In 2018, Stafford Partner, Tiffany Highstrom, was appointed to the Wisconsin Legislative Council’s Study Committee on Child Placement and Support. The Committee includes legislators and citizens with special knowledge on a given subject. Committees are often tasked with drafting legislation, which they then present to the Council. If a majority of the Council approves the draft bill, then the Council sponsors it.
On March 11, 2019, the Legislative Council introduced legislation and rules suggested by the Study Committee. The bills would make several revisions to the current laws on child support and placement of minor children.
Under current law, the court has wide discretion to determine the child support obligation for an incarcerated parent. This bill would not consider incarceration as voluntary unemployment when calculating child support obligations. An existing child support obligation will be suspended if a parent is incarcerated for a significant amount of time if the reason for the incarceration is unrelated to an applicable family law issue. The national trend recognizes the issues payors face when confronted with large arrearages, including less formal employment and a reduction in long term child support compliance.
This change would provide relief to incarcerated parents so they are not confronted with an insurmountable child support liability when released. However, the financial responsibility of the child is then wholly placed on the primary parent, who is already assuming full physical and emotional responsibility for the children.
Under current law, family support is a single payment which combines the component parts of child support and maintenance. Family support payments are generally treated for federal and state tax purposes as maintenance payments, such that the payment is deductible to the payor and taxable to the payee. The Tax Cuts and Jobs Act of 2017 eliminated the deduction for maintenance payments. This legislation eliminates the family support option as such an order is no longer advantageous for tax savings.
This legislation will provide guidance as to what type of military benefits are available as income for the purposes of calculating child support. The bill specifies that gross income still includes veterans’ disability and basic military allowances for subsistence and housing, but excludes military allowances for variable housing costs.
AB-096 Department of Children and Families (“DCF”) administrative rules regarding calculation of child support obligations
While the manner of calculating child support is unchanged, the shared placement calculation will be listed as the default calculation rather than among the calculations for “special circumstances.” This is an administrative change to recognize the importance of shared placement.
Under current law, effective July 1, 2018, fathers in intact families are exempt from reimbursing medical assistance (Badger Care) for pregnancy and birth costs. This new legislation would require fathers, regardless of whether they are part of an intact family, to contribute to these birth and pregnancy costs.
Under existing Wisconsin law, there is no authority for the court to award placement to a third party (such as a step-parent or grandparent) when one parent is a deployed service member. This legislation would allow the court to award temporary placement to a third party during a deployment through an agreement between the parents or as ordered by the court following a hearing. This change would allow the court to consider maintaining important third party relationships for a child while one parent is deployed.
Parties must attend at least one mediation session (unless waived by the court) when there is a dispute on custody and placement of the minor children. This bill would require each party must submit a Parenting Plan to the mediator at least 10 days before a scheduled mediation. Preemptive sharing of information assists the mediator to know what issues are in dispute and should help facilitate resolution of contested cases. If mediation is unsuccessful or waived, the parties must file a Parenting Plan with the court within 60 days. Finally, the bill revises what the Parenting Plan must address.
Under current law, an original judgment on custody and placement cannot be modified unless the court finds that the custody and placement arrangements are causing physical or emotional harm to the child. Case law states that the court must make decisions on the current circumstances and may not order a modification of placement upon a contingent event in the future. This has created difficulty for family law practitioners when there may be reasons to change placement over a period of time, such as for very young children.
This bill would allow an agreement between the parents to potentially modify future custody or placement. This stipulation must be filed alongside an initial custody and placement order, and be contingent upon events or needs of the parents or child that are reasonably certain to occur within two years (and not on anticipated behavior modifications). For example, a placement schedule could be modified upon a child entering first grade.
This bill would allow judges to take judicial notice of convictions and injunctions related to domestic abuse, if available in the electronic consolidated court automation programs (CCAP). This will make it easier for litigants (especially pro se litigants) to present evidence to the court of other related cases that are relevant to the family case.
The current statute requires the court to maximize the amount of time with each parent when awarding a placement schedule. This bill proposes to add a general statement that any court’s allocation of physical placement presumes that the involvement and cooperation of both parents is in the best interest of the child.
Though it is a general statement, the language may create confusion over whether a substantially shared placement schedule is more important that the other factors that the court must consider as to the child’s best interest. The language also does not acknowledge that domestic violence affects the parents’ ability to cooperate regarding the child.
Pursuant to Wis. Stat. 767.41(5), the court must consider sixteen factors when making determinations as to custody and placement of minor children. This bill reorganizes the statutory factors and removes two of the current factors. The court would also be required to prepare a written best-interest explanation any time the court grants less than 25% placement to one parent.
Supreme Court Rule 35.015 (1) Requirements for Guardian ad Litems
In a chapter 767 (family court) proceeding, a prospective Guardian ad Litem must receive six hours of credits approved as Guardian ad Litem credits from the Board of Bar Examiners in each reporting period. Currently, three of those six credits can be related to a wide variety of family law related issues and court procedures. This bill would add a requirement that family court Guardian ad Litems must receive three CLE hours related to the dynamics and impact of family violence education. This would clarify the specific number of hours that a Guardian ad Litem must obtain on the issue of domestic violence. However, by emphasizing one issue, this rule may leave the family lawyer unprepared to address other issues and unable to spend time on emerging issues (such as the effect of the opiate crisis on parenting and family law).
These bills have been introduced in the Assembly and have been assigned to various committees (including Ways and Means, Judiciary and Family Law). The bills could be posted at any time during this legislative session.
Though not yet adopted as law, the proposed bills would make major changes to the child support and placement statutes.
If you have any questions about how these proposed bills may affect your family law matter, please contact Atty. Tiffany Highstrom, the author of this article, or another attorney in the Family Law practice team of Stafford Rosenbaum LLP.