Beginning August 3, 2009, same-sex couples in Wisconsin will be able to register for domestic partnerships with their local County Clerks.  This controversial new law was created with the state budget signed into law by Governor Doyle on June 29, 2009.  While domestic partnership is not the same as a “same sex marriage” or a “civil union,” it does afford couples more rights and protections than existed under prior law, including:

  • rights to inheritance
  • rights to family and medical leave
  • hospital visitation privileges

To register, couples will need to go to the County Clerk’s office in the county where they reside, complete a sworn affidavit and pay a fee.  There is a 5 day waiting period, which may be waived for a fee at the discretion of the Clerk.  Upon the expiration of the 5 day waiting period, the County Clerk issues a declaration to the couple.  The declaration must then be signed, notarized, and filed with the county Register of Deeds.  The declaration is maintained as a vital record – much as a birth certificate, death certificate, etc.

The advocacy group Fair Wisconsin has published a reference guide  on their website as a resource for couples seeking more information about the new law.  The Winnebago County Clerk’s office has also posted an extensive set of FAQs to assist those seeking to register or dissolve a domestic partnership.

Because the law does not treat a domestic partnership as a marriage (in fact, Wisconsin has a constitutional amendment banning same-sex marriage), the “regular” divorce laws do not apply upon dissolution of a domestic partnership.  However, an experienced divorce and family lawyer can assist same-sex and opposite-sex partners in resolving many types of disputes upon the termination of a relationship using pre-existing law regarding property rights.

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?

Many states have adopted laws under which grandparents who have been estranged from their grandchildren may obtain formal visitation rights to see them.  These laws are a variation of the concept that Courts may intervene and allow such visitation even if it occurs over the objection of the custodial parent. 

Wisconsin law provides conditions under which grandparents may be able to obtain formal grandparent visitation rights with their grandchildren.  One example of this is where one of the parents has died.  In that unfortunate situation, a grandparent has the right to petition the Court for visitation rights under a special statute, Section 54.56.   If, after a hearing, the Court finds that it would be in the best interests of the child to have visitation with the grandparent, some amount of visitation can be granted. 

Most grandparents use the legal system as a last resort, and for good reason.  In a contest between a parent and a grandparent, the parent’s judgment is given great deference.  Many times, grandparents will find that they are able to see their grandchildren more often by simply trying to maintain a good relationship with the surviving parent, rather than running to the courthouse.

The cases that end up in litigation tend to be those where the relationship between extended family members is already irreparably damaged.  These cases always seem to be very difficult for everyone involved.   Unfortunately, there are no standard formulas or guidelines for judges to follow, and no magic solutions.   Parents have a constitutionally protected right to raise their children as they see fit.  But when a child has already lost a parent, should she lose her grandparents, too? 

Whether or not a grandparent has a “good” case for visitation is dependent upon the facts and circumstances.  Good resources for grandparents wanting to learn more about their potential rights include an informational pamphlet published by the UW-Extension, and the AARP website.  An experienced Wisconsin family law attorney can provide legal advice specific to a particular situation.

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.

In Wisconsin, Court files are generally open and subject to public inspection, as part of the state Open Records Law.   That is why a political news story yesterday caught my eye: a Judge in a Missouri congressman’s divorce sealed the file after a reporter asked to see it.  

Unless a Judge specifically orders otherwise, any person can go to a local Circuit Court Clerk of Courts office and ask to see a divorce file.  The entire file is an “open book,” save for a few documents.   We also have CCAP, part of the Wisconsin Circuit Court Access System, where a catalogue of most court filings is maintained in a public database.  The level of detail provided online as to the nature of the individual documents within a file seems to vary by county.

There are two documents which are not for public consumption:

  • Confidential Petition Addendum.  A couple of years ago, the law was (thankfully) changed to provide that instead of putting people’s social security numbers in the Petition for Divorce, that information goes into a separate Confidential Petition Addendum.   The Addendum is placed into a sealed Court file.  The Court, the parties to the case and their attorneys are entitled to access this information.
  • Financial Disclosure Statement.  All parties to divorce are required to file sworn statements setting forth information about their income, expenses, assets and liabilities.  This document, known as a Financial Disclosure Statement, goes into a sealed Court file.  Only the Court, the parties to the case and their attorneys are entitled to access this information.

In Wisconsin, upon request, the Judge decides whether or not to seal a file.  In my local area the sealing of entire divorce files is a relatively rare occurrence, as confirmed by the Appleton Post-Crescent when the paper conducted an investigation of court files in its four-county readership area (Calumet, Outagamie, Waupaca and Winnebago Counties) earlier this year.  

As a result, for most people, their divorce is an open book for anyone to read.  The type of information in an open divorce file often includes:

  • Home address;
  • Occupation and/or employer;
  • Date of marriage;
  • Names and dates of birth of minor children;
  • Whether or not anyone in the family is receiving public assistance;
  • Whether or not the wife is pregnant;
  • In a custody dispute, specific claims about the other spouse: abuse, neglect, alcohol/drug use, etc.
  • A description of the assets being awarded to each spouse;
  • A description of the debts being assigned to each spouse;
  • What the custody and placement arrangements are in a case, and why.

Should this information be for public consumption?  Does the availability of CCAP make a difference? I’d love to hear what you think.

One of the things clients are most concerned about is the length of time it will take for their divorce to be finalized.  Unfortunately, there is no real “standard” amount of time it takes to be divorced.  In Wisconsin, the minimum waiting period is 120 days from the date that the other spouse is served with the Petition for divorce or legal separation.  That’s about four months.  However, most divorces take longer than that.   On average, most divorces take six to eight months to be concluded. 

There are a number of variables which impact the length of time a divorce will take, but here are some of the most important ones:

1.  Whether or not there is a custody/placement dispute.   A custody or placement dispute is one of the biggest determining factors for the length of the divorce process.  Wisconsin law requires parents who disagree about custody or placement to attend mediation.  In most counties, a mediation orientation/educational class is required prior to the first “individual” mediation session with the parents.  In Outagamie County, for example, the orientation is only held once per month (“Children Caught in the Middle“).  Mediation itself takes time.  If mediation fails, the Court will appoint a Guardian ad Litem, and may order other custody evaluations, extending the process.  As a result, it is not uncommon for a fully contested placement dispute to take a year to wind its way through the system. 

2.  The complexity of the case.  The more complex the case, the longer it will take to conclude.  For example, if the marital estate includes a business, that business may need to be valued by an accountant.  If one spouse is claiming an asset is not subject to division because it was gifted or inherited, that gift or inheritance will have to be documented and traced. 

3.  The contentiousness of the case.  There is no doubt that the more issues in dispute, the longer the case will take.  The more time the parties and/or their attorneys spend fighting about issues large and small, the longer it takes them to be prepared to conduct a final divorce hearing.  There is also a direct relationship between the number of issues in dispute and the amount of court time required to present the case.  The more court time that is required, the further in advance the hearing needs to be set.

4.  The county in which the divorce is venued.  This doesn’t seem as though it should matter, but it does.  Some counties have local rules in place to keep divorces on track, while others do not.  Some counties have Judges assigned to hear only family court cases, while others have all Judges hear all types of cases.   Some counties automatically schedule Status or Scheduling Conferences, while others require the parties to request them.  Your attorney can give you an idea of how long a divorce may be expected to take in your particular county.

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.