SB107: Bill Text

LRB-0211/1

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1999 - 2000 LEGISLATURE

1999 Senate BILL 107

March 31, 1999 - Introduced by Senators George, Welch and Darling, cosponsored by Representatives Musser and Gronemus. Referred to Committee on Judiciary and Consumer Affairs.

SB107,3,2 An Act to repeal 767.001 (2) (b), 767.11 (8) (b) 3., 767.11 (9) (a), 767.11 (10) (e) 1. to 3., 767.11 (14) (a) 3., 767.23 (1) (bm), 767.24 (2) (b) 2. a. to c., 767.24 (3), 767.24 (4) (cm), 767.24 (5), 767.24 (6) (a) and (am), 767.245 (2), 767.25 (1m) (hm), 767.325 (2), 767.325 (3), 767.325 (4), 767.33 (1m) (b), 767.45 (2), 767.458 (1m), 767.463, 767.475 (1) (b), 767.51 (5) (i), (im) and (j), 767.62 (4) (e) 12., 13. and 14. and 891.39 (1) (b); to renumber 767.23 (1) (d), 767.23 (1) (e), 767.23 (1) (f), 767.23 (1) (g), 767.23 (1) (h), 767.23 (1) (i) and 767.23 (1) (k); to renumber and amend 767.23 (1) (c), 767.23 (1) (L), 767.24 (2) (a), 767.24 (2) (b) 2. (intro.), 767.33 (1m) (a), 767.475 (1) (a) and 891.39 (1) (a); to consolidate, renumber and amend 767.001 (2) (intro.) and (a), 767.11 (9) (intro.) and (b) and 767.11 (10) (e) (intro.) and 4.; to amend 20.921 (2) (a), 49.141 (1) (b), 51.30 (5) (bm), 55.07 (2), 102.27 (2) (a), 115.76 (12), 146.835, 757.48 (1) (a), 758.19 (5) (a) 2., 767.001 (1s), 767.001 (2m), 767.001 (3), 767.02 (1) (k), 767.05 (1m), 767.081 (2) (a) (intro.), 767.083 (2), 767.085 (1) (a), 767.085 (1) (j) (intro.), 767.085 (1) (j) 1., 767.085 (1) (j) 2., 767.085 (2) (a), 767.087 (1) (c), 767.087 (2), 767.087 (3) (b), 767.10 (1), 767.11 (8) (b) (intro.), 767.11 (8) (b) 1., 767.11 (8) (b) 2., 767.11 (8) (b) 4., 767.11 (10) (intro.), 767.11 (10) (a), 767.11 (10) (b), 767.11 (12) (a) and (b), 767.11 (14) (a) 1., 767.11 (14) (a) 2., 767.11 (14) (b), 767.115 (1) (a), 767.115 (1) (b), 767.115 (1m), 767.14, 767.23 (1) (intro.), 767.23 (1) (a), 767.23 (1n), 767.23 (2), 767.24 (1), 767.24 (2) (b) (intro.), 767.24 (2) (b) 1., 767.24 (4) (a), 767.24 (4) (d), 767.24 (6) (b), 767.24 (6) (c), 767.245 (1), 767.245 (3) (intro.), 767.245 (3) (f), 767.245 (3m) (c), 767.25 (2), 767.255 (1), 767.265 (3h), 767.265 (4), 767.265 (6) (a), 767.265 (6) (b), 767.265 (6) (c), 767.45 (1) (d), 767.45 (1) (i), 767.458 (1) (b), 767.458 (1) (c), 767.458 (1) (d), 767.46 (2) (c), 767.46 (4), 767.46 (5), 767.465 (2m) (a), 767.51 (3), 767.51 (4), 767.51 (5) (e), 767.51 (6), 767.52 (1), 767.62 (3) (b), 767.62 (4) (a), 767.62 (4) (d) 3., 767.62 (4) (e) 6., 769.302, 802.12 (3) (b), 803.01 (3) (b) 1., 803.01 (3) (b) 2., 814.61 (1) (c) 1., 814.61 (7) (c), 977.05 (4) (i) 7. and 977.05 (6) (b) 1.; to repeal and recreate 767.045, 767.23 (1) (am), 767.24 (4) (b), 767.325 (1) and 767.327; and to create 767.001 (4m), 767.23 (1c) (intro.), 767.24 (2) (a) 1. and 2., 767.24 (2) (c), 767.24 (2) (d), 767.24 (6) (bm) and 767.53 (3) of the statutes; relating to: standards for determining legal custody and physical placement of children in actions affecting the family, jurisdictional requirements in actions affecting the family, prohibitions against moving a child outside of a school district after divorce, standards for modifying custody and physical placement orders, temporary orders in actions affecting the family, visitation rights of 3rd parties, prohibiting the appointment of a guardian ad litem in all but certain actions affecting the family and making records of paternity proceedings open records.

Analysis by the Legislative Reference Bureau

This bill makes a number of changes to the provisions of the statutes that apply to actions affecting the family, the two most common of which are divorce and paternity actions. The changes relate especially to procedure and custody and physical placement determinations, including revisions to custody and physical placement orders, and apply to all actions affecting the family, including paternity actions after paternity has been determined and actions related to custody and physical placement after a statement acknowledging paternity has been filed, unless otherwise indicated.

Custody and physical placement

Under current law, a court must make a custody determination based on the best interest of the child. The court may grant sole custody to one parent or joint custody to both parents, but the court may grant joint custody only if the parents agree to it or if the court finds that both parents are capable of caring for the child, that no conditions exist that would interfere with the exercise of joint custody and that the parents will be able to cooperate in the future decision making required under an award of joint custody. The court may also find that neither parent is fit and proper to have custody, declare the child to be in need of protection or services and transfer legal custody to a county social services or human services department or licensed child welfare agency. Joint legal custody means that both parents have the right and responsibility to make major decisions concerning the child, and major decisions include decisions regarding consent to marry, consent to obtain a driver's license, authorization for nonemergency health care and the choice of school and religion. Current law provides that in a paternity matter or a statement acknowledging a paternity matter the mother is to have sole legal custody unless the court orders otherwise.

This bill removes the best interest of the child as the basis for a court's determination regarding custody and provides that there are rebuttable presumptions that both parents are fit and have the ability to rear their children and that joint legal custody and equal periods of physical placement are fundamental rights of each parent and child. A court may order sole legal custody only if the parents agree that one parent should have sole legal custody or if the parental rights of one parent have been terminated. The court must order joint legal custody if both parents request it or if one parent requests it and a rebuttable presumption that the parties will not be able to cooperate in the future decision making required is not created or is rebutted. On the issue of whether the parties will not be able to cooperate in the future decision making required, the court may consider only whether a party has been convicted of a crime involving abuse of the child and whether a party has been convicted of battery against the other party. Evidence of conviction of either crime creates a rebuttable presumption that the parties will not be able to cooperate. The presumption is rebutted, however, by clear and convincing evidence that the abuse or battery will not interfere with the parties' ability to cooperate. The provision that authorizes the court to transfer legal custody to a county department or licensed child welfare agency is eliminated, as well as the provision related to awarding sole custody to the mother in a paternity matter or a statement acknowledging a paternity matter.

Under current law, a court must allocate periods of physical placement (the time that a child is actually placed with a parent) after considering a number of factors, such as the wishes of the child and of each parent, the child's interaction and interrelationship with each parent, the child's adjustment to the home and community, the mental and physical health of the parties, the availability of child care services and whether either of the parties has a problem with alcohol or drug abuse. A child is entitled to periods of physical placement with each parent unless the court finds that physical placement with a parent would endanger the child's physical, mental or emotional health. The bill removes these provisions and provides that, if the court orders joint legal custody or sole legal custody because the parties have agreed to it, the court must approve any schedule for the allocation of physical placement that the parties agree to and submit to the court in writing. If the parties do not agree, the court must order each party to submit a schedule and the court must order the schedule that sets forth the most equal allocation of physical placement. If neither schedule submitted by the parties is substantially equal and each proposes a greater amount of time for himself or herself, the court must order equal periods and require the parties to alternate spending with the child specified holidays and the child's birthday.

The bill changes the definition of major decisions (those decisions that any parent with legal custody may make) by excluding choice of school and religion and removes from the court the authority to specify any major decisions in addition to the ones specified in the definition. Although the parties may stipulate that one party has the sole power to make specified decisions, the bill removes from the court the authority to give one party that power and limits the court to specifying one parent as the primary caretaker of the child for the purpose of determining eligibility for benefits under the Wisconsin works program (W-2) only if both parents are eligible for public assistance funded by a relief block grant. The court may determine and specify a child's primary provider for health care if the parties do not agree.

Modifications to custody and physical placement orders

Under current law, a court may not, within the first two 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 two 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 six 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 four 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. Additionally, at any time in a paternity action, regardless of who commenced it, a judge or family court commissioner may refuse to order genetic tests and dismiss the paternity action on the motion of a party or guardian ad litem if the judge or family court commissioner determines that a paternity determination is not in the child's best interest. The bill eliminates these provisions and provides that a man against whom a paternity action was dismissed, on the basis of one of the eliminated provisions, 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 state is barred from commencing a paternity action by a statute of limitations and the child's custodian is receiving benefits under W-2 or an application for legal services has been filed on behalf of the child with the state child support program. 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.

Current law provides that the liability of a man who has signed and filed a statement acknowledging paternity to pay 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 date on which the statement acknowledging paternity was filed with the state registrar.

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 six 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 six 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:

SB107, s. 1 Section 1. 20.921 (2) (a) of the statutes is amended to read:

SB107,8,9 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), 301.12 (14) (e), 767.23 (1) (L) (1c) (i), 767.25 (4m) (c), 767.265, 767.51 (3m) (c) or 767.62 (4) (b) 3. 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.

SB107, s. 2 Section 2. 49.141 (1) (b) of the statutes is amended to read:

SB107,9,2 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).

SB107, s. 3 Section 3. 51.30 (5) (bm) of the statutes is amended to read:

SB107,9,7 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.

SB107, s. 4 Section 4. 55.07 (2) of the statutes is amended to read:

SB107,9,11 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.

SB107, s. 5 Section 5. 102.27 (2) (a) of the statutes is amended to read:

SB107,9,15 102.27 (2) (a) A benefit under this chapter is assignable under s. 46.10 (14) (e), 301.12 (14) (e), 767.23 (1) (L) (1c) (i), 767.25 (4m) (c), 767.265 (1), 767.51 (3m) (c) or 767.62 (4) (b) 3.

SB107, s. 6 Section 6. 115.76 (12) of the statutes is amended to read:

SB107,9,25 115.76 (12) "Parent" means a biological parent; a husband who has consented to the artificial insemination of his wife under s. 891.40; a male who is presumed to be the child's father under s. 891.41; a male who has been adjudicated the child's father under subch. VIII of ch. 48, under ss. 767.45 to 767.51, by final order or judgment of an Indian tribal court of competent jurisdiction or by final order or judgment of a court of competent jurisdiction in another state; an adoptive parent; a legal guardian; a person acting as a parent of a child; a person appointed as a sustaining parent under s. 48.428; or a person assigned as a surrogate parent under s. 115.792 (1) (a) 2. "Parent" does not include any person whose parental rights have been terminated; the state or a county or a child welfare agency if a child was made a ward of the state or a county or child welfare agency under ch. 880 or if a child has been placed in the legal custody or guardianship of the state or a county or a child welfare agency under ch. 48 or ch. 767; or an American Indian tribal agency if the child was made a ward of the agency or placed in the legal custody or guardianship of the agency.

SB107, s. 7 Section 7. 146.835 of the statutes is amended to read:

SB107,10,11 146.835 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.

SB107, s. 8 Section 8. 757.48 (1) (a) of the statutes is amended to read:

SB107,10,18 757.48 (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.

SB107, s. 9 Section 9. 758.19 (5) (a) 2. of the statutes is amended to read:

SB107,10,21 758.19 (5) (a) 2. Fees for expert witnesses called by the guardian ad litem under s. 767.045 (6), 1997 stats., if either or both parties are unable to pay those fees.

SB107, s. 10 Section 10. 767.001 (1s) of the statutes is amended to read:

SB107,11,2 767.001 (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.

SB107, s. 11 Section 11. 767.001 (2) (intro.) and (a) of the statutes are consolidated, renumbered 767.001 (2) and amended to read: