Archive for the ‘Child Placement/Visitation’ Category

In Wisconsin, what is the role of a guardian-ad-litem (GAL)?

April 25, 2010

There is great confusion as to what role the GAL serves.  In Wisconsin, the guardian ad litem is not supposed to be a fact finder.  That role is reserved for the Judge.  Plain and simple, the guardian ad litem is an attorney that represents the “best interests” of a child.  The GAL does not represent either parent.  The GAL doesn’t even represent the child or the children.

The GAL’s role is that of an attorney, that is — to elicit testimony and offer exhibits, make objections, and make arguments supporting your client.  Your client is a concept, the “best interests” of a child.  The child is not your client.  Moreover, guardian ad litems should not be allowed to testify and therefore, should not put himself or herself in that position.  For example, a GAL should not make visits to the home to check out “home conditions” because doing so turns the attorney/GAL into a witness to testify about the home conditions.  Let pictures, other witnesses, or social service workers talk about the home conditions.

The GAL speaks directly with the child and informs the Court of the “child’s wishes”.  This is the one special additional role that the GAL has that a regular attorney (representing one parent) does not.  However, since the GAL is not representing the child, but representing the “best interests” of the child, the child’s wishes may not match the GAL’s recommendation.  For instance, if a child wants to live with his Dad because his Dad doesn’t make him do homework or doesn’t impose a curfew on the child, well, the child’s “best interests” may not be served by granting placement to Dad.  Similarly, if a child wants to live with Mom because Mom promised the kid a car when the kid turned 16, the child’s “best interests” may not be served by granting placement to Mom.

To read a discussion on proper role of a guardian ad litem, please see Hollister, 173 Wis. 2d 413, 496 N.W.2d 642 (Ct. App. 1992)

** Entries posted on this Blog shall not be deemed legal advice.  For individual attention to your particular legal situation, consult an attorney.**  Attorneys Dan Murray and Barb Miller.  Lawyers helping individuals with divorce, custody, placement, and family-law matters throughout Western Wisconsin and the Twin Cities eastern metro. www.millerandmurray.com

What happens if a parent won’t co-parent with the other?

April 17, 2010

In Wisconsin, expressing your anger toward your soon-to-be ex-spouse and refusing to co-parent with your soon-to-be ex can negatively impact the custody and placement schedule you receive.  This is because one of the factors the Judge is to consider when making a determination as to what custody and placement arrangement is in the child’s best interests, is whether one parent is likely to unreasonably interfere with the child’s continuing relationship with the other parent.

In the Hollister case, 173 Wis.2d 413, 496 N.W.2d 642 (Ct. App 1992), the appellate court upheld the trial court’s determination that the child’s best interests were served by awarding sole legal custody and primary placement to the father because Mrs. Hollister, the mother, consistently throughout the proceedings expressed her anger about Mr. Hollister’s infidelity and made unilateral decisions to deprive Mr. Hollister of his parenting time.  The Judge considered the statutory factors and granted sole legal custody and primary placement to the father, concluding that Mrs. Hollister’s anger toward Mr. Hollister and her past unilateral actions, made it likely that if she were given custody of the children that she would interfere with the father’s continuing relationship with his children.

An experienced divorce attorney will recommend to his/her client to try their very best to co-parent with the other throughout the divorce process.  This is because, as seen in Hollister, one parent’s failure or refusal to co-parent with the other parent may result in the judge taking away rights to the child or decreasing the amount of placement time the parent is granted.

** Entries posted on this Blog shall not be deemed legal advice.  For individual attention to your particular legal situation, consult an attorney.**  Attorneys Dan Murray and Barb Miller.  Lawyers helping individuals with divorce, custody, placement, and family-law matters throughout Western Wisconsin and the Twin Cities eastern metro. www.millerandmurray.com

Impact of Divorce on Children

April 17, 2010

It is not a new revelation to state that a divorce can have a differing impact on each individual child.  Many factors go into how the divorce affects a child, including, the age of the child, how civil the parents are to one another, the mental and emotional state of the child, the child’s support group, etc.

I recently read an interesting article on DivorceWizards submitted by Kevin Friedland, a student in California.  Kevin Friedland spoke about the positives of his parents divorce and that in retrospect, he concluded that his parents’ divorce was the best thing that ever happened to him.  He concluded “[a]t age seven, I struggled with the confusion and pain of coping with my parents divorce.  Today, at age sixteen, I understand the obstacles can result in opportunity and success.  I learned that hard work, determination, and self-discipline can turn your worst time into your best time.”  The entire article can be found at http://www.divorcewizards.com/A-Teenager-Reflects-on-Divorce.html

** Entries posted on this Blog shall not be deemed legal advice.  For individual attention to your particular legal situation, consult an attorney.**  Attorneys Dan Murray and Barb Miller.  Lawyers helping individuals with divorce, custody, placement, and family-law matters throughout Western Wisconsin and the Twin Cities eastern metro. www.millerandmurray.com

Father’s Rights in Wisconsin

February 17, 2010

You may have heard a Saint Paul law firm’s radio commercials advertising the law firm as advocating for “father’s rights”.  The fact is that in Wisconsin, versus many other states, father’s truly do get an equal opportunity to equally parent their children.

In Wisconsin, father’s rights = mother’s rights.  What this means in divorce, paternity, child placement, and visitation cases, is that the Judge is required to attempt to “maximize time with each parent”, which in most cases means awarding mom and dad equal time with their child/children.

Of course, equal placement is not automatically granted in every case as there are many factors for the Court to consider: alcohol or drug issues, mental health issues, the wishes of the children, work schedules, location of residences, how the children are performing in school & who helps the child with schoolwork, etc.  However, if you have a fair-excellent mom & a fair-excellent dad, the Court will need to hear a really good reason as to why the Court should depart from granting equal time to each parent.

** Entries posted on this Blog shall not be deemed legal advice.  For individual attention to your particular legal situation, consult an attorney.**  Attorneys Dan Murray and Barb Miller.  Lawyers helping individuals with divorce, custody, placement, and family-law matters in Minnesota and Western Wisconsin. www.millerandmurray.com

Can children speak to the Judge and tell him/her what they want?

February 19, 2009

Can a child tell the Judge his/her wishes about the placement schedule the child desires?  Yes, through the Guardian ad Litem (GAL).  One of the GAL’s principle roles is to speak with each child in a non-intimidating setting, and report to the Judge what the child said, including the child’s “wishes”.  In a vast majority of cases and with most all Judges, the only way for a child to convey his/her wishes is by speaking with the Guardian ad Litem. 

Most Judge’s prohibit either parent from testifying in Court about what the child said.  Any testimony or evidence surrounding statements made by the child must be conveyed to the Court by the GAL, and not the child, either parent, or any other person.  There are some limited exceptions to this in terms of counselors, doctors, mental health professional, etc., testifying.  Another limited exception is that there are still a couple of Judges around the state (very few) that will speak directly to the children in chambers. 

Lawyers helping individuals with Family Law matters in Western Wisconsin: www.millerandmurray.com

Can a child decide who to live with?

February 19, 2009

In Wisconsin, a minor child does not get “the say” until he or she reaches the age of majority, age 18.  Generally, the Judges do take the child’s “wishes” into account, but the child’s wishes sometimes do not match with what is ultimately best for the child.  For instance, does the child prefer parent #1 over parent #2 because parent #1 doesn’t make the child do his/her homework and allows the child stay up late on school nights?  Well, in that case, the child’s “wishes” will be given little or no weight and will probably make parent #1’s request for legal custody and/or placement more difficult.  

Over the years, many people have told me “[I] thought at age 14 they got to decide.”  This is not true in a typical divorce/child placement case.  This is true in a guardianship action, for instance if both parents died in an auto accident and left no will.  In this tragic circumstance, if the minor child is 14 years of age or older, the child can determine who he or she wants to live with, whether that be a particular grandparent, or a certain aunt or uncle, etc.  Having a valid basic Will spelling out your wishes regarding a guardian/custodian for your children is a must to avoid a family “fight” and alleviate placing additional pressure/stress on your children in a very difficult time.   

Lawyers helping individuals in Western Wisconsin with Family Law matters.  www.millerandmurray.com

Role of the Guardian ad Litem

February 19, 2009

What is a Guardian ad Litem?  A Guardian ad Litem, or GAL, is an advocate for the best interests of a minor child.  In Wisconsin, a Guardian ad Litem is an attorney appointed by the Court.  In many other states, for instance Minnesota, the GAL’s are often times not attorneys.  The essential role of the Guardian ad Litem is to speak to the child (provided the child is at an age where he or she can convey pertnent information to the GAL), evaluate the matter, and ultimately make a recommendation to the Court as to what he or she thinks is in the child’s best interests.  

Most Judges give great weight to the input and recommendation of the GAL.  However, there are some Judges that do not put much weight into the GAL’s recommendation.  Therefore, in order to evaluate whether it makes sense to resolve a matter after the GAL issues his or her recommendation, or to contest the matter, it is important to know the general philosophy or tendencies of your assigned Judge.  

Lawyers helping individuals with Family Matters.  www.millerandmurray.com

Wisconsin Divorce and Family Law Filing Fees

February 19, 2009

The cost of filing a petition for divorce or legal separation is $175.  If you are also requesting maintenance or child support, the fee is $10 more or $185.  However, not all motions or petitions require a fee.  For instance, the following actions/motions are free: motion to compel child support or maintenance; motion to enforce legal custody, physical placement, or visitation orders; and grandparent visitation requests in a pending family action.  A complete list of civil filing fees in Wisconsin, effective April 2, 2008, can be found at: http://wicourts.gov/about/filing/docs/fees.pdf

Lawyers helping individuals with Family Law matters.  www.millerandmurray.com

Child Custody and Placement — get it right the 1st time!

January 20, 2009

In a divorce or paternity matter, be wary of any “trial” period as it relates to a child’s legal custody and physical placement in final judgments.  Experimenting with different schedules as needed for transitions, or to see what schedules work best for parents and children, is fine as long as it is on a “non-final”/temporary basis.  However, don’t let the terms of “trial” schedules make their way into final judgments — DO NOT let agreed upon “trial” terms be incorporated into a final judgment.  This is because once a final judgment is entered “a court may not modify” an order of legal custody or physical placement before 2 years after the final judgment except in limited circumstances.*

To be able to modify legal custody or physical placement within the 2-year period following the final judgment, it must be shown that a modification is necessary because “the current custodial conditions are physically or emotionally harmful to the best interest of the child”.*  In most circumstances, unless one parent has been woefully derelict in his/her duties as a  parent, proving that the current conditions are “emotionally or physically harmful” can be a tough to prove up.  See Wis. Stat. §767.451

* The analysis is different if both parents have substantially equal periods of physical placement.  In cases where both parents have substantially equal periods of physical placement, a modification within 2 years may be made if it is shown the current circumstances make it “impractical” to continue with the current schedule.  See Wis. Stat. §767.451(2)

** Entries posted on this Blog shall not be deemed legal advice.  For individual attention to your particular legal situation, consult an attorney.**  Attorneys Dan Murray and Barb Miller.  Lawyers helping individuals with divorce, custody, placement, and family-law matters throughout Western Wisconsin and in the Twin Cities eastern metro. www.millerandmurray.com


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