October 2010 Archives

October 29, 2010

Considering the Wishes of A Child in Physical Placement Disputes in Wisconsin

Perhaps the most common question I have been asked as a Wisconsin family law attorney is "at what age may a child decide with whom he or she will reside." My answer has always been the same: One may choose where and with whom he or she will live at age 18.

There seems to be a strong rumor running through the public that at a certain age, most commonly alleged to be 14 years, a child may actually decide which parent he wants to reside with. In reality, nothing could be further from the truth. When parents dispute the physical placement of a child, ultimately the court may be called upon to decide where and with whom that child will live and what periods of placement the child will spend with the other parent. The court does not make this decision in a vacuum. Rather, Sec. 767.41, Wis. Stats., governs decisions concerning custody and physical placement of children. Specifically, Sec. 767.41(5) requires the court to consider "all facts relevant to the best interests of the child." Moreover, that statute requires the court to consider a list of specific factors stated in Sec. 767.41(5).

Among the specific factors the court must consider is "the wishes of the child." However, this factor is not given any greater weight than the other factors; nor is it the controlling factor. In reality, it is one among 16 factors that the court must consider.

In practice we find that the wishes of the child are not seriously considered when the child is of a tender age. Furthermore, as important, if not more important than the age of the child, is the maturity level of a child. A 14 year old child may have reached a greater maturity level than a 16 year old child in some instances. Furthermore, the court will consider the circumstances and the reasons that a child may prefer to live with one parent over the other. It is not uncommon for a child to prefer to reside with a parent who practices a more relaxed disciplinary routine than the parent who insists upon a stricter regimen. Also, we find many cases where a child will prefer to live with the parent who has the X-Box, wide screen TV, and all the other "bells and whistles" that the other parent does not have. As one can see, it is both simplistic and inaccurate to state that a child may simply choose which parent he or she will live with.

October 29, 2010

Child Custody in Wisconsin During the Holidays

Wisconsin Family law attorneys often see a spike in business in November and December as parents confront problems during the holidays. Shared placement, holiday travel, increased child care expenses, traditions with extended family - many issues can arise at this emotionally charged time of year. The holidays are right around the corner; make sure now, before problems arise, that your legal documents are in order and you are fully prepared for shared parenting during the holidays.

Many of the problems that arise this time of year can be anticipated and prevented. Closely read what your legal documents have to say about the holidays; parents often don't have a clear recollection of these provisions. If your legal documents are not completely clear regarding child placement arrangements during the holidays - or if you have no legal documents - start the discussions with your parenting partner well in advance of the holidays. Expect that both parents will need to compromise. If your holiday plans include travel, provide your parenting partner with a detailed itinerary. For steps to minimize conflict and set a positive example for your children during the holidays, see New York University Child Study Center's article, "Divorce and the Holidays: Split Decison or Family Friendly Compromise?" Psychology Today's "Managing Divorce and Children During the Holidays" offers holiday suggestions in the broader context of the co-parenting relationship. If you are worried about whether the holidays will run smoothly, this is a good time to schedule an appointment with your family law attorney.

If holidays frequently present problems in your family and you find yourself paying an annual December visit to a Wisconsin circuit court, you and your parenting partner may want to consider using a Parenting Coordinator. A Parenting Coordinator is a neutral "on-call" decision-maker who can help parents evaluate options and work on conflict resolution, and if necessary can make decisions for the parents. You can find more information on Parenting Coordinators at Wessel, Lehker & Fumelle.

October 13, 2010

Long Distance Child Placement - A Guide for Children Traveling Alone

The New York Times recently reported that over the past year several airlines in Europe and Asia have stopped seating unaccompanied children next to adults following a number of incidents of alleged sexual abuse. However, some have countered that the incidents of alleged abuse are uncommon and seating these children apart from an adult leaves them susceptible to injury in the event of an onboard emergency. Although no domestic airline appears to have changed its seating policies the issues surrounding unaccompanied children travelers is important given estimates that around 20 million children fly unaccompanied every year. This is especially crucial to parents who live far from each other and share physical placement of their children.

The scenario is quite common. For example, dad resides in Wisconsin and mom in New York. Their two children are placed with dad during the school year and with mom during part of winter break and for part of the summer. Round trip air fare for two children and a parent may be cost prohibitive so the parents agree that the children will travel alone. For many parents, placing a child alone on a flight is a worrisome experience. But with proper planning and follow through parents can make it work.

AirSafe.com has published general airline rules for parents planning to place their children on a flight unaccompanied. Policies for unaccompanied children vary by airline so it is essential that a parent confirm an airline's policy before purchasing a ticket. The parent must ascertain the specific airline's requirements as well as what it will and will not allow. For example, some airlines may allow unaccompanied children on non-stop flights only; require earlier check-in; require a higher minimum age if the child needs to change planes; or may charge an increased fare for an unaccompanied child. Most airlines require that a child be at least five years old and no more than twelve to qualify for unaccompanied child service. Teenagers typically fly on their own. The bottom line is that the parent must verify an airline's policy before booking the flight.

AirSafe has also published the following Top 10 safety tips for parents planning to allow their children to fly unaccompanied. :

1.Consider the maturity of the child.
2.Coordinate with whoever is picking up your child.
3.Tell your child what to expect during the flight.
4.Discuss appropriate behavior with your child. (This includes the behavior of other passengers).
5. Request appropriate seating for your child.
6.Review the airline's policies.
7. Take extra precautions for connecting flights.
8. Plan to spend extra time at the airport.
9. Identify the lead flight attendant.
10. Escort the child to the seat.

October 12, 2010

Enforceable Wisconsin Child Custody Agreements - Just Ask Mel Gibson

The Mel Gibson - Oksana Grigorieva custody dispute made headlines again this week with the release of a custody agreement between Mel and Oksana. The agreement spelled out a detailed placement schedule, culminating in equal placement when the child reaches the age of three.

There was just one problem: The agreement apparently was never signed by a judge and entered as a court order. When Oksana changed her mind and disavowed the agreement, it became worthless.

In our Wisconsin family law practice at Wessel, Lehker, & Fumelle, we strongly encourage parents to work together to try to reach agreements regarding placement and custody of their children. Studies (and common sense) show that it is better for everyone concerned - and especially for the children - if parents can resolve these difficult issues themselves, rather than leaving them to a judge to decide.

In Wisconsin, however, parental agreements are unenforceable unless they are reduced to writing and signed by a judge. Thus, even in the most amicable of family dissolutions, parenting agreements should be converted to court orders. This important step is not the first shot in a litigation war, but rather a continuation of the process of the parents working together for the protection of both parents and the children. A custody and placement order protects everyone; a custody and placement agreement protects no one.