Grandparent Visitation Rights Awaiting Wisconsin Supreme Court Decision

Grandparent Visitation Rights Awaiting Wisconsin Supreme Court Decision

In 2000, the United States Supreme Court found in Troxel v. Granville that parents have a constitutionally protected interest in the care, custody, and control of their children. The Supreme Court concluded that a trial court must give some special weight or consideration to a parent’s decision regarding who their child spends time with. The Court did not go so far, however, to decide whether or not the constitutional right required non-parent visitation statutes to require a showing of harm or potential harm to a child before the Court could award third parties, such as grandparents, visitation rights over the objection of the child’s parents.

Since the U.S. Supreme Court case was entered, most states have required that a Court find harm to a child before it can interfere with a fit parent’s decision regarding grandparent visitation. To date, Wisconsin has not applied that same standard and has adopted a less restrictive standard of proof. The question of whether or not grandparents should have to show harm to a child when a fit parent decides that their child should not spend time with them is currently before the Wisconsin Supreme Court in a case entitled Michels v. Lyons. Also, at issue in this case is to determine whether or not the presumption that a fit parent acts in their child’s best interest when deciding who should spend time with their children must be overcome by clear and convincing evidence or a lower standard.

In certifying the issue to the Wisconsin Supreme Court, the Wisconsin Court of Appeals District III concluded that “we anticipate numerous cases involving grandparent visitation rights. We believe Circuit Courts, parents, and grandparents would greatly benefit from the Wisconsin Supreme Court’s definitive clarification of the standard of proof on this issue involving a fundamental right.”

I could not agree more with the Court of Appeals about the necessity for the Supreme Court to offer clarification on these issues. As an attorney who has represented both grandparents seeking visitation with their grandchild, as well parents opposing grandparent visitation petitions, clarity on these issues is critical. Whatever decision the Wisconsin Supreme Court reaches, it will certainly impact the rights of grandparents and parents in this type of litigation, and it will provide a framework for consistent application of the law across the state by various family courts.

At this time, the Michels v. Lyons case has been argued and briefed before the Wisconsin Supreme Court and is waiting a decision by the Court. An update to this article will be provided after the Supreme Court issues its decision. In the meantime, if you are considering petitioning the Court as a non-parent seeking visitation rights with a child, or if you are a parent who has been sued for third-party visitation, the law firm encourages you to speak with a family law attorney who has experience in the area of grandparent or other third-party visitation.

 

Social Media and Family Law #askingfortrouble

Social Media and Family Law #askingfortrouble

Social media sites such as Facebook, Twitter, Instagram, and Snapchat provide an abundance of opportunities to undermine your family law case. For many, social media has become a type of semi-public journal of their day-to-day life. Whether your relationship is in a rocky state, or you are already involved in family law litigation, your social media sites can be a gold mine of information that your significant other and/or their attorney can use against you in court.

Through your social media posts, one can track your daily activities, uncover the negative views you have of your significant other, and discover issues or characteristics that may reflect negatively on your parenting—all of which can be used as ammunition against you in a family law proceeding. Posting on social media every time you are out at a bar is not going to make you seem like a responsible parent when negotiating child custody and placement. Likewise, social media posts may impact your family law proceeding with respect to financial issues, such as property division, child support, and spousal support.

The following is a list of recommendations we encourage everyone to follow whether or not they are in the midst of, or think they may be heading toward, legal proceedings in a family law matter.

1. Do not post about every weekend outing, vacation, luxurious meal, concert, etc. that you take, eat, or attend without your partner.

2. Do not update your relationship status to publicize a new relationship while you are still going through legal proceedings in family court.

3. Do not post pictures of you with a new significant other.

4. Do not disparage your partner on social media.

5. Do not post statements or pictures about consuming too much alcohol or using illegal substances.

6. Do not brag about excessive spending or luxury purchases.

7. If you are not already social media “friends” with your children, do not “friend” them now.

8. Make sure your privacy settings are set as you want them.

9. Do not complain online about the judge, the family law court process, or anyone involved in the judicial system.

10. Do not write and post statements made while you are angry, hurt, or after you have consumed too much alcohol.

It can be tempting to vent to friends and family, or on a social media support group site. You may think that your privacy settings prohibit your information from being discovered by your significant other or their attorney, but you can never be certain that your trusted social media “friends” will not share information they obtained from your social media posts with the adverse party in your case. It is important to follow these recommendations to be careful about what you post on social media even when you think it is safe to do so because there is always a chance that it can be used against you in a legal manner.

 

Legal Separation or Divorce?

Legal Separation or Divorce?

A physical separation of spouses is not a “legal separation” regardless of how long it has been since the parties have lived together. A “legal separation” occurs through a court proceeding that is almost identical to a divorce proceeding. There are two main differences between a legal separation and a divorce.

1)    Residency requirements: To file an action for legal separation, you only need to be a resident of the state of Wisconsin (and of the county you file in) for 30 days. To bring an action for divorce, you must be a resident of the county you file in for at least 30 days AND a resident of the state of Wisconsin for at least 6 months.

2)    A legal separation does not dissolve or terminate the marriage, and therefore, neither party can remarry if their previous marriage ended only with a Judgment of Legal Separation and not a Judgment of Divorce. However, the parties can agree to convert the legal separation to a divorce after the Judgment of Legal Separation is entered, and either party to the legal separation can bring a Motion to convert the Judgment of Legal Separation to a Judgment of Divorce if more than one year has passed since the Judgment of Legal Separation was entered.

How Job Loss Can Affect Child Support

Child support is calculated based on a percentage of the payor’s income (generally 17% for one child, 25% for two children, 29% for three children, and up). After the calculation is established, a fixed dollar amount is determined based on the payor’s average gross monthly income at the time the support order is entered. In other words, the obligation does not automatically change from week to week or month to month based on a payor’s actual earnings where those earnings either fluctuate or the payor experiences a significant and sudden change in his or her income.

Wisconsin law allows a party to ask the court to modify the payor’s child support obligation if there is a substantial change in circumstances that warrants the modification. Generally speaking, a loss of employment and/or a significant reduction in a payor’s income would result in a reduction in the payor’s support obligation if the issue is properly brought before the court.

The court cannot retroactively back date a modification of a child support obligation to a date any earlier than the day in which the motion to modify the support obligation is filed and served on the other parent. Because of this, it is critical that a parent with a support obligation act quickly to bring an appropriate motion before the court for modification of his or her child support when the payor has a loss of employment or a sudden decrease in his or her income. If the payor finds new employment between the time that the motion was filed and served and the day that the motion is scheduled to be heard in court, the payor can always withdraw the motion. Failure to bring a motion in a timely manner could result in the payor accumulating significant arrears plus interest for unpaid child support and, in some cases, could result in the payor being found in contempt of court for his or her failure to pay.

If you have experienced a sudden loss of employment or a significant decrease in your earnings and believe you have a legal basis to modify your child support, we recommend that you speak to an experienced attorney who specializes in family law and encourage you to contact our firm with any questions that you may have.

Joint Tenancy Outside of Marriage

Joint Tenancy Outside of Marriage

What happens when you make your significant other a joint tenant in your home and your relationship subsequently dissolves?

We have been receiving an increase in the number of calls from potential clients who tell us that they own a home as a joint tenant with their significant other and that the relationship is ending. They want to know how to go about removing their partner from the deed to their home.

If the breakup is amicable and the parties agree who should keep the home and how much compensation, if any, the other party should receive for signing a Quit Claim Deed, this process is relatively simple. More often than not, however, neither party wants to sign title in the property over to the other, nor do the parties agree on the value that the party receiving the property should pay to the other. When this deadlock occurs, the legal remedy is often costly litigation through a partition action.

A partition action between two joint tenants of a house frequently results in the Court ordering the house to be sold at a sheriff’s sale. At a sheriff’s sale, the house is sold at auction to the highest bidder. Frequently, sheriff’s sales do not result in the house being sold at fair market value. While some judges have suggested that marketing the house before the sale can increase the number of bidders and therefore, the likelihood that a house will be sold close to its fair market value, the frequent outcome of the sale is that a house is sold below its fair market value. Further, when selling a house subject to a mortgage at a sheriff’s sale, the lender will be paid first. Proceeds from the sale, if any, are then equally divided between the two joint tenants. Proceeds are divided equally regardless of whether both parties’ names are on the mortgage and without consideration to any comparative contributions that each party made in purchasing the home, paying the mortgage, property taxes, maintenance, etc.

Under Wisconsin law, Courts have found that when an individual homeowner adds another person to the home’s title by creating a joint tenancy, the homeowner gifts a one-half interest in the property to the other person. The courts have held that simply by creating a joint tenancy, each automatically owns a one-half interest in the property. When the parties are unmarried, the Courts do not consider how long the original homeowner owned the home prior to adding his or her partner, nor does the court consider whether both parties are on the mortgage or have made financial contributions to household expenses such as mortgage payments, real estate taxes, insurance payments, utilities, and other routine household expenses.

This can result in some seemingly unfair results where a party that has owned a home for years, unconditionally creates a joint tenancy with his or her partner without adding the partner to the mortgage, and then weeks later the relationship dissolves, and the original homeowner’s partner is unwilling to vacate the premises or sign a Quit Claim Deed granting his or her ownership interest back to the original homeowner.

We encourage you to contact an attorney to review your situation before you create a joint tenancy in your home with your significant other so that you fully understand the consequences of your decision should your relationship with your partner dissolve.

Pin It on Pinterest