Tag Archive for: best interests of the child

Genetic bone disorder poses threat to child custody

Parents in Wisconsin may take heed from the suffering of a number of families across the country torn apart by false allegations of child abuse. One case followed up by news media helps to underline the problem. A father was charged with child abuse after doctors at a hospital reported his child’s fractures to authorities as non-accidental injuries. The man was stripped of child custody rights and essentially forced to move out of his family’s home by the court.

For nine months, the father and mother struggled with accusations that led to a felony charge, and the father was only allowed to visit the child with court supervision. The mother of the three-month-old was eventually contacted by another parent who had faced a similar situation in court. Charges were dismissed in both cases based on medical testing.

Medical personnel typically screen children for conditions that weaken the bones before reporting suspected child abuse to authorities. In both cases, the children did suffer from a condition that weakens bones, but it was thought to be rare and was not included in the initial screenings. The children were found to have Ehlers-Danlos syndrome, an inherited genetic condition that makes the child’s joints and bones fragile and which can lead to fractures.

In cases of suspected abuse, family courts are charged with acting on the best interests of the child, which means ensuring their physical safety. Sometimes, this responsibility leads to the needless separation of children from their parents. These highly emotional cases can leave parents emotionally traumatized and in need of a strong advocate. An attorney with experience in child custody may be able to help a client involved in such a matter.

Source: WFAA, “Rare bone disease leads to bogus child abuse allegations”, Janet St. James, November 15, 2013

Proposed change in child custody and support law

A Wisconsin state legislator has sponsored a bill that would establish custody parity between divorcing parents in that state. Assembly Bill 540 would establish a presumption that equal custody between parents is the best situation for children. The bill also contains changes that impact child support, such as the counting of health insurance premium payments as part of support payments and the cut-off of the amount of income subject to support at $150,000. There is a provision for revision of ordered support in the event that the payor suffers a reduction in income as well.

One family law attorney stated that under the proposed law parents may still make their own arrangements and that the court will not insist on equal custody when there are serious issues with either the mother or father. He also expressed regret that people are legally bound to ordered support amounts that are difficult to pay sometimes due to unforeseen circumstances. Fathers also may have difficulty obtaining equal custody at times and must engage in expensive litigation to obtain parental rights.

Another family law attorney disagreed, characterizing the bill as not being tailored specifically to each case. She also took issue with the inclusion of insurance premium payments in support and the capping of income subject to support, opining that a child should share in the good luck of a parent making an increased income.

The proposed bill does not force family courts to order equal custody but does require that they make the effort when possible. Child custody disputes and divorce can be emotional and adversarial at times. However, the best interests of the child require that parental rights be carefully considered.

Source: WKOV, “GOP bill would change WI child custody, support laws“, Greg Neumann, December 09, 2013

Child custody trends creating more single-dad homes

If Wisconsin men follow the national trend, more fathers than ever before are stepping up as single dads. Family law courts used to almost automatically award child custody to the mother. However, the percentage of households with minor children headed by single men rose from one percent to eight percent between 1960 and 2011, according to a recent study conducted by Pew Research Center. Translated into numbers of households, this shows fewer than 300,000 growing to more than 2.6 million.

Analysts credit the trend to the ever-rising U.S. divorce rate, as the percentage of single mothers heading households has also increased over that period, as well as the fact that fewer parents are marrying before children were born or even not getting married at all. Another factor in the growth of the single-dad household is that society no longer looks on a father raising children alone as unusual.

Reflecting this change in societal norms, more states are moving away from favoring the mother in custody disputes and toward shared parenting. In the past, legal custody was often shared by both parents, but physical custody was much more frequently given to the mother. Under this new paradigm, states including Minnesota, Iowa and Oregon favor a 50/50 split of physical custody. Whether a cause or an effect of the shared parenting trend, more dads are believing that they have important contributions to make as a part of their children’s lives.

In a child custody dispute, family courts will most often rule in the best interests of the child or children. However, each state may have its own definition of “best interests,” and judges will adjust their rulings according to the particulars of each case.

Source: The Atlantic, “The Rise of the Single Dad“, Caroline Kitchener, February 24, 2014

Third party visitation in Wisconsin

Wisconsin law allows third parties who are not a child’s biological parents to seek and obtain visitation rights in certain cases. Eligible parties include the child’s grandparents, stepparents or other people who have established a parent-like relationship with the child.

Some people who have these relationships to a child are normally not eligible to receive visitation rights, however. People who have been convicted of first or second-degree murder of the child’s parents are unable to be granted visitation unless they are able to prove by clear and convincing evidence that such visitation would be in the child’s best interests. The court considers the preference of the child in those cases.

Grandparents may be granted visitation in cases in which the child’s parents were never married to each other, if the child’s paternity has been established and the grandparents are the father’s parents and in cases in which the child has not been adopted. Additionally, the grandparents must have maintained a relationship with the child or has attempted to continue to maintain one but has been prevented from doing so by the parent with legal custody. Finally, the court must find that the grandparent visitation would be in the best interests of the child.

Third parties, including grandparents, are able to seek and obtain visitation rights in some cases in Wisconsin. When a grandparent, stepparent or other third party has previously established a close relationship to a child and the custodial parent will not allow them to see the child, they may wish to petition the court who issued the custody order for visitation rights. People in that situation may benefit by meeting with a family law attorney who may be able to help them prove to the court that visitation is in the best interests of the child.

Source: Wisconsin State Legislature, “767.43  Visitation rights of certain persons.“, October 30, 2014

The “best interests of the child” principle

Wisconsin parents may be interested in some information on the factors that courts use in determining custody issues after a divorce. Depending on the particular state, the motivating factors could change, but most of them exist to achieve specific goals. Nearly every decision that a court makes regarding child custody and physical placement is governed by the best interests of the child principle. What this means, exactly, can depend on a number of factors.

Every state requires that this be the prime determining factor, but many states also have their own statutory rules as to what this phrase entails. Often, the rules are there to support some overarching policy goal with regard to child custody. These can include family integrity and keeping the child in their family home, protecting the child’s health and welfare, and having these permanent custody decisions made in a timely manner.

Many states have statutes setting forth specific factors that are taken into consideration. While they vary with each state that has them, some that are more common than others. The most prevalent is consideration for the emotional bonds between the family members. Another common factor is the ability for each parent to provide for the child. Others include the physical and mental health of the parents and child, as well as the particular needs of the child.

Understanding the process for determining child custody issues can be daunting without the assistance of an attorney. The attorney may be able to guide a parent through the process of fighting for custody and drafting a parenting plan that is fair to all parties and in the best interests of the child.

Source: Child Welfare Information Gateway, “Determining the Best Interests of the Child“, December 15, 2014

Let our firm guide you with your child custody issues

If you are facing a legal child custody issue, our lawyers might be able to find a reasonable and fair solution that may satisfy all parties involved while seeking to preserve the child’s best interests. At Magner, Hueneke & Borda, LLP, we may be able to help you work out the sensitive matter of legal custody issues while reducing your stress.

If the dispute remains unresolved, the matter may most likely end up in a civil court trial in which the court will appoint a guardian ad litem to represent the best interests of the children involved. The role of the guardian ad litem is to advise the court in the placement, custody and visitation for the children. Our firm may be able to provide a custody report that could possibly affect the court’s final resolution of your case.

Following the determination of child custody and physical placement of the children, our law firm may be able to assist you with understanding how child support payments are determined based on your particular set of circumstances. If for some reason you need to change the initial child support amount set by the courts, we could possibly work out a post-judgment modification for you.

Moreover, our firm has effectively helped individuals in arranging suitable parenting plans and visitation schedules that follow custody determinations. We understand the importance of the parents’ rights and work hard to maintain the valuable relationship each parent has with the child. We also might be able to provide answers to your paternity issues and visitation rights. Our page on child custody disputes may provide you with more information on how custody is resolved.

Wisconsin divorce and virtual visitation

Wisconsin is one of only six states to have a formal virtual visitation law on its books. Because of this, parenting plans including virtual visitation provisions are gaining prevalence in family court proceedings. Wisconsin law clearly states that virtual visitation is appropriate for facilitating communication between parents and children at reasonable hours during periods when the child is in the physical custody of the other parent but may be restricted for several reasons.

When considering child custody arrangements, the court takes into account the past conduct of the parents with regards to cooperation and communication both with each other and with the children. The children’s expressed preferences will also be considered. In cases where physical visitation would be supervised, such as where spousal abuse or battery has occurred, virtual visitation must also be supervised. Both parties must have access to reasonable electronic equipment, such as computers or smart devices, to facilitate communication.

Virtual visitation is regarded as an enhancement to, not a replacement or substitute for, physical custody or visitation time. Through virtual visitation, noncustodial parents may maintain contact with and even attend school or extracurricular activities of the children when not physically present. Wisconsin law does not permit virtual visitation alone as valid justification for relocating a child away from a noncustodial parent.

In considering physical placement agreements, an attorney might begin by examining family dynamics in play, including how well the spouses work together with regards to the children’s best interest. The attorney may review court documents such as arrest records and other information that may affect the court’s ruling on the matter. In all cases, the attorney and court are obligated to place the best interests of the children first when establishing any form of visitation.