Child Custody FAQ's

Custody can be confusing for many people. It does not refer to how often your child stays with you. Instead, it refers to how parents make major decisions for the child. With joint custody, which is more common, both parents will share the decision-making responsibility. Sole custody involves only one parent making and implementing the major decisions. The type of custody that parents have does not affect the amount of child support paid.

While custody is about making decisions, placement deals with the time that a child spends with each parent.  A parent with primary placement has the child living in their home most of the time. When parents have shared placement, one of the parents has the child at least 25% of the time (generally thirteen weeks of the year.) With split-placement, a family with at least two children will have very different placement arrangements. One could have primary placement of one child and the other might have primary placement of the other child or children. These arrangements happen much less frequently as most children have the same placement schedule.

A Parenting Plan is the written, thorough plan each parent must file with the court if they have not come to an agreement in mandatory placement mediation. The plan will cover  what specific custody and placement they seek. The placement schedule each parent proposes must be specific including the school year, summer and holidays. It must also cover many other factors that will affect the child. Some of these include where the parent is going to live the next two years, each parent’s work schedule, necessary child care, which school the child will attend and how to decide extracurricular activities, and divide medical expenses.

The plan will also cover not just what but also how parents will communicate. How will they resolve disagreements related to joint decisions? How will they decide which child care to use? Will they communicate with the child when the other parent has them? Will they electronically with Facebook, Skype, etc? It is best not to complete this plan all at once. It will take some thought and time.

Before you can file for divorce, one spouse must have been a resident of Wisconsin for at least six months. One spouse must have lived for 30 days in the county where the divorce was filed.

Divorce usually begins with the service of the Summons,  the Petition for Divorce, which gives the legal and factual history of the marriage and the desired outcome and the Confidential Petition Addendum, which is a sealed document to keep social security numbers confidential. Many couples file the petition jointly so that a Summons is not required.

There is usually a 120-day waiting period before you can have a final hearing. But most divorces take more than four months. The financial complexity as well as issues with your children will affect how long the action takes. Most people who work through mediation are divorced in less than five months.

The short answer is no, you are not.  It is common for people to begin separate households.  There are two ways that can be done. First, the parties can agree who will leave the home informally or through a legal agreement. Second, the parties can have a temporary hearing where the family court commissioner will decide who remains in the home with the children and who leaves.

If your spouse states that leaving is abandoning the family, they are incorrect. In addition, if your children remain in the home and you leave, you are not giving up your right to have placement with them. You also continue to have the right to make joint custodial questions.

Parents almost always agree on how to share their children because most cases do not go to trial. But for those who have a trial, the judge will decide considering professional’s reports, what the children want, the relationship between you and your children, their siblings and others in their life. The judge will also consider their adjustment to home, school, religion and community, the parents’ mental and physical health, availability of child care, as well as whether either parent is likely to unreasonably interfere with the other’s relationship with their children.

Joint custody is not physical placement. Joint custody means that both parents can make decisions regarding medical care, religion, and schools the children will attend.  If only one parents requests it, the court can still order joint custody if the court specifically finds:

• both parents can meet parental duties and responsibilities and want an active role in raising the children;
• there are no conditions that would interfere;
• the parents will be able to cooperate in those decisions.However, if the court finds that either parent has battered or absued the other, there is a presumption against awarding sole or joint custody to that parent.

Joint custody is not physical placement. Joint custody means that both parents can make decisions regarding medical care, religion, and schools the children will attend.  If only one parents requests it, the court can still order joint custody if the court specifically finds:

• both parents can meet parental duties and responsibilities and want an active role in raising the children;
• there are no conditions that would interfere;
• the parents will be able to cooperate in those decisions.However, if the court finds that either parent has battered or absued the other, there is a presumption against awarding sole or joint custody to that parent.

If you already live more than 100 miles apart, the parent who wants to move must serve a 60 day notice to the other including the date of the move but does not have to file a motion for a hearing.

But if you live less than 100 miles apart, the parent who wants to move has to file a motion for a court hearing including:

• when, where and why you want to relocate,
• a proposed placement schedule,
• proposed transportation responsibilities and costs,
• notice to the other parent that if they do not agree, they have to file an objection at least 5 days before the hearing,
• the Objection to Relocation form for the other parent to use.

A guardian ad litem is an attorney appointed to represent the best interest of the children when-ever the courts are asked to make decisions that involve them. The guardian ad litem may appear at the hearing and make recommendations regarding custody, visitation and child support. His or her sole interest is to do “what is best for the children.”

The court will generally use a shared-time payer formula if either parent has at least 91 overnights. You can determine child support as a shared-time payer by using a spreadsheet created by the family law section at https://dcf.wisconsin.gov/cs   However, the court does not have to apply these standards if it determines it would be unfair.

A wage assignment allows support to be deducted from the payor’s wages. The  employer must deduct child support or maintenance payments from the employee’s check. However, if an order for wage assignment would cause the payor irreparable harm, the court may allow payment directly to the clerk of courts.

Maintenance, formerly called alimony, is payment of money from one spouse to the other during or after a divorce. Maintenance differs from child support in its tax implications. A parent paying child support can’t deduct it and a parent who receives it doesn’t report it as income. Maintenance, on the other hand, can be deducted by the person who pays it and it must be reported as income by the recipient.

A husband and wife may agree on whether, and how much maintenance is appropriate. If they don’t, the judge decides whether to award maintenance payments and for how long. The court will consider: the length of the marriage; the age, physical and emotional health of the parties; the division of property; the educational level of each party; the earning capacity of each party; the likelihood that the party seeking maintenance can become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage and how long it would take to achieve this goal; tax consequences; any agreement of the parties; the contribution by one party to the education, training or increased earning power of the other; and any other factor the court determines to be relevant.

Usually not. Under certain limited circumstances, however, the court may order a contribution from the other party.

Most of a couple’s property, including assets such as pension plans, is subject to division. The only exception is property received either as a gift from a third party or an inheritance. Even gifts and bequests may be divided in some circumstances. If the couple can’t agree on how to divide the property, the court will usually divide equally the total of the divisible property. It may alter this division, however, by considering: the length of the marriage; the property brought into the marriage by either party; whether one of the parties has substantial assets not subject to division by the court; each party’s contribution to the marriage; .the age and physical and emotional health of the parties; the contribution by one of the parties to the increased earning power of the other; the earning capacity of each party; the desirability of awarding the family home or the right to live there to the party with more physical placement of the minor child(ren); tax consequences; agreements of the parties; and any other factor the court deems relevant.

If a woman wants to resume using her maiden name or a former legal name, the court will restore it. If she wishes to continue to use her married name, she may do so.

Ethical rules generally prohibit an attorney from representing both parties in a divorce. Occasionally an attorney will represent one spouse, and the other will choose to represent himself or herself. Divorces in which neither party uses an attorney also occur, particularly when there are no children and/ or little or no property. In mediation, the mediator is neutral and assists both parties in coming to an agreement. You should use extreme caution if you go through a divorce without a lawyer. Divorce is a lawsuit and it can have a number of hidden consequences. If you have little or no income, you may qualify for free help from a legal services agency.

If you aren’t satisfied, you can ask the court to reconsider its decision. You also can appeal to the Wisconsin Court of Appeals. There are very strict time limits for filing an appeal (usually 45 days). Certain issues can be reviewed by the trial court at any time. You will usually have to show a substantial change of circumstances before a trial court will revise a judgment. Very few cases succeed on appeal. It is important to make informed decisions before the final judgement. If you are dissatisfied with a decision about maintenance, however, you should be aware of certain limits. A judgment that waives maintenance cannot be revised. If you want the court to reconsider an award of limited-term maintenance, you must file a motion before the maintenance period ends.

Usually not. Under certain limited circumstances, however, the court may order a contribution from the other party.

A default divorce is one in which you and your spouse have no contested issues to be decided by the court. The date of a default hearing is usually soon after you file a Final Marital Settlement Agreement, which spells out all your arrangements for support, maintenance, and asset and liability distribution, as long as the 120-day statutory waiting period has expired. At the hearing, upon approval of your agreement, the court will grant an absolute judgment of divorce.If a spouse fails to respond to the petition for divorce, the case is legally considered a default action. For practical purposes, however, the absence of an agreement between the parties makes the matter a contested case.

If you can’t reach a final agreement after the fact- gathering process, your case must be scheduled for trial. The date is determined by the length of time needed for the hearing and the court’s other business. Contested trials are costly and involved. The rules of evidence will be enforced and contain many pitfalls for the unwary.

Yes. However, you’ll have to show the court that you’ve tried everything possible to locate your spouse. You’ll have to publish a notice in the local paper in an attempt to inform your spouse the divorce proceedings have been initiated.If it’s at all possible to find an address, then you must attempt to serve notice of the divorce action upon your spouse. The court has no power to order child support or maintenance unless your spouse personally is served.What action may be taken against a spouse who disobeys a court order regarding custody, visitation, debt payments or payments of support or maintenance? You must petition the court to enforce its order. This is known as a “contempt motion.” After receiving the court papers, your spouse must appear to explain whether he or she has followed the court’s orders. If not, the court will want to know why. After hearing the facts, the court decides whether your spouse willfully disobeyed. He or she may be found in contempt of court and given an opportunity to “purge” or correct the contempt. If he or she does not purge, then the court can impose punishment with a jail term of up to six months. The court may issue other orders as necessary to remedy the contempt.

Yes. The court’s order does not change the parties’ relationships with creditors. They may sue either spouse and may repossess any property in your possession that was pledged as security .If only one of you is sued, that spouse may bring the other into the lawsuit.

Mediation is a process to help parties resolve their issues. It is one of the family court’s counseling services that is intended to help you settle issues of child custody, physical placement or visitation. Mediation attempts to help you resolve such issues faster and at less cost.The family court commissioner or the court itself must refer you to the family court counseling services for mediation of custody, placement or visitation disputes. The same is true if one of you wishes to revise a final judgment and legal custody or physical placement is one of the contested issues. Property settlements, maintenance or child support usually aren’t addressed unless they relate directly to legal custody or physical placement. They may also be discussed if you both agree in writing to do so.When you are referred for mediation, both of you must attend at least one session. The court can make an exception to this rule if it determines that attending will cause undue hardship or endanger the health or safety of the other party. Your attorneys usually don’t attend.Mediation can continue if all parties (including the mediator) agree that further sessions may be useful. The court may delay your final hearing on legal custody or physical placement until mediation is completed or terminated.In all discussions, the mediator is guided by what’s best for your child(ren). If you reach an agreement, it’s made part of the final judgment. If you don’t, the court will appoint a guardian ad litem to help determine the child(ren)’s best interest.