Recently in Physical Placement Category

July 29, 2015

ENFORCING WISCONSIN CHILD PLACEMENT (CUSTODY) ORDERS WHEN THE CHILD REFUSES TO FOLLOW THE ORDER

A Michigan divorce case has garnered a great deal of press in recent weeks. A family court judge, utterly frustrated by the children's refusal to spend time with their father, ordered the children to spend their summer - and perhaps longer - in a juvenile detention center. The judge found the children in contempt of court for refusing to obey an order, and terminated the mother's contact with the children for the summer. We are not privy to the details of the case, so we can't make an informed comment on the judge's remedy, other than to observe that it is extremely unusual and probably inappropriate, possibly counter-productive.

In our experience, it is sadly not unusual for one parent to work to alienate the children from the other parent, encouraging them subtly or openly to refuse to spend the court-ordered placement time with the other parent. It is not difficult to imagine the pain, frustration, and helplessness of the alienated parent. Of course, sometimes the children's refusal has nothing to do with alienation by a parent, and everything to do with mistreatment or abuse in the other home. In this situation, however, the court must be presented with evidence of the mistreatment; otherwise there is no legal basis for a court to permit the children to refuse placement.

Judges vary in their responses to this situation. The Michigan case demonstrates an extreme interventionist approach, completely disrupting the family until the children comply with the order. Other judges go to the opposite extreme, basically throwing up their hands and announcing that they will not order a child to be physically forced to see a parent; this approach is relatively common as children near the age of majority. Most judges fall somewhere between these two extremes, utilizing other tools to try to address the underlying issues. They might order therapy for the children and the alienated parent, order the alienating parent to undergo a psychological evaluation, order that placement be supervised by a person trusted by the children, or order a temporary placement change.

In Wisconsin, the "Enforcement of Physical Placement Orders" statute, § 767.471, is intended to make it quick and easy for a parent who has been denied placement by the other party to get into court and obtain an order for compensatory placement time and fees, as well as other remedies. These remedies are of little help when it is the child who is denying placement. Often, however, courts utilize these tools to "encourage" a parent to ensure that a reluctant child follows the placement order. For example, a parent should impose consequences on the child for refusing to go to the other parent's home, just as they would impose consequences for a child's refusal to go to school or comply with household rules. With young children, judges tend to be more willing to hold the parent responsible for ensuring that the child sees the other parent. With older teens, courts may be less willing to hold a parent accountable for the child's refusal.

At Wessel, Lehker & Fumelle we have experience with these difficult, intractable family situations. We have had cases in which judges ordered mental health evaluations and treatment, threatened foster care for the children, declined to enforce the placement order. In one case the judge took all of these positions at different times over the course of the litigation.

Our advice for parents facing this painful situation is two-fold. First, do not involve the children in the dispute or try to take the law into your own hands by physically forcing the children to go with you. Such efforts will inevitably come back to hurt you. Secondly, get legal assistance as early as possible, as soon as you encounter resistance or refusal from the children. The more entrenched the patterns and resistance are, the harder it will be to successfully interrupt them and get shared placement back on track.

June 24, 2015

VENUE IN WISCONSIN: POST-JUDGMENT MOTIONS REGARDING CHILD CUSTODY AND PLACEMENT, CHILD SUPPORT, AND MAINTENANCE

Venue and motions to change venue in Wisconsin courts are governed by the statutes found at Wis. Stats. § 801.50 through § 801.64. Those statutes apply to family law cases through §767.201 and the related residency requirements of § 767.301.

Family law cases, however, are unique in their continuing nature. While most types of cases are finalized after entry of judgment (except, of course, for appeal remands and sometimes enforcement issues), family law cases frequently require the court's continuing action after entry of judgment for modification of placement or custody, modification or termination of child support, maintenance issues, placement enforcement, etc. As families move around the state in our mobile society, venue issues often arise: which county is most convenient for the parties, where is most of the relevant information located, etc.

The family code, § 767.281, provides a simple way to change venue for post-judgment modification and enforcement motions, petitions, and orders to show cause. With the title, "Filing procedures and orders for enforcement or modification of judgments or orders," one might not expect this statute to provide a useful mechanism for transferring a post-judgment family case to a more convenient or appropriate county, which perhaps explains why the statute and procedure are little used or understood. But in an appropriate case, this statute can simplify and streamline procedures as families move around the state.

While the statute does not explicitly authorize the filing of a post-judgment motion in a county other than that of the original judgment, its language implicitly permits it by setting forth the procedure to be followed when a post-judgment motion is filed in a new county. Pursuant to Subsection (1m), if a post-judgment motion is brought in a county other than the county that entered the judgment or order, the moving party is required to send a copy of the motion to the original county, along with a copy of the new summons. Then, if a dispute arises regarding which court should exercise jurisdiction, both judges and all counsel "may" hold a conference to resolve the issue. Once a new order is entered in the new county, the moving party must send a copy to the original court.

Subsection (2) sets forth additional, more specific provisions where the post-judgment motion concerns child support, family support, or maintenance payments. These post-judgment motions must be brought in the original county or in the county where the minor children "reside," unless the parties stipulate to filing in another county or the original court finds good cause for the motion to be filed in another county.

At Wessel, Lehker & Fumelle, we have used this statute to change venue for post-judgment proceedings quickly and easily. We have also found, however, that courts and opposing counsel frequently are unaware of the statute and the simplified procedures it provides. Successfully utilizing the statute often requires educating the court.

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."

May 14, 2012

Child Placement and Custody in Wisconsin: What About the Child's Wishes?

Last week I attended the thirty-sixth annual conference of the Wisconsin Inter-Professional Committee on Divorce. One full day was devoted to the topic of the voice of the child in custody and placement disputes. Wisconsin Statutes provide that the "wishes of the child" is a specific factor for the court to consider. See Wis. Stats. Sec. 767.41(5).

But what does that mean in practice? How much weight should the child's wishes be given? And how can the child's wishes be accurately ascertained in the fraught environment of a pending court action?

A pending Wisconsin Court of Appeals case explores these issues in the context of a post-judgment placement modification motion. Wessel, Lehker & Fumelle argued in that appeal that it was error for the trial court to base its placement decision exclusively on the child's preference. Read our briefs here. Watch this blog for updates.

Kris Lehker

April 23, 2012

Registering Orders for Enforcement in Wisconsin

If you're looking for a Wisconsin court's assistance with enforcing an order from another state, one trap to be wary of is the differing registration provisions for enforcement of support orders vs. enforcement of custody and placement orders.

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) sets forth at Wis. Stat. § 822.35 the procedure for registering an order for placement and custody. The Uniform Interstate Family Support Act (UIFSA) sets forth at Wis. Stat. § 769.601 - 608 the procedure for registering an order for support. Both statutes specify the registration procedures, the steps that the registering court must take to provide notice, and the procedures and standards for contesting registration. While the basic procedures are similar, there are differences, and registering an order for purposes of one of the statutes will not suffice for registering an order for purposes of the other.

Contact the attorneys at Wessel, Lehker & Fumelle for assistance with these complex statutes.

December 10, 2010

WISCONSIN CHILD CUSTODY, PHYSICAL PLACEMENT, VISITATION: WHAT'S THE DIFFERENCE?

People often use the terms physical placement, visitation rights, and child custody interchangeably in the context of divorce, legal separation, paternity, and related matters. Under Wisconsin law, however, each of these terms has a distinct, specific meaning.

Parents frequently use the term child custody to describe how a child's time is divided between the parents, or which parent the child will live with for the majority of the time. The law, however, gives this term a different and very specific meaning. Legal custody is the right to make certain important decisions for a child. The Wisconsin Family Code defines "legal custody" as "the right and responsibility to make major decisions concerning the child," and defines "major decisions" as including "consent to marry, consent to enter military service, consent to obtain a motor vehicle operator's license, authorization for non-emergency health care, and choice of school and religion." Thus custody has nothing to do with where the child lives or spends time.

Often the most important issue for separating parents is where the children will spend their time. Wisconsin law calls this physical placement. If your court order allows you to have your children with you every Tuesday and every other weekend, for example, then those are your periods of physical placement with your children. If you have physical placement periods, then you also have the right to make routine, day-to-day decisions concerning your children during those placement periods. The right to make major decisions, however, is the separate issue of legal custody, as described above.

Finally, the term visitation also has a specific and narrow definition. Sometimes, under limited circumstances, a non-parent - usually a relative or a step-parent - is given the right to spend time with a child. Wisconsin law calls this visitation rights.