Wisconsin Family Legal Questions

if you two are not married, and this is a Wisconsin case,  the mother has sole legal custody and the (asumed) father has no legal rights to the child whatsoever until paternity established. That is done by either a joint voluntary acknowledgment of paternity filed on the proper state forms and properly filed in Madison, or by one of you filng for a formal paterntiy action and requesting DNA testing to establish whether he is or is not the biolgical father of the child. Until that occurs, he has no legal rights to the child whatsoever, and his marrying certianly doesn't not bestow any legal rights on his soon to be new wife. The answer to your question is false. She would have no rights either to the child, other than as to step parent visitaiton rights, should their marriage end, and assumingly he would have been adjudicated to be the father.... Read More

If you can afford to hire an attorney, it is usually a wise idea to bring an attorney with you to court. You don't know at this point that the other side may show up with an attorney to defend them on the request for the restraining order, which clearly would put you at a disadvantage; you need to cross examine the respondent and any other witnesses that may testify.        While hiring an attorney doesn't guarantee the result, it will assist you in a better court hearing and may increase your chances of prevailing in court.... Read More

    If there is a request for child support, the court will address the issue. Under WI law, there is a presumption that after 33 months from the entry of the last order, that there has been a significant and substantial change in circumstances sufficient to modify child support. The presumption can be overcome by evidence that no change has occurred. Since you are past the 33 months, this is the law that you are facing, that a significant and substatnail change has occurred since the entry of the last court orders sufficient to go from a hold open on child support, to you (or her) paying child support. Since you have a unique situation if I understand it correctly, of each of you having one child, her income will also need to be considered in the calculations. She needs to work as well and help support the children, not just you. You refer to "sole custody" but that means decision making. I am assuming you mean "placement."  If she has both chiildren in her care as primary placement, only your income would be considered. A key question I would have is how much has your income gone up over the last 6 years since the last orders were set on your case?... Read More

While under Wisconsin law, grandparents can petition to have visitation rights, under the so called "grandparents' visitation statute,"  this does not allow the court to grant custody/placement rights, only a visitaton schedule, if the court finds that it is in the children's best interest. For a third party, such as a grandparent to wind up with custody/placement, the court would need to make a finding that both parents are unfit and incapable of taking care of the child.... Read More

You can file a motion or petition under Wisconsin's so called "grandparents'statute" to seek visitation with your grandchild. There is a recent WI Supreme Court case that indicated that  it is not necessary to have maintained a parent like relationship to be allowed under the law to file a request. You can read about the  landmark decision in a blog I wrote at our law firm's web site under family law issues.... Read More

Who has legal custody of your child now? if it is the father, and the father is not taking care of her but someone else is, you can file a motion with the court to seek primary placement of your child. Courts do not like "self-help" measures, so I do not recommend grabbing your chiild and having her live with you without a valid court order authorizing you to do so.... Read More

A child's wishes is a factor under the Wisconsin's custody and placement statute, but there are many factors that the court must consider. Given the age of your child at 7 years old, I wouldn't think the child's wishes would carry very much weight in the courtroom. What is of concern though is yoyur reporting of the spanking and kicking your child in the stomach and nuts, etc. That is arguably child abuse. I don't know if there are any visible marks on your child, but if there are, you need to properly document that by either taking pictures of your son showing the abuse, or takiing the child to the pediatrician and pointing out what is going on. You may want to consider contacting child protective services if there are any visible signs of abuse on your son after returning from visits with his father.... Read More

When it comes to dividiing retirement benefits, either pension benefis or 401k plans, you are well advised to hire an attorney or employment -financial benefits expert to draft a qualified domestic relations order (QDRO), for the division of the plan. You shouldn't be doing this on your own. The QDRO needs to be properly drafted, approved by both parties or their attorneys, sent to the court for approval, and ultimately a certified copy sent to the plan administrator.... Read More

The issue raised is an age old problem; how much access should the other parent have while the children are placed or in the care of the other parent? There is no easy answer or law to address your question. I think it is common sense that prevails. If you call the children 10x a day when they are with the other parent, you are overstepping your bounds, particularly, if you are the primary parent and they are simply with the other parent every other weekend, by example. If on the other hand, they are with the other parent for extended periods of time, such  as several days in a row or week on week off placement, it would not be unusual to have some type of limited phone contact with the children while in the care of the other parent. I certainly wouldn't advise you to sign any agreements that limits your contact with your children. Are they willing to sign a reciprocal agreement that they have no contact with the children when they are in your care?... Read More

       Forgetting the labels attached, what is the placement schedule? I think that is the key to what your rights are under the prior court orders. Somewhere in your court papers is the schedule spelled out? In order to modify now, you have to show a significant and compelling reason to modify the orders if after 2 years from the initial orders. You indicate that the parental agreement was signed on july 2, 2014, so assuingly, you are now past the 2 year prohibition on modifying custody or placement unlesss you can show the children are in immiment physical or emotional danger. There remains a presumption that things should be left "as is."... Read More

Your son is going to have to look for a job where his hours are set on your watch; I'm not sure why your ex is against your son working, but his reasons may be valid, such as, for example, his grades are not very good in school and your ex believes the time should be devoted to studying. This would not serve as the basis in my opinion of going back to court to change placement or to compel your ex to allow your son to work.... Read More

If you have been established as the child's biological father, you can petition to have custody rights to the child. If you have not been determined in a paterntiy court to be the biological father, you need to do that first, before you have legal standing to pursue custody and placement of the child.... Read More

I am sorry to hear about your mother passing. Under the law, her "estate" owns the house, not you and not your siblings. If your mother died with a Will, that was to have been filed by the persnonal representative within 30 days of the date of her death. If without any Will, intestate law would apply and her estate presuambly would pass to her surviving spouse, if any, and the children, and if no surviving spouse, to the children equally. The  estate must be $50,000 of solely owned assets to require probate. If her estate was less than $50,000 of solely owned assets, to resolve the estate, may take some type of probate summary procedure. You are well advised to talk to an estate lawyer about these issues. This is not a family law question.... Read More

I  don't believe you would get in "any trouble" for not calling the police due to your son staying with your ex. The problem you have though, is that your ex at some point, may petition the court to be awarded placement of your son. The longer the time goes by, the better the chances are for  him. If your son doesn't return home in the next few weeks, you will be faced with a situation on whether you file a moiton with the court to compel your ex to return the child to you, or whether it may be in your son's best interest to live with his dad,  and formalize that into a stipulation and order to be filed with the court. Children act on impulses, and it wouldn't surprise me if in two weeks he is back with you anyhow. I would let him cool off for now and give your son his space. hopefully, he comes around on his own and is back home with you shortly.... Read More

      The general answer to your question is that the length of time it takes for the guardian ad litem to make an investigation and ultimate recommendation to the court, is governed by the facts and issues in your case. As a general rule of thumb, it probably extends your case by 90-120 days to complete the investigation. In any given case, it could take more or less time depending on the issues involved. ... Read More

You will need to be  personally served with the restraining order and notified of the court date. The restraning order is initially issued on a temporary basis, and than there is usually a full blown hearing which you can testify and defend yourself on, regarding the request for a more permanent restraining order, if based on harassment or domestic violence.... Read More

      The answer is no. As a minor, you have no rights to act within the court system. Someone has to do it in your behalf, such as one of your parents, a court appointed guardian or a court appointed guardian ad litem. As a minor, you do not have the right to revoke a restraining order in the state of Wisconsin.... Read More

If there are court orders in place for you to  have placement of your child, and the mother is denying you, arguably she may be in contempt of court. However, if there is a serious condition at your house, through no fault of your own, that  endangers your child's health, than isn't it self-evident that she would have a right to protect the child from further harm? That would be a defense to your filing a contempt motion against her. I would suggest you exercise your placement with the child for now to public locations until you can clear up the problem in your home. Once that is done, you should be able to resume your normal placement schedule with your child.... Read More

In this country, you can sue anyone for anything; however, just because you file a lawsuit, doesn't mean you are going to succeed; even though, it may  have been wrong for the staff to have exposed your son to drugs, from a legal perspective in pursuing a  lawsuit, how would you quantify the damages? If this is a  municipal faciliity, you also are required to provide written notice of the claim within 120 days of the occurrrence upon the municipality, by personal service, or the claim will be forever barred. Have you brought this to the administrator's attention? What reaction did they proivde to you? If nothing else, if true, this staff member should arguably be terminaed from their position.... Read More

If you have primary placement, the father should be paying you child support; if there isn't a current court order in place, file a motion to request support; variable costs under Wisconsin law kicks in when the shared or equal placement formula is used, which results in a child support order, less than the full percentage guidelines. Child support covers basic necessities such as housing, food and clothing; variable costs covers items beyond the basic necessities such as extra curricular activities, school related expenses, camps, etc.... Read More

Your ex spouse's inheritance is ordinarily not considered income for purposes of paying child support or maintenance under Wisconsin law; similarly to going through a divorce, a gift or inheritance received from a third party, is exempt from property division; however, once he receives his share from the estate and invests it, the dividend and interest income received from the principal can be used for child support purposes. Also, in the event that he is not working or has considerable child support arrears, in that event you could petition the court to request that some or all of his share of the inheritance be set aside in a trust for you to draw the money out for payment of either back support owed or for current monthly support; that motion should be filed promptly, before he gets his hands on the money, to avoid it being dissipated by him, which would defeat the purpose of going after it in the first place.... Read More

In this country, you can sue anyone or anybody for anything you want, but just because you sue someone, doesn't necessarily translate into their prevailing in court. In your situation, it sounds like a small claims matter. In Wisconsin, for small claims, the amount in controversy has to be less than $10,000. In your specific case, it is your word against theirs. There is nothing in writing to support the fact that they claim you owe them money and therefore, while not impossible for them to win, I think it is going to be very difficult to prove. ... Read More