In Wisconsin, one of the grounds on which individuals can move for termination of a parent’s rights is abandonment. Abandonment occurs when a parent is aware of the location and contact information for a child, but fails to visit or communicate with the child for six months or longer. In a recent case before the Wisconsin Court of Appeals, one mother moved to terminate the parental rights of her ex-husband, the father, after he failed to visit or communicate with their daughter.
In Milwaukee divorce cases involving children, guardian ad litems (GALs) are frequently appointed to help represent the best interests of the child before the court. Ex-spouses may request the appointment of a GAL, or a court may require a GAL to be appointed. In either circumstance, the GAL will have fees for his or her time that must be paid by the parties involved in the divorce. How those fees are paid can be an issue of contention, especially when they rack up over time. In a recent case before the Wisconsin Court of Appeals, one spouse attempted to object to having to pay his share of GAL fees.
In Marriage of Arlene Gregerson v. Christopher Gregerson, Arlene and Christopher filed for divorce and sought custody over their two minor children. Since custody was contested, the court appointed a GAL to participate in the proceedings. After some negotiation, Arlene and Christopher reached a marital settlement agreement, which was incorporated into the court’s order of divorce. As part of the settlement agreement, Christopher and Arlene agreed to split the GAL fees 50/50. At the time, they did not know the full extent of what those fees would be. After the proceedings were completed, the GAL submitted a request for payment of her fees. Christopher provided the court with a written objection to the fee petition, but his objection was overruled, and the court approved the payment of the fees. Christopher appealed, arguing that he was entitled to a hearing to consider the objections that he had to the fee petition and that the court failed to credit him the $400 deposit he made toward the payment of the GAL’s fees.
In Wisconsin, county court rules govern the handling of disputes over payment of GAL fees. In St. Croix County, where Arlene and Christopher were located, the county court rules provide that any party who has a dispute with the payment of GAL fees should raise the issue with the judge or commissioner for it to be reviewed. Accordingly, Christopher filed his written objection to the fee petition and also requested that a hearing be scheduled to address his objection. The court reviewed his written objection and determined that it could resolve the issue on the basis of the written submissions. It therefore declined to conduct a hearing and granted the fee petition. On appeal, Christopher argued that the “review” of his petition required more than simply reviewing the documents, and it required that a hearing be scheduled. The Wisconsin Court of Appeals disagreed. It found that the rules gave the court the discretion to determine how to handle any objections to the payment of GAL fees and that if the court deemed a review through the documents sufficient, this satisfied the requirements of the rule. Since the rule did not explicitly require a hearing, the court did not err in deciding not to grant one.
In Wisconsin, the procedural steps that must be completed before a parent’s rights can be terminated are extensive. Parents at risk of having their rights terminated must be offered substantial opportunities to rectify their behavior and comply with necessary steps toward reunification. But what if the compliance required is exceptionally difficult, or even impossible? A recent Wisconsin child custody case takes a look at such an argument by a parent who lost parental rights.
In In Re The Termination of Parental Rights to M.A.B. v. T.M., T.M.’s parental rights were terminated after a jury found that she did not substantially comply with the requirements imposed on her by the Monroe County Department of Human Services, and she had abandoned her children. In January 2015, T.M.’s children were removed from her home and placed in foster care, based on concerns about T.M.’s mental health. In order to have visits with her children, T.M. was required to undertake certain conditions, including submitting to drug testing, visiting with a mental health provider, contacting her social worker to inquire about her children, contacting her children as allowed by her social worker, and acknowledging important events like her children’s birthdays. Almost a year later, Monroe County moved to terminate T.M.’s parental rights on the basis of abandonment after she failed to comply with these conditions.
According to T.M.’s social worker, Gina Phelps, Ms. Phelps had attempted to contact T.M. on a variety of occasions to inform her of these conditions and discuss how to comply with them. After a hostile phone call with T.M., Ms. Phelps began to send letters to T.M. to keep her updated on these conditions and attempt to move forward. Ms. Phelps never heard from T.M. by mail or phone call, and T.M. never contacted her to inquire about her children. Ms. Phelps also testified that T.M. never showed up to appointments with her mental health providers and never contacted her children at their foster home, despite the fact that the foster parents had given her a cell phone to do so.
Not surprisingly, criminal acts of domestic violence by one spouse toward another frequently result in the filing of a divorce. In addition, frequently victims of domestic violence will seek a temporary restraining order and a permanent injunction to prevent the abusive spouse from having contact with the abused party or even with the children. Whether you are the alleged victim or the alleged abuser, there are strategy considerations to consider in deciding how to deal with this emotional and sometimes dangerous situation.
First, both parties should understand that a domestic violence accusation complicates a divorce case in several ways. If a restraining/injunction is granted, this means that the parties will not be able to have any contact without a specific exception from the court for divorce related issues. These exceptions may not be granted, particularly if the court has reason to believe that one party may be endangered. This means all efforts to pay bills, get kids to school or daycare, attend medical appointments, address holidays, etc may fall to the spouse who has placement. Both sides under these circumstances are well advised to retain a lawyer to try to obtain court orders that work around the impediments a no contact order can cause.
If a criminal case is going on at the same time as the divorce, the judge in the criminal case may impose his own no contact order as a condition of release on bail, which overrides any other court order in the divorce. Again, having a lawyer, preferably the same lawyer for the divorce and the criminal matter, is essential to coordinating the criminal and the family law courts. If both sides have attorneys, sometimes it is possible to negotiate a temporary order in a divorce that makes an injunction unnecessary or allows a criminal court judge to feel comfortable relaxing a no contact order in the criminal case. Sometimes, having absolutely no contact is not what the victim really wants and instead just wants the violence to stop and the spouse to get help. While that result seems reasonable on the surface, there are several possible impediments to such a resolution and having reasonable lawyers on both sides will increase the odds of a rationale result in all forums.
Dividing a couple’s assets during a divorce is almost always a complicated endeavor. Courts must consider money an individual brought into the marriage, money and assets acquired during a marriage, and how to split up physical property like a home and vehicles. When a couple owns a business together, this becomes immensely more complicated, as a recent decision by the Wisconsin Court of Appeals illustrates. Rarely can a family-owned business be neatly divided between two ex-spouses without some sort of issue arising.
In In Re The Marriage of Haley v. Haley, Patrick Haley and Anna Haley decided to divorce after 12 years together. During the time that they were married, they owned and operated a company called IPS-CareFree Enzymes, which provided various enzyme products to companies and consumers. While running the business, Patrick invested in a new product that removed certain enzymes from pools and spas with a hose-mounted sprayer. He received a patent for this device and licensed use of the product out to different companies.
When Anna and Patrick divorced, they negotiated a Marital Settlement Agreement and a separate Supplemental Business Agreement to cover the division of their company. Under the SBA, the two ex-spouses divided up their former customers and decided that they could not cross-solicit from each other’s customers. Per the SBA, both parties were entitled to use and market all of the products created by the Company, including the product that Patrick patented. Several years later, Anna’s new company, now named Auraco, began advertising products for sale, including the patented product. Patrick sent a letter to Anna to demand she stop selling the patented products. He then moved to reopen divorce proceedings to clarify the extent to which Anna could sell the patented products. Anna sought the same clarification.
In a divorce, one of the more challenging tasks can be to determine who should receive which property and how much they should receive. Splitting up finances can be very emotionally difficult for couples and can bring up feelings of resentment, frustration, and anger. In order to protect what they believe to be theirs, some spouses resort to taking jointly owned funds prior to a divorce and attempting to divert them for personal use. To avoid this problem, many courts will require a strict accounting of funds and assets in a divorce, dating back to well before the actual divorce papers were filed. If money cannot be taken into account, it may be held against the person who spent it, as a recent Wisconsin divorce case illustrates.
In In Re Marriage of Bodart v. Balthazor, Jane Bodart and Leslie Balthazor divorced after more than 30 years of marriage together. Sometime shortly prior to the divorce, Leslie emptied an IRA account in his name that held over $70,000 in assets. During the divorce, the parties began to dispute the division of assets and property, and Jane requested a full accounting of the money withdrawn from the IRA account. Leslie provided bank statements to show when the money was withdrawn, but he could not account for how it was all used. At trial, he testified that more than 95 percent of the assets were used to pay for joint marital expenses, rather than his own personal interests, but Jane carefully documented how many of the funds were not explained and were taken out via personal checks or unidentified ATM withdrawals. In total, while Jane conceded that $25,000 of the proceeds were likely used for marital expenses, she argued that the rest were not clearly used for both of their benefits.
The court repeatedly suggested that Leslie provide more information concerning the outstanding $50,000, but he was unable to provide specific documentation or receipts. Since the court could not ascertain exactly what had happened to that money, it made the decision to split it in half, assuming that $25,000 was used for marital expenses, while the remaining $25,000 was not and was credited against Leslie in distributing the remaining assets. Leslie appealed this outcome.
Divorce is a painful and difficult process. Obviously, if the parties were getting along and communicating well, they wouldn’t be getting divorced in the first place. It’s the communication process that makes a good lawyer so critical in a divorce matter. You want to hire an attorney that demonstrates excellent communication skills to assist you in persuasively advancing your position, not only in court but also in negotiations with the other side.
The best divorce lawyers are able to argue a position without seeming argumentative. Seems counter-intuitive, doesn’t it? However, the divorce process is emotional. The parties typically feel anger, resentment, failure and a fear of the future. The job of the lawyer is to take the emotion out of the analysis. It doesn’t help to make the situation worse by being argumentative with the other side. Some people feel that the best divorce lawyer is the one that yells the loudest or refuses to concede any point, no matter how illogical. However, courts and other attorneys on a case tend to ignore those lawyers that blindly advocate a position, regardless of how irrational it is.
When interviewing an attorney, assess his ability to listen, to assess your problem(s) and to offer reasonable solutions you may not have considered. Most divorce cases ultimately resolve by agreement rather than by going to trial. Trials are expensive and can have an uncertain result. Your lawyer should have the ability to propose a reasonable result that gets you most of the things that are important to you while conceding the points that are less important in the interests of allowing you to move forward with your life.
One of the fundamental tenets of the legal system is that you must show up to assert your legal rights if you want to have those rights enforced. Parties to a legal dispute cannot simply refuse to take part in legal proceedings and expect to have their position upheld, or even considered, by the court. Indeed, when an individual does not show up or respond to a legal proceeding or complaint, a court may enter a default judgment against the person. This means that the opposing party wins not necessarily on the merits of their argument but simply by default, since the other party didn’t show up. In a recent case before the Wisconsin Court of Appeals, this type of default judgment had significant consequences for a father seeking to keep his parental rights.
In In Re The Termination of Parental Rights to A.P. and J.P., proceedings were initiated against K.P., the father of A.P. and J.P., after he failed to abide by state orders obligating him to maintain contact with his children. K.P. was incarcerated at the time that A.P. and J.P. were removed from their mother, and he did not initially have regular contact with them while in jail. In July 2014, temporary custody of J.P. and A.P. was awarded to the Milwaukee Bureau of Child Welfare, and, in order to prevent the termination of his parental rights, K.P. was instructed to maintain monthly written contact with his children from jail. K.P. failed to do so. In October 2015, a petition to terminate K.P.’s parental rights was filed, stating that K.P. had abandoned his children. K.P. was ordered to show up for the termination proceedings and was released from custody in order to do so. K.P. was appointed counsel, who attended the first hearing, but K.P. did not show up. His counsel did not know where he was. The court went ahead and ordered the remaining hearing and trial dates and warned K.P.’s counsel that if K.P. did not appear, a default judgment could be entered against him. While K.P. later attended the two pretrial hearings, he did not show up on the day of the jury trial, despite repeated attempts by the court to reach him. A default judgment was entered against him, and his rights were terminated. K.P. appealed.
On appeal, K.P. argued that his behavior was not so egregious as to justify a default judgment because he had attended the prior hearings, and he had telephoned his counsel on the day of the trial to say that he would be late. Under Wisconsin law, however, a trial court’s determination of a default judgment may be overturned only if the trial court did not follow the law or had no reasonable basis for the default judgment. Here, the Court of Appeals noted that K.P. had received multiple warnings regarding the possibility of default findings if he did not appear, and he had acknowledged these warnings. Moreover, although he initially telephoned his counsel on the morning of the trial to let him know that he would be a few minutes late, his counsel and the court were unable to reach him for the next two hours, even after delaying the trial in an attempt to allow K.P. to attend. Under these circumstances, the Court of Appeals held that the trial court was not out of line in determining that egregious conduct had occurred, and there was a reasonable basis for the decision. Moreover, the Court of Appeals noted that K.P. had never made any significant attempts to contact or support his children and had not been a consistent presence in their lives.
Spousal maintenance is typically awarded in a divorce so that one spouse can continue to live the life that they were accustomed to living before the divorce. Often in these situations, one spouse is making significantly more than the other, or one has taken time off from his or her career to raise children and is no longer in the workforce. In order to ensure that that parent is not left stranded after a divorce and effectively punished for sacrificing career obligations for family obligations, the court requires that the working spouse give some amount of money, on a monthly basis, to the spouse who was not working or was working a lower-paying job. Spousal maintenance is not necessarily a permanent payment, and it can change over time or with a change in circumstances. Sometimes it may only be awarded until the spouse who is receiving the maintenance has time to get back on his or her feet. A recent case before the Wisconsin Court of Appeals looks at when a change in circumstances can justify spousal maintenance payments being reduced or eliminated altogether.
The termination of parental rights is a court remedy that is taken very seriously, and it involves significant collaboration across the judicial and administrative systems. While courts may order parental arrangements and coordinate temporary physical custody of children deemed to be in danger at home, through Children in Need of Protection or Services (CHIPS) orders, divisions of child welfare, like the Division of Milwaukee Child Protective Services, are charged with implementing these orders, arranging visitation schedules, and ensuring the continued protection of children and representation of their best interests. A recent case before the Court of Appeals of Wisconsin looks at what happens when visitation cannot be adequately implemented by child services organizations, and how this affects judicial decisions regarding termination.
In In Re Termination of Parental Rights of B.M.R., F.J.R. was mother to two children, B.M.R. and B.H.T. B.M.R. was removed from her home when she was two years old due to lack of adult supervision. F.J.R. drank heavily during her pregnancy with B.H.T., and B.H.T. was also removed from the home shortly after birth. In 2013, the court entered CHIPS orders for both children that required F.J.R. to seek treatment for mental health and substance abuse issues and also established conditions for visitation with the children. Under the CHIPS orders, B.M.R. also received mental health treatment for violent and disruptive behavior. Over time, therapists began to notice that B.M.R.’s behavior worsened significantly before and after visits with F.J.R., and it was recommended that visitation be conducted in the presence of a therapist. When B.M.R.’s behavior continued to worsen, the state of Wisconsin sought a court order to temporarily suspend visitation altogether based on B.M.R.’s best interests. The court granted the order and suspended visitation. Petitions to terminate parental rights were also filed, and trial was set for shortly thereafter. At trial, the jury held that based on a failure to assume parental responsibility and B.M.R.’s continued need for protection, the termination of parental rights was justified. F.J.R. appealed.