Clients commonly wonder what factors courts consider in making decisions about legal custody and physical placement of children in a divorce.  Section 767.41 is the relevant Wisconsin Statute to this determination.  See: 

http://nxt.legis.state.wi.us/nxt/gateway.dll?f=templates&fn=default.htm&d=stats&jd=767.41

Under the statute, the Court is required to consider “all facts relevant to the best interest of the child.”  The following are the specific factors described in the law:

  • The wishes of the parents;
  • The wishes of the child;
  • The interaction an interrelationship of the child with family members and any others who significantly affect the child’s best interest;
  • The amount and quality of time each parent has spent with the child in the past, and proposed changes a parent wishes to make to spend time with the child in the future;
  • The child’s adjustment to home, school, religion and community;
  • The age of the child and the child’s developmental and educational needs at different ages;
  • Whether the mental or physical health of a party, minor child or other person living in a proposed household negatively affects the child’s well-being;
  • The need for regularly occurring and meaningful periods of placement to provide predictabilty and stability for the child;
  • The availability of child care services;
  • The cooperation and communication between the parties, and whether one party unreasonably refuses to cooperate or communicate with the other;
  • Whether each party can support the other party’s relationship with the child;
  • Whether there is evidence that a party abused the child;
  • Whether a person dating a parent or living in the proposed household has abused the child, or another child;
  • Whether there has been interspousal battery or domestic abuse;
  • Whether either party has or had a significant problem with alcohol or drug abuse;
  • The reports of outside professionals if admitted into evidence; and
  • Such other factors as the court may in each individual case determine to be relevant.

If you are involved in custody litigation, be prepared to address all of the above factors.  In my opinion, it is very important is that the Court may consider any factor determined to be relevant to the best interest of the child.   If a factor important to your case is not specifically listed by statute, show the Court how that information is relevant to your particular circumstances.

Today, I will address how you can organize your research for your future benefit.  You and your colleagues are probably sitting on gold mines of legal scholarship but don’t realize it.  Instead of throwing hours and hours of research into an old banker’s box when you close a file, turn all of that work into a gift to yourself that keeps on giving.  I highly recommend implementing an internal organizational system such as a “brief bank,” which then becomes your own amazing internal research hub. Consider saving not only the compelling briefs and legal memoranda authored by your own attorneys, but well-written briefs received from opposing counsel as well.  Lawyers appreciate having the law supporting both sides of an issue.  A good internal research bank contains material addressing a variety of topics such as deviation from child support standards, the relationship between cohabitation and maintenance, interstate custody issues, and more.

 

Don’t hesitate to add those “secondary” sources of information.  Often, one can recall reading a great article about something, but cannot locate the article or even recall where one read it.  Well-written articles from periodicals, such as the Wisconsin Journal of Family Law,  can be particularly helpful when there are changes in the law, or when an issue examines a topic in-depth.  Seminar materials, amicus briefs, and more can be incorporated into your internal research bank and make excellent background reading when learning about new topics or updating your research when you have traveled down a certain path before.

 

            With a computerized case management system and a document scanner, your internal research bank may even be stored electronically.  Then, you have everything in one convenient location for ease of retrieving, reviewing and quickly updating the applicable law and argument into a new document, which brings more efficiency to your practice.    Hopefully, these tips will help you save time, find better information and give you and your team more time to enjoy the fruits of your labor.

This is the second part of a three part post describing various legal research methods.

 

Although the resources described Part 1 are typically termed “primary” sources of law, they are not necessarily the best places to begin a search for legal information.  Primary research material is often tricky and cumbersome to search when you don’t know exactly what it is you are searching for, resulting in inefficient fishing expeditions. On the other hand, “secondary” sources, which are legal encyclopedias, law journals and the like, often enable the reader to more quickly focus on key issues and the related primary sources more quickly and easily.

 

            Researching the above authorities is a wonderful way in which legal professionals can use their investigative skills to the advantage of the client, wearing one’s “detective” hat has many other practical implications for the practice of law.  In my opinion, http://www.wicourts.gov is a legal bonanza.  If you have not spent some time on this site, you will want to do so.  It has terrific features that even many attorneys are not aware of. 

Probably the best-known and most-loved feature of the Wisconsin courts site is the Wisconsin Circuit Court Access Program, commonly referred to as “CCAP.”  CCAP is a free database of all circuit court filings in Wisconsin’s 72 counties. (We use CCAP so frequently in our office that we have created a new verb – “CCAPed,” as in “Have you CCAPed this person?”)  CCAP has many practical uses. 

 

By using the “Simple Search” feature, one can track court filings in their own cases, or search by person to determine whether other parties have been involved in litigation before.  We CCAP all adverse parties, all lay witnesses (before we name them), all of our expert witnesses (before we hire them), all witnesses named by adverse parties, and all jurors on our voir dire lists.  We then discover whether people have criminal convictions, outstanding judgments, domestic abuse problems or prior injury cases.   

   

The “Reports” feature of CCAP also comes in handy from time to time.  This allows one to view judges’ and attorneys’ court calendars.  Find out just how much time is set aside for that motion hearing, or determine whether defense counsel is being truthful when he tells you his expert cannot be deposed for six more months because he has such a busy trial schedule.    

The Wisconsin Courts website also contains the Wisconsin Supreme Court and Court of Appeals Case Access (WSCAA), at www.wscca.wicourts.gov, which is the appellate court version of CCAP.  This site is especially valuable when one has an appellate case pending, because the court dockets deadlines and notes filings of documents.  The Clerk of the Supreme Court and Court of Appeals also posts memos of opinions scheduled for release, which are nice to review if you are anxiously awaiting a decision.  

Other pearls to be found on the Wisconsin Courts website include a schedule of filing fees, standardized court forms for use in the Circuit Court, the Docketing Statement which must be filed with an appeal, and a table of all of the case classification codes.  Bookmark your favorites!

 

There is somewhat of a federal counterpart to CCAP, known as PACER.  It is the Federal electronic access system to U.S. District, Bankruptcy and Appellate courts.  Unlike CCAP, it is not free, but it is affordable at 8 cents per page. One must be a registered user to obtain the data.  PACER can be found at www.pacer.psc.uscourts.gov.

 

Other states have varying degrees of open court records, with some open records being free and others subscription-based.  For example, some Illinois counties have their records on line, others do not. 

 

Practical information from many other government sources is in abundant supply once you know where to look.  Wisconsin Circuit Court Rules for all counties which have them are available on the State Bar of Wisconsin’s site – www.wisbar.org. The Wisconsin Courts site publishes links to municipal court sites, which often include local ordinances.

 

The official State of Wisconsin website, www.wisconsin.gov, is the hub of all state departments and agencies.  For example, one can search corporate entity records at the Wisconsin Department of Financial Institutions, www.wdfi.org.

 

In the final part of this post, coming soon, I will address how one can organize all of this research in such a way so that it can be effectively used in your cases.

When most people in the legal profession think of research, they envision someone in a musty broom closet pouring through ancient editions of the Wisconsin Reports, running endless searches through Westlaw (found at www.westlaw.com).   Sure enough, as a former law clerk and associate, I recall maddening instances of various attorneys directing me to find a case they “knew” existed which allegedly stood for some obscure proposition.

Although it is not always possible to find that magic bullet, there are many resources to help attorneys, their staff and the public better understand the law and the workings of the legal system. This post addresses research in the broad sense, and while not exhaustive, is intended as a guide to help you locate and organize all kinds of useful information in your quest for good results.

Part 1 discusses “primary” sources for legal research, and Part 2 will discuss “secondary” sources of information. Finally, Part 3 will describe how you can use what is right under your nose to create a fantastic research system.

Part 1: Primary Law at your Fingertips

Most anything, including the law, is now available online.  “Law” is essentially a haphazard collection of rules and regulations proscribed by governmental entities. Law ranges from the U.S. Constitution drafted by our Founding Fathers to the Yorkville Code of Ordinances passed by the Town Board of Yorkville, Wisconsin (all at www.findlaw.com). But, any comprehensive research project will no doubt ultimately lead to at least a preliminary search of the Wisconsin Statutes. If you don’t have easy access to a bound set, you can also find them free online at www.legis.state.wi.us.  For most Wisconsin family court matters, Chapter 767 is the best place to begin. 

Appellate case law is another important body of authority to review. Westlaw, Lexis and Lois are commonly-used subscription services for searching Federal and State material, including statutes and case law. There are also online sources of free case law if you do not work for a firm which subscribes to any of these services. For instance, free Wisconsin cases are published online at www.wisbar.org. Findlaw publishes free federal court opinions, including the 7th Circuit Court of Appeals.

Child support is governed both by the Wisconsin Statutes and be regulation. Thus, a review of the Wisconsin Administrative Code is in order, and it is available both in print form and online at http://www.legis.state.wi.us/rsb/code.htm.   You can find the various child support definitions and formulas used in Wisconsin Courts in Chapter DCF 150 (formerly,  Chapter DWD 40).

In Part 2, coming soon, I will discuss common secondary sources for legal information.