Divorce Support Forums: Motion to Change Placement

My fiancée was going to appeal because when the motion for modification of placement was submitted to the court within two years after the initial order. It was submitted under 767.325(1)(b) not 767.325(1)(a) as it should have been. However, the problem is that she agreed to the terms in the partial settlement agreement regarding custody and placement which stated the following.

4. INCORPORATION OF AGREEMENT INTO JUDGMENT

The parties agree to submit this Agreement to the Court for approval, pursuant to Keller vs. Keller, 214 Wis. 2d 32 (CA1997). Both parents request that the Court incorporate its terms into the Conclusions of Law and Judgment of Divorce and make them enforceable as part of the Judgment. The parties agree that the modification in physical placement contemplated by this agreement does not substantially alter the amount of time a parent will spend with his or her child, within the meaning of section 767.325(3) Wis. Stats. (03-2004), and will be subjected to the best interest standard.

My fiancée’s attorney allowed this language without her knowledge or understanding of its implications. I didn’t really understand either, until I had tried to video tape her children being verbally disrespectful to my fiancée, (to show the counselor the kids were seeing so she would understand how disrespectful they are to her).

Big mistake, the oldest daughter got angry and came at me trying to physically take the video camera away and I had to push her away from me) then called the police to file an accurate account of what happened so the kids and her ex-husband couldn’t fabricate there own story.

It didn’t matter though, because he has convinced the kids that if they caused enough problems with my fiancée and I at our house, that it would drive me away. The daughter that I had the confrontation with was immediately taken to the counselor by her dad, and in counseling, she stated that because of the incident she now feels suicidal.

That is all it took for him to file a motion for modification of placement. Had I known then, what I know now, I would not have gotten involved with what went on between the kids and their mother, and would have let her handle the issues herself. After the altercation, we lived under a microscope from then on, and everything we did became an issue with her ex-husband, who was now using the children as spy’s.

What bothers me about the whole post divorce litigation is

1. Her attorney in my opinion should not have allowed the language to be included in the partial settlement agreement regarding custody and placement, (if that allowed a motion under 767.325(1)(b) to be filed within the first two years after the final order for custody and placement) and because she did, I think she was negligent in doing so for not having her clients best interest in mind.

I feel she was negligent because she didn’t, at the least, sit her client down and explain that the language allows her ex-husband to file a motion to modify placement if it is not a substantial modification, under the less stringent best interest of the children standard, 767.325(1)(b) statute, advising her of the consequences of allowing it, and then allow her to choose whether or not to allow the language. I’ve since found out, that no competent attorney would have allowed this language.

2. This post divorce litigation cost each parent thousands of dollars, and even though both kids told the GAL they didn’t want the placement to change, my fiancée’s ex-husband ended up with an extra day of placement.

Then immediately after the Hearing, the 17 year old was so angry at her dad, that she doesn’t want anything to do with him, and has moved in with her mother. My fiancée’s ex-husband fought for an extra day of placement, costing her thousands of dollars and now, don’t care, and told my fiancée that he gives up on his daughter, that she can live with my fiancée.

If my fiancée son was old enough, he would also be living with her, because he is also angry with his father for what he did. It cost my fiancée her retirement fund that she cashed in and another $26,000 mortgage on property just to pay for the attorney and GAL bills, and now he don’t care, this was a planed vengeance issue with him for her leaving him, and I sure wish My fiancée could file a tort action on him to recoup for her suffering.

I guess, because her daughter has moved in with my fiancée, she could file a request for reconsideration, or a new hearing under Wis. Stats. 806.07 Relief from judgment or order.

I don’t think she can appeal now with what your answer was, but just in case I misspoke the order of events, here is what happened and the date it happened on.

12-10-2004 - PARTIAL - regarding Custody and Placement

10-21-2005 - Notice of motion, motion for modification of judgment in regard to placement filed by her ex-husband.

09-26-2006 – A hearing was held and respondent’s motion is granted re placement, he received an extra day of placement of the children. NOTE: this hearing and order was held within the two years after the PARTIAL - regarding Custody and Placement entered on 12-10-07

10-10-2006 - Petitioner's request for de novo hearing of Commissioner Crowe's decision entered September 26, 2006.

10-15-2007 - Hearing De Novo on Respondent's Motion for Modifying Placement. Court granted motion, so he ended up with one additional day with the children.

This whole post divorce placement litigation, and all the money spent was for nothing, the only kid he has the extra day of placement with now is his 12 year old son, whom, if he also had a choice in the matter, would also be living with his mother.

Feeling I was the cause for her loosing the day of placement with her kids, a month before her Hearing de-novo, I broke off our engagement and moved out thinking if I was gone (which is what he wanted from the start) that he would give up and allow her to have the day of placement back, that didn’t happen, she still lost them, so, I broke off our engagement with a wonderful woman and moved out for nothing. Now I'm trying to undo what I caused with an appeal or request for reconsideration.

I wish she could file suit against her ex-husband for intentional infliction of emotional harm, and her attorney for malpractice, or incompetence, but, with everything I have read, the bottom line is “causation” did she cause the motion to be filed by including the language, or was it my actions in getting into a confrontation with her daughter.

If the language wasn’t incorporated would he still have filed a motion and won? If I hadn’t had a confrontation with her daughter with the language incorporated in the custody and placement order, then having the language incorporated, regardless, wouldn’t have made her attorney negligent. Causation!!! As far as an action against her husband, I don’t know if she can after the divorce.

It’s sad that the courts allow this abuse of use of the courts. The kids are traumatized and no one wins.

Don

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