Many parents find themselves in disarray during the judicial process because they are not awarded equal parenting time with their children. This typically leaves them asking a simple question: Why?
In a perfect world, both parents are focused on what is best for their children. This usually leads to parenting plans that award equal placement. Unfortunately, when this does not occur parties find themselves litigating their disputes in court. During that process, there are several contributing factors that can lead a judge to render disproportionate awards of parenting time.
Situations involving domestic violence, substance abuse, the ability to provide a more consistent and a stable environment, and distant geographical separation, are all reasons why equal parenting time may not be awarded.
Here in Wisconsin there is no go-to rule that grants the judge authority to automatically award equal parenting time. Instead, an evidentiary hearing is held, where the judge ultimately determines parenting time based the best interests of the child factors. Those factors can be found under code 767.41(5) of the Wisconsin Statutes and require a court to consider the following:
- The wishes of the child’s parent(s);
- The wishes of the child (as communicated through the Guardian Ad Litem or other appropriate professional);
- The interaction and interrelationship of the child with his or her parent(s), siblings, and any other person who may significantly affect the child’s best interests;
- The amount of quality time that each parent spends with the children;
- How the child has adjusted to his/her home, school, and community;
- The age of the child and the child’s developmental and education needs;
- Whether someone living in the child’s home, including the child, has mental or physical health concerns that negatively affect his/her emotional or physical well-being;
- Having consistent periods of placement to provide for predictability and stability
When reading these factors, it is important to understand that each one requires proof or evidence. This underlying evidence could be difficult to provide, especially if you are a lay person and representing yourself. To demonstrate, let’s look at factor number 2: the wishes of the child. It is not easy to determine the wishes of a child because of what practitioners refer to as hearsay. Hearsay, in short, is an out-of-court statement that is used for the truth of the matter asserted. Understanding the varying degree of hearsay, and its exceptions, is the basis of whether evidence, including statements made by children, is considered.
Rules of evidence aside, there are many layers to a custody case. One of these layers considered by courts is the age of the child. Cases can involve children as infants, as toddlers, or as they become young adolescents and teenagers. Each stage of child development factors into the parenting equation. Regarding the infant stage, it is understandable why an infant could require more time with its mother. This is not to undermine a father’s role. When these situations occur, it is common for the mother to have most of the overnights.
But don’t be discouraged. Having more overnights does not translate to an award of more parenting time. Factor 8 above addresses having consistent periods of placement to provide for predictability and stability. Consistent periods of placement can take the form of substantial visitation without overnights. As time progresses and as the child matures and bonds with both parents, there will be a natural progression into overnights. When determining the specifics of these overnight visits, however, the child’s age could very well be the deciding factor. The courts award parenting time under the guidance of the law, ensuring that the child’s best interests are being considered.
So, if you find yourself questioning why equal parenting time was not awarded, ask yourself whether or not you did enough to justify a more generous awarding of time. Are you unable to effectively co-parent? Do you have a substance abuse problem? Have you chosen to live substantially farther from where the child’s environment is?
While courts will presume a parent is fit, the determination of whether or not equal parenting time is awarded is entirely dependent on the best interest of the child factors outlined above. It would be wise to consult with one of our attorneys here at J.G. Law, whose experience and knowledge will help guide and advocate for you through this often-daunting process.