Guide to Custody Litigation in Wisconsin
This guide will explain the various procedures involved in custody litigation in Wisconsin.
MediationAny time in Wisconsin, there is a dispute over custody and placement, parties are obligated to attend mediation to try to settle their dispute. While there are some exceptions to bypassing mediation, such as where there has been documented domestic violence, for everyone else involved in this type of custody dispute, they can expect that they will need to sit down with a court appointed mediator and attempt to their resolve the dispute. The cost is usually $100-$200 per person. The mediator is usually a social worker, but in some outlying areas, the county may contract with private family law attorneys to do the mediation. The mediation is usually attended only by the parties and not with their attorneys. If an agreement is reached, the mediator will draft a bulletin outline on the points agreed upon. The parties are still required to take the mediated terms and draft that into a formal stipulation and order that can be sent to the court for approval. If the parties do not reach an agreement, the mediator will send a letter to the court that mediation did not work to resolve the dispute. All discussions at mediation are confidential and cannot be later used in the courtroom. The mediator does not decide the case nor can they order the parties to do anything. The mediator's job is to attempt to come up with a solution for the parties, so they do not need to engage in protracted and expensive custody litigation.
Social Worker EvaluationSome Wisconsin counties offer a family court counseling services, in addition to mediation services, for purposes of the court appointing a social worker to conduct an investigation over custody and placement issues raised by the parents. Milwaukee County does not have such a department. Where the county has such a department, you can expect that the court will appoint a social worker to conduct an investigation. The social worker will meet with both parents separately, may meet the children if age appropriate, may make home visits, will talk to collateral sources, will review court criminal and civil history, and will conduct an otherwise exhaustive investigation over custody and placement. The social worker will write a written report and make recommendations to the court concerning custody and placement.
Guardian ad litemsA Guardian ad litem will also be appointed by the court to advocate for the minor children's best interests. The trial judge appoints the guardian ad litem. The guardian ad litem is an attorney and has to take special continuing legal education credits to qualify to act as guardian ad litem, or has to be certified by the trial judge, that based on their years of experience an knowledge in handling vast family law cases, has the expertise to provide the proper advocacy in representing minor children. The guardian ad litem will also meet with both parents, separately, where age appropriate will want to meet and talk to the child(ren), and will conduct any other investigation they deem appropriate to make a recommendation to the court. Where there is a social worker appointed, the guardian ad litem and the social worker will confer to hopefully make a joint recommendation to the court on the best interests of the minor children. Sometimes, the social worker and the guardian ad litem do not see eye to eye on all aspects of the case. As they are making recommendations to the court, the trial judge is free to accept, modify or make their own orders as to custody and placement.
What happens at trial.If the parties were not able to agree at mediation, and one or both of the parties do not agree with the recommendations made by the guardian ad litem and in counties where it their is a family court counseling services, from the social worker, at some point the case will be set for a contested trial or hearing. At the hearing, the parties will be required to testify in court and present other evidence. The parties may bring in witnesses, including expert testimony, where it is appropriate to aid the court in making a decision. The social worker will testify under oath about their report and recommendations. The guardian ad litem does not testify during the trial as they are an attorney and court appointed advocate for the best interests of the minor children. When testimony is concluded and all evidence is in, the court will hear from the guardian ad litem on what their recommendations may be on custody and placement. The court is free to accept the recommendation made by the case worker and guardian ad litem, but is not obligated to do so. The court can make it's own decision and orders based on the evidence , the law and the court's own feelings on what may be best for the minor children. In most cases, the courts have a tendency to rely very heavily on the recommendations made by the caseworker and the guardian ad litem and probably in the greater of majority of cases, will follow their recommendations. However, the court is not compelled or obligated to be bound by those recommendations and can make it's own orders.