Father seeking 50/50 placement after 5 years - need advice

[walker1967]

I'm from Wisconsin and the child's mother. We have joint custody, placement is with me and my ex has generous visitation that we agreed on during our divorce.

Every time there's an increase in child support, he threatens me with some kind of action involving our son. He had hidden income from the state support agency and was caught, due to an audit I requested. His witholding went up by more than $200 per month. Now he has filed the paperwork to change our custody arrangement to one week with me, one week with him.

My son (who's 13) is hysterical about this. His dad remarried a month ago (was with the girlfriend for 5 years before) and he loathes her and doesn't get along well with his dad for the most part either. He's told me repeatedly he'll run away if his dad makes him spend more time there and when he found out about the filing this time, he was so angry he could barely speak.

I've called an attorney - I refuse to go into this process without one - and will most likely have to hock everything I own just to pay the retainer. His advice to me was to wait until I was served and then we'll take it from there.

My question in general is this - I am on permanent disability for 2 things: a rare type of blood cancer and a significant case of bi-polar disorder. I am on medication and it's under control and has never seemed to be an issue for my son. I have regular doctor and therapy visits and I've explained it all to him. My ex obviously knows about it too and is using this as his reason to amend the custody arrangement.

Is this a valid argument if my situation has never been an issue and I am under active and ongoing treatment? Is my son's decline (As and Bs to Bs and Cs) in grades this year a valid argument even if both my ex and I have agreed the problem is the usual coming into puberty distractions? What do I need to start documenting? My ex travels at least a full week out of every month and never asks to make up visitation (I'd let him); he's constantly behind on his child support, not to mention the amount he's hidden from me in the last year.

I guess I'd like an idea of what to expect, how long the process generally takes if we do end up in mediation and that fails and we're sent straight to the judge. My attorney to be said my son would be appointed a guardian ad litum and his feelings about staying with me would be an important part of the judge's decision but I'm terrified that the other things will outweight that.

I can't eat or sleep since my ex told me this and I'm not even sure if I ought to be getting this hysterical yet.

[walker1967]

Want to add a question -

I don't mean this the way it sounds, but what happens to the child support order if he wins 50/50 placement? I live solely on my disability income (about $630 a month) and depend on child support to take care of my son who seems to outgrow his clothes every other month and who frequently eats me out of house and home.

I have no spousal support and will lose the SSD dependant amount of $225 that I also receive for having my son living with me, most likely.

[aaron]

Under Wisconsin Law, the Court must consider the following in making a ruling on custody:

(am) Subject to par. (bm), in determining legal custody and periods of physical placement, the court shall consider all facts relevant to the best interest of the child. The court may not prefer one parent or potential custodian over the other on the basis of the sex or race of the parent or potential custodian. Subject to par. (bm), the court shall consider the following factors in making its determination:

1. The wishes of the child's parent or parents, as shown by any stipulation between the parties, any proposed parenting plan or any legal custody or physical placement proposal submitted to the court at trial.

2. The wishes of the child, which may be communicated by the child or through the child's guardian ad litem or other appropriate professional.

3. The interaction and interrelationship of the child with his or her parent or parents, siblings, and any other person who may significantly affect the child's best interest.

4. The amount and quality of time that each parent has spent with the child in the past, any necessary changes to the parents' custodial roles and any reasonable life-style changes that a parent proposes to make to be able to spend time with the child in the future.

5. The child's adjustment to the home, school, religion and community.

6. The age of the child and the child's developmental and educational needs at different ages.

7. Whether the mental or physical health of a party, minor child, or other person living in a proposed custodial household negatively affects the child's intellectual, physical, or emotional well-being.

767.24(5)(am)8.pdf icon
8. The need for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child.

9. The availability of public or private child care services.

10. The cooperation and communication between the parties and whether either party unreasonably refuses to cooperate or communicate with the other party.

11. Whether each party can support the other party's relationship with the child, including encouraging and facilitating frequent and continuing contact with the child, or whether one party is likely to unreasonably interfere with the child's continuing relationship with the other party.

12. Whether there is evidence that a party engaged in abuse, as defined in s. 813.122 (1) (a), of the child, as defined in s. 48.02 (2).

13. Whether there is evidence of interspousal battery as described under s. 940.19 or 940.20 (1m) or domestic abuse as defined in s. 813.12 (1) (am).

14. Whether either party has or had a significant problem with alcohol or drug abuse.

15. The reports of appropriate professionals if admitted into evidence.

16. Such other factors as the court may in each individual case determine to be relevant.

For modifications of custody involving substantial modification of the existing custodial arranement,

(1) Substantial modifications.

(a) Within 2 years after initial order. Except as provided under sub. (2), a court may not modify any of the following orders before 2 years after the initial order is entered under s. 767.24, unless a party seeking the modification, upon petition, motion, or order to show cause shows by substantial evidence that the modification is necessary because the current custodial conditions are physically or emotionally harmful to the best interest of the child:

1. An order of legal custody.

2. An order of physical placement if the modification would substantially alter the time a parent may spend with his or her child.


(b) After 2-year period.

1. Except as provided under par. (a) and sub. (2), upon petition, motion or order to show cause by a party, a court may modify an order of legal custody or an order of physical placement where the modification would substantially alter the time a parent may spend with his or her child if the court finds all of the following:

a. The modification is in the best interest of the child.

b. There has been a substantial change of circumstances since the entry of the last order affecting legal custody or the last order substantially affecting physical placement.

2. With respect to subd. 1., there is a rebuttable presumption that:

a. Continuing the current allocation of decision making under a legal custody order is in the best interest of the child.

b. Continuing the child's physical placement with the parent with whom the child resides for the greater period of time is in the best interest of the child.

3. A change in the economic circumstances or marital status of either party is not sufficient to meet the standards for modification under subd. 1.

If this matter goes to a hearing before the judge, the judge will determine how the facts fit under the statutes, and will make a ruling based upon the statutes. If you are concerned about case strategy, your best approach is to discuss strategy with your lawyer.

Typically, where a modification of custody results in a reduction of parenting time, there is also a reduction of child support. The circumstances and amount of any such reduction will depend upon the state's child support guidelines.

[walker1967]

Thank you so much, Aaron. That helps a lot - if the statute is followed, there's no way he'll get 50/50, he can't even meet one of the required criteria for a change. He'll file, but he's not getting anywhere if I can help it. Every single factor that goes into determining placement falls in my favor and hands down, the same goes for the modification requirements.

I feel less hysterical this morning.

[walker1967]

Just when I thought he'd left me alone...

He told our son that he "didn't mean" it when he said he wanted 50/50 placement but that I was being unreasonable. Which is funny, since he changes his visitation at least twice a month and I've never said a word. And the only thing I said no to was the 50/50.

Today I get a letter from his attorney, CCd to the Family Court Commissioner stating I was being unreasonable and requesting mediation. Which I'll have to jointly pay for, in the amount of $200 for the first session, $500 for the second. On top of my attorney's $2,000 retainer.

My question for the brilliant Aaron - in general, since I know it probably varies state to state, do I need to take an attorney in with me to mediation? I do plan on asking my attorney-to-be on Monday once I (gulp) pay him, but if I can delay it as long as I can, it'd be helpful. I have no idea if my ex is bringing his attorney in - is that a general practice, to have attorneys there or should it just be the parents in question?