AB442: Bill Text

Modifications to custody and physical placement orders

Under current law, a court may not, within the first 2 years after the initial order is entered, modify a physical placement order if the modification would substantially alter the amount of time that a parent spends with a child, or modify a custody order, unless the modification is necessary because the current custodial conditions are physically or emotionally harmful to the best interest of the child. After 2 years after the initial order is entered, a court may modify a custody order, or modify a physical placement order even if the modification would substantially alter the amount of time that a parent spends with a child, if there has been a substantial change in circumstances since the entry of the last order and if the modification is in the child's best interest. The court may modify a physical placement order if the modification does not substantially alter the amount of time that a parent spends with a child or if the parents have substantially equal periods of physical placement and that arrangement becomes impractical on the basis of the best interest of the child. This bill removes those provisions and provides that a court must modify a physical placement order in a way that alters the time a parent spends with a child, and must modify a custody order, if a parent requests a modification and the current order is not in compliance with the statutory provision that specifies the manner in which the court must award custody and physical placement, if a parent's parental rights have been terminated or if the parents agree to a modification.

Under current law, a parent who has legal custody of and physical placement with a child must 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. If the other parent sends a notice of objection, the court or family court commissioner must refer the parties to mediation and appoint a guardian ad litem for the child. 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. 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 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. 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 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 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. 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, which may be overcome by a showing that the move or the removal is unreasonable and not in the child's best interest.

This bill provides that, if both parents are awarded physical placement with the child in any action affecting the family, neither parent may establish a legal residence for the child that is outside the school district in which the child resided on the 180th day before the commencement of the action affecting the family, or since birth if the child is less than 6 months old, or other school district agreed upon by the parties. The court may, however, allow a parent to establish a legal residence for the child outside of that school district if the parent shows that for at least one year the other parent has exercised his or her physical placement rights for less than 10% of the amount of time awarded by the court. If one of the parents wishes to establish his or her legal residence outside of the child's school district, that parent must provide at least 60 days' written notice to the other parent. If the proposed move would make it difficult or impractical for the physical placement arrangement to continue and at the same time for the child to remain in the same school district, either parent may request a modification to the physical placement order. The court must approve any modified physical placement schedule that the parents agree to. If the parents do not agree, the court may modify the physical placement schedule in such a way that the parent not proposing the move is awarded physical placement with the child during weekdays and weeknights while school is in session, at least one weekend per month, at least 4 weeks during the summer and alternating holidays. The parent proposing the move must be responsible for transportation costs incurred in exercising his or her physical placement rights and must be awarded the maximum amount of physical placement that is reasonable under the circumstances. If both parents wish to establish their legal residences or a legal residence for the child outside of the child's current school district and do not agree on a new school district, the court may designate one of the parents' new legal residences as the child's legal residence for the purpose of establishing a new school district for the child. The court must choose the legal residence that the court determines will maximize the amount of time that each parent may spend with the child. If one of the parents has already established a legal residence outside of the child's current school district, the court may allow the other parent to establish a legal residence for the child in a different school district if the parent who moved first does not wish to move back to the child's current school district and if the move does not increase the distance from the parent who moved first.

Paternity actions

In addition to the changes that the bill makes with respect to actions affecting the family in general, the bill makes some changes that relate to paternity actions alone. Under current law, in a paternity action that is commenced by a man who claims to be the father of a child who was born to a woman while she was married to another man, a party may allege that a judicial determination that a man other than the mother's husband is the child's father is not in the child's best interest. If the judge or family court commissioner agrees that such a determination is not in the child's best interest, no genetic tests may be taken and the action is dismissed. The bill eliminates this provision and provides that a man against whom a paternity action was dismissed, on the basis of the eliminated provision, before the date on which the bill is enacted may commence another paternity action.

Current law provides that the liability of an adjudicated father of a child for past support is limited to support for the period after the birth of the child. The bill changes this to support for the period after the man is adjudicated to be the father.

Current law provides that, with certain exceptions, records of paternity proceedings are closed. The bill provides that the records are open to public inspection if the alleged father was adjudicated to be the father.

Miscellaneous changes

The bill makes an important change related to the appointment of a guardian ad litem. Under current law, a court in an action affecting the family must appoint a guardian ad litem for a minor child to represent the interests of the minor child if the court has reason for special concern as to the welfare of the child or if legal custody or physical placement is contested. The court must also appoint a guardian ad litem to bring a paternity action on behalf of a minor nonmarital child if the child is receiving AFDC, if the child's custodian is receiving benefits under W-2 or if an application for legal services has been filed on behalf of the child with the state child support program, and the state is barred from commencing a paternity action by a statute of limitations. The bill retains the requirement that the court appoint a guardian ad litem to bring a paternity action on behalf of a minor nonmarital child under the same circumstances as under current law, but prohibits the court from appointing a guardian ad litem under any other circumstances in an action affecting the family. Under the bill, if the court has reason for special concern as to the welfare of a minor child, the court must order one or both parents to file a petition alleging that the child is in need of protection or services. If the court takes jurisdiction of the child on the basis of that petition, the court may appoint a guardian ad litem for the proceedings related to that petition.

Another important change relates to temporary orders. Under current law, the court or family court commissioner may, upon request, make temporary orders pending the final judgment in an action affecting the family concerning such matters as custody and physical placement of minor children, child support and payment of debts. Under the bill, the court or family court commissioner is required in every action affecting the family to make a temporary order that grants joint legal custody of any minor children to the parties and that grants the parties equal periods of physical placement with any minor children of the parties.

The bill makes a number of other miscellaneous changes. Under current law, a divorce action may not be commenced unless at least one of the parties has been a resident of the county in which the action is brought for not less than 30 days. This residency requirement is lengthened to 6 months. Stipulations under current law are subject to the approval of the court. The bill generally removes this approval requirement and requires the court to incorporate into the appropriate judgment or order any stipulation of the parties. Under current law, the parties to an action affecting the family are prohibited from certain actions during the pendency of the action, including establishing a residence with a minor child of the parties outside the state or more than 150 miles from the residence of the other party within the state, removing a minor child of the parties from the state for more than 90 consecutive days or concealing a minor child of the parties from the other party. The bill instead prohibits any party from establishing a legal residence for a minor child of the parties outside the school district in which the child resided on the 180th day before the commencement of the action, or since birth if the child is less than 6 months old, or other school district agreed upon by the parties, and from removing a minor child of the parties from the state for 14 consecutive days or more without the written approval of the other party. The bill also makes some changes in the mediation procedure under current law and requires the court to approve any agreement that the parties reach as a result of mediation, as long as it is knowingly and voluntarily made and not unconscionable.

For further information see the state and 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:

AB442, s. 1 Section 1. 20.921 (2) (a) of the statutes is amended to read:

AB442,8,2 20.921 (2) (a) Whenever it becomes necessary in pursuance of any federal or state law or court-ordered assignment of income under s. 46.10 (14) (e), 767.23 (1) (L) (1c) (i), 767.25 (4m) (c), 767.265 or 767.51 (3m) (c) to make deductions from the salaries of state officers or employes or employes of the University of Wisconsin Hospitals and Clinics Authority, the state agency or authority by which the officers or employes are employed is responsible for making such deductions and paying over the total thereof for the purposes provided by the laws or orders under which they were made.

AB442, s. 2 Section 2. 49.141 (1) (b) of the statutes is amended to read:

AB442,8,8 49.141 (1) (b) "Custodial parent" means, with respect to a dependent child, a parent who resides with that child and, if there has been a determination of legal custody with respect to the dependent child, has legal custody of that child. For the purposes of this paragraph, "legal custody" has the meaning given in s. 767.001 (2) (a).

AB442, s. 3 Section 3. 51.30 (5) (bm) of the statutes is amended to read:

AB442,8,13 51.30 (5) (bm) Parents denied physical placement. A parent who has been denied periods of physical placement with a child under s. 767.24 (4) (b) or 767.325 (4) may not have the rights of a parent or guardian under pars. (a) and (b) with respect to access to that child's court or treatment records.

AB442, s. 4 Section 4. 55.07 (2) of the statutes is amended to read:

AB442,8,17 55.07 (2) A parent who has been denied periods of physical placement under s. 767.24 (4) (b) or 767.325 (4) may not have the rights of a parent or guardian with respect to access to a child's records under this chapter.

AB442, s. 5 Section 5. 102.27 (2) (a) of the statutes is amended to read:

AB442,8,20 102.27 (2) (a) A benefit under this chapter is assignable under s. 46.10 (14) (e), 767.23 (1) (L) (1c) (i), 767.25 (4m) (c), 767.265 (1) or 767.51 (3m) (c).

AB442, s. 6 Section 6. 115.81 (9) (c) of the statutes is amended to read:

AB442,8,25 115.81 (9) (c) Notwithstanding ss. 48.345, 48.363, 48.427 (3), 767.24 (3), 880.12, 880.15, 938.183, 938.34 (4), (4h), (4m) and (4n), 938.345 and 938.363, a surrogate parent has the authority to act as the child's parent in all matters relating to this subchapter.

AB442, s. 7 Section 7. 146.835 of the statutes is amended to read:

AB442,9,5 146.835 Parents denied physical placement rights. A parent who has been denied periods of physical placement under s. 767.24 (4) (b) or 767.325 (4) may not have the rights of a parent or guardian under this chapter with respect to access to that child's patient health care records under s. 146.82 or 146.83.

AB442, s. 8 Section 8. 757.48 (1) (a) of the statutes is amended to read:

AB442,9,12 757.48 (1) (a) Except as provided in s. 879.23 (4), in all matters in which a guardian ad litem is appointed by the court, the guardian ad litem shall be an attorney admitted to practice in this state. In order to be appointed as a guardian ad litem under s. 767.045, an attorney shall have completed 3 hours of approved continuing legal education relating to the functions and duties of a guardian ad litem under ch. 767.

AB442, s. 9 Section 9. 758.19 (5) (a) 2. of the statutes is amended to read:

AB442,9,15 758.19 (5) (a) 2. Fees for expert witnesses called by the guardian ad litem under s. 767.045 (6), 1995 stats., if either or both parties are unable to pay those fees.

AB442, s. 10 Section 10. 767.001 (1s) of the statutes is amended to read:

AB442,9,20 767.001 (1s) "Joint legal custody" means the condition under which both parties share legal custody and neither party's legal custody rights are superior, except with respect to specified decisions as set forth stipulated by the court or the parties and set forth in the final judgment or order.

AB442, s. 11 Section 11. 767.001 (2) (intro.) and (a) of the statutes are consolidated, renumbered 767.001 (2) and amended to read:

AB442,9,25 767.001 (2)  "Legal custody" means: (a) With,with respect to any person granted legal custody of a child, other than a county agency or a licensed child welfare agency under par. (b), the right and responsibility to make major decisions concerning the child, except with respect to specified decisions as set forth stipulated by the court or the parties and set forth in the final judgment or order.

AB442, s. 12 Section 12. 767.001 (2) (b) of the statutes is repealed.

AB442, s. 13 Section 13. 767.001 (2m) of the statutes is amended to read:

AB442,10,8 767.001 (2m) "Major decisions" includes, but is not limited to, means decisions regarding consent to marry, consent to enter military service, consent to obtain a motor vehicle operator's license, and authorization for nonemergency health care and choice of school and religion.

AB442, s. 14 Section 14. 767.001 (3) of the statutes is amended to read:

AB442,10,16 767.001 (3) "Mediation" means a cooperative process involving the parties and a mediator, the purpose of which is to help the parties, by applying communication and dispute resolution skills, define and resolve their own disagreements, with the best interest of the child as the paramount consideration and to encourage the parties to cooperate in making decisions regarding their minor children, based on the principle that each parent has an equal right of access to and equal responsibility to provide care for their minor children.

AB442, s. 15 Section 15. 767.001 (4m) of the statutes is created to read:

AB442,10,19 767.001 (4m) "Nonemergency health care" means routine health care and includes such care as acute illness care, physical examinations and dental care.

AB442, s. 16 Section 16. 767.02 (1) (k) of the statutes is amended to read:

AB442,10,23 767.02 (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).

AB442, s. 17 Section 17. 767.045 of the statutes is repealed and recreated to read:

AB442,11,8 767.045 Petition to juvenile court; guardian ad litem. (1) Notwithstanding s. 803.01 (3) and except as provided in sub. (2), the court may not appoint a guardian ad litem for a minor child in an action affecting the family. If at any time during the pendency of an action affecting the family in which a minor child is involved the court has reason for special concern as to the welfare of the minor child, the court shall order a parent or the parents to file a petition under s. 48.25 (1) to initiate proceedings under s. 48.13. If the court takes jurisdiction over the child under s. 48.13, the court may appoint a guardian ad litem as provided in s. 48.235.

AB442,11,14 (2) (a) The attorney responsible for support enforcement under s. 59.53 (6) (a) may request that the court or family court commissioner appoint a guardian ad litem to bring an action or motion on behalf of a minor who is a nonmarital child whose paternity has not been adjudicated for the purpose of determining the paternity of the child, and the court or family court commissioner shall appoint a guardian ad litem, if any of the following applies:

AB442,11,18 1. Aid is provided under s. 46.261, 48.57 (3m), 49.19 or 49.45 on behalf of the child, or benefits are provided to the child's custodial parent under ss. 49.141 to 49.161, but the state and its delegate under s. 49.22 (7) are barred by a statute of limitations from commencing an action under s. 767.45 on behalf of the child.

AB442,11,22 2. An application for legal services has been filed with the child support program under s. 49.22 on behalf of the child, but the state and its delegate under s. 49.22 (7) are barred by a statute of limitations from commencing an action under s. 767.45 on behalf of the child.

AB442,12,2 (b) A guardian ad litem appointed under par. (a) shall bring an action or motion for the determination of the child's paternity. The appointment of a guardian ad litem under par. (a) terminates upon the entry of the court's order determining the existence or nonexistence of paternity.

AB442, s. 18 Section 18. 767.05 (1m) of the statutes is amended to read:

AB442,12,14 767.05 (1m) Residence. No action under s. 767.02 (1) (a) or (b) may be brought unless at least one of the parties has been a bona fide resident of the county in which the action is brought for not less than 30 days 6 months next preceding the commencement of the action, or unless the marriage has been contracted within this state within one year prior to the commencement of the action. No action under s. 767.02 (1) (c) or (d) may be brought unless at least one of the parties has been a bona fide resident of the county in which the action is brought for not less than 30 days 6 months next preceding the commencement of the action. No action under s. 767.02 (1) (c) may be brought unless at least one of the parties has been a bona fide resident of this state for not less than 6 months next preceding the commencement of the action.

AB442, s. 19 Section 19. 767.081 (2) (a) (intro.) of the statutes is amended to read:

AB442,12,18 767.081 (2) (a) (intro.) The family court commissioner shall, with or without charge, provide the party with written information on the following, as appropriate to the action commenced:

AB442, s. 20 Section 20. 767.083 (2) of the statutes is amended to read:

AB442,12,24 767.083 (2) An order by the court, after consideration of the recommendation of the family court commissioner, directing an immediate hearing on the petition for the protection of the health or safety of either of the parties or of any child of the marriage parties or for other emergency reasons consistent with the policies of this chapter. The court shall upon granting such order specify the grounds therefor.

AB442, s. 21 Section 21. 767.085 (1) (a) of the statutes is amended to read:

AB442,13,3 767.085 (1) (a) The name and birthdate of the parties, the social security numbers of the husband and wife parties and their occupations, the date and place of marriage and the facts relating to the residence of both parties.

AB442, s. 22 Section 22. 767.085 (1) (j) (intro.) of the statutes is amended to read:

AB442,13,8 767.085 (1) (j) (intro.) Unless the action is one under s. 767.02 (1) (g) or (h), that during the pendency of the action, the parties are prohibited from, and may be held in contempt of court for, doing any of the following without the consent of the other party or an order of the court or family court commissioner:

AB442, s. 23 Section 23. 767.085 (1) (j) 1. of the statutes is amended to read:

AB442,13,14 767.085 (1) (j) 1. Establishing a residence with for a minor child of the parties outside the state or more than 150 miles from the residence of the other party within the state school district in which the child resided on the 180th day before the commencement of the action, or since birth if the child is less than 6 months old, or other school district agreed upon by the parties.

AB442, s. 24 Section 24. 767.085 (1) (j) 2. of the statutes is amended to read:

AB442,13,17 767.085 (1) (j) 2. Removing a minor child of the parties from the state for more than 90 14 consecutive days or more without the written approval of the other party.

AB442, s. 25 Section 25. 767.085 (2) (a) of the statutes is amended to read:

AB442,13,21 767.085 (2) (a) Either or both of the parties to the marriage may initiate the action. The party initiating the action or his or her attorney shall sign the petition. Both parties or their respective attorneys shall sign a joint petition.

AB442, s. 26 Section 26. 767.087 (1) (c) of the statutes is amended to read:

AB442,14,6 767.087 (1) (c) Unless the action is one under s. 767.02 (1) (g) or (h), without the consent of the other party or an order of the court or family court commissioner, establishing a residence with for a minor child of the parties outside the state or more than 150 miles from the residence of the other party within the state school district in which the child resided on the 180th day before the commencement of the action, or since birth if the child is less than 6 months old, or other school district agreed upon by the parties, removing a minor child of the parties from the state for more than 90 14 consecutive days or more without the written approval of the other party or concealing a minor child of the parties from the other party.

AB442, s. 27 Section 27. 767.087 (2) of the statutes is amended to read:

AB442,14,10 767.087 (2) The prohibitions under sub. (1) shall apply until the action is dismissed, or until a final judgment in the action is entered or until the court or family court commissioner orders otherwise.

AB442, s. 28 Section 28. 767.087 (3) (b) of the statutes is amended to read:

AB442,14,17 767.087 (3) (b) An act in violation of sub. (1) (c) is not a contempt of court if the court finds that the action was taken to protect a party or by clear and convincing evidence that the party took the action to protect a minor child of the parties from physical abuse by the other party and that there was no reasonable opportunity under the circumstances for the party and that the party obtained or made a reasonable attempt to obtain an order under sub. (2) authorizing the action.

AB442, s. 29 Section 29. 767.10 (1) of the statutes is amended to read:

AB442,14,23 767.10 (1) The parties in an action for an annulment, divorce or legal separation may, subject to the approval of the court, stipulate for a division of property, for maintenance payments, for the support of children, for periodic family support payments under s. 767.261 or for legal custody and physical placement, in case a divorce or legal separation is granted or a marriage annulled.

AB442, s. 30 Section 30. 767.11 (8) (b) (intro.) of the statutes is amended to read:

AB442,15,6 767.11 (8) (b) (intro.) A court may, in its discretion, shall hold a trial or hearing without requiring attendance at the session under par. (a) if the court finds that attending the session will cause undue hardship or would endanger the health or safety of one of the parties. In making its determination of whether attendance at the session would endanger the health or safety of one of the parties, the court shall consider evidence all of the following:

AB442, s. 31 Section 31. 767.11 (8) (b) 1. of the statutes is amended to read:

AB442,15,10 767.11 (8) (b) 1. That Whether a party engaged in has been convicted of a crime involving abuse, as defined in s. 813.122 (1) (a) 48.02 (1), of the child, as defined in s. 48.02 (2).

AB442, s. 32 Section 32. 767.11 (8) (b) 2. of the statutes is amended to read:

AB442,15,14 767.11 (8) (b) 2. Interspousal Whether a party has been convicted of battery as described under s. 940.19 or 940.20 (1m) or domestic abuse as defined in s. 813.12 (1) (a) against the other party.

AB442, s. 33 Section 33. 767.11 (8) (b) 3. of the statutes is repealed.

AB442, s. 34 Section 34. 767.11 (8) (b) 4. of the statutes is amended to read:

AB442,15,18 767.11 (8) (b) 4. Any other clear and convincing evidence indicating that a party's health or safety will be endangered by attending the session.

AB442, s. 35 Section 35. 767.11 (9) (intro.) and (b) of the statutes are consolidated, renumbered 767.11 (9) and amended to read:

AB442,15,25 767.11 (9) Prohibited issues in mediation. If mediation is provided by a mediator assigned under sub. (6), no issue relating to property division, maintenance or child support may be considered during the mediation unless all of the following apply: (b) The the parties agree in writing to consider the property division, maintenance or child support issue.

AB442, s. 36 Section 36. 767.11 (9) (a) of the statutes is repealed.

AB442, s. 37 Section 37. 767.11 (10) (intro.) of the statutes is amended to read: