With Wisconsin family law in such a state of flux following recognition of same-sex marriage in October of 2014, it is understandable that many in the LGBT community are wondering how these changes in the law might affect other areas of their life—such as their families. Many same-sex Wisconsin couples with children have already confronted inequities and other unresolved questions of state law relating to issues of adoption, guardianship, or parenting agreements, and now wonder what additional parenting and child custody rights they now have, as well as how limitations upon their parenting rights prior to October of 2014 might be considered in in the context of a same-sex divorce.
At the Milwaukee law offices of MacGillis Wiemer LLC, our team of skilled Wisconsin same-sex child custody attorneys are ready to provide compassionate, informed representation of concerned same-sex parents under Wisconsin law. We painstakingly analyze every new development in this fluid legal area in order to provide the most current advocacy possible for each of our clients.
In Wisconsin, as with many other states, the best interest of the children is the guiding principle in all custody and placement disputes. Joint legal custody, in which neither parent has superior parenting rights over the other, is traditionally considered to be the best means of preserving the child’s physical, emotional, and mental health. In the initial stages of a divorce, a judges traditionally orders both spouses to attend mediation in order to agree to a parenting plan resolving such issues as a placement schedule indicating when the child resides with each parent, the decision-making authority of each parent, and an agreement regarding issues such as educational, religious, and other similar matters.
If the parents cannot agree on a parenting plan, a judge can create one after considering several factors, including:
It should be noted that when an LGBT spouse has a child from a previous traditional marriage, that spouse cannot be denied custody or visitation rights on the basis of his or her current same-sex partnership or marriage.
At the time same-sex marriage was recognized in Wisconsin, doctrine relative to joint legal custody was largely based upon parental rights available and applicable to spouses in traditional marriages. Gender-specific state statutes provide that the husband is the legal parent of all children conceived by or born to his wife during the marriage, and he also becomes the legal parent of a child born out-of-wedlock when he marries the mother. Spouses in traditional marriages also often have the option to adopt their partner’s children from a previous marriage.
Besides an inability to marry prior to October of 2014, same-sex couples in Wisconsin had far fewer parenting options. The state’s domestic partner registry provided no parenting rights; the only legal option for same-sex stepparents was the limited option of guardianship, a legal relationship with a child falling far short of legal parenthood. In addition, many couples were forced to resort to creating written property and parenting agreements during the relationship, but prior to Wisconsin’s recognition of same-sex marriage. While these agreements can bolster a custody claim, their effectiveness in a divorce action is not guaranteed.
Also, while many members of the LGBT community were permitted to adopt children individually in Wisconsin, the state prohibited joint adoptions between same-sex parents by virtue of prohibiting joint adoptions to any unmarried couple. This has spawned a custody scenario in which an individual adoptive parent can seek to prevent their spouse from asserting any parental rights in a divorce, even if the child considered that spouse to be an equal parent. Stepparents that fail to adopt their stepchildren often have a difficult time gaining parental rights in an opposite-sex divorce action; whether this legal barrier should be lowered for same-sex step-parents due to a previous restriction on their adoption rights remain an open legal question.
Some laws have changed in the wake of same-sex marriage recognition in Wisconsin. All married couples are permitted to jointly adopt children, and all spouses of legal parents are permitted to adopt their spouse’s child. However, these newly acquired rights do not resolve issues raised in custody disputes in relationships where parental rights were at one time restricted by law. At the Wauwatosa law offices of MacGillis Wiemer LLC, our experienced Milwaukee child custody attorneys are determined to protect you and your child’s best interests. We stay on top of every new legal issue as they develop nationwide, and we provide immediate and aggressive representation on behalf of both you and your child. To learn more, call us at (414) 727-5150, contact us online, or visit our Bluemound Road offices in Wauwatosa.
Milwaukee – 414-727-5150
Hartford – 262-457-9192
Address: 11040 W Bluemound Rd #100, Wauwatosa, WI 53226