If visitation problems arise after you are divorced in Wisconsin the first solution is to try to work things out with your ex spouse. Wisconsin Divorce and Family Law does provide alternative remedies but as previously pointed out in my March 20, 2009 post "the times that each parent spends with the children is going to change due to the divorce and keeping the child from one parent can increase the negative effects." For that reason it is important to follow the agreement or Order which is in place. If for some reason, however, one party unilaterally decides to disobey the court order then Wisconsin Statute Section 767.471 (Sec. 767.471)"Enforcement of physical placement orders" sets forth the rules for filing a contempt motion against one parent for failure to comply with a court ordered visitation.
I have set out the requirements for filing a Motion for Contempt under Sec. 767.471 below in as plain a language as I can.
Before a party can file a Motion for Contempt under Sec. 767.471 they must have been either denied one or more periods of physical placement and/or had one or more periods of physical placement "substantially" interfered with by the other parent and/or have incurred a financial loss or expenses as a result of the other parent's intentional failure to exercise one or more periods of physical placement. It should be filed in the underlying divorce or paternity action. (I have used the word ex spouse throughout this post which would not apply in a paternity action.)
The Motion for Contempt must contain the following allegations:
1.Your name and the fact that there is court order granting you periods of visitation.
2. The name of your ex spouse. (Father or Mother of child in paternity action).
3. The actual dates and times when you were denied visitation or the facts surrounding the substantial interference with your visitation or the actual financial losses uncured as a result of the denied visitation or all three if applicable.
4. State what you want the court to do because of the intentionally and unreasonably interference with visitation.
The relief the court may grant you under Sec. 767.471 is limited to one or more of the following:
a. Issue an order granting additional periods of physical placement to replace those denied or interfered with.
b. Award you a reasonable amount for the cost of bringing the motion and for attorney fees.
c. If the court order or judgment you are alleging contempt from does does not have a provision for specific times for the exercise of periods of physical placement, the court may issue an order specifying the times for the exercise of periods of physical placement.
d. Find the responding party in contempt of court under ch. 785.
e. Grant an injunction ordering your ex spouse to strictly comply with the judgment or order relating to the award of physical placement.
f. Order reimbursement of the expenses incurred a financial loss or expenses as a result of the other parent's intentional failure to exercise one or more periods of physical placement.
Even if you fail to ask for one or more of these remedies the court is not barred from imposing one of these remedies on it's own.
Once you have filed the Motion it must be served on the other side. This may be done through the sheriff's office or a private process server but in either case must be served in accordance with Wisconsin Statute Section 801.11.
Once this is done the court will hold a hearing within 30 days after the service of the Motion on the other party so be sure to file the affidavit of service you receive from the sheriff or process server with the court. Most attorneys will obtain a court date prior to filing the Motion and place a notice of the Motion on the Motion papers to be served to the other party. This way the other party can't say they did not get notice of the date.
Since this is not a Motion to modify placement or custody the court is limited to the remedies listed above and may not change the custody or placement orders.
Monday, March 23, 2009
Friday, March 20, 2009
Divorce and Family laws' effect on children
I am new to blogging. I have chosen to write about Divorce and Family law matters here in Wisconsin because of the philosophy I have about divorce. It is my belief that the most important consideration in a divorce is your children. The effect that a divorce can have on a child is significant. See: "The Effects of Divorce on Children and How to Cope, Why Children are Impacted by Divorce" By Wayne Parker, About.com at http://fatherhood.about.com/cs/divorceddads/a/divorcekids.htm.
The hope is that by using attorneys who understand the effects which a divorce can have upon children you can diminish the effects that your divorce has on your child. That as a divorced parent myself, my philosophy is that the child is the most important concern when it comes to a divorce. It should be the primary focus of both parents is to do what is in the best interest of their child. The legal standard "best interest of the child" is somewhat subjective but if you just use some common sense you can figure out what it is. Just ask yourself if the decisions you are making are for your benefit or for your child. If you are honest with yourself the answer will be clear. If both parents and their attorneys keep this in mind during the divorce the effect that the divorce has on the child should be reduced. The fear of change and abandonment can be dealt with especially if both parents are mindful of these effects. This is not to say that a couple who is having major difficulties should stay together for the sake of the children. That has it's own set of harmful effects. (Topic for a different day).
Practically speaking, the times that each parent spends with the children is going to change due to the divorce and keeping the child from one parent can increase the negative effects. So it is a good idea to craft an agreement that takes the child's time with the parent into consideration. Not just the total days or hours with the parent but the quality of time. If one parent has the child during the week but works 60 hours a week and places the child in day care the result is that the child does not get to spend much time with their parent. The parent who is able to spend actual time with the child becomes the fun parent and the other becomes the task master.
Unfortunately, the family law in Wisconsin is set up so that the child support guidelines are based on the number of overnights a parent has with the child. And while finances can be a concern, especially in these trying economic times, it should not be the driving factor. Sad to say, that in my 15 years as an attorney, I have seen it become the main factor in many cases.
The best option is to try to work out a schedule that allows each parent to spend quality time with the child. This may require the parents to rearrange their schedule. Remember that regardless of the outcome you are going to have to deal with your ex spouse at least until your child is 18 and poisoning the well during the divorce is not to anyone's benefit.
The hope is that by using attorneys who understand the effects which a divorce can have upon children you can diminish the effects that your divorce has on your child. That as a divorced parent myself, my philosophy is that the child is the most important concern when it comes to a divorce. It should be the primary focus of both parents is to do what is in the best interest of their child. The legal standard "best interest of the child" is somewhat subjective but if you just use some common sense you can figure out what it is. Just ask yourself if the decisions you are making are for your benefit or for your child. If you are honest with yourself the answer will be clear. If both parents and their attorneys keep this in mind during the divorce the effect that the divorce has on the child should be reduced. The fear of change and abandonment can be dealt with especially if both parents are mindful of these effects. This is not to say that a couple who is having major difficulties should stay together for the sake of the children. That has it's own set of harmful effects. (Topic for a different day).
Practically speaking, the times that each parent spends with the children is going to change due to the divorce and keeping the child from one parent can increase the negative effects. So it is a good idea to craft an agreement that takes the child's time with the parent into consideration. Not just the total days or hours with the parent but the quality of time. If one parent has the child during the week but works 60 hours a week and places the child in day care the result is that the child does not get to spend much time with their parent. The parent who is able to spend actual time with the child becomes the fun parent and the other becomes the task master.
Unfortunately, the family law in Wisconsin is set up so that the child support guidelines are based on the number of overnights a parent has with the child. And while finances can be a concern, especially in these trying economic times, it should not be the driving factor. Sad to say, that in my 15 years as an attorney, I have seen it become the main factor in many cases.
The best option is to try to work out a schedule that allows each parent to spend quality time with the child. This may require the parents to rearrange their schedule. Remember that regardless of the outcome you are going to have to deal with your ex spouse at least until your child is 18 and poisoning the well during the divorce is not to anyone's benefit.
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