Do you have a question about grandparent visitation rights?  The attorneys at Anderson & Anderson have years of experience and use that vast experience to fight for the best interest of their clients and the clients' children.  Call to schedule a consultation (262) 654-0999.

The Wisconsin Supreme Court has ruled against a grandmother who wanted more visitation time with her granddaughter, concluding grandma did not overcome a presumption that favors parental decisions concerning their kids.Cacie Michels and Keaton Lyons had a daughter together in 2009. They were never married and split up in 2011. As an infant and toddler, their daughter spent significant time with her grandmother, Jill Kelsey (Lyons’ mother), but the arrangement changed.

In 2015, the parents denied Kelsey’s request to take her granddaughter to Disney World and began limiting her visitation time, citing Kelsey’s questionable supervision.
For instance, Kelsey allowed her granddaughter to ride a horse without a helmet and gave her a sip of alcohol. Kelsey intervened in a paternity action and sought additional visitation under Wisconsin’s grandparent visitation statute, Wis. Stat. section 767.43(3).

That statute says “[t]he court may grant reasonable visitation rights, with respect to a child, to a grandparent of the child if the child’s parents” are not married and the grandparent seeking visitation is a parent of the child’s father.
Additionally, the court must be satisfied that the grandparent “has maintained a relationship with the child or has attempted to maintain a relationship with the child but has been prevented from doing so by a parent who has legal custody of the child.”

The circuit court sided with Kelsey, ordering visitation rights at least one Sunday per month and allowed a seven-day vacation period during summer breaks. The parents moved for reconsideration on due process grounds, but the motion was denied.

The Wisconsin Appeals Court certified the case for review by the Wisconsin Supreme Court. And in Michels v. Lyons, 2019 WI 57 (May 24, 2019), the unanimous court vacated the circuit court’s order, concluding it violated the parent’s constitutional rights.

The court, in a majority opinion by Justice Rebecca Dallet, concluded that the grandparent visitation statute is facially constitutional. Four other justices agreed.

But the majority also ruled the statute “is unconstitutional as applied because Kelsey did not overcome the presumption in favor of Lyons and Michels’ visitation decision with clear and convincing evidence that their decision is not in [their child’s] best interest.”

Justice Dallet explained that parents have a “fundamental liberty interest” in the care and upbringing of their children and the circuit court infringed on this fundamental right when it ordered more visitation rights to Kelsey, despite the parents’ objection.

“We conclude that because the Grandparent Visitation Statute directly and substantially implicates a fit parent’s fundamental liberty interest in the care and upbringing of his or her child, it is subject to strict scrutiny review,” Justice Dallet wrote.

Visitation statutes, the majority opinion explained, exist to allow relatives to petition for visitation when a family unit is dissolving and maintaining continuity would be in the best interest of the child. Clear and convincing evidence must support the argument. That is, a grandparent must show the parents’ decision is not in the child’s best interest.
The majority said Kelsey did not present clear and convincing evidence that overruling the parents’ decision regarding visitation would not be in their child’s best interest. The majority noted that the parents did not intend to eliminate Kelsey’s visitation rights.

“Kelsey’s desire to merely secure a more generous and predictable visitation schedule is not enough to overcome the presumption in favor of Lyons and Michel’s visitation decision and demonstrate that their decision is not in [their child’s] best interest.”

“A circuit court should not substitute its judgment for the judgment of a fit parent even if it disagrees with the parent’s decisions,” Justice Dallet wrote.

Concurrence
Justice Rebecca Bradley wrote a concurring opinion, joined by Justice Daniel Kelly. They agreed that the Grandparent Visitation Statute, and the circuit court’s order, was unconstitutional as-applied to the parenting decisions of Michels and Lyons.

But the concurring justices also argued that the visitation statute is facially unconstitutional and should not be allowed to stand at all.

“Because the majority upholds the constitutionality of § 767.43(3), except as applied to parents in this particular case, fit parents’ fundamental liberty interest in raising their children free from governmental interference remains at risk,” Justice R. Bradley wrote.

Effective April 5th 2018, Wisconsin has passed 2017 Wisconsin Act 203 (Act).  This Act repealed, amended, and created new law relating to relocating with a child who is subject of a legal custody or physical placement order.  This new Act does make noticeable changes to the child removal statute. 

Under Wis. Stat. 767.481, removal laws applied when one parent intended to establish a residence with a minor child outside of the state of Wisconsin or more than 150 miles within the state from the residence of the other party.  The new Act applies the removal statutes when a parent intends to relocate and establish a residence with a minor child more than 100 miles away from the residence of the other party. 

The legal process of moving with a minor child 100 miles away has also dramatically changed.  Gone are the days of mailing notice of the intent to move and allowing for an objection period as stated under the previous removal statutes.  Now if a parent intends to move, the parent shall file a formal motion with the court seeking permission for the child’s relocation.  This motion shall include several things: a relocation plan stating the date of the proposed relocation, the municipality and state of the proposed new residence, the reason for the relocation, a proposed new placement schedule if applicable, and the proposed responsibility for the costs for each parent for transportation of the minor child.  The motion shall also include a request for a change in legal custody if applicable. 

If the non-moving parent objects to the move, he/she must file and serve, no later than five days before the initial hearing, an objection to the relocation and any alternate proposal, including a modification of physical placement or legal custody. 

There are also new legal standards for deciding relocation motions.  The court will still consider each of the custody and placement factors under Wis. Stat. 767.41(5); however, now the court shall approve the proposed relocation if the proposed relocation only minimally changes or affects the current placement schedule or does not affect or change the current placement schedule.  There is also now a presumption that the court should approve the plan of the parent proposing the relocation if the court determines that the objecting parent has not significantly exercised placement.  The movant bears the burden of proof in a contested relocation motion.  If the presumption to approve the plan exists, then the parent objecting to the relocation shall have the burden of proof in demonstrating the proposed relocation is not in the child’s best interest. 

Matters relating to children can be very emotional.  A skilled and experienced attorney, such as the lawyers at Anderson & Anderson Law Office, S.C., can help you through the difficulties of such matters.  If you have questions regarding how the new child removal act affects your case, please contact our office and schedule an appointment with one of our skilled family law attorneys. 

To see the entire 2017 Wisconsin Act 203, please follow this link:
https://docs.legis.wisconsin.gov/2017/related/acts/203

INTRODUCTION:
Many of our clients either are on the receiving end of a maintenance payment or on the paying end of a maintenance payment.  Maintenance (spousal support / alimony) is payment from one spouse to the other to help lower the financial stress commonly associated with a divorce.   It is designed to help assist the more financially dependent spouse.  Either spouse may request maintenance from the other regardless of what caused the breakdown of the marriage.  A court can order maintenance payments for a temporary period of time or for an indefinite period of time after considering a number of statutory factors including the length of the marriage, the age and physical and emotional health of the parties, the division of property, the education level of each party, the earning capacity of the party seeking maintenance, the feasibility that the party seeking maintenance can become self-supporting, any mutual agreement made before the marriage, contributions to education, etc.  All the factors the court considers when determining a maintenance obligation can be found in the Wisconsin State Statute § 767.56. 

What made maintenance unique, as opposed to Child Support, are the tax ramifications associated with paying maintenance or receiving maintenance.  If a person has paid amounts of maintenance, that payer may deduct from income the amount of maintenance paid. The recipient of maintenance payments must include it in his/her income. 

This unique feature of maintenance has now completely changed under the new 2017 Tax Cuts and Jobs Act (Act).  This new Act has created some of the most sweeping changes to tax law in more than thirty years.  Many of the changes imposed by the new Act affects the practice of family law, and more specifically maintenance.   

MAINTENANCE PAYMENT DEDUCTION ELIMINATED:
The Act has eliminated the maintenance deduction for payments under a divorce or separation decree.  This new tax provision applies only to payments that are ordered in a divorce or separation degree on or after December 31, 2018.  If a client is ordered to pay maintenance under a divorce of separation decree before December 31, 2018, you are grandfathered into the former tax law which permits deductions of maintenance payments. 

The former spouse who is receiving the maintenance payment will no longer include the receipt of maintenance payments under income and will not be taxed on the income of maintenance like before.  The same December 31, 2018, starting date applies to the reporting of maintenance income.  You are grandfather into the former tax law if a maintenance order under a divorce or separation decree is made before December 31, 2018.  Any maintenance order after that date will fall under the new tax law. 

The Act’s treatment of maintenance payments not only applies to those payments ordered under a divorce or separation decree on or before December 31, 2018.  It applies to any maintenance payment modified after the December 31, 2018, starting date if the modification order expressly states that the Act’s new maintenance provision applies (not deductible by the payer and not taxed as income to the payee). 

WHAT DOES THIS MEAN FOR YOUR CASE?
This new tax law has imposed major changes to those individuals going through a divorce.  It is important to speak with an attorney to discuss maintenance and to see whether there could be a maintenance issue in your specific case.  Because there is no specific calculation for determining maintenance, the skilled attorneys at Anderson & Anderson will provide the best advice for your specific situation.

What you may see is a push for cases to be tried or come to a settlement agreement before the start date of the new maintenance tax laws. 

If you have questions about your case and whether the new Act will affect it, contact your attorney at Anderson & Anderson Law Office, S.C.

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​Trends of Child Custody and Placement in Divorce: Past, Present, and Future
By Benjamin Anderson, Anderson and Anderson Law Office, S.C., Kenosha
 
Commonly, matters pertaining to children of a marriage is the most emotional part of divorce proceedings. There are three major parts of any divorce proceeding:

1. property division;
2. maintenance; and
3. matters pertaining to children.

Matters pertaining to children during a divorce include the custody of the child or children and the placement of the child or children. Custody generally pertains to the decisions parents make when raising children. This includes medical decisions, religious decisions, education decisions, extracurricular activities, etc. Placement, on the other hand, is where the child lives on a day-to-day basis. Custody is not the same as placement, and it is common for individuals not familiar with the law to confuse the meaning of custody with the meaning of placement.  There is a significant difference between the two terms, both legally and in practice.
 
She is the Mother
 
The tale of the biblical King Solomon and a custody dispute is well-known in the history of child custody and placement:
 
King Solomon is asked to decide who will be awarded custody of an infant. Rather than turning to a statute book to determine which was to be preferred, his first request was, “Get me a sword.” He then announced that he would “cut the living child in two, and give half to one woman and half to another.” When the biological mother protested and was willing to give up her child on the condition that the baby's life be spared, the king gave his custodial judgement, “Give the first one the living child! By no means kill it, for she is the mother.”
 
This tale demonstrates the very first trend in child custody and placement disputes. However, this trend quickly changed as the world became a more father-dominant, patriarchal society.
 
Three Stages
 
The basis for today's custody and placement disputes is traced back to English Common Law. This is because much of the U.S. legal system is based on Common Law.
 
During the early stages of the court system, men were the heads of the household. They held all of the property in the marriage. That property also included children. The father supported the children, and as such, they were considered his property. If the marriage between mother and father ended, the father retained the children under martial property laws.
 
This marks the first trend in child custody and placement disputes. The first stage is represented by a legislative and judicial preference for the father in custody cases.
 
The second stage is represented by a swing in favor of the mother. This stage led to the development of what was subsequently called the ‘tender years’ doctrine or the ‘mothers love’ preference.
 
The final stage, which also has various developmental substages, is focused on the abolition of preferences and the creation of a set of ‘factors’ by which a court analyzes the ‘best interests of the child.’
 
The Tender Years Doctrine
 
The Tender Years doctrine began to take hold in the 1800s and at the advent of Women's Marital Property Rights. This doctrine was never codified, but great evidence of the maternal preference is found in case law:
 
“Strong natural affection of a devoted mother living an industrious and reputable life, though she be in straitened circumstances, is a very sufficient assurance that she will tenderly care for and properly nurture and educate her children.”[1]
 
The Best Interest Standard
 
Just as the Tender Years Doctrine took hold in case law, what we know today as the “Best Interest” standard began in case law as well.
 
It wasn't until 1971 that the best interest standard was codified in Wisconsin. In 1999, more changes were added to the best interest standards. The changes made were an increase in factors courts must consider in rendering a custody and placement order. Today those standards and all others are codified under Wis. Stat. section 767.41. One important aspect of the statute is that “the court shall presume that joint legal custody is in the best interest of the child.”
 
The factors in determining placement and custody are found under Wis. Stat. section 767.41(5). The statute is a long list containing 16 factors that the judge must consider before entering a custody or placement order. In order to make sure the best interest of the child is being represented, the court must appoint a Guardian ad Litem under Wis. Stat. section 767.407.
 
From my experience in practice, the effects of the tender years doctrine still lingers on, and courts are still more willing to provide placement to mothers over fathers. But the tide is changing, and more judges are issuing orders with a veil over the role of mother or father.
 
Collaboration and Mediation
 
Adding factors to consider in deciding custody battles wasn't the only thing that changed in 1999. There has been a shift to a more collaborative process when deciding children's custody and placement with the advent of parenting plans.[2]
 
Wisconsin's parenting plan law requires that each parent submit to the court a detailed plan of parenting duties and responsibilities. This is one step to a more collaborative process.
 
Another is the mediation mandate.
 
“In any action affecting the family, including an action for revision of judgment or [when] it appears that legal custody or physical placement is contested, the parties shall attend at least one session with a mediator.”[3]
 
The move to mediation is taking on an even greater importance starting this year. The Wisconsin Supreme Court has approved a petition that will allow lawyer-mediators to draft and file settlement documents in family law cases.[4]
 
The Changing Role of Guardian ad Litem
 
The move toward mediation may dramatically shift a guardian ad litem’s role in representing the best interest of a child. If custody and placement are not in dispute and agreed upon in mediation, no guardian ad litem will be appointed.
 
What does this mean for the representation of the child's best interest? Naturally the court still has the ability to appoint a guardian ad litem, but if custody and placement are agreed upon, there is no mandatory appointment. This can even happen during litigation; but there is almost always a guardian ad litem appointed when children are involved, because there is generally a dispute.
 
Only time will tell if the statutes regarding the appointment of a guardian ad litem will change in order to accommodate the new push toward mediation.
 
Very few areas of law are as emotionally charged or as volatile as matters pertaining to children. Whether it is an action in which children may need protective services or whether it is a divorce proceeding, emotions are always heightened when dealing with children. That is why guardians ad litem have such an important job.
 
But is this role in the court system being diminished by the push toward mediation? It is important that the best interest of the child continue to be looked after.


[1] Thomas J. Walsh, In the Interest of a Child: A Comparative Look at the Treatment of Children Under Wisconsin and Minnesota Custody Statutes, Marquette Law Review, 2002.

[2] Id.; Wis. Stat. § 767.41(2)(am); and Johnston v. Johnston. 89 Wis. 416, 62 N.W. 181 (1895).

[3] Wis. Stat. § 767.405(8).

[4] Joe Forward, Court Approved: Family Law Mediators Can Draft Settlement Documents, InsideTrack, Jan. 18, 2017.

This year, Kenosha News made some changes for the voting process in the Best of Kenosha County Readers' Choice Awards.  From July 16-30, they are asking readers to nominate your favorite businesses for the Best of Kenosha County Awards.  Submit your favorite business & let us know why you picked them by visiting www.kenoshanews.com/bestofkenosha.  Your responses could appear in the Best of Kenosha Voter's Guide!

Once the nomination time-frame is completed, they will determine the top 5 nominees in each category - these will be the finalists that will appear in the official Best of Kenosha Ballot, set to publish in the Voter's Guide and launch online on Saturday, September 9, 2017. 

GO NOMINATE!