Recently in Child Placement Agreements Category

June 1, 2012

Child Support in Wisconsin: May v. May

On April 3, 2012, the Wisconsin Supreme Court issued its decision in May v. May. The attorneys at Wessel, Lehker & Fumelle represented Michael May in this post-judgment child support dispute, and have blogged about the case previously. The issue presented in May was whether agreements between parents to set a floor on child support are unenforceable because they are against public policy, just has agreements to set a ceiling on child support have been held unenforceable because they are against public policy. See previous posts in this blog for further explanation of the issue.

In an opinion that has further muddied these already murky waters, the Supreme Court affirmed the trial court's decision to enforce the child support agreement. The Court held that the Mays' agreement did not violate public policy because "the circuit court retains its equitable power to consider circumstances in existence when the stipulation was challenged that were unforeseen by the parties when they entered into the agreement if those circumstances adversely affect the best interests of the children." The Court flatly ignored a central issue: That in a shared-placement case, the financial resources in both homes affects the children's best interests.

As Justice Bradley noted in her concurrence, the majority opinion "creates confusion rather than clarity." It is small consolation that Justice Abrahamson's dissent shows a clear understanding of the issues. Abrahamson states that the parties should not have "the ability to stipulate to a truly unmodifiable child support floor. This result is necessary because freedom of contract cannot take precedence over the best interests of the child.[fn2] While it is more frequently the case that raising the amount of child support would be in the child's best interests, situations could arise in which lowering the amount would be in the child's best interests because of fluctuations in the parents' income levels."

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 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.