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.

In Wisconsin, child support is calculated based upon the number of minor children, the parents’ income and the parents’ physical placement time with the children.  All support calculations are based upon the “Percentage of Income Standard,” found in the Wisconsin Administrative Code at DCF Chapter 150

The most basic child support calculation is based solely on the percentage standard.  Under this method, the amount of child support paid is based upon a certain percentage of the paying parent’s gross income.  The percentage of monthly income assumed to be available for child support is as follows:

  • 17% for one child;
  • 25% for two children;
  • 29% for three children;
  • 31% for four children;
  • 34% for five or more children.

More complex calculations come into play in certain circumstances.  The most common of these is probably the “shared placement” calculation.  This is a modified formula which applies when both parents have court ordered periods of placement of at least 25% (or 92 days per year).  Under the shared placement formula, both parents’ incomes are taken into account, in relation to overnight placement, to arrive at a net child support amount.  In addition to the child support payment, parents are typically ordered to pay for a percentage of “variable costs” incurred on behalf of the children – child care, tuition, extra-curricular activities, and the like.  A shared placement child support calculator published by the Wisconsin Department of Children and Families is available online

Another situation which calls for a modification of the percentage standard is that of a “serial family payer.”  A serial family payer is one who has a prior legal obligation for child support.  For example, a parent who is divorcing but has a child from a previous marriage may qualify for serial family payer status in calculating support for the children from the second marriage. 

Infrequently, parents decide to split up their children after a divorce with one or more children residing with each parent.  To address these situations, there is a special provision in the child support formulas for calculating support for these “split-placement parents.”  As in shared placement cases, both parents’ incomes are considered relative to the number of children and the placement.

If a parent is considered to be “high” or “low” income, modifications to the formulas are made as well. 

If none of the above “special” circumstances apply, and a parent feels more or less child support is appropriate for the situation, that parent may request what is known as a “deviation” from the formula.  A deviation may provide more or less support than the application of the formula would indicate.  The factors that the Court may consider in deviation include (but are not limited to):

  • the financial resources of the child;
  • the financial resources of both parents;
  • maintenance payments received by either party;
  • the needs of any person whom either party is legally obligated to support;
  • the standard of living the child would have enjoyed had the marriage stayed intact;
  • the cost of child care;
  • special health needs of the child.

Deviations are rare, but may be appropriate in certain situations.  It is up to the Judge to decide whether to grant the deviation, based upon the evidence presented.

For more information about how child support may be calculated in your case, please contact an experienced divorce and family law attorney.

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?

Bird Nesting

June 23, 2009

The media is all about the Gosselin divorce  today. Apparently, the infamous Jon and Kate are going to “bird nest.”  This is an arrangement where the children stay in the family home while their parents are going through a divorce.  Meanwhile, the parents rotate in and out of the house during their respective physical placement time with the kids.  

The parents must make arrangements for alternate housing during their “off” time.  Often, they stay with friends or family members.  One of the benefits of bird-nesting is that it is the adults, rather than the children, who are inconvenienced by having to pack bags and move back and forth between two residences.  When so many things about their lives are changing, having the constancy of their home can be a source of comfort to children.  When finances are tight, many divorcing couples feel that bird-nesting for a short time affords them the opportunity to “save” some money to enable the departing spouse to obtain more permanent housing.

For all of its potential benefits, Courts usually do not require bird nesting because it is fraught with the potential for problems.  Many of the same disputes that were present in the intact household remain a source of conflict during bird-nesting.  Disputes may arise over such issues as:

  • One spouse ate some of the groceries purchased by the other;
  • One spouse did not maintain the house or yard “properly” during her time;
  • One spouse went through the other’s mail or other personal effects;
  • One spouse had “friends” over for a party.

Despite the potential for these types of conflicts, when parents agree that a bird-nesting arrangement would be best for their children, courts will usually endorse such a plan on a temporary basis.  This is particularly so when the case appears to be relatively low-conflict.  The more even-tempered the individuals, the less likely that problems like those cited above will create major disputes.

Regardless of the circumstances, the bird nest tends to be a poor long-term solution, especially when it is only being done due to tight financial conditions.  Therefore, if a bird nest arrangement is in place, it is for a very short period of time, and usually ends before the divorce is finalized.

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.

What is a Deposition?

June 4, 2009

In contested cases, a great deal of work goes into preparing the case for court.  Sometimes, it is necessary to conduct a deposition.   A deposition is testimony taken under oath (under penalty of perjury) in advance of a trial or evidentiary hearing before a Judge or Court Commissioner.   

Typically, a deposition is taken both to learn information, and to “box” a witness into a story.  Deposition testimony may be may be used against that witness in court.  Therefore, it is a very useful investigative and preparation tool for attorneys.

A deposition is a formal question and answer session.  The subject matter typically relates to the contested issues in the case.  In divorces, depositions often focus on the financial affairs of the spouses and any issues relevant to legal custody/physical placement determinations.  Often, the person being deposed is required to bring certain documents to the deposition.  In those instances, the deponent will almost surely be asked questions about those documents.

The person being deposed is known as a “deponent.”  Depositions may involve only the parties (husband and wife).  In more complex cases, family and friends may be deposed.  If there are any expert witnesses involved in the case, they may be deposed as well.  Experts may include appraisers, accountants and psychologists. 

Depositions are usually conducted at the office of one of the attorneys in the case.  In my office, we hold depositions in conference rooms.  A court reporter is present to transcribe all of the questions and answers for the record.  Court reporters are hired by the attorney requesting the deposition.  More rarely, a deposition is videotaped as well.  If a deposition is videotaped, that is usually done by a professional videographer.

The length of an individual deposition varies.  Generally, the more complex and acrimonious the case, the longer the deposition will be.  There is no Wisconsin law which specifically limits the amount of time a deposition may take.   However, a deposition cannot be taken solely for the purpose of harassment or intimidation. 

Anyone who is part of a deposition may order copies of the official transcript from the court reporter who transcribed the testimony.  A witness is allowed to read and review his or her testimony.  However, the contents of the transcript cannot be changed.

If you are subpoenaed to appear at a divorce deposition, you should consult an experienced divorce lawyer to learn about your rights.

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.