The word “family” is defined by YourDictionary.com as ”a specific group of people that may be made up of partners, children, parents, aunts, uncles, cousins and grandparents.” This is a more current definition of the word “family” than as defined by Merriam-Webster as “the basic unit in society traditionally consisting of two parents rearing their children.”
In the legal practice of family law over the years, we have found the scope of our clients’ needs in this area having become much more diverse and fluid. Children are no longer only reared in the traditional “Leave it to Beaver” family unit of husband, wife and children. They are now being raised by single parents, same sex parents, grandparents or third parties. A large proportion of parents are unmarried, either living in the same household or in different households. Parents divorce and raise their children in two separate households. More and more children are being raised by relatives such as grandparents, older siblings, aunts or uncles because the parents are unwilling or unable to care and provide for their children. These do not match the description of Merriam-Webster, but it cannot be disputed that the people raising the children are a family unit because they are providing the care and nurture that was previously considered to be the realm of the “mother, father and child” household unit. The parent-child relationships exist in a new form of household unit.
In thirty years of practicing family law, I have seen my practice diversify from the traditional divorces and occasional paternity actions. At one time, the Wisconsin Family Code, now Chapter 767, provided the framework for the matters of child custody, child placement, child support, maintenance and property division upon divorce. It also included the mechanisms for the adjudication of paternity for children of unwed parents.
In today’s world, we often see grandparents raising their grandchildren because the parents are unwilling or unable. To make medical, educational and financial decisions, they often are required to seek guardianship of the grandchildren. This is not included in Chapter 767 of the Wisconsin Family Code. A guardianship petition would need to be filed in Children’s Court, not Family Court, pursuant to Chapter 54 of the Wisconsin State Statutes. The parents still have the right to visitation with the children, but the grandparent-guardians would have the decision making authority over the children until they reach the age of eighteen or when the guardianship is revoked if the parent becomes able to care for and raise the child.
In other situations, the grandparents, or third parties, develop a substantial parental relationship with the children which was fostered by the actions of the biological parents. If the biological parents now sever that contact, the grandparents or third parties can file a petition for visitation. If both biological parents are alive, but not still in an intact family unit, the petitioning parties must file their Petition for visitation in Family Court under Wis. Stat. Sec. 767.43. If only one of the biological parents is alive, the petition for visitation would need to be filed under Wis. Stat. Sec. 54.56 and would normally be heard in Children’s Court.
In many other instances, a biological parent may remarry another person who raises the biological child of another parent. The other biological parent may have had neither contact with the child for more than six months, nor a parental relationship with the child. The child may wish to be adopted by the stepparent and, in many cases, assume the last name of the stepparent. To do this, the other biological parent’s parental rights must be terminated pursuant to Wis. Stat. Sec. 48.415, of the Wisconsin Children’s Code. The adoption also is filed under Chapter 48 of the Wisconsin Children’s Code.
More than ever, the Wisconsin Children’s Code and Family Code overlap. There are many occasions when there can be contradicting Orders in the different Courts. There is often little communication between the Court officials, allowing more and more opportunities for such conflicting Orders. There are often conflicting priorities and focuses between the two Codes. A matter than cannot be resolved in Family Court may be better resolved in Children’s Court, or vice versa.
Another conflict can arise in situations in which there is a need for a parent to seek a domestic violence or harassment injunction against another parent who has placement rights to a child. Such petitions are filed pursuant to Chapter 813 of the Wisconsin State Statutes. Often, these petitions are heard in Family Court, but not always by the same court official hearing a custody matter.
The Family Court also hears matters as to a payer of child support failing to pay Court ordered child support for the care and support of their minor child. The Family Court Statutes allow for the recipient of the child support to file Motions for Contempt for the other parent’s failure to comply with the Orders for payment of child support, but the contempt is civil contempt which allows the non payer opportunities to purge himself or herself of contempt by paying a portion of the outstanding child support as a lump sum payment and being ordered to continue with regular payments. When they fail to comply again, it begins the round of contempt motions again. Eventually, the person not receiving the child support may seek relief through the criminal courts if the non-paying parent fails to make any payments for a period in excess of 120 days pursuant to Wis. Stat. Sec. 948.22. This can result in a criminal conviction that can include periods of incarceration or the imposition of probation with conditions the non-paying parent must meet to prevent incarceration. This is often the final measure to ensure that the parent complies with his or her obligation to support the minor child.
It is important that an attorney is knowledgeable as to all options to best meet their family law client’s needs and objectives. By limiting oneself to the remedies only provided by Chapter 767 of the Wisconsin Statutes, other options are often ignored that may provide the client with the best relief and opportunity for stability. One does not need to be a general law practitioner to do so, but needs to know the collateral areas of law that directly relate to the needs of their clients. It does not mean that the attorney needs to be a criminal defense attorney, tax attorney or real estate attorney. It means that it is advisable to know other options outside the box.
At Probst Law Offices, S.C., we are fortunate that all of our attorneys are experienced in practicing in both Children’s Court and Family Court. Some of our attorneys also have experience practicing in Criminal Courts. It has allowed us the ability to efficiently evaluate our clients’ cases to determine the best routes to address their family issues. You can’t fit a square peg into a round hole by trying to fashion a remedy in one Court when the other Court, or a hybrid solution with other Courts, will meet the client’s needs with the best result for the new definition of “family.”