Articles Posted in Child Custody

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One of the most difficult aspects of a divorce involving children is navigating the complexity of requiring two parents who no longer get along but are required to make decisions about their children together. While courts want both parents to be as involved as possible in their child’s life, as that is usually in the best interest of the child, they also want to ensure that the parents’ disagreements over issues don’t interfere with the child’s future or prevent important decisions from being made. In order to avoid this problem, courts will sometimes grant one parent more authority or control than the other in order to allow decisions to be made in an expeditious fashion.

In a recent Wisconsin divorce case, the court dealt with this kind of an issue in reviewing a divorce appeal. In In Re Marriage of Robert Corey Burgraff v. Amanda June Burgraff, the court reviewed a divorce decision for one Wisconsin family. They were married in 2012 and had one child. Less than two years after getting married, the wife decided she wanted to end the marriage and moved from Wisconsin to Kentucky. She stayed in Kentucky while her husband stayed in Wisconsin. In January 2015, the husband filed for divorce. The lower court decided to award joint custody to the two parties, with the child to live with the husband during the school year and then with the wife during the summers because the child would begin kindergarten in Wisconsin the next year. Additionally, the court awarded the parents joint legal custody over their child’s education, but decided that the husband would have impasse authority over educational decisions, which meant that if the two parents could not decide about educational opportunities or decision, the husband had the right to the final say. After this ruling was finalized, the wife appealed.

On appeal, the wife argued that awarding the husband impasse authority as to educational decisions was tantamount to awarding him sole legal custody over their child as to educational issues and, under Wisconsin law, in order to do so, the court had to make specific findings to this effect, which it did not actually do. Thus, the wife argued that the court’s ruling was improper.

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In a recent Wisconsin child custody appellate decision, the court considered a father’s appeal of a divorce judgment based on the parties’ stipulation about the support, placement and custody of their three minor kids. The father argued that the lower court had made a mistake in adopting the parents’ stipulation and incorporating those terms without the court making findings.

The case arose when a couple married in 2004. The mother petitioned for divorce in 2015, at which time the couple had three minor kids. The commissioner temporarily awarded the mother primary placement and custody of the minor kids. The temporary order also required that the father have periods of time with the kids.

The mother was concerned about the father’s contact with the kids and moved to amend the temporary order. The couple stipulated that she would have exclusive placement of the kids with a weekly period of visitation for one of the kids with the father. About a month later the commissioner entered an order stating that the visitation wasn’t taking place as required. The parents agreed that a guardian ad litem was needed and an attorney was appointed for the children.

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In a recent appellate decision, a wife appealed the Wisconsin divorce judge’s provisions related to child custody, placement and property distribution. She argued that the lower court had improperly used its discretion in awarding sole legal custody to the father with regard to educational decisions, made a prospective child physical placement decision, divided the value of the marital home, and refused to award her half of his possible future military pension payments.

The couple was married in 2012 and lived together in a home bought by the father 6 years prior to the marriage. The couple had a child born in 2012. Once she decided to divorce the mother relocated to Kentucky. Meanwhile, the father kept his residence in Wisconsin and deployed as a member of the Air Forces Reserve.

The father sued for divorce. The court awarded the parties joint legal custody of the child, except that the father was given impasse authority over the child’s education decisions, under which he was entitled to a final decision on educational decisions if the parties couldn’t agree on those decisions. The court ordered that the couple would have equal physical placement of their child until the child was going to start kindergarten. The court ordered that at that point, the father would have primary physical placement for the school year. A holiday schedule alternating between parents was also created.

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After an initial order for child support is made, the obligation falls on the parties to ensure that any necessary child support payments are made on a monthly basis. When a party falls behind on child support payments, this is known as arrears. The party who is entitled to receive the outstanding child support can attempt to recover these arrears by negotiating payment with the party who is not yet paying, or, if not successful, they can file a motion with the court to recover the outstanding amounts, as well as penalties such as interest and attorneys’ fees.

In In Re The Marriage Of : Connie M. Weiland v. John D. WeilandMr. and Mrs. Weiland divorced in 1998 after several years of marriage. As part of their divorce, Mr. Weiland was ordered to pay child support to Ms. Weiland as well as to split uninsured medical expenses with her. Mr. Weiland’s employer was supposed to calculate and take child support out of Mr. Weiland’s paycheck, but at times the employer failed to withdraw the correct amount.

For unexplained reasons, Ms. Weiland waited until 2013 to raise unreimbursed medical expenses with the court, and only in 2015 did she file a contempt motion with the court, alleging that Mr. Weiland had not paid certain medical expenses and child support. The overall amount owed was approximately $9,000. Mr. Weiland had previously paid $355,000 in child support.

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When Wisconsin courts consider where to place children, their foremost concern is ensuring that the best interests of the child are respected and that the child is given the best opportunity to find a home environment that is safe and supportive. While sometimes this means that a parent rehabilitates his or her relationship with a child and they are reunited, other times it means that the courts must look to foster parents or adoption for the child. While adoption is never the first choice for a court, it is sometimes necessary when a parent cannot uphold his or her responsibilities.

In a recent Wisconsin child custody case, the court considered what to do when an initial plan for adoption falls through for a child and whether to consider reopening termination proceedings for a biological parent. In the case, M.G. was removed from the home of her mother, R.G., after she was found to be suffering from dehydration and malnutrition. In October 2015, the court held a hearing to impose conditions that R.G. needed to meet for the return of her child. R.G. failed to comply with the conditions, and in September 2016, a petition to terminate her rights was filed. R.G. failed to show up for the pretrial hearing and failed to attend the final dispositional hearing.

At the dispositional hearing, the court heard testimony from various parties that M.G. was doing well with her foster family and that it was anticipated that they would try to adopt her. The court determined that it was in the best interest of M.G. that R.G.’s parental rights be terminated and that she be transferred to the custody of the state, where she could then be adopted. Unfortunately, in March 2017, M.G. was transferred out of her foster family after it was discovered that her foster mother was physically abusing her. At this time, R.G. moved to reopen her disposition hearing on the basis of the new evidence that M.G. was no longer with her foster family. The State opposed the motion, and, after a hearing, the lower court ultimately concluded that the termination of R.G.’s parental rights should stand because the termination of rights was not contingent on M.G.’s foster family adopting her, but instead it was simply in her best overall interest to be adopted.

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With the importance of higher education in today’s society, many couples who are contemplating divorce must discuss not only how child support will be divided while their children are growing up, but also whether, and how, their children’s higher education expenses will be addressed. A recent Wisconsin child support case before the Wisconsin Court of Appeals looks at how to address college expenses when a marital settlement agreement is ambiguous about this responsibility.

In Marriage of North v. Farris, Ms. North and Mr. Farris divorced after four years of marriage. During the course of their marriage, they had two daughters together. Ms. North and Mr. Farris agreed to a marital settlement agreement during the course of their divorce, which included provisions for child custody and child support. The MSA also provided for the payment of higher education expenses. It stated that Mr. Farris would pay for five years of tuition and books, should their children go to the University of Wisconsin-Madison, and would split room and board with Ms. North.

The couple’s daughter Natalie attended the University of Wisconsin-Madison and took 10 semesters (five years) to graduate, plus three summer sessions. Ms. North sought reimbursement from Mr. Farris for these expenses, but Mr. Farris refused to pay for the last two semesters of Natalie’s schooling, saying that the MSA obligated him only to pay for five school years, or 10 semesters, which Natalie had already exceeded. Ms. North argued that the MSA required Mr. Farris to pay for five calendar years, regardless of the number of sessions or semesters Natalie completed.

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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.

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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.

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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.

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In Wisconsin, courts may consider a wide range of factors when determining custody between two divorcing parents. Among these factors, Wisconsin courts are statutorily required to consider evidence of past domestic abuse. Wisconsin’s statutes do not require that a past history of abuse be dispositive, but it must be one of the factors that a court considers. A recent case before the Wisconsin Court of Appeals illustrates how this factor may be weighed against others in evaluating custody arrangements.

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