SB420: Bill Text

LRB-4203/2

PJK/JEO:ibw/kmg:mkd

1995 - 1996 LEGISLATURE

1995 Senate BILL 420

November 14, 1995 - Introduced by Joint Legislative Council. Referred to Committee on Health, Human Services and Aging.

SB420,1,11 An Act to repeal 767.24 (2) (b) (intro.), 1. and 2. (intro.), a. and b.; to renumber and amend 767.327 (2); to consolidate, renumber and amend 767.24 (2) (a) and (b) 2. c.; to amend 767.02 (1) (k), 767.23 (1) (a), 767.25 (1m) (em), 767.32 (2), 767.327 (1) (a) 1., 767.327 (1) (a) 2., 767.327 (1) (b), 767.327 (2) (title), 767.327 (3) (title), 767.327 (3) (a) 1. (intro.), 767.327 (3) (a) 1. b., 767.327 (3) (a) 2. a., 767.327 (3) (a) 3., 767.327 (3) (b) 1. (intro.) and 814.615 (1) (a) 3.; and to create 767.23 (1) (bm), 767.24 (5) (jm), 767.248, 767.325 (2m), 767.327 (1) (a) 3., 767.327 (2) (b), 767.327 (3) (c), 767.327 (3) (d) and 948.31 (2m) of the statutes; relating to: joint legal custody, a custodial parent moving with, or removing, a child after divorce, enforcement of physical placement orders, the fee for a custody study and providing a penalty.

Analysis by the Legislative Reference Bureau

This bill is explained in the Notes provided by the joint legislative council in the bill.

For further information see the local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

Prefatory note: This bill was prepared at the direction of the joint legislative council's special committee on child custody, support and visitation laws.

The bill includes provisions on the following subjects:

Joint Legal Custody

The bill modifies current law relating to the award of joint legal custody. Under current law, in rendering a judgment of annulment, divorce, legal separation or custody, the court may grant joint legal custody of a child to the parties only if the court finds that to do so is in the child's best interest and both parties agree to joint legal custody or one party requests joint legal custody and the court specifically finds that both parties are capable of fulfilling parental obligations and wish to take an active role in child rearing, both parties will be able to cooperate in future decision-making under joint legal custody and there are no existing conditions that would substantially interfere with the exercise of joint legal custody.

This bill removes the above-described conditions on the award of joint legal custody and provides that, in rendering a judgment of annulment, divorce, legal separation or custody, the court may give joint legal custody or sole legal custody of a minor child based on the best interest of the child and after considering certain statutory factors contained in current law. Those factors are:

1. The wishes of the child's parent or parents.

2. The wishes of the child, which may be communicated by the child or through the child's guardian ad litem or other appropriate professional.

3. The interaction and interrelationship of the child with his or her parent or parents, siblings and any other person who may significantly affect the child's best interest.

4. The child's adjustment to the home, school, religion and community.

5. The mental and physical health of the parties, the minor children and other persons living in a proposed custodial household.

6. The availability of public or private child care services.

7. Whether one party is likely to unreasonably interfere with the child's continuing relationship with the other party.

8. Whether there is evidence that a party engaged in abuse of the child, as defined in s. 48.981 (1) (a) and (b) or 813.122 (1) (a).

9. Whether there is evidence of interspousal battery as described under s. 940.19 or domestic abuse as defined in s. 813.12 (1) (a).

10. Whether either party has or had a significant problem with alcohol or drug abuse.

11. Such other factors as the court may in each individual case determine to be relevant.

The bill also adds an additional factor for the courts to consider; namely, whether the parties will be able to cooperate in the future decision-making required under an award of joint legal custody.

The bill retains the provision contained in current law that evidence that either party engaged in abuse of a child as defined in s. 48.981 (1) (a) and (b) or 813.122 (1) (a) or evidence of interspousal battery as described under s. 940.19 or domestic abuse as defined in s. 813.12 (1) (a) creates a rebuttable presumption that the parties will not be able to cooperate in the future decision-making required for joint legal custody. This presumption may be rebutted by clear and convincing evidence that the abuse will not interfere with the parties' ability to cooperate in the future decision-making required.

Enforcement of Physical Placement Orders

The bill establishes a mechanism for the enforcement of physical placement orders. The bill provides that a parent who has been awarded periods of physical placement may file a petition to enforce the award of physical placement if one of the following applies: (1) the parent has had one or more periods of physical placement denied by the other parent; (2) the parent has had one or more periods of physical placement substantially interfered with by the other parent; or (3) the parent has incurred a financial loss or expenses as a result of the other parent's intentional failure to exercise one or more periods of physical placement under an order allocating specific times for the exercise of periods of physical placement. The petition must be filed under the principal action under which the periods of physical placement were awarded. The petition must be served upon the respondent. The respondent may respond to the petition either in writing before or at the hearing or orally at the hearing.

The petition must allege facts sufficient to show the identity of the petitioner and that the petitioner has been awarded periods of physical placement, the name of the respondent and that one of the criteria identified above applies. The petition must request that a remedy, or a combination of remedies, described below be imposed on the respondent. A judge or family court commissioner is not prohibited from imposing a remedy that was not requested in the petition. A judge or family court commissioner must accept any legible petition for an order under this section.

The bill requires a judge or family court commissioner to hold a hearing on the petition no later than 30 days after the petition has been served. A judge or family court commissioner may, on his or her own motion or the motion of any party, order that a guardian ad litem be appointed for the child prior to the hearing.

At the conclusion of the hearing, if the judge or family court commissioner finds that the respondent has intentionally and unreasonably denied or interfered with one or more of the petitioner's periods of physical placement, the judge or family court commissioner may issue one of the following orders: (1) an order granting additional periods of physical placement to replace those denied or interfered with; or (2) an order specifying times for the exercise of periods of physical placement if the original order or judgment relating to periods of physical placement does not specify times for physical placement. Other than granting periods of makeup visitation or entering an order specifying times for the exercise of periods of physical placement, the bill prohibits the judge or family court commissioner from otherwise modifying an order of legal custody or physical placement in an action to enforce physical placement orders.

If the judge or family court commissioner finds that the respondent has intentionally and unreasonably failed to exercise one or more periods of physical placement under an order allocating specific times for the exercise of periods of physical placement without adequate notice to the petitioner which results in the incurrence by the petitioner of a financial loss or expenses, the judge or family court commissioner may issue an order requiring the payment of a sum of money sufficient to compensate the petitioner for the financial loss or expenses.

If the judge or family court commissioner finds that the respondent has intentionally, unreasonably and repeatedly or intentionally, unreasonably and egregiously denied or interfered with the petitioner's periods of physical placement, the judge or family court commissioner may issue an injunction ordering the respondent to strictly comply with the judgment or order relating to the award of physical placement or find the respondent in contempt of court.

Under this bill, in determining whether to issue an injunction, the judge or family court commissioner must consider whether alternative remedies requested by the petitioner would be as effective in obtaining compliance with the order or judgment relating to physical placement. An injunction issued as provided in the bill is effective according to its terms for the period of time that the petitioner requests, but not more than 2 years. If an injunction is issued, the court or family court commissioner, upon request by the petitioner, must order the sheriff to assist the petitioner to execute or serve the injunction. Within 24 hours after the petitioner's request, the clerk of court must send a copy of the injunction to the sheriff or to any other local law enforcement agency which is the central repository for orders and which has jurisdiction over the respondent's residence. If the respondent resides outside of Wisconsin, the clerk of court must send a copy of the injunction to the sheriff of the county in which the court is located. The sheriff must make available to other law enforcement agencies information on the existence and status of any injunction issued. The bill also provides that a law enforcement officer may arrest and take a person into custody if the petitioner presents a law enforcement officer with a copy of an injunction and the law enforcement officer has probable cause to believe that the person has violated the injunction issued against the person. Under provisions of the bill, the first violation of an injunction is a Class B misdemeanor, and 2nd and subsequent violations constitute a Class E felony if the person has a previous conviction for intentionally violating an injunction.

Under this bill, in all actions to enforce a physical placement order, the judge or family court commissioner may also order the respondent to pay a reasonable amount for the cost to the petitioner of maintaining an action for the enforcement of physical placement orders and for the petitioner's attorney fees.

The bill also authorizes a court, in an action to modify an order of custody or physical placement, to modify an order of periods of physical placement if it finds that a parent has repeatedly and unreasonably failed to exercise periods of physical placement awarded under an order of physical placement which allocates specific times for the exercise of periods of physical placement without giving reasonable advance notice to the other parent.

Child Removal

The bill modifies current law relating to a custodial parent moving with, or removing, a child after divorce. Under current law, if a court grants periods of physical placement with a child to both parents in a divorce, a parent who has sole or joint legal custody of the child must give the other parent notice if he or she intends to establish his or her legal residence outside the state and remove the child from the state for more than 90 consecutive days or establish his or her legal residence and remove the child within the state at a distance of 150 miles or more from the other parent. The parent receiving the notice may send to the parent proposing the action, with a copy to the court, a notice of objection. The court or family court commissioner must then refer the parties to mediation. If mediation is not successful in resolving the dispute, the parent who opposes the move may file with the court a petition, motion or order to show cause for modification of legal custody or physical placement. The court may modify legal custody or physical placement if the move will result in a substantial change of circumstances since the last order affecting legal custody or physical placement and if modification is in the child's best interest. The court must consider whether the proposed action is reasonable; the nature and extent of the child's relationship with the other parent and the disruption to the relationship that the proposed action may cause; and the availability of alternative arrangements to foster and continue the child's relationship with and access to the other parent. There is a rebuttable presumption that it is in the child's best interest to remain with the parent with whom the child currently resides for the greater period of time.

This bill requires a parent who has legal custody of and physical placement with a child to provide notice to the other parent if he or she intends to establish his or her legal residence with the child at any location outside the state or at any location within the state at a distance of 150 miles or more from the other parent or if he or she intends to remove the child from the state for more than 90 consecutive days. The bill requires that the notice specifically include the planned date of the move, or the beginning and ending dates of the removal, and the specific location of the move or removal. If the other parent sends a notice of objection, the parent proposing the move or removal is prohibited from taking the proposed action until the dispute is resolved, unless the parent obtains a temporary order from the court or family court commissioner allowing the move or removal. As under current law, if mediation is not successful, the parent objecting to the proposed action may file a petition, motion or order to show cause for modification of legal custody or physical placement, and the matter proceeds to a hearing before the court. The bill provides that, as an alternative to modification of legal custody or physical placement, the objecting parent may request an order prohibiting the move or the removal of the child. The court considers the same factors as under current law in making its determination of whether to prohibit the move or the removal of the child. The court may prohibit the move or the removal if it finds that doing so is in the child's best interest. The burden of proof is on the parent objecting to the move or removal.

The bill also provides that the rebuttable presumption that it is in the child's best interest to remain with the parent with whom the child currently resides for the greater period of time, which applies when the court is asked to modify legal custody or physical placement, may be overcome by a showing that the move or removal is unreasonable and not in the child's best interest.

The bill also provides that when making a disposition on a move or removal petition, motion or order to show cause, the court must allocate responsibility for the payment of transportation costs for the exercise of physical placement. The court may, on its own motion or on request of a party, make a finding that its disposition will result in extraordinary travel expenses incurred in exercising physical placement which may serve as a basis for adjusting an existing child support order. If the court so finds, it may modify the child support order in the manner provided in current law. To permit a court to specifically consider these extraordinary travel expenses, the bill adds a reference to those expenses incurred as a result of a disposition under s. 767.327 in s. 767.25 (1m) (em), the current child support factor which permits deviation from the percentage-of-income standard for extraordinary travel expenses incurred in exercising periods of physical placement.

Custody Study Fee

Finally, the bill modifies the statutory fee for a custody study. Under current law, a county may use one of 2 methods to collect fees for the provision of family court counseling services under s. 767.11, including mediation and custody studies. The county may establish a fee schedule to recover its reasonable cost of providing those services or it may collect statutorily prescribed fees for various services. Currently, the statutory fee for a custody study is $300. This bill increases that fee to $600.

SB420, s. 1 Section 1 . 767.02 (1) (k) of the statutes is amended to read:

SB420,5,4 767.02 (1) (k) Concerning periods of physical placement or visitation rights to children, including an action to prohibit a move with or the removal of a child under s. 767.327 (3) (c).

Note: Sections 1 , 3 and 11 to 24 are identical to the provisions contained in 1995 Senate Bill 132, relating to a custodial parent moving with, or removing, a child after divorce.

SB420, s. 2 Section 2 . 767.23 (1) (a) of the statutes is amended to read: