767.32 Annotation See note to 767.26, citing Van Gorder v. Van Gorder, 110 W (2d) 188, 327 NW (2d) 674 (1983).
767.32 Annotation Criteria for change of custody discussed. In re Marriage of Millikin v. Millikin, 115 W (2d) 16, 339 NW (2d) 573 (1983).
767.32 Annotation Where stipulation required maintenance payments during wife's lifetime, husband was estopped from requesting termination of payments under (3) when wife remarried. Marriage of Rintelman v. Rintelman, 118 W (2d) 587, 348 NW (2d) 498 (1984).
767.32 Annotation Court may revise judgment incorporating stipulation regarding limited maintenance if petition to revise is filed before expiration of maintenance obligation. Fobes v. Fobes, 124 W (2d) 72, 368 NW (2d) 643 (1985).
767.32 Annotation Petition for revision filed 20 days after receipt of final scheduled maintenance payment was properly dismissed as untimely. In re Marriage of Lippstreu v. Lippstreu, 125 W (2d) 415, 373 NW (2d) 53 (Ct. App. 1985).
767.32 Annotation "Millikin standard" did not apply to transfer of physical placement of child under existing joint custody arrangement. In re Marriage of Abel v. Johnson, 135 W (2d) 219, 400 NW (2d) 22 (Ct. App. 1986).
767.32 Annotation State family court may modify payor spouse's support obligation following payor's discharge in bankruptcy. In re Marriage of Eckert v. Eckert, 144 W (2d) 770, 424 NW (2d) 759 (Ct. App. 1988).
767.32 Annotation Orders assigning health care responsibility pursuant to 767.25 (4m) are subject to revision under 767.32. Marriage of Kuchenbecker v. Schultz, 151 W (2d) 868, 447 NW (2d) 80 (Ct. App. 1989).
767.32 Annotation It is within trial court's discretion to apply WAC sec. HSS 80 percentage standards to child support revision; if applied to remarried parent, gross income for purposes of base must be computed as if remarried parent is still single. Trial court retains discretion to adjust percentage calculation based on circumstances. In re Marriage of Abitz v. Abitz, 155 W (2d) 161, 455 NW (2d) 609 (1990).
767.32 Annotation Sub. (1m) applies prospectively only and arrearages accruing under support order entered before August 1, 1987, may be modified, reduced or eliminated; trial court may grant credit against arrearages for expenditures made for child in manner other than that prescribed in support order under some circumstances. In re Marriage of Schulz v. Ystad, 155 W (2d) 574, 456 NW (2d) 312 (1990).
767.32 Annotation Remarriage, though unlawful in Wisconsin and dissolved through annulment, is sufficient to terminate maintenance under (3); requirement that maintenance be terminated following remarriage is unconditional. In re Marriage of Falk v. Falk, 158 W (2d) 184, 462 NW (2d) 547 (Ct. App. 1990).
767.32 Annotation Discussion of factors required to find party estopped from seeking maintenance revision. In re Marriage of Nichols v. Nichols, 162 W (2d) 96, 469 NW (2d) 619 (1991).
767.32 Annotation Divorce judgment provisions waiving maintenance take precedence over other provisions arguably reserving or awarding maintenance. In re Marriage of Tyson v. Tyson, 162 W (2d) 551, 469 NW (2d) 913 (Ct. App. 1991).
767.32 Annotation In determining income for maintenance revision, investment income form property awarded in equal property division may be included; interest payments to payee spouse under division may not to be deducted. In Re Marriage of Hommel v. Hommel, 162 W (2d) 782, 471 NW (2d) 1 (1991).
767.32 Annotation Where, pursuant to Schultz, equitable credit for direct expenditures for support in a manner other than included in the divorce order or judgment is justified, it may be reimbursed as well as set-off against an arrearage. In re Marriage of Rummel v. Karlin, 167 W (2d) 400, 481 NW (2d) 695 (Ct. App. 1992).
767.32 Annotation Lottery proceeds won after divorce may be considered a change in financial circumstances in determining whether change in maintenance is justified; maintenance award is to assure recipient spouse a standard of living comparable to that enjoyed during the marriage. In re Marriage of Gerrits v. Gerrits, 167 W (2d) 429, 482 NW (2d) 134 (Ct. App. 1992).
767.32 Annotation Revision of 767.24 allowing joint custody in cases where both parties did not agree was not a "substantial change in circumstances" justifying change to joint custody. Licary v. Licary, 168 W (2d) 686, 484 NW (2d) 371 (Ct. App. 1992).
767.32 Annotation See note to 767.25 citing In Marriage of Zimmerman v. Zimmerman, 169 W (2d) 516, 485 NW (2d) 294 (Ct. App. 1992).
767.32 Annotation Even though incarceration results from intentional criminal conduct, it is a change in circumstance under sub. (1). In re Marriage of Voecks v. Voecks, 171 W (2d) 184, 491 NW (2d) 107 (Ct. App. 1992).
767.32 Annotation Where a payor spouse's termination of employment is voluntary, an order may be based on the spouse's earning capacity whether or not bad faith is shown. In re Marriage of Roberts v. Roberts, 173 W (2d) 406, 496 NW (2d) 210 (Ct. App. 1992).
767.32 Annotation A payor spouse should be allowed a fair choice of livelihood even though an income reduction may result, but the spouse may be found to be shirking where the choice is not reasonable in light of the payor's support obligation. Marriage of Van Offeren v. Van Offeren, 173 W (2d) 482, 496 NW (2d) 660 (Ct. App. 1992).
767.32 Annotation Parties' extrajudicial agreement that child support payments be discontinued was enforceable via the doctrine of equitable estoppel. Harms v. Harms, 174 W (2d) 780, 498 NW (2d) 229 (1993).
767.32 Annotation The date when a maintenance order is vacated under sub. (3) is a discretionary determination based on the specific facts and equities of the case. Hansen v. Hansen, 176 W (2d) 327, 500 NW (2d) 357 (Ct. App. 1993).
767.32 Annotation In the absence of a specific agreement that maintenance payments continue after the payee's remarriage, the payor was not estopped from seeking termination upon the payee's remarriage. Jacobson v. Jacobson, 177 W (2d) 539, 502 NW (2d) 869 (Ct. App. 1993).
767.32 Annotation An agreement that the husband would complete his education when the wife completed hers and the wife's increased income upon completion of her education were both relevant to the husband's request for a change in support upon returning to graduate school full time. Kelly v. Hougham, 178 W (2d) 546, 504 NW (2d) 440 (Ct. App. 1993).
767.32 Annotation Where a broadly worded settlement agreement required the payor to meet the children's current and changing needs rather than to pay a set amount or percentage, a change in the children's needs, although a change in circumstances, did not require a modification of child support to impose percentage guidelines where the court found those needs were being met. Jacquart v. Jacquart 183 W (2d) 372, 515 NW (2d) 539 (Ct. App. 1994).
767.32 Annotation Unlike an initial award of maintenance, a party seeking to change maintenance has the burden of proof. Haeuser v. Haeuser, 200 W (2d) 750, 548 NW (2d) 750 (Ct. App. 1996).
767.32 Annotation Under sub. (1r) a court is without discretion to grant credits against arrearages for direct payments made for child support regardless of when the order was entered. Douglas County Child Support v. Fisher, 200 W (2d) 807, 547 NW (2d) 801 (Ct. App. 1996).
767.32 Annotation See also Wisconsin Administrative Code Citations published in the Wisconsin Administrative Code for a list of citations to cases citing ch. HSS 80, the percentage standards developed by the Department of Health and Social Services.
767.325 767.325 Revision of legal custody and physical placement orders. Except for matters under s. 767.327 or 767.329, the following provisions are applicable to modifications of legal custody and physical placement orders:
767.325(1) (1)Substantial modifications.
767.325(1)(a)(a) Within 2 years after initial order. Except as provided under sub. (2), a court may not modify any of the following orders before 2 years after the initial order is entered under s. 767.24, unless a party seeking the modification, upon petition, motion, or order to show cause shows by substantial evidence that the modification is necessary because the current custodial conditions are physically or emotionally harmful to the best interest of the child:
767.325(1)(a)1. 1. An order of legal custody.
767.325(1)(a)2. 2. An order of physical placement if the modification would substantially alter the time a parent may spend with his or her child.
767.325(1)(b) (b) After 2-year period.
767.325(1)(b)1.1. Except as provided under par. (a) and sub. (2), upon petition, motion or order to show cause by a party, a court may modify an order of legal custody or an order of physical placement where the modification would substantially alter the time a parent may spend with his or her child if the court finds all of the following:
767.325(1)(b)1.a. a. The modification is in the best interest of the child.
767.325(1)(b)1.b. b. There has been a substantial change of circumstances since the entry of the last order affecting legal custody or the last order substantially affecting physical placement.
767.325(1)(b)2. 2. With respect to subd. 1., there is a rebuttable presumption that:
767.325(1)(b)2.a. a. Continuing the current allocation of decision making under a legal custody order is in the best interest of the child.
767.325(1)(b)2.b. b. Continuing the child's physical placement with the parent with whom the child resides for the greater period of time is in the best interest of the child.
767.325(1)(b)3. 3. A change in the economic circumstances or marital status of either party is not sufficient to meet the standards for modification under subd. 1.
767.325(2) (2)Modification of substantially equal physical placement orders. Notwithstanding sub. (1):
767.325(2)(a) (a) If the parties have substantially equal periods of physical placement pursuant to a court order and circumstances make it impractical for the parties to continue to have substantially equal physical placement, a court, upon petition, motion or order to show cause by a party, may modify such an order if it is in the best interest of the child.
767.325(2)(b) (b) In any case in which par. (a) does not apply and in which the parties have substantially equal periods of physical placement pursuant to a court order, a court, upon petition, motion or order to show cause of a party, may modify such an order based on the appropriate standard under sub. (1). However, under sub. (1) (b) 2., there is a rebuttable presumption that having substantially equal periods of physical placement is in the best interest of the child.
767.325(3) (3)Modification of other physical placement orders. Except as provided under subs. (1) and (2), upon petition, motion or order to show cause by a party, a court may modify an order of physical placement which does not substantially alter the amount of time a parent may spend with his or her child if the court finds that the modification is in the best interest of the child.
767.325(4) (4)Denial of physical placement. Upon petition, motion or order to show cause by a party or on its own motion, a court may deny a parent's physical placement rights at any time if it finds that the physical placement rights would endanger the child's physical, mental or emotional health.
767.325(5) (5)Reasons for modification. If either party opposes modification or termination of a legal custody or physical placement order under this section the court shall state, in writing, its reasons for the modification or termination.
767.325(6) (6)Notice. No court may enter an order for modification under this section until notice of the petition, motion or order to show cause requesting modification has been given to the child's parents, if they can be found, and to any relative or agency having custody of the child.
767.325(7) (7)Transfer to department. The court may order custody transferred to the department of health and family services only if that department agrees to accept custody.
767.325(8) (8)Petition, motion or order to show cause. A petition, motion or order to show cause under this section shall include notification of the availability of information under s. 767.081 (2).
767.325(9) (9)Applicability. Notwithstanding 1987 Wisconsin Act 355, section 73, as affected by 1987 Wisconsin Act 364, the parties may agree to the adjudication of a modification of a legal custody or physical placement order under this section in an action affecting the family that is pending on May 3, 1988.
767.325 History History: 1987 a. 355, 364; 1995 a. 27 s. 9126 (19).
767.325 Note NOTE: 1987 Wis. Act 355, which created this section, contains explanatory notes.
767.325 Annotation Sub. (1) (a) prohibits change of custody solely to correct mother's unreasonable interference with physical placement of the child with the father. Sub. (1) (a) provides a two year truce period, judicial intervention during this period must be compelling. Paternity of Stephanie R.N. 174 W (2d) 745, 488 NW (2d) 235 (1993).
767.325 Annotation Section 767.325 does not limit a court's authority to hold a hearing or enter an order during the two year "truce period" with the order effective on the conclusion of the truce period. Paternity of Bradford J.B., 181 W (2d) 304, 510 NW (2d) 775 (Ct. App. 1993).
767.325 Annotation There is no authority to order a change of custody at an unknown time in the future upon the occurrence of some stated contingency. Koeller v. Koeller, 195 W (2d) 660, 536 NW (2d) 216 (Ct. App. 1995).
767.325 Annotation Sub. (1) (b) is inapplicable in guardianship litigation between a parent and a third party guardian. Howard M. v. Jean R. 196 W (2d) 16, 539 NW (2d) 104 (Ct. App. 1995).
767.327 767.327 Moving the child's residence within or outside the state.
767.327(1)(1)Notice to other parent.
767.327(1)(a)(a) If the court grants periods of physical placement to more than one parent, it shall order a parent with legal custody of and physical placement rights to a child to provide not less than 60 days written notice to the other parent, with a copy to the court, of his or her intent to:
767.327(1)(a)1. 1. Establish his or her legal residence with the child at any location outside the state.
767.327(1)(a)2. 2. Establish his or her legal residence with the child at any location within this state that is at a distance of 150 miles or more from the other parent.
767.327(1)(a)3. 3. Remove the child from this state for more than 90 consecutive days.
767.327(1)(b) (b) The parent shall send the notice under par. (a) by certified mail. The notice shall state the parent's proposed action, including the specific date and location of the move or specific beginning and ending dates and location of the removal, and that the other parent may object within the time specified in sub. (2) (a).
767.327(2) (2)Objection; prohibition; mediation.
767.327(2)(a)(a) Within 15 days after receiving the notice under sub. (1), the other parent may send to the parent proposing the move or removal, with a copy to the court, a written notice of objection to the proposed action.
767.327(2)(b) (b) If the parent who is proposing the move or removal receives a notice of objection under par. (a) within 20 days after sending a notice under sub. (1) (a), the parent may not move with or remove the child pending resolution of the dispute, or final order of the court under sub. (3), unless the parent obtains a temporary order to do so under s. 767.23 (1) (bm).
767.327(2)(c) (c) Upon receipt of a copy of a notice of objection under par. (a), the court or family court commissioner shall promptly refer the parents for mediation or other family court counseling services under s. 767.11 and may appoint a guardian ad litem. Unless the parents agree to extend the time period, if mediation or counseling services do not resolve the dispute within 30 days after referral, the matter shall proceed under subs. (3) to (5).
767.327(3) (3)Standards for modification or prohibition if move or removal contested.
767.327(3)(a)1.1. Except as provided under par. (b), if the parent proposing the move or removal has sole legal or joint legal custody of the child and the child resides with that parent for the greater period of time, the parent objecting to the move or removal may file a petition, motion or order to show cause for modification of the legal custody or physical placement order affecting the child. The court may modify the legal custody or physical placement order if, after considering the factors under sub. (5), the court finds all of the following:
767.327(3)(a)1.a. a. The modification is in the best interest of the child.
767.327(3)(a)1.b. b. The move or removal will result in a substantial change of circumstances since the entry of the last order affecting legal custody or the last order substantially affecting physical placement.
767.327(3)(a)2. 2. With respect to subd. 1.:
767.327(3)(a)2.a. a. There is a rebuttable presumption that continuing the current allocation of decision making under a legal custody order or continuing the child's physical placement with the parent with whom the child resides for the greater period of time is in the best interest of the child. This presumption may be overcome by a showing that the move or removal is unreasonable and not in the best interest of the child.
767.327(3)(a)2.b. b. A change in the economic circumstances or marital status of either party is not sufficient to meet the standards for modification under that subdivision.
767.327(3)(a)3. 3. Under this paragraph, the burden of proof is on the parent objecting to the move or removal.
767.327(3)(b)1.1. If the parents have joint legal custody and substantially equal periods of physical placement with the child, either parent may file a petition, motion or order to show cause for modification of the legal custody or physical placement order. The court may modify an order of legal custody or physical placement if, after considering the factors under sub. (5), the court finds all of the following:
767.327(3)(b)1.a. a. Circumstances make it impractical for the parties to continue to have substantially equal periods of physical placement.
767.327(3)(b)1.b. b. The modification is in the best interest of the child.
767.327(3)(b)2. 2. Under this paragraph, the burden of proof is on the parent filing the petition, motion or order to show cause.
767.327(3)(c)1.1. If the parent proposing the move or removal has sole legal or joint legal custody of the child and the child resides with that parent for the greater period of time or the parents have substantially equal periods of physical placement with the child, as an alternative to the petition, motion or order to show cause under par. (a) or (b), the parent objecting to the move or removal may file a petition, motion or order to show cause for an order prohibiting the move or removal. The court may prohibit the move or removal if, after considering the factors under sub. (5), the court finds that the prohibition is in the best interest of the child.
767.327(3)(c)2. 2. Under this paragraph, the burden of proof is on the parent objecting to the move or removal.
767.327(4) (4)Guardian ad litem; prompt hearing. After a petition, motion or order to show cause is filed under sub. (3), the court shall appoint a guardian ad litem and hold a hearing as soon as possible.
767.327(5) (5)Factors in court's determination. In making its determination under sub. (3), the court shall consider all of the following factors:
767.327(5)(a) (a) Whether the purpose of the proposed action is reasonable.
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