When an action for divorce is filed in the proper court with jurisdiction, the judge will rule not only on the dissolution of the marriage of the husband and wife. In the same case, the judge may also decide how the properties of the spouses will be divided as well as who among the parents are entitled to child custody. Nevertheless, this does not mean that a child custody case can no longer be instituted in a separate proceeding. A particular claimant may file an independent case for child custody especially if he or she wants a speedy disposition of the case.
In child custody cases, the court will take into consideration several factors before it will render a decision. First of all, the “best interest of the child” rule will be applied. It is necessary for both parties to present evidence to support their claims. For the petitioner, he or she needs to show capacity and right for the custody over the persons of their children. On the other hand, the respondent is also required to present evidence to prove that he or she is the right party to get the child custody.
One of the most common questions asked in this type of proceeding is whether or not the children of the marriage to be dissolved have the right to decide to whom they will live with. In a catena of cases decided by the Supreme Court, the pronouncement was that they have the right to do so but their decision is not controlling. The judge has the discretion to either consider it or not.
Under our state laws, the general rule is that the custody over the children is joint so both parents have the right for custody. This rule admits certain exceptions among which is when one of the parents has shown violence and intimidation to their children while living in his or her custody or when he or she has refused to take care of the kids. Technically, the judge will transfer the custody from the erring parent to the non-earing parent.
If you are the party seeking for the grant of child custody, do not forget to seek for the assistance of attorneys in Milwaukee. While the case is still pending in court, talk to a lawyer who will guide and support you. This attorney can identify the necessary evidence that you can present in court especially in cases where your children choose to live with the other spouse.