best ways to save legal fees in your particular case.

Although most divorce lawyers enjoy going to Court, some clients would rather not go there.  Whether it is due to inconvenience, stress, fear, other reasons, clients often express a reluctance to appear in Court as part of their divorces.  In fact, most people I know would prefer to never step foot in a courthouse.  

It seems in some states, if all provisions are agreed upon by the spouses, paperwork may be submitted by mail and presto!  A divorce is granted.  This is never the case in Wisconsin.  Here, even when all aspects of the divorce are agreed upon, the soon-to-be-exes must participate in a court hearing at least one time, for what is known as final divorce hearing.  The final divorce hearing is the court proceeding in which the Judge formally grants a divorce to the parties.

Other than the final divorce hearing, the number of times a divorcing person appears in Court will depend on many different factors, including the contentiousness of the case and the County in which the case is taking place.   Generally speaking, the more contentious the case, the more likely it is one will find herself in court multiple times – before and after the divorce is granted. 

Sometimes, the number of court appearances has nothing to do with the level of animosity between the spouses.  Some Judges will hold Pretrial Conferences in which the attorneys and the parties to the case must attend to discuss the status of the case.   For some people, circumstances beyond their control, such as a job loss while the divorce is pending, will result in a trip back to Court to change provisions which may have been entered as part of a Temporary Order.

An experienced Wisconsin divorce attorney can help you determine how many Court hearings may be appropriate for your case.

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.