Family Law Frequently Asked Questions

What’s the difference between child custody and visitation?

Legal Custody means who has the rights and responsibilities to make major decisions concerning a minor child. Major decisions include medical decisions, choice of school, and choice of religion among others. In Wisconsin there is a statutory presumption that parents share joint legal custody, meaning neither parent has a superior right to the other to make major decisions. This is a presumption even if the amount of time each parent cares for the child is unequal.

Physical Placement (the correct term for visitation) means the period of time and conditions during which each parent will have the right to have a child placed with that parent. Unlike legal custody, there is no starting presumption with regard to physical placement of a child. A number of factors can effect physical placement including distance between the parents’ homes, living conditions in each home, age of a child, and ability of a parent to proper caregiving.

My spouse and I are having problems, but I’m not certain I want to go through with a divorce. What should I do?

The safe course of action is to file a petition for divorce with the court. Individuals may hesitate to do this because they equate filing for divorce with getting divorced, but a couple things should be kept in mind. First, Wisconsin has a long “cooling off” period. The soonest a final judgment of divorce can be granted is 120 days from the date the non-filing spouse is served with the petition (or 120 days from filing if spouses file the petition jointly). During this period, the court can enter temporary orders, such as who has the right to reside where, who will pay what bills, who will have children of the marriage on what days, etc. So this at least 4 month can work as a trial separation and provide spouses a chance to see how divorce will change day-to-day life. If prior to a final divorce hearing, the spouses decide they want to reconcile, the action can be dismissed and the marriage is completely intact.

A second reason to consider filing is in the event problems continue to worsen, you have already put the court on notice there are issues, and orders to address the problems can be attained much quicker. Keep in mind, family courts have a high volume of cases. It’s difficult to get immediate hearing dates and prompt orders if an action has not even been filed.

If my ex and I make an agreement ourselves to change the placement schedule, do we need to go to court?

To begin, anytime parents can make agreements themselves, that’s a good thing and should be applauded. However, you should always make sure your court orders are consistent with your current placement practice. This is important because if one of you wants to make another change in the future, but there is disagreement, the court will consider the last order in deciding whether to grant a change. If you have been following a different schedule than what was ordered, this can create a difficult situation. It is best to avoid this by keeping your orders current.

Agreed-upon changes do not require the filing of new motions and hearing dates. Those changes can be done through a stipulation signed by both parties and (this part is important) submitted to the court for signature. Once it is signed by the court, that stipulation becomes your new order.

Can my ex deny me placement because I am behind on child support?

No. A number of parents (both the recipients and payers of support) make a false connection between child support and child placement that is not there. Failure by one parent to pay support as ordered is not a justification for the other parent to deny placement. Conversely, failure by one parent to abide by the physical placement order is not a justification for the other parent to deny support. The proper course of action, whether you are the parent losing placement or the parent losing support, is to bring the other party’s violation of an order to the court’s attention – not aggravate the situation by violating the court’s orders as well.

What is a domestic abuse restraining order and how does it affect me and my significant other?

A restraining order is the first part of a two-step process. This is a temporary order signed based upon allegations in a petition that the Respondent has engaged in domestic abuse (which can entail a variety of conduct) against a Petitioner. It is required the Petitioner and Respondent have now or in the past one of a few specific types of relationship; most often this is a dating relationship or the parties are spouses. If a temporary restraining order is put in effect by the court, an injunction hearing is a scheduled. At that time, the court will hear evidence and argument from both parties and decide whether to grant the injunction, which can last up to four years.

A domestic abuse injunction should be taken very seriously. If granted, it can restrict the Respondent from having contact with the Petitioner directly and the Petitioner’s residence or work. Violating these “no contact” orders can result in criminal charges. Further, individuals subject to a domestic abuse injunction are restricted from owning or possessing a firearm, even if a firearm was never involved in the underlying conduct. Possessing a firearm in violation of the injunction can be charged as a felony offense. Finally, an injunction will obviously impact the ability to co-parent with the Petitioner if the parties have children.

Criminal Defense Frequently Asked Questions

If I haven’t been arrested and police say they just want to talk with me, should I hire a lawyer?

If a police officer wants to speak with you, there’s a reason. So if you’re not the victim of a crime, or a witness to a crime, then the reason is probably because you are suspected of committing a crime. The officers may not indicate that to you initially because by being non-accusatory, their hope is you will cooperate and aid the investigation, even if you’re unwittingly aiding the investigation of yourself! If you find yourself in this situation, speak with an attorney before speaking with the law enforcement. You have the right not to speak with law enforcement without an attorney.

I was arrested, but the police officer never read me my rights. Is this wrong?

Not necessarily. Officers are not required to read you your rights, referring to Miranda warnings, simply because you’re taken into custody. However, if law enforcement wants to initiate questioning after you are taken into custody, then they must first advise you of your Constitutional right against self-incrimination and right to counsel. Failure to do so can limit the State’s ability to use statements by you in its prosecution.
IMPORTANT NOTE: Being “in custody” is not limited to formal arrests but can also extend to circumstances in which a reasonable person would not feel they had the liberty to leave. When you speak with an attorney, make sure to give a full, detailed account surrounding any statements made to law enforcement.

If police ask to search my home or my vehicle, do I have to let them?

Your home, your vehicle, and your person are protected areas where you have a right to privacy. That is according to our Constitution and that is our starting point. For law enforcement to search one of those areas requires one of the following: 1) a signed search warrant for the area, 2) a recognized exception to the warrant requirement, or 3) the consent of a person with control over the protected area. Law enforcement may not make it clear to you that you can say “no” and in some cases may try to intimidate you into thinking you do not have a choice. But remember: you do not have to provide consent. If you do not, then law enforcement will have to prove a warrant or valid warrant exception existed in order to justify any search.

Drunk Driving Frequently Asked Questions

Is a first offense OWI in Wisconsin a big deal?

Unlike other states, operating while intoxicated as a first offense is not a criminal charge, barring some additional circumstances (accident causing injury or having a minor passenger in the vehicle for example). This does not mean you should not take a first OWI seriously. This citation has significant financial ramifications including fines, additional vehicle insurance known as SR-22 in order to maintain an occupational license, and potentially the requirement you pay to install an ignition interlock device in your vehicle(s). Also, keep in mind your second offense and beyond will be criminal charges and require mandatory jail sentences. Now nobody ever plans on getting another OWI in the future, but nobody ever planned on getting the one they’re currently charged with either.

If I’ve been drinking and then get pulled over, can I just refuse a breath test?

You can, but refusing a chemical test is not way to prevent your OWI arrest and charge. Wisconsin has an implied consent law that states by operating a vehicle on our roads you consent to tests of your blood, breath, or urine if an officer detects the presence of alcohol or a controlled substance. This means if you refuse a chemical test, your operating privileges can be revoked. You have a right to a judicial hearing challenging the refusal, but if it is determined you unlawfully refused a chemical test, the court will revoked your operating privileges. This revocation will count as a prior offense if you are ever charged again with OWI. Additionally, your refusal is admissible evidence at trial.