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How Binding Are Stipulations to Child Custody Matters in Wisconsin?

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.

In 2016, the couple told the court they’d come to an agreement about property distribution and their remaining issues had to do with the kids. The commissioner granted a divorce and held open the issues about the kids.

The husband went forward without an attorney, but did have one at the pretrial hearing. The parties asked for the hearing to be reset. The wife’s attorney stated the terms of the agreement in court.

The court asked the husband’s attorney whether the wife’s attorney had correctly stated the terms, and the husband’s attorney confirmed. The wife’s attorney was to write up the stipulation based on what was said on the record.

Soon after the hearing, however, the wife’s attorney moved to withdraw and asked that a money judgment be entered against the wife for fees. The husband objected to the content of documents obtained from the wife’s attorney. Eventually, the court entered an amendment of judgment including child-related provisions that were consistent to amendments made by the wife’s attorney to the marital settlement agreement.

The lower court has discretion when determining a child’s best interests regarding child custody and placement. The husband asked that the amended divorce judgment require the lower court to hold an evidentiary hearing and require the court to use its discretion by applying the best interests of the child standard. He also asked that any provision of the judgment be stricken that wasn’t agreed to in open court and that it be reduced to a writing. He argued that the lower court made a mistake by adopting the terms related to placement and custody of the kids as agreed to by the parties. He argued the court incorporated the terms of the parties’ stipulation without making appropriate factual findings. The husband also advocated for another evidentiary hearing.

The appellate court disagreed. It explained that Wis. Stat. section 767.34(1) permits stipulations about child custody and placement that are subject to the court’s approval. Once the court adopts a stipulation, the parties’ right to withdraw is terminated. The husband argued the court hadn’t considered the sixteen factors set forth under section 767.41(5) it was required to consider when making custody decisions. The appellate court noted that the lower court had made findings that the father was fit and proper to have joint custody. The husband had a problem with the kids’ holiday schedule. The lower court had acknowledged the holiday schedule wasn’t put on the record, but that it had identified areas of agreement from what the parents had submitted. The appellate court explained that this was not an abuse of discretion.

The judgment was affirmed.

At Reddin & Singer, LLP, our Milwaukee child support attorneys can help you evaluate whether you may need a modification to child support in light of recent changes in your life and, if so, how to best accomplish that.  To speak with a knowledgeable divorce lawyer today, 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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