While most states use the "best interests of the child" standard in making custody determinations, Wisconsin has an additional requirement governing custody decisions. Judges in the state are required to assume that joint legal custody, which grants equal decision-making power to each parent, is in the best interests of the child until proven otherwise. Thus, parents in Wisconsin are less likely to find themselves fighting for visitation because visitation is always part of joint legal custody. However, physical custody – whom the child lives with – is still governed solely by the best interests standard. Parents seeking custody of their children must prove that the arrangement they desire is in their children's best interests.
Filing for Custody
Custody proceedings are normally a part of divorce proceedings. Parents who have minor children and are divorcing should file a divorce Petition with Minor Children in the family court in the county where they reside. Fathers who were not married to the child's mother at the time of the child's birth, however, have no rights to the child until they are acknowledged as the child's legal father. To do this, they can sign a voluntary acknowledgment of paternity along with the child's mother and return it to the clerk of the family court. Alternatively, fathers may undergo a paternity test and then file a petition for paternity. If you are already divorced and seeking a modification of custody, or were never married, you must file a petition for modification of custody in the family court. Because the family court system can be complex, it may be wise to hire a family law attorney to represent your interests.
Wisconsin requires that all custody and divorce petitions have a parenting plan attached. The clerk of court can give you a blank parenting plan or you can create your own. Address legal custody, physical custody and visitation in the plan. The plan should be very specific and cover holiday time, decision-making when the parents have a disagreement and any custody changes to occur as the child grows older or circumstances change.
Wisconsin courts strongly favor custody settlements between parties because these agreements reduce conflict and ensure cooperation. A judge may order you and your ex to attend mediation. At mediation, you can present your case. A mediator will try to persuade you to settle and address any weaknesses in your respective cases. Judges are also empowered to appoint guardians ad litem. A guardian ad litem is typically an attorney who represents the child's best interests. The guardian can file motions and must investigate the case and file a report and recommendation with the judge. Judges often defer to guardians' recommendations so it is vital you present your side in a clear and compelling way to the guardian.
If you and your ex cannot reach a settlement regarding custody, your case will be scheduled for trial. At the trial, you must argue why the parenting plan you seek is in your child's best interests. If you are requesting sole custody, you must demonstrate why the other parent is an unfit caregiver. Judges consider a number of factors when determining the best interests of a child, such as the attachment between the child and each parent, each parent's involvement with the child, any history of abuse, the child's adjustment to her environment, and stability of the environment provided by each parent.
Evidence at Trial
Witnesses can greatly increase your probability of success at trial. If you are seeking sole custody, you must call witnesses who can point to the irresponsibility or dangerousness of the other parent. For example, a witness who saw your spouse hit or berate your child would be helpful. You may also hire an expert witness to speak to your child's development and psychological health. In abuse cases, experts are especially helpful because they can speak to the damage your ex's behavior has caused your child and demonstrate that placement with your ex is not in the child's best interest. Similarly, you should also bring evidence supporting all of your claims, such as relevant communications with your ex, police reports, your child's academic records and anything else that demonstrates your child's adjustment to the environment you provide or the problems posed by your ex's parenting.
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