My ex-husband has been in and out of jail since our divorce, which is when the custody agreement was set. Is our original agreement still legal now that he is out of jail. Or do I have to take him back to court to get the custody changed.
If nothing has been done to modify the original agreement it may still be in effect. What I assume is more important to you though is what the agreement will be now that he is out. If you and your ex want the placement to be the same as it was before he went to jail then you could agree that there is no change and the placement will simply pick up where it left off. However, if you want his time further reduced or to exclude him from your child’s life you will need to get him to agree to that in writing or make a motion in the court to modify the order. The courts willingness to modify the order will be based on a few factors such as how long it has been since the original order was entered, and any significant changes to the circumstances. Note that while your ex being currently incarcerated may have been a significant change in the circumstances the fact that he was incarcerated and therefore was not following through but now is able to may not be. It would have been easier to modify to exclude him while he was in jail although even then it would depend on what exactly he had been found guilty of doing.
If you and your ex are able to agree what the placement should be then you can easily wright something up to that effect. However, I would recommend getting an attorney if you apply for a modification of placement or at least speaking to one to ensure that the motion is drafted properly and that you address the issues the court needs to concern in making that decision.
Answers on Avvo are not to be considered responses to specific legal issues in specific jurisdictions - they are to be considered only general responses to hypothetical scenarios posed by the questioner. For specific legal advice, please consult with a licensed attorney in your state. No information contained in the answer or this disclaimer should be construed as a solicitation for business, an offer to perform legal services or the dissemination of legal advice. No creation of an attorney-client relationship should be assumed or implied. If you would like to contact us you may do so at (608)563-5000 or visit our website at www.chesebrolaw.com.
I agree with Mr. Chesebro. You will have to petition the court for a modification of custodial rights.
Custody in Wisconsin is the right to make decisions for the child. It is rarely other than joint custody. To be sole custody there would have to be a showing that the parents can not or will not communicate to make decisions. Such a showing will take more than him being in jail. You would need to show Domestic Violence, or battery. Even then it is a hard requirement of proof to over come.
Placement on the other hand is physical time with the child. The court loves status quo (unless they have reason to do otherwise). Status quo in this case is what has occurred since the last court order, and the order itself. Previous counsel is correct that it might have been easier to get the court to change the placement order in the tail end of his jail term. Once he is out, and his regular placement begins then it is harder as every week goes by without a miss.
So, to have your picture of this situation be best you need to file quickly, unless you believe he will not take his placement time with the child. Then him not doing so, would work against him.
These are arguments easier made with an attorney. Please consider retaining one for placement type issues.
Sign up to receive a 5-part series of useful information and advice about child custody law.
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline