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 Wisconsin Question and Answer Handbook for Noncustodial Parents: A question and answer resource on paternity establishment and child support (Dane County) Acknowledgments The Ford Foundation, Charles Stewart Mott Foundation, and Public Welfare Foundation generously provided support for this brochure. All of the ideas, opinions, and legal interpretations presented in this brochure are explicitly those of the Center on Fathers, Families, and Public Policy. It should not be assumed that they are shared by the Foundations providing support for this work. This Question and Answer Brochure is based solely on Wisconsin law and is only accurate for the state of Wisconsin. It was produced on February 11, 2000 and does not reflect any changes in Wisconsin law since that date. While the document is legally accurate for all of Wisconsin, references to specific locations for obtaining legal documents are only meant for fathers who live in Dane County. This brochure provides only general legal information surrounding the Wisconsin child support system. It is not advice about your particular legal problem. If you can afford it you should consult an attorney for your problem. The Center on Fathers, Families, and Public Policy would like to thank Milwaukee County Family Court Commissioner Michael J. Bruch and Deputy Family Court Commissioner Sandra K. Grady for their comments on earlier drafts of this brochure. The Center would also like to thank Attorney Gai Lorenzen of Legal Action of Wisconsin for her comments on earlier drafts of this document. In addition, the Center greatly appreciated the comments of Jewelynn Edison, James Edison, Jocelynn Lewis, Chico Lewis, Sandra Haire, and Tony Dean. 
Table of Contents Effect of the New Welfare Laws Top Ten Things You Should Understand In Negotiating The Wisconsin Child Support Enforcement System Questions Surrounding: Paternity Establishment
Child Support
Visitation and Custody
Introduction Every day in the United States, thousands of children are born to unmarried parents. Most of these parents, as do most married parents, heartily and lovingly welcome their children into their lives and into their world. However, parents who are poor, unemployed, underemployed, or unable to work face particularly complicated and sometimes virtually insurmountable barriers to creating a family in which both parents can have a positive and loving relationship with their child regardless of their marital or economic status. The subject of this brochure is the legal challenges faced by poor, unemployed, or low-income, unmarried Wisconsin fathers. Many of these men are (or would be if they were in better economic or social circumstances) interested in establishing a legal and personal relationship with their children. Most of the men in this population want to be good parents and, to the best of their ability, want to support their children financially, emotionally, and physically. There is a pervasive public perception, however, that there is a connection between out-of-wedlock childbirth and the high cost of welfare to individual taxpayers, and that unmarried fathers are "deadbeat dads." In accordance with these public sentiments, an aggressive child support enforcement system has been created through state and local law and policy to ensure that a child support order is entered for each child and that money, in the full amount of the order, is collected. For an unemployed, or low-income, non-custodial father, even one who is genuinely interested in serving the best interests of his children and attending to their financial needs to the best of his ability, this system can be difficult to negotiate. The Center on Fathers, Families, and Public Policy created this brochure to acquaint the reader with the Wisconsin child support system, a statewide program administered by 72 county child support agencies, and to highlight the legal processes involved in paternity establishment and child support enforcement. Youshould read this brochure with the understanding that any individual faced with the situations outlined here would benefit greatly from assistance from a legal professional. Effect of the New Welfare Laws The new federal welfare law (Personal Responsibility and Work Opportunities Reconciliation Act of 1996) has greatly affected the way that Wisconsin conducts the business of its paternity establishment and child support enforcement systems. Alleged fathers, particularly those who cannot afford legal advice, should be aware that the federal government has set as its goal that paternity be established for at least 90% of all children born out of wedlock. The new laws were designed to ensure that this goal is reached, and the Wisconsin bureau of child support enforcement is motivated to reach this goal. For example, Wisconsin does not allow an unmarried mans name to be added to a birth certificate unless he has signed a Voluntary Paternity Acknowledgment form or there has been a legal determination that he is the father. In addition, Wisconsin can deny children welfare benefits if their mother does not cooperate in establishing paternity. She is required by federal and Wisconsin law to name the father of her child so that her welfare benefits will not decrease. If the mother is participating in Wisconsin Works (W-2) or Medicaid the government will automatically work to establish who is the father of the child. Establishment of paternity for all children is a valid goal and, arguably, in the overwhelming majority of cases, a legal finding of paternity is in the best interests of all concerned: mother, father, and child. In situations where the alleged father is actually the biological father (or at least a concerned man willing to support and raise the children regardless of biological ties) these new laws may assist the family. However, if a man does not understand the meaning and possible consequences of documents signed by him or presented to him, or if he is unable to comprehend legal processes, the Wisconsin laws may have an unfair impact. In addition, if a man does not appear in court when required, for whatever reason, the Wisconsin laws may also have an unfair result. Legal Services Most people would, if they could afford it, employ the services of a lawyer to handle matters as complicated, complex, and serious as establishing paternity and setting child support orders. In paternity cases, such legal assistance is advisable, even if the alleged father does not doubt that the child is his or the genetic tests show that he is the father. However, the reality is that many low-income, unmarried fathers cannot afford such services. The Center on Fathers, Families, and Public Policy developed this brochure as a source of information to be used by alleged fathers and by social service professionals who are trying to help those men negotiate the Wisconsin paternity establishment and child support systems. Top Ten Things You Should Understand In Negotiating The Wisconsin Child Support Enforcement System
Paternity Establishment In Wisconsin, how can I get my name on my babys birth certificate? If you were married to the mother of the child when the child was born your name will automatically appear on the babys birth certificate. If you were not married to the mother of a child, there are two ways to have your name added to the birth certificate as the childs father. Your name may not be added to the birth certificate as the childs father unless you have voluntarily acknowledged paternity (by signing a Voluntary Paternity Acknowledgment form). In addition, your name will be added to the birth certificate as the childs father if a court has legally determined you to be the father. What is meant by the word "paternity"? Both legally and biologically, the word paternity designates the identity of the father of a child. Except in rare circumstances, when a mother gives birth to a child she is considered the legal mother of that child. Every child also has a biological father. If you are never married to the mother of the child, Wisconsin does not give you any rights to or responsibilities for the child as the childs father unless legal paternity is established. To be the legal father, paternity has to be legally established. There are a number of ways to establish the paternity of a child. Paternity is presumed when you are married to the mother of a child at the time of conception. Therefore, if a man is married to the mother of a child at the time of conception he will be legally considered the father of that child. For a child born to an unwed mother, however, there is no presumption as to who is the legal father of that child. How can the paternity of a child be established for a child born to an unmarried mother? In Wisconsin there are two primary ways to establish paternity for a child born to a mother who never marries anyone. If the mother was not married when the child was conceived, both parents can sign a legal document to establish the paternity of the child. This document is called a Voluntary Paternity Acknowledgment form. The second way to establish paternity is through a court proceeding. Since the 1980s, very accurate genetic tests have been developed which are virtually conclusive in determining a childs father. If a mother or the state claims that you are the father of a child, you should agree only if you are absolutely sure that you are in fact the father. If you are not sure that you are the father, you should insist on a genetic test to determine whether you are the father of the child. The government cannot deny you a genetic test if you cannot afford one. If you are absolutely sure that you are the father of the child and the mother agrees, you should both voluntarily acknowledge that you are the father of the child. This will avoid the expenditure of time and money involved in going through the legal process where it is determined whether you are the father of the child. What if the mother of my child is not married to anyone and we both want to establish the paternity of our child as soon as the baby is born? In Wisconsin, if both parents sign a Voluntary Paternity Acknowledgment form, paternity can be established in a hospital. Both of you voluntarily signing this document, establishes a legal presumption of paternity. That is, if you both sign this form you can be held responsible for child support. It also can enable you to attempt to get a court order for visitation or custody. Obviously, the decision to voluntarily acknowledge paternity is a very serious one and should not be made lightly or without serious thought and preparation. What if, after signing the form I have reason to believe I am not in fact the father of the child? Even if you sign a Voluntary Paternity Acknowledgment form and you later decide you are not sure whether you are the biological father, there are ways for you to take back your signing the Voluntary Paternity Acknowledgment form. However, this is most easily done within 60 days of signing the form. After 60 days pass, the requirements for doing this are more difficult to meet. If within 60 days of signing the form you decide that you want to withdraw this acknowledgment because you are not sure if you are the father and you have not been a party in a court case concerning the child, you may sign a second form that declares you are not the father. This second form is called a "Request to Withdraw Voluntary Paternity Acknowledgment." The second form is available from the hospital where the child was born, from a child support agency, or from the State Vital Records Office. The other option is that if a legal proceeding relating to the child occurs within that 60-day period and you are a party to this lawsuit you may ask the court to cancel the Voluntary Paternity Acknowledgment form. However, if this legal proceeding relating to the child occurs and you fail to claim that you are not the father, you lose the first option listed above to cancel the form by signing the Request to Withdraw Voluntary Paternity Acknowledgment form within the 60-day period. If after this 60-day period expires you decide that you no longer believe that you are the childs father, you will have to go to court and prove that you signed the document under conditions of fraud (someone lied to you), duress (you were forced to sign), or mistake of fact (you thought one thing and another thing is true). Proving one of these may require the assistance of a lawyer. The only exception to this is if the Voluntary Paternity Acknowledgment form was filed before April 1, 1998. Fathers who signed a Voluntary Paternity Acknowledgment form before April 1, 1998, should consult an attorney. If I do not establish paternity at the hospital, can the mother and I do it later? Yes. The form that parents may sign later is the same form that was available at the hospital. This form is called a Voluntary Paternity Acknowledgment form. It is available at your local child support office. In Dane County, the child support office is located in the City-County Building, 210 Martin Luther King Boulevard. To cancel the Voluntary Paternity Acknowledgment form, you must follow the same procedure as that followed for canceling a Voluntary Paternity Acknowledgment signed in a hospital, as described in the previous question. What if the mother says I am the father and I say that I am not the father and we were never married? If you do not think you are the biological father and you have not signed a Voluntary Paternity Acknowledgment form, there will have to be a suit brought against you to establish that you are the father. If you are summoned for a paternity hearing, the most important thing to do is to appear at the hearing, whether or not you think you are the father. In Wisconsin, if you fail to appear for a paternity hearing, the court can issue a warrant for your arrest. The mother, the child, or the government in certain cases are among the people who can sue to establish whether you are the biological father. In addition, if you are the only alleged father, refusing to go to court after being summoned for a paternity hearing will result in an order declaring you the father of the child. This order is called a default order. This default order will also include orders of child support, visitation, and custody. This order will take effect unless you go to court within 30 days and can convince the judge that you had good reason for not showing up at the paternity hearing. After the 30-day period, there are other ways that a default order can be voided. You will most likely need the assistance of an attorney to void a default order. Why would a mother force me to go through the legal process of establishing that I am the father? There are many benefits to a mother and a child to having a legal determination of who is the father of a child. For instance, the child will only be entitled to child support from a father if that father is legally declared to be the father of that child. In addition, you will only be granted visitation with your child if you are declared to be the father of that child. In some cases the mother is required to establish that you are the father of the child because the government requires this so that she can receive assistance from the government. She needs to cooperate in helping the government to establish who is the father of the child. If she does not cooperate, the government will decrease the amount of support that it gives her. What will happen if I am sued to determine whether I am the father of a child? You will receive a document called a summons from the court. Included with the summons will be a section in bold entitled "NOTICE TO RESPONDENT." It is very important that you read and understand everything in this section. It is crucial for you to remember that the only one with the power to declare you the father of the child without your consent is the judge. At any portion of a hearing to determine whether you are the father of the child, you have the right to be represented by an attorney. Included as part of the summons is a section entitled "NOTICE TO RESPONDENT" that has a telephone number that you can call to learn whether the government will provide you with an attorney. This attorney is provided free of charge to you, but this attorney can only represent you in matters related to determining whether you are the father of the child. The attorney cannot represent you in matters related to child support, visitation, or custody. After you receive a summons, the next step is what is called a first appearance. This is your first court date. In the summons you will be offered an opportunity to not appear at this first court date. (There will be a document attached to the summons called a Waiver of First Appearance.) If you do not waive the first appearance, you will be provided with an opportunity to meet with a Family Court Commissioner. The first appearance is in front of a Family Court Commissioner. In Dane County, the Family Court Commissioner is in Room 104 of the City-County Building, 210 Martin Luther King Jr. Boulevard. You will be asked whether you admit to paternity or not. If you admit to paternity a judgment of paternity will be entered and child support may be ordered then or at a later hearing. If you deny paternity, a genetic test will be ordered. The mother, child, and alleged father must all appear for the test, and the results come back about a month later. If you fail to appear to take a court-ordered genetic test, the court will enter a default order for paternity that declares you to be the father of the child. If you deny your paternity at the first appearance, the next step in determining whether you are the father of a child is called a pretrial paternity proceeding. This pretrial paternity proceeding will also be held before a Family Court Commissioner. At the pretrial hearing both sides may present and cross-examine witnesses, request genetic tests if they have not already been done, and present other evidence. After all the evidence is heard at the pretrial hearing, the Family Court Commissioner will make one of two recommendations to both parties. The first possible recommendation is that the paternity suit be dismissed because the Family Court Commissioner believes it is unlikely you will be found to be the father of the child in an actual trial. The other recommendation is that you should voluntarily acknowledge paternity and that if you do the court will also make recommendations concerning your duty of support, the custody of the child, and other matters determined to be in the best interest of the child. If all parties agree to these recommendations, the recommendations will become an order of the court. If at this point you do not agree to the recommendations of the court and you have not taken a genetic test, the court will order you to take a genetic test. After this genetic test the court will make one final recommendation. If you or another party do not agree to the final recommendation, the court will set a date for trial. What should I expect if a mother or the state sues me claiming I am the father of a child and I consistently say I am not the father and we cannot agree to the recommendations from the pretrial hearing and the lawsuit goes to trial? Every case is different and there is no magic list for what you can expect if a lawsuit is filed and both parents cannot agree on who is the father of the child. The following is a list of some things contained within the Wisconsin statutes, but the list does not take into account the actual practice of any particular courtroom. As always, if possible, it is best that you get a lawyer to represent you for your particular case. A big part of any paternity suit is a genetic test. You, the state, or any other party has the right to request that a genetic test be taken. This test will indicate whether you are the father of the child. At this point, mostlikely you will have already had a genetic test. While the genetic test is a critical part of any paternity trial, some other things may or may not be done at a trial. At any portion of a paternity trial you have the right to be represented by an attorney. In the summons in the section entitled "NOTICE TO RESPONDENT" is a telephone number you can call to learn whether the state will provide you with an attorney. This attorney can only represent you in matters related to determining whether you are the father of the child. The attorney cannot represent you in matters related to child support, visitation, or custody. Paternity trials are divided into two parts. The first part will determine whether you are the father of the child. If necessary, the second part of the trial deals with issues of child support, custody, and visitation. A judge will hear this part of the paternity trial. It is important that if you wish to spend time with your child that you request this from the court. Her parents do not want me around, or she says it is not my baby. What should I do? If the childs mother says that you are not the childs father, or denies you access to the child, and paternity has not yet been established you can exercise the right, given to Wisconsin fathers, to initiate a suit for paternity. You need to start this lawsuit to determine whether you are the father of the child before the child turns 19. The alleged father in a paternity suit has an absolute right to request a genetic test of the mother, the child, and himself. If you request this genetic test, the court must order each of you to have the genetic test taken if there is probable cause to believe you are the father of the child. If the court does enter an order establishing paternity based on your suit, it must then consider the issue of child support. The court will enter, by law, a child support order.Ê The court is also required to consider issues of visitation and custody at that time. Therefore, you should be sure to request the visitation and custody order that you feel is in the best interest of the child.Ê If you are seeking joint custody or, especially, if you are seeking sole custody, you will likely need an attorney to present your position to the court. If you are seeking a right to visitation and a specific schedule for such visits, you should first try working directly with the mother to come to a reasonable written agreement, which you can both provide to the court. However, if you and the mother cannot come to an agreement, you may need legal representation to present your case. Finally, a noncustodial father has a right to present his position on visitation and custody to the court. However, you must understand that the standard the court will use in making these determinations is what is in the best interest of the child. The court may not grant your request for custody or visitation if there is evidence that such an arrangement would not be in the best interest of the child. The court will consider evidence of abuse by a parent in determining what is in the best interest of the child. For instance, the court will consider whether there is evidence of child abuse or domestic violence. I am under 18. If I sign a declaration of paternity will that make me the legal father of the child? Not immediately. You have until 60 days after your 18th birthday to cancel the Voluntary Paternity Acknowledgment form. Until that date the Voluntary Paternity Acknowledgment form does not have the same force as a paternity judgment. The form that you would use to cancel the Voluntary Paternity Acknowledgment is a form called a "Request to Withdraw Voluntary Paternity Acknowledgment." If you miss that 60 day period after your 18 birthday and you no longer believe that you are the childs father, you will have to go to court and prove that you signed the document under conditions of fraud (someone lied to you), duress (you were forced to sign), or mistake of fact (you thought one thing and another thing is true). Proving this may require the assistance of a lawyer. (The only exception to this is if the Voluntary Paternity Acknowledgment form was filed before April 1, 1998. Fathers who signed a Voluntary Paternity Acknowledgment form before April 1, 1998, should consult an attorney.) What are the legal benefits of establishing paternity for an unwed father? Once paternity is established, a man becomes the legal father of that child, with all of the rights and responsibilities of a married father. There is no guarantee of the right to custody or visitation, but a father has the right to raise the issue of custody and visitation in court. The Wisconsin child support enforcement office cannot help a father obtain visitation or custody with the child. If a court order determines that you are the father of a child, the order will include provisions regarding the right of custody, physical placement (visitation), and any other matter in the best interest of the child. If you and the mother agree to the times and dates of visitation, you do not need a court order that contains the details of the arrangements for visitation. The court is required to consider what you want concerning issues of visitation and custody at that time only if one of the parties involved has requested that the court make an order with detailed provisions regarding the issues of custody and visitation. Therefore, you must make such a request to ensure that what you consider to be in the best interest of the child is considered by the court.Ê If you sign a Voluntary Paternity Acknowledgment form, you may go to court to ask for custody or visitation with the child. What are the legal consequences of establishing paternity for an unwed father? An order that establishes paternity requires you to pay child support. You may also be responsible for the costs of the mothers pregnancy, the childs health care expenses, the costs of genetic tests, attorney fees, and other costs. One tool used to collect child support is to directly take money from your paycheck and give it to the custodial parent or child support enforcement office. If a court orders your current or any future employer to take money out of your paycheck for child support, Wisconsin requires that your employer follow this order. A Wisconsin employer can charge up to three dollars for each time that the employer has to withhold money from your paycheck for child support. A Wisconsin employer also cannot discriminate against you because the employer has to do this. In Wisconsin, there are many penalties that can be used against a father who does not pay child support. Some of these penalties include: revoking your drivers license, taking your tax refunds, denying you occupational licenses, referring you to private collection agencies, reporting your failure to pay child support to a consumer reporting agency or through a court action placing you in jail for failure to pay child support. Another penalty in Wisconsin for failing to pay child support is that you will be required to pay interest at the rate of 12% per year on any past due child support. Child Support How does the court decide how much child support I should pay? Wisconsin has established a formula to calculate what a noncustodial parent should pay for child support. This support amount is partially based on the financial situation of each parent and the standard of living of the child. If you spend substantial amount of time with the child, this may also be a factor. Support is set at a specific dollar amount, usually based on a percentage of the fathers income according to the child support guidelines. The current guidelines are generally:
Special rules apply in cases of split or joint placement or multiple children in different households. A parent may ask the court to award an amount greater or lesser than what would be determined by the child support guidelines. To do this the parent must prove that the guidelines are unfair to the child or to any of the parties. The duration of support generally continues until the childs 18th birthday. If a child is still in high school at 18, you may be responsible for support of that child until the child is 19. Support orders may also be based on your earning capacity. This is potential income that you could earn. Your earning capacity is based on your education, training and work experience and on the availability of work near where you live. How did they set a child support order for me if I was not there and they did not know my income? If you do not show up, they can still make a child support order by default. If they do not know your income, such orders may be based on your earning capacity. This is the potential income that they think you could earn. Your earning capacity is based on your education, training and work experience and on the availability of work where you live. In most cases, they will assume that your child support order will be based on you having a minimum wage job and working 40 hours per week. I am under 18. Can my parents be ordered to make child support payments for my child? Yes. In certain circumstances your parents can be responsible for payment of your child support. A grandparent is responsible for caring for your child only to the extent that you are unable and the grandparent is able. Why is the amount that I owe so much greater than my weekly child support amount? In Wisconsin, there are many reasons that the amount of money you owe each week can be greater than your current weekly child support amount. First, you may owe more because you have fallen behind in paying your child support. When you fall behind in your child support you will not only have to pay your current amount of support but an additional amount to begin to cover what you were unable to pay in the past. The government will also charge you interest at the rate of 18% per year on any past-due child support. As of May 1, 2000, the government will only charge you interest at the rate of 12% per year on any past-due child support. You may also be responsible for the costs of the mothers pregnancy, the childs health care expenses, the costs of genetic tests, attorney fees, and other costs. In addition, your employer may charge you three dollars every time the employer takes money from your paycheck to provide support. All of these other costs may be added to the amount that you owe each month. What if I want to decrease the amount of my child support payment because things have changed in my life and I want to do this without relying on child support enforcement? The court order for child support requires you to notify the clerk of court or support collection designee, within 10 days, of any change in employer and of any substantial change in the amount of your income that will affect your ability to pay child support. However, telling the clerk of court or support collection designee is not enough to reduce the amount of child support you owe. You must obtain an order from the Family Court Commissioner or judge. You must go to the Family Court Commissioner or judge and ask for a change in the amount of child support. You will need to file a legal document to accomplish this. In Dane County, a document for parents who do not have lawyers and who want to lower the amount of support is available at the library in Room 315 of the City-County Building, 210 Martin Luther King Jr. Boulevard. You will most likely need to pay a $30 filing fee to the Clerk of Courts, Room GR-10, City-County Building, 210 Martin Luther King Jr. Boulevard. The clerk will stamp your motion. Then you need to take the stamped forms to the Family Court Commissioners Office, Room 104, City-County Building, and ask for a time and date for the hearing. You will need to show up at the hearing and provide proof to the family court commissioner or judge that he or she should grant your request. You should try and bring documentary evidence, such as pay stubs or something that shows you were laid off, of your decrease in income. At this hearing the Family Court Commissioner or judge will only change the amount of child support if there has been a substantial change in circumstances. There are many things that a court might consider to be a substantial change in circumstances. It is best to get a lawyer, if you can afford one, to handle your attempt to change the amount of child support you pay. The Family Court Commissioner or judge cannot reduce what you owe for amounts owed before you sent the required legal notice to the other party that you have asked the Family Court Commissioner or judge to reduce the amount of child support. What if I lose my job or I am unable to pay child support? If you lose your job, make less money than you used to, or become physically disabled and unable to earn an income, you should notify the court immediately. In Wisconsin, the court order for child support requires you to notify the clerk of court or support collection designee, within 10 days, of any change in employer and of any substantial change in the amount of your income that will affect your ability to pay child support. However, telling the clerk of court or support collection designee is not enough to reduce the amount of child support you owe. You must obtain an order from the Family Court Commissioner or judge. Many noncustodial fathers believe that if they get behind at a time when they are legitimately unable to make a child support payment, what they owe can later be reduced or discounted by the court, when an explanation is given. However, if you wait to explain your changed circumstances, the court will be unable to reduce the back payments that you owe. So it is very important that you notify the court immediately, provide proof of the reduction in income, and ask that your payments be reduced accordingly. If you do, the court may temporarily or permanently reduce the amount of the payment. If you cannot afford an attorney for this matter, you may do this without an attorney. In Dane County, a document for parents who do not have a lawyer and who want to lower the amount of support is available at the library in Room 315 of the City-County Building, 210 Martin Luther King Jr. Boulevard. The standard that the court will apply in determining whether to grant a modification of your child support order is whether there has been a substantial change in circumstances. A substantial change in circumstance occurs when your income has greatly increased or decreased. The court still will use the Wisconsin child support guidelines to determine the amount of support that you owe in the future. The court may order you to seek employment or participate in an employment-training program, such as Children First. Are there any services available to me to help me get a job so that I can pay my child support? There are programs available in some community-based organizations that can help you find a job. Sometimes, in fact, these organizations can help you develop your job skills so that you can present yourself to an employer as a skilled employee. Also the child support office in Wisconsin can direct you toward a program called Children First. In Dane County, you can volunteer for the program by calling Steve Horne at 608-267-1534. In many cases the court will order a father who has gotten behind on his child support payments to attend the Children First Program. Your child support officer may ask you if you would like to attend the program, but you should find out whether you are being ordered to attend by the court. A participant in this program must show up every day at the designated Children First site to participate in job-seeking and learning activities. It is a 13 week program which you can only stop attending if you get a job or a court orders that you no longer have to attend. What if I directly pay for things that my child needs, such as diapers, instead of paying the money through the child support agency as required by the court order? It is unlikely that any payments besides following what the court order requires will count as payment of child support. If you give the child something directly you will still owe the amount of court ordered child support. There are only two exceptions to this statement and they only can happen if the mother is not receiving benefits from the government. The first exception is if you give money to the mother directly by check or money order and then can convince a court that this money was not meant as a gift to the child. The second exception is if the mother agrees by a written agreement that the payments you gave her were to substitute for the child support and the payments were not a gift or some other contribution. Can they place me in jail for not paying child support? Yes. You may be placed in jail for up to 6 months for failure to pay child support. The legal basis for placing you in jail is "contempt of court." You may argue that you did not have the ability to pay your child support. You still can be placed in jail if the court believes you are employable but, without reasonable excuse, you fail to seek employment, quit your job, or reduce the amount you earn. A person cannot be held in contempt of court for failure to pay money unless refusal is willful and contemptuous and not a result of an inability to pay. You have the right to be represented by an attorney throughout a contempt proceeding. If three conditions are satisfied you also have the right for the government to provide you with that attorney free of charge to you. First, you must be unable to afford an attorney. Second, the government must be the one that is trying to place you in jail. Finally, the result of the hearing must be that you are likely to be placed in jail. In some cases the law allows for you to be imprisoned for a specific amount of time and/or pay a fine. The amount of time that you can be in prison may be up to 5 years. In Wisconsin, are there other reasons that they can put me in jail surrounding child support and paternity establishment? Yes. There are a number of other reasons that a person may be put in jail for matters surrounding paternity establishment and child support. If the person suing to establish paternity, establish child support, or revise child support after due diligence, is unable to serve you with the papers to begin the lawsuit, you may be arrested. In addition, you may be arrested if you are served with the papers and do not appear at any court date. The only exception is a court date called a first appearance. You do have the option of not appearing on that date, but only if you follow the directions in the summons. The summons is the document that tells you that the mother or government is trying to determine whether you are the father of her child. In the summons you will be offered an opportunity to not appear at this first court date. (There will be a document attached to the summons called a Waiver of First Appearance) Finally, if you refuse to take a court-ordered genetic test, you can be put in jail. How will my being placed in jail impact the amount of support that I owe? If you are placed in jail your child support order will continue while you are in jail. You will need to motion the court to ask for a reduction in your child support amount based on what you can earn while in jail or prison. It is up to the court to determine whether to decrease your child support because you have been imprisoned. Many noncustodial fathers believe that if they get behind at a time when they are legitimately unable to make a payment, what they owe can later be reduced or discounted by the court, when an explanation is given. However, if you wait to explain your changed circumstances, the court will be unable to reduce the back payments that you owe. So it is very important that you notify the court immediately, provide proof of the reduction in income, and ask that your payments be reduced accordingly. If you do, the court may temporarily or permanently reduce the amount of the payment. The standard that the court will apply in determining whether to grant a modification of your child support order is whether there has been a substantial change in circumstances. A substantial change in circumstance occurs when your income has greatly increased or decreased. The court still will use the Wisconsin child support guidelines to determine the amount of support that you owe. Visitation and Custody What are the considerations for allowing me to have custody or visitation with my child? The child support enforcement office cannot help you obtain an order for visitation or custody with your child. Instead you must obtain a court order for this. If you cannot afford an attorney for this matter, you may do this without an attorney. Neither parent is presumed to have a right to custody that is superior to the other. The court may also not consider the parents race in deciding who has custody of the child. In determining visitation or custody, the court will consider all facts relevant to the best interest of the child.Ê Since May 1, 2000, the standard for determining custody and visitation matters is the same for paternity and divorce cases. One factor the court will consider is evidence of abuse by a parent in determining what is in the best interest of the child. For instance, the court will consider whether there is evidence of child abuse or domestic violence. Except if physical placement would endanger the childs physical, mental, or emotional health, a child is entitled to physical placement with both parents. How does domestic violence factor into a courts decision concerning custody or visitation with the child? The court will look at all factors relevant to the best interest of the child in determining custody or visitation. One factor the court will look at is whether either parent engaged in or there have been allegations of domestic abuse of either parent of the child. Another factor the court will consider are instances of child abuse. If the childs mother interferes with visitation, may I refuse to pay court-ordered child support? No. Access to the child for visitation is not required for you to have to pay child support. How does not paying my child support impact my right to see my child? Your not paying child support should not affect your ability to see your child. A court when faced with the question of whether to not allow you to see your child should only be concerned with the best interest of the child. Of course, there are many other penalties that the court will likely apply to you for not paying child support. Some of these penalties include: revoking a drivers license, taking tax refunds, denying occupational licenses, referring you to private collection agencies, reporting your failure to pay child support to a consumer reporting agency or through a court action placing the father in jail for failure to pay child support. Another penalty in Wisconsin for failing to pay child support is that you will be required to pay interest at the rate of 12% per year on any past due child support.Ê Before May 1, 2000, the government charged interest at the rate of 18% per year on any past due child support. What if I want to change the amount of time that I am allowed to spend with my child? If you are unable to afford an attorney for this matter, there are special forms that you may fill out to request a change in the physical placement or custody of your child. In Dane County you can obtain these forms from Room 104, City-County Building, 210 Martin Luther King Jr. Boulevard. You should tell the clerk that you want to change the custody or visitation arrangement with the custodial parent. If you, the mother of the child, and potentially the guardian appointed by the court for the trial, agree on what the changes should be, everyone should sign the form called Stipulated Order to Modify Custody/Physical Placement/ Support. You must then take 4 copies of this signed and completed form and mail or deliver them to the judge who entered the original custody, physical placement, or support order. If one of you does not agree to the proposed changes, you should sign two forms called Notice of Motion and Motion, and the Affidavit. The court is going to require that you have a reason to request a change. There are four possible options for you to be able to request a change in the custody or physical placement of your child. The four options are listed in the forms that you must file with the court. As of May 1, 2000, the court may also require you to file a "parenting plan." A parenting plan is written information that you provide to the court concerning such matters as what visitation schedule you would like, how the holidays will be divided, where the child will go to school, and other information. In Dane County you can obtain a form called "Proposed Parenting Plan" from Room 104, City-County Building, 210 Martin Luther King Jr. Boulevard. This form has all the required information that you should include as part of your parenting plan. |
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