Child custody and placement can be one of the most contentious aspects of any divorce. Parents feel strongly about spending time with their kids and having a long-lasting and healthy relationship with them. Splitting time between both spouses can make that difficult and can lead to anger and resentment between ex-spouses. In a recent case before the Wisconsin Court of Appeals, the court considered what to do when one spouse asks to modify the child custody arrangement to which she previously agreed.
J.S. and D.L. divorced in 2008. As part of their divorce, they reached a marriage settlement agreement in which they set forth the terms of custody over their two children, Dylan and Mackenzie. D.L., their father, was to have primary custody over the kids during the school year, while J.S. would have them over weekends. They would also split holidays and, in the summer, split time between their two houses equally. Six years after this agreement was reached, J.S. sought to modify the custody arrangement to give her primary custody over both children and reduce her childcare payments to D.L. The trial court denied her requests, and J.S. appealed.
In Wisconsin, after two years, a court may modify custody or physical placement of children if the modification is in the best interest of the child, and there has been a substantial change in circumstances since the original custody order was put in place. When evaluating possible modifications, the court starts from the presumption that keeping custody arrangements the same is in the best interest of the child, but the parent seeking modification has the opportunity to prove otherwise.
Here, J.S. argued that their son, Dylan, had been diagnosed with ADHD and that she was in a better position to manage his treatment. She argued that D.L. had failed to seek counseling for their son or work with doctors on how to best treat him. J.S. also argued that D.L. was generally failing to parent the children properly, including not taking them to a dentist and living in a home with inadequate heating and where other tenants had known drug and alcohol issues. In contrast, J.S. argued that her flexible work schedule would allow her to accommodate Dylan’s medical and behavior needs and offer a better environment for the kids.
In response, D.L. sought to explain the various issues raised by J.S. and advocated strongly for the kids to remain with him. A guardian ad litem (GAL) appointed to represent the children stated that Mackenzie would prefer to live with J.S. but that there were concerns that J.S. was still not in a position to be a primary caregiver because her life had not stabilized, she moved frequently, and she was still dealing with alcohol-related issues. The GAL ultimately recommended that the kids remain with D.L.
Based on this information, the court of appeals concluded that J.S. had not overcome the rebuttable presumption that it was in the children’s best interest for them to keep the same custody relationship by living primarily with D.L. While J.S. had raised several issues of concern, the court of appeals agreed with the lower court that D.L. appeared to be doing the best that he could with the children. Accordingly, the court of appeals rejected J.S.’s appeal and affirmed the lower court order.
If you are facing custody issues in your divorce, it is important to advocate for your parental rights from the very beginning. Once custody arrangements are set by the court, it can be difficult to modify those arrangements in the absence of a substantial change in circumstances. At Reddin & Singer, LLP, our knowledgeable Milwaukee child custody lawyers can help you evaluate your child custody options and, if necessary, petition for a modification to the existing arrangement. We are experienced in representing parents in complicated child custody hearings and will do our best to advocate on your behalf in the courtroom. To find out more about how to protect your custody rights, do not hesitate to contact the law offices of Reddin & Singer, LLP online or give us a call at 414-271-6400.