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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.