This guide highlights the major aspects of custody and placement issues in family law matters.
What can I expect if I am involved in a child custody case?
1st let me begin by indicating that there are many types of cases involving custody and placement of children. The obvious case is when a marriage is coming to an end: either through a divorce or legal separation. Another situation is when the parents never married: a paternity case. For both of these scenarios there are pre and post judgment proceedings and I'll explain the differences before we are done. I also want to point out that I am involved in cases that address custody and placement from the other side of the spectrum: adoptions, surrogacy, 3rd party petitions for visitation, and guardianships. These are cases in which adults are trying to obtain court orders that allow them to build families. A good family law attorney knows the nuances involved in all family law matters.
DIVORCE OR LEGAL SEPARATION: custody and placement
Who decides what happens to the kids? The parents can agree to the terms so long as there isn't an abusive situation or other circumstance that gives the court cause for concern that the parents do not each have an equal voice in that agreement or concern that their agreement is not in the child(ren)'s best interest. If there is domestic abuse with a spouse, child abuse or drug abuse there is a rebuttable presumption that the abuser will not have the same custody and placement rights. Absent such abuse, the courts prefer that parents work together to decide what is best for their kids. If the parents cannot agree, the court will make a decision as to which parent will be able to make the custody decisions. The court may incorporate assistance from others such as the family court counselor for family study, and/or guardian ad litem, etc. to learn more about the family dynamics before making the final ruling. A good family law attorney will take a proactive approach in trying to persuade the court which experts are used in the case.
DIVORCE OR LEGAL SEPARATION: When will the decisions be made?
Until there is a court order granting custody and placement rights, neither parent has rights superior to the other. That is why it is important to talk to your family law attorney up front and develop a plan about how to take care of the kids until you can get a court order.
DIVORCE OR LEGAL SEPARATION: Temporary order:
This is the first order reached by agreement of the parents or decided by the Family Court Commissioner, a position I held for over 5 years. It will remain in effect until further order of the court. The standard for custody and placement is: what is in the child's best interest. The statutes in WI presume (provided there is no abuse or other extraordinary circumstances) that it is in the child's best interest for parents to have joint legal custody (both parents cooperate in making major decisions) and to have shared placement, maximizing time with both parents. The placement schedule may be different for each child based on developmental needs: infant, toddler, teen, etc. or based on past practice: one parent is a stay at home parent or both parents very actively engaged in parenting.rts tend to try to normalize the living condition for the child(ren), and try to minimize the number of transitions from one home to the other, if possible.
Mediation: if parents cannot agree on custody and placement, the statutes require that the parents be referred to mediation. In Dane county that means the parents will be referred to the Family Court Counseling Services for mediation. Very professional and well-educated counselors will meet with both parents to try to work through the issues and reach an agreement. If that is not successful, the court must appoint a guardian ad litem and/or refer the family for a custody evaluation.
Guardian ad Litem
Guardian ad litem (GAL): If the parents cannot, even after mediation, agree on placement or custody, the court will appoint a guardian ad litem. This is a family law attorney that is usually paid for by the parents, reports to the court, and represents the minor child(ren)'s best interest(s). This attorney will interview parents, child(ren), teachers, care providers, neighbors, or others with relevant information regarding the child/parents and then make a recommendation regarding the custody/placement provisions he/she thinks is best for the kid(s).
Custody and Placement Orders: Final
Final Order: either by agreement (most often), especially after the recommendation of a GAL, or after a contested hearing before the Judge assigned to the case. The final order sets the terms for the children. Absent extraordinary circumstances (i.e. imminent physical or emotional harm to the children), this final order will remain in effect without being subject to change for at least two years.
Custody and Placement Orders: Post Judgment
Within two years of final order: usually there will not be a change within the 2 years after the final order unless: 1) the change will not be a substantial change or 2) the parent can prove that the child is facing imminent emotional or physical harm. This usually requires testimony from an expert and a very good family law attorney. After two years: a parent can seek a modification of the order if there has been a substantial change of circumstances and the requested change in custody/placement is in the child(ren)'s best interest. The court will presume that the current placement order is in the child's best interest. The court can again refer for mediation, GAL appointment, etc.
GUARDIANSHIP: a fit and willing adult seeks legal standing regarding the custody/placement of a child or an incompetent adult. Guardianships are most often a result of an agreement between the parent and the proposed guardian. A stipulated guardianship generally does not interfere with the parents' rights but grants similar rights to a non-parent guardian.
SURROGACY: donor(s)/carrier work with intended parents to conceive a child. This is a highly specialized family law matter and cannot easily be addressed in this summary, nor should it be handled by anyone other than a very good family law attorney. For more information, contact Attorney Murray for an initial consultation.
ADOPTION: a parent terminates rights so that another adult can adopt and assume all parental rights and responsibilities. This is a highly specialized family law matter and cannot easily be addressed in this summary, nor should it be handled by anyone other than a very good family law attorney. For more information, contact Attorney Murray for an initial consultation.
3RD PARTY RIGHTS:
3RD PARTY RIGHTS: In special circumstances, grandparents, or others who have assumed a parent-like role for the child may seek visitation of the child. This is a highly specialized family law matter which cannot easily be addressed in this summary, nor should it be handled by anyone other than a very good family law attorney. For more information, contact Attorney Murray for an initial consultation.
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