Upon filing for divorce, one of the biggest concerns is not only who gets the kids, but WHEN? Simple as that seems, disagreement can set a process in motion that is both costly and frustrating.
The legal presumption is that both mom and dad are fit and proper parents and that they should share joint legal custody; that is, the ability to make important decisions for the children. That leaves the question of physical custody: Where will the children actually be staying and when will they see the other parent?
Work schedules and daily activities can create a logistical nightmare, not to mention the activity schedules of the kids themselves. Parents often disagree and may want to ‘fight it out in court’ rather than compromise. Holding evidentiary hearings in front of a judge to settle the details of every family case, however, would cause a backlog on the court’s docket, and cases would be delayed months or years.
In the alternative, Wisconsin uses a system that allows several levels of intervention to help parents and to lighten the caseload of the court system. Unfortunately, it can turn out to be an expensive process for parents. First, mediation is ordered if the parties feel they would be able to reach some agreement with the help of a mediator. (The parents pay the mediator.) If that fails, or if the parties are sure they cannot benefit from mediation, the court appoints a guardian ad litem (“GAL”) for the children; that is, a lawyer to represent their interests. (The parents pay the GAL.) This person then speaks to all of the parties involved, outside of court, and to the children, if age appropriate. The GAL then makes recommendations to the court at a review hearing, outlining what is believed to be in the children’s best interests. The commissioner or judge tends to follow this recommendation, without taking additional testimony, making the review hearing short, and freeing up court time. The down side for parents is the fee(s) for these services–usually split equally by the parties.
If one or both parties will not accept the recommendation, they can request a trial (more costs); however, often the court will follow the recommendation anyway. Judges like to try out the schedule that the GAL crafted after investigating the situation, with the goal of maximizing time with both parents. Local court rules vary by county.
Sometimes the issue of child support clouds a parent’s thinking. Because Wisconsin law uses overnights with the children to calculate child support for shared placement, people figure that the more overnights they have, the less child support they will pay. While that can be true, using time with the children as a tool to manipulate payments can create family discord and almost never fools the children.
We encourage parents to rise to the occasion of formulating their own placement schedule to avoid costs, delays and heartaches! We hope parents are listening.