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Wisconsin Court of Appeals Upholds Termination Based On Abandonment

regali-2-1223820-294x300In 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 In Re J.R.W., Jessica was the biological child of Melissa and Robert. Jessica lived with Melissa, and Robert lived in a nearby town. Despite being relatively close to Jessica and having the ability to contact her, Robert failed to visit or speak with Jessica for almost three years. Melissa eventually brought an action to terminate Robert’s parental rights on the basis of abandonment. According to Melissa, she had not moved and Robert knew her location and phone number, but failed to reach out to Jessica.

Melissa moved for summary judgment on the basis of abandonment, claiming that she had always been open to visits by Robert but she had had absolutely no communication with him in almost three years. In response, Robert filed an affidavit stating that he had sent Jessica gifts and cards, and that he wanted to see her but that Melissa had threatened to call the police if he visited. He mentioned that he had tried to find an attorney to help him get more visitation time, but could not afford one. The lower court reviewed the evidence and decided that Robert had not established good cause for his failure to visit Jessica and that termination of his parental rights was in Jessica’s best interests. Robert appealed.

In Wisconsin, the termination of parental rights is taken very seriously and all efforts are made to ensure that the parent whose rights may be terminated is given a full and fair opportunity to respond. To this effect, Wisconsin uses a two-step process. First, the parent or individual who wishes to terminate parental rights has the burden of showing that the defending parent is unfit to be a parent. This must be proven by clear and convincing evidence.

Only after the moving parent meets this burden will the court consider what is in the best interest of the child and make the determination about whether to terminate parental rights. Robert appealed under the first step of the process, arguing that the lower court erred in determining that Melissa had met her burden to show that Robert abandoned Jessica. According to Robert, there were genuine issues of material fact as to whether he had tried to reach out to her.

In Wisconsin, even if the moving parent shows that the child has been abandoned for six months or longer, a parent may still overcome termination of parental rights by showing that there was good cause for the behavior. Robert argued that his attempts to communicate with Jessica constituted good cause. These included attempts to call her, send her cards, and reach out to her on her birthday and on holidays. While Robert alleged that he made these repeated attempts, the Court of Appeals held this was insufficient to establish good cause for two reasons. First, attempts at communication are not actual communication and thus are not sufficient to establish a relationship between a parent and a child. Second, Robert had not actually provided any evidence to substantiate his arguments that he attempted to contact Jessica. The Court of Appeals held that it would not find for Robert on the basis of speculation. In light of these findings, the Court of Appeals upheld the termination of Robert’s parental rights.

If you are a parent who is considering moving for termination of parental rights for your child, it is important to realize that the Wisconsin legal system strongly favors the protection of all parental rights and does not take termination lightly. In order to succeed on your motion, you will be required to provide clear and convincing evidence of the reasons for termination.

At Reddin & Singer, LLP, our experienced Milwaukee child custody lawyers will work with you develop the legal arguments to support your petition, and to collect the evidence necessary to support it under a clear and convincing standard. To find out more about how proceedings to terminate parental rights work, do not hesitate to contact the law offices of Reddin & Singer, LLP online or give us a call at 414-271-6400.

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