767.325 Annotation
A divorce judgment effecting a prospective change in physical placement, contingent on an assessment of the children's needs, is invalid. A circuit court lacks authority to order a change of physical placement that is both prospective and contingent on the occurrence of an anticipated event. Custody and placement determinations must embody a sense of contemporaneity, whether in original or modification proceedings. Culligan v. Cindric, 2003 WI App 180,
266 Wis. 2d 534,
669 N.W.2d 175,
02-2275.
767.325 Annotation
An order that modifies payments for child support is not an order substantially affecting physical placement as contemplated by sub. (1) (b). Parties have a right to informally agree to change their children's physical placement schedule. That a court order modifying child support acknowledges an informal agreement does not affect physical placement for purposes of this section, and the order to be considered under this section is that which set the placement schedule that was informally modified. Culligan v. Cindric, 2003 WI App 180,
266 Wis. 2d 534,
669 N.W.2d 175,
02-2275.
767.325 Annotation
Sub. (1) (b) does not violate equal protection. Continuity in custody and placement circumstances is beneficial for children, which constitutes a compelling state interest, even when the mother originally acquired custody due to the sole legal custody presumption. Abbas v. Palmersheim, 2004 WI App 126, ___ Wis. 2d ___, ___ N.W.2d ___,
02-3390.
767.325 Annotation
The s. 767.24 (2) (am) presumption that joint legal custody is in the child's best interest applies only in initial legal custody determinations, not in modification determinations. The presumption that the current custody and physical placement arrangement is in the child's best interest under sub. (1) (b) continues to apply in modification cases. Abbas v. Palmersheim, 2004 WI App 126, ___ Wis. 2d ___, ___ N.W.2d ___,
02-3390.
767.327
767.327
Moving the child's residence within or outside the state. 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)(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 circuit 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.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.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)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, unless
s. 767.045 (1) (am) applies, and shall 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.
767.327(5)(b)
(b) The nature and extent of the child's relationship with the other parent and the disruption to that relationship which the proposed action may cause.
767.327(5)(c)
(c) The availability of alternative arrangements to foster and continue the child's relationship with and access to the other parent.
767.327(5m)
(5m) Discretionary factors to consider. In making a determination under
sub. (3), the court may consider the child's adjustment to the home, school, religion and community.
767.327(6)
(6) Notice required for other removals. 767.327(6)(a)(a) Unless the parents agree otherwise, a parent with legal custody and physical placement rights shall notify the other parent before removing the child from his or her primary residence for a period of not less than 14 days.
767.327(6)(b)
(b) Notwithstanding
par. (a), if notice is required under
sub. (1), a parent shall comply with
sub. (1).
767.327(7)
(7) 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.
767.327 Annotation
The sub. (5) factors are an addenda to the best interest of the child considerations of 767.24 and are a reminder to the court to tailor the best interest of the child standard to problems unique to a removal situation. Kerkvliet v. Kerkvliet,
166 Wis. 2d 930,
480 N.W.2d 823 (Ct. App. 1992).
767.327 Annotation
Sections 767.325 and 76.327 do not conflict. If one party files a notification of intent to move under s. 767.327, the other parent may file a motion to modify placement under s. 767.325, and the court may consider all relevant circumstances, including the move. Hughes v. Hughes,
223 Wis. 2d 111,
588 N.W.2d 346 (Ct. App. 1998).
767.327 Annotation
There is no law prohibiting a parent with joint legal custody and physical placement from taking a child outside the state, including to a foreign country, for less than 90 days. When parents agree that one parent must move the court to prohibit the other from taking a particular trip with the children, the moving party has the burden of producing evidence and persuading the court that prohibiting the trip is in the children's best interests. Long v. Ardestant, 2001 WI App 46,
241 Wis. 2d 498,
624 N.W.2d 405.
767.327 Annotation
Wisconsin's Child Removal Law. Wis. Law. June 1993.
767.329
767.329
Revisions agreed to by stipulation. If after an initial order is entered under
s. 767.24, the parties agree to a modification in an order of physical placement or legal custody and file a stipulation with the court that specifies the agreed upon modification, the court shall incorporate the terms of the stipulation into a revised order of physical placement or legal custody.
767.329 History
History: 1987 a. 355.
767.329 Annotation
Acceptance of a stipulation is not mandatory. The trial court is not prohibited from examining the best interests of the child. Paternity of S.A.
165 Wis. 2d 530,
478 N.W.2d 21 (Ct. App. 1991).
767.33
767.33
Annual adjustments in support orders. 767.33(1)(a)(a) An order for child or family support under this chapter may provide for an annual adjustment in the amount to be paid based on a change in the payer's income if the amount of child or family support is expressed in the order as a fixed sum and based on the percentage standard established by the department under
s. 49.22 (9). No adjustment may be made under this section unless the order provides for the adjustment.
767.33(1)(b)
(b) An adjustment under this section may not be made more than once in a year and shall be determined on the basis of the percentage standard established by the department under
s. 49.22 (9).
767.33(1)(c)
(c) In the order the court or circuit court commissioner shall specify what information the parties must exchange to determine whether the payer's income has changed, and shall specify the manner and timing of the information exchange.
767.33(2)
(2) If the court or circuit court commissioner provides for an annual adjustment, the court or circuit court commissioner shall make available to the parties, including the state if the state is a real party in interest under
s. 767.075 (1), a form approved by the court or circuit court commissioner for the parties to use in stipulating to an adjustment of the amount of child or family support and to modification of any applicable income-withholding order. The form shall include an order, to be signed by a judge or circuit court commissioner, for approval of the stipulation of the parties.
767.33(3)(a)(a) If the payer's income changes from the amount found by the court or circuit court commissioner or stipulated to by the parties for the current child or family support order, the parties may implement an adjustment under this section by stipulating, on the form under
sub. (2), to the changed income amount and the adjusted child or family support amount, subject to
sub. (1) (b).
767.33(3)(b)
(b) The stipulation form must be signed by all parties, including the state if the state is a real party in interest under
s. 767.075 (1), and filed with the court. If the stipulation is approved, the order shall be signed by a judge or circuit court commissioner and implemented in the same manner as an order for a revision under
s. 767.32. An adjustment under this subsection shall be effective as of the date on which the order is signed by the judge or circuit court commissioner.
767.33(4)(a)(a) Any party, including the state if the state is a real party in interest under
s. 767.075 (1), may file a motion, petition, or order to show cause for implementation of an annual adjustment under this section if any of the following applies:
767.33(4)(a)2.
2. The payer's income changes, but a party refuses to sign the stipulation for an adjustment in the amount of child or family support.
767.33(4)(b)
(b) If the court or circuit court commissioner determines after a hearing that an adjustment should be made, the court or circuit court commissioner shall enter an order adjusting the child or family support payments by the amount determined by the court or circuit court commissioner, subject to
sub. (1) (b). An adjustment under this subsection may not take effect before the date on which the party responding to the motion, petition, or order to show cause received notice of the action under this subsection.
767.33(4)(c)
(c) Notwithstanding
par. (b), the court or circuit court commissioner may direct that all or part of the adjustment not take effect until such time as the court or circuit court commissioner directs, if any of the following applies:
767.33(4)(c)1.
1. The payee was seeking an adjustment and the payer establishes that extraordinary circumstances beyond his or her control prevent fulfillment of the adjusted child or family support obligation.
767.33(4)(c)2.
2. The payer was seeking an adjustment and the payee establishes that the payer voluntarily and unreasonably reduced his or her income below his or her earning capacity.
767.33(4)(c)3.
3. The payer was seeking an adjustment and the payee establishes that the adjustment would be unfair to the child.
767.33(4)(d)
(d) If in an action under this subsection the court or circuit court commissioner determines that a party has unreasonably failed to provide the information required under
sub. (1) (c) or to provide the information on a timely basis, or unreasonably failed or refused to sign a stipulation for an annual adjustment, the court or circuit court commissioner may award to the aggrieved party actual costs, including service costs, any costs attributable to time missed from employment, the cost of travel to and from court, and reasonable attorney fees.
767.33(5)(a)(a) Nothing in this section affects a party's right to file at any time a motion, petition, or order to show cause under
s. 767.32 for revision of a judgment or order with respect to an amount of child or family support.
767.33(5)(b)
(b) Nothing in this section affects a party's right to move the court for a finding of contempt of court or for remedial sanctions under
ch. 785 if the other party unreasonably fails to provide or disclose information required under this section or unreasonably fails or refuses to sign a stipulation for an annual adjustment.
767.37
767.37
Effect of judgment. 767.37(1)(a)(a) In any action affecting the family, if the court orders maintenance payments or other allowances for a party or children or retains jurisdiction in such matters, the written judgment shall include a provision that disobedience of the court order with respect to the same is punishable under
ch. 785 by commitment to the county jail or house of correction until such judgment is complied with and the costs and expenses of the proceedings are paid or until the party committed is otherwise discharged, according to law. The written judgment in any action affecting the family shall include the social security numbers of the parties and of any child of the parties. The findings of fact and conclusions of law and the written judgment shall be drafted by the attorney for the moving party, and shall be submitted to the court and filed with the clerk of the court within 30 days after judgment is granted; but if the respondent has been represented by counsel, the findings, conclusions and judgment shall first be submitted to respondent's counsel for approval and if the circuit court commissioner has appeared at the trial of the action, such papers shall also be sent to the circuit court commissioner for approval. After any necessary approvals are obtained, the findings of fact, conclusions of law and judgment shall be submitted to the court. Final stipulations of the parties may be appended to the judgment and incorporated by reference therein.
767.37(1)(c)
(c) At the time of filing any judgment for an annulment, divorce or legal separation, the attorney for the moving party shall present to the clerk of court 2 true copies thereof in addition to the original judgment, and until such copies are presented the clerk may refuse to accept such judgment for filing. After the judgment is filed, the clerk shall mail a copy forthwith to each party to the action at the last-known address, and the court record shall show such mailing.
767.37(2)
(2) So far as a judgment of divorce affects the marital status of the parties the court has the power to vacate or modify the judgment for sufficient cause shown, upon its own motion, or upon the application of both parties to the action, at any time within 6 months from the granting of such judgment. No such judgment shall be vacated or modified without service of notice of motion on the office of family court commissioner. The court may direct a circuit court commissioner or appoint some other attorney, to bring appropriate proceedings for the vacation of the judgment. The compensation of the circuit court commissioner when not on a salaried basis or other attorney for performing such services shall be at the rate of $50 per day, which shall be paid out of the county treasury upon order of the presiding judge and the certificate of the clerk of the court. If the judgment is vacated it shall restore the parties to the marital relation that existed before the granting of such judgment. If after vacation of the judgment either of the parties brings an action in this state for divorce against the other the court may order the petitioner in such action to reimburse the county the amount paid by it to the circuit court commissioner or other attorney in connection with such vacation proceedings. Whenever a judgment of divorce is set aside under this subsection, the court shall order the record in the action impounded without regard to
s. 767.19; and thereafter neither the record nor any part of the record shall be offered or admitted into evidence in any action or proceeding except by special order of the court of jurisdiction upon good cause shown in any paternity proceedings under this chapter or by special order of any court of record upon a showing of necessity to clear title to real estate.
767.37(3)
(3) When a judgment of divorce is granted it shall be effective immediately except as provided in
s. 765.03 (2). Every judge who grants a judgment of divorce shall inform the parties appearing in court that the judgment is effective immediately except as provided in
s. 765.03 (2).
767.37 Annotation
Sub. (2) does not authorize vacating or modifying a finding of paternity of children determined in the original divorce judgment. E. v. E.
57 Wis. 2d 436,
204 N.W.2d 503 (1973).
767.37 Annotation
Sub. (2) provides no authority for reopening a divorce judgment as it relates to a property division. Conrad v. Conrad,
92 Wis. 2d 407,
284 N.W.2d 674 (1979).
767.37 Annotation
The death of party within 6 months of a divorce judgment did not void the judgment or divest the court of jurisdiction to order property division. Roeder v. Roeder,
103 Wis. 2d 411,
308 N.W.2d 904 (Ct. App. 1981).
767.38
767.38
Judgment revoked on remarriage. When a judgment of divorce has been granted and the parties shall afterwards intermarry, the court, upon their joint application and upon satisfactory proof of such marriage, shall revoke all judgments and any orders which will not affect the right of 3rd persons and order the record impounded without regard to
s. 767.19 and neither the record nor any part of the record shall be offered or admitted into evidence in any action or proceeding except by special order of the court of jurisdiction upon good cause shown in any paternity proceedings under this chapter or by special order of any court of record upon a showing of necessity to clear title to real estate.
767.38 History
History: 1977 c. 105;
1979 c. 32 ss.
50,
92 (4);
1979 c. 352; Stats. 1979 s. 767.38.
767.39
767.39
Maintenance payments or other allowances pending appeal. 767.39(1)(1) In actions affecting the family pending in an appellate court, no allowance for suit money, counsel fees or disbursements in the court, nor for temporary maintenance payments to the spouse or the children during the pendency of the appeal will be made in the court.
767.39(2)
(2) Allowances specified in
sub. (1), if made at all, shall be made by the proper trial court upon motion made and decided after the entry of the order or judgment appealed from and prior to the return of the record to an appellate court, provided, that if the allowance is ordered before the appeal is taken the order shall be conditioned upon the taking of the appeal and shall be without effect unless and until the record is transmitted to the court of appeals.
