You are getting divorced in Wisconsin – what next when it comes to your children?
First, it is important to understand two key terms in Wisconsin divorce (and paternity) cases involving children: legal custody and physical placement. Custody refers to legal decision-making, and placement refers to the schedule your children will follow. It is possible to have an arrangement where the parents share custody, but one parent has more placement than the other. Vice-versa, it is possible to have a situation in which one parent has sole custody, but the children still spend substantial time with both parents.
There is a statutory presumption that legal custody will be joint – that is parents will have to agree on major decisions. There are some exceptions that affect this general rule, such as the presence of domestic violence in a relationship. However, the court will begin with the presumption that custody will be joint. Wis. Stat. 767.41(2)
There is no specific rule regarding placement schedules. However, the statutes do direct the court to maximize time with both parents. Wis. Stat. 767.41(4). A complete list of factors the court must consider in determining placement can be found in Wis. Stat. 767.41(5).
If you and your spouse agree on both custody and placement, the court will likely take no further action. Your agreement will need to be submitted to the court as either a Partial Martial Settlement Agreement, or within a full Marital Settlement Agreement.
When the divorce is filed (or at any point after filing), either party may request a Temporary Order hearing to address how finances, custody, and placement will operate while the divorce is pending. If temporary custody and/or placement orders are not agreed to at that time, the court will enter a temporary order and refer you and your spouse to mediation through Family Court Services. If the parties agree on temporary arrangements, but do not agree on permanent arrangements, the court will likely still send you to mediation. If there has been domestic violence in the relationship, mediation can be waived.
At mediation, you and your spouse will meet with a Family Court Services worker. Even if you both have lawyers, they will not be present for this mediation. If the mediation is successful, the mediator will typically circulate a written copy of the agreement to each of your for review, and then to the court.
If mediation fails, then you will likely be appointed a Guardian ad litem (“GAL”). A GAL is an attorney appointed by the court to represent your children’s best interests. After appointment, the GAL will conduct an investigation, which generally includes (but is not limited to) talking to both parents, other close friends or family members, teachers, and therapists, and gathering records if needed (school, medical, past police reports, CPS reports, etc). The GAL will almost always meet with the children as well, unless they are very young or there is some other extenuating circumstance.
GALs are generally required to report the wishes of the children to the court. However, the GAL is not required to advocate for the children’s wishes – only for what the GAL believes to be in the children’s best interests. In Wisconsin, there is no age at which the children automatically get to decide which parent they live with or their placement schedule. In developing their recommendation, a GAL is required to consider the factors listed in Wis. Stat. 767.41(5).
After the GAL completes their investigation, they will make their recommendation regarding any disputed custody or placement issues. If both parties agree, then that will be the end of the contested portion of the case, at least related to custody and placement. If the parties disagree, then the court will either set a trial date, or may refer the family for a study through Family Court Services. Not all counties in Wisconsin conduct these studies. Also, undergoing a study generally extends the divorce process—sometimes by several months, depending on the county.
At any point throughout the process described above, if a full agreement is reached regarding custody and placement, the process stops.
In order for a divorce to be finalized, all financial issues must be resolved in addition to custody and placement. If you and your spouse have reached an agreement on custody and placement, but not on finances, you can execute a Partial Marital Settlement Agreement, which will be entered as a final order, even if the divorce is still pending.
After a final order is entered, whether by agreement or as the result of a trial, Wisconsin has a “2-year rule.” The full text of this statute can be found in Wis. Stat. 767.451(1)(a). In summary, for the first two years after the initial final order has been entered, in order to request a substantial change to either custody or placement, the party making the request must show that that continuation of the current order is causing harm. This is a very high standard that the court takes seriously. When a final order is entered, you should assume that it will be in place for at least two years, unless both parties agree to make changes sooner.
The above description is intended to provide a general sense of what to expect in a Wisconsin divorce case. Because no two families are exactly the same, no two cases are exactly the same. It is possible that your case will not follow the exact chronology described in this post. For more information, or questions about the process as it would specifically apply to your case, we recommend scheduling a consultation with an attorney.
The post The Basics of Child-Related Issues in Wisconsin Divorce first appeared on Kowalski Wilson & Vang, LLC.
The post The Basics of Child-Related Issues in Wisconsin Divorce appeared first on Kowalski Wilson & Vang, LLC.