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Wisconsin's Custody, Placement, and Paternity Reform Legislation
There has been substantial debate among family lawyers over
the net effect of the new placement factors and the requirement
that placement with both parents be maximized. Some have expressed
concern that this legislation veers too close to a presumption
of equal placement. Only time will tell. However, the drafters
strongly believe that with the amount of judicial discretion
preserved, and the requirement that courts evaluate all of the
placement factors, an expectation of equal placement in all cases
would be unfounded.
Nonetheless, there
is little question that this legislation will result in a fundamental
change in those cases of two historically involved, loving parents,
where there are no negative factors such as violence, abuse, or chemical
dependency, and geographic separation is not an issue. If a court is
left with nothing more than a coin flip to choose between two equally
capable, competent parents, the mandate to maximize placement prohibits
the court from preferring one parent over the other, and requires a
placement schedule closely approximating equal placement.
Parenting Plans
The drafters were surprised when the section
767.24 (lm) requirement that parents file parenting plans
proved to be controversial. Many custody litigators dislike it
because it requires them to commit to positions early on in a
case, removing many of the bargaining chips used in negotiating
favorable settlements for their clients. Family lawyers in general
view this to be a burdensome additional paperwork requirement,
and suspect that courts will not enforce the requirement to timely
file parenting plans any more vigorously than they enforce the
requirement to timely file financial disclosure statements. The
chief judges criticized it, paradoxically stating that it was
overly burdensome for pro se parents, and that it was unnecessary
in any event because parents already can serve out interrogatories
and take depositions.
Despite the controversy, parenting plans are an important
component to achieving one of the main objectives of the reform
legislation: the reduction of the custody warfare that negatively
impacts children. Parenting plans force parents to think about
the specifics of custody and placement right at the start of
the case. Parenting plans move parents off the fighting words
of "sole custody," and "equal placement."
In custody disputes, parents are forced to think about and
disclose their plans for medical treatment, education, and religious
commitment. That reveals whether there is truly an issue of legal
custody, which the statutes define as the right and responsibility
to make major decisions concerning the child's medical care,
choice of school, and religion. If the parents are in agreement
on the major decisions, there is no reason to fight for sole
custody.
In placement disputes, many parents want to be "equal"
in the raising of their children. But when they are forced to
disclose their specific plans of what placement schedule will
be most beneficial for their children, they often discover that
being equal does not mean that there should be equal placement.
By requiring that parents record their specific expectations
at the time of the divorce, the parenting plans also should reduce
the amount of post-judgment litigation. In many cases, parents
stipulate to joint legal custody and a placement schedule, without
considering the specifics of their agreement. They are then left
to litigate several years later exactly what was contemplated
when it is time to send the child to a new school, or when a
change in a parent's work schedule or child care arrangements
necessitates a new placement schedule. Additionally, since there
now will be a record at the time of the original judgment, courts
will be able to determine which parent has changed his or her
position since the time of the judgment, and apply the appropriate
legal standard to the parent now seeking a change.
Paternity Changes
The paternity code has undergone several major substantive
changes. The existing code probably violated the equal protection
clause of the constitution by treating children and parents differently
in marital cases than in paternity cases. That now changes, as
there will be one child support statute, section
767.25(1), that will apply to both marital and paternity
cases. Section
767.24(1) will apply one set of custody and placement standards
to both marital and paternity cases.
Several of the child support factors in paternity cases were
different from the child support factors in marital cases. In
harmonizing marital and paternity law, the inconsistent paternity
factors were eliminated. This includes the factor formerly found
in section
767.51(5)(e), "the need and capacity of the child for
... higher education." The elimination of this factor effectively
overrules that portion of the 1996 Wisconsin Supreme Court decision,
In re the Paternity of Tukker M.O.,3
which permitted the creation of a higher education child support
trust in paternity cases.
There also is a major change in the way paternity cases will
be adjudicated. The old adage that "when parents walk out
of divorce court, they have a divorce judgment, and when they
walk out of paternity court, they have a child support order,"
will no longer be true. Sections
767.51(3) and 767.62(4) now require courts to decide all
issues, including custody and placement, in the final adjudication
of paternity. This will help the vast majority of fathers in
paternity cases, who are young, unsophisticated, and do not have
the financial resources to hire lawyers to obtain custody and
placement rights. This will be particularly important in light
of the federal and state mandates to determine paternity by hospital
acknowledgments.
Sections
767.51(4) and 767.62(4m) will limit retroactive child support
awards to the date of filing the paternity action. This reverses
the 1997 Wisconsin Court of Appeals case, In
re the Paternity of Brad Michael L.,4
where 15 years of retroactive child support were awarded despite
the fact the mother had denied paternity to the child's
father. There will be exceptions, however. Child support can
be awarded retroactive to the birth of the child if there was
a delay in commencing the paternity action because of the father's
threats, promises, or representations, provided the mother relied
upon them and then acted promptly once the delay ceased to operate.
Child support retroactive to birth also can be awarded when the
father has evaded the paternity proceedings.
Finally, sections
767.51(3)(e) and 767.62 (4)(d) now require the court to consider
the father's ability to pay before ordering him to contribute
to pregnancy and birth expenses. This change addresses the unfairness
in many cases where the father is required to pay all of the
pregnancy and birth expenses, despite the fact that both the
father and the mother were responsible for conceiving the child.
It would violate federal law to require a mother to repay the
pregnancy and birth expenses, but it will no longer be assumed
that a father should be solely liable for them.
Placement Enforcement
The violation of placement orders is a significant problem
in many cases. At a time when recently enacted legislation mandates
strict new child support enforcement mechanisms, the inability
of the legal system to similarly enforce placement orders had
led to substantial resentment and disrespect for the fairness
of the law on the part of many parents. Section
767.242 attempts to remedy these problems by establishing
new placement enforcement mechanisms in family court.
The placement enforcement legislation permits a parent to
file a petition if one or more periods of physical placement
have been "intentionally and unreasonably" denied or
substantially interfered with by the other parent. There was
debate among the drafters whether one incident of interference
should warrant a placement enforcement petition, or whether there
should be a three-strike rule. It ultimately was decided that
a statute that permits parents to interfere three times before
there are legal consequences would undermine the respect for
the placement order. In any other area of family law, such as
payment of child support, maintenance, or property division,
a party is not permitted to intentionally and unreasonably disregard
a court order on three occasions before there are any legal consequences.
Since the interference must be intentional and unreasonable,
the statute does not apply to circumstances that do not merit
enforcement remedies, such as placement denied because the child
is sick, or because a parent shows up to exercise placement under
the influence of intoxicants, or in a violent mood.
The statute is evenhanded in that it is equally applicable
to those cases where a parent does not timely return a child
from scheduled placement. It also permits an action under section
767.242(2)(c) when a parent intentionally fails to exercise
one or more periods of placement, causing the other parent to
incur a financial loss or expense.
If a petition is filed and the court finds intentional and
unreasonable interference, section
767.242(5)(b)1. mandates that the court order make up time,
and mandates that the court award reasonable costs and attorney
fees. Section
767.242(5)(b)2.c. permits a court to enter a placement injunction.
If an injunction is issued, section
767.242(6) requires that the injunction be filed with a law
enforcement central repository, much like a domestic violence
injunction. Law enforcement personnel now will have a means of
verifying a violation of existing criminal statute section
948.31, or the criminal penalty provision in the placement
enforcement statute, which is found in section
767.242(8).
Guardian Ad Litem Changes
The legislation contains several minor changes impacting guardians
ad litem. Section
767.045(1)(am) gives the court discretion to not appoint
a guardian ad litem on modification motions if the modification
sought would not substantially alter the amount of time that
a parent may spend with a child, and the court believes that
the likely determination is clear, or that a party is seeking
the appointment of a guardian ad litem solely for a tactical
purpose or delay. Section
767.045(4m) permits a party to request a status hearing for
the guardian ad litem to report on his or her activities at any
time after 120 days following the appointment of the guardian
ad litem. A party may request an additional status hearing 120
days thereafter. Finally, the legislation calls for the formation
of a joint legislative council to study the guardian ad litem
system.
Use It or Lose It
The use it or lose it provision, section
767.325(2m), permits a parent to modify a placement order
if the other parent "repeatedly and unreasonably" fails
to exercise placement, without requiring a custody hearing and
a showing of a substantial change of circumstances. This provision
addresses those cases where a parent seeks placement time to
obtain a more favorable child support award, and then fails to
exercise that placement time. The other parent now can file a
motion to change the placement schedule to reflect reality, without
requiring costly, lengthy, and harmful custody modification proceedings.
Once the placement schedule is changed to reflect reality, the
child support order can be changed accordingly.
Conclusion
In many ways, the custody, placement, and paternity reform
legislation is reflective of cultural changes. Many mothers have
entered the full-time work force, and many fathers have assumed
a significant child rearing role. A substantial number of children
now are born into nonmarital relationships. The family code was
overdue for a change because it had not kept up with the times.
Christopher D. Walther, Marquette 1985, is president and senior
shareholder in the Milwaukee firm of Walther Law Offices S.C., practicing
in divorce and family law, appellate practice and procedure, and
transportation-motor carriers, trucks, and trucking law. He currently
chairs the State Bar of Wisconsin Family Law Section. |
In signing this legislation, Gov. Thompson stated, "[w]e
need to do more to make sure both parents are fully involved
in the raising of their children, particularly fathers. Yet,
we must continue to balance this goal with doing what's
best for the child and providing protections for women in abusive
and intimidating situations. I am confident the provisions I
am signing help strike a better balance." The drafters share
this confidence. It is hoped that this legislation will reduce
the custody warfare that is harmful to children. Parents should
have a clearer expectation that two loving, involved parents
will be treated equally, and will be able to play a significant
role in their children's lives.
Endnotes
1 118 Wis. 2d 549, 567-68, 348 N.W.2d 479
(1984).
</2 168 Wis. 2d 686, 692, 484 N.W.2d 371 (Ct.
App. 1992).
3 199 Wis. 2d 186, 201, 544 N.W.2d 417 (1996).
4 210 Wis. 2d 437, 564 N.W.2d 354 (Ct. App.
1997).
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