In an action to modify a legal custody order, if a party is a service member, as defined in s. 767.41 (2) (e) 1.
, the court may not consider as a factor in making a determination whether the service member has been or may be called to active duty in the U.S. armed forces and consequently is, or in the future will be or may be, absent from the service member's home.
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.
(6m) Parenting plan.
In any action to modify a legal custody or physical placement order under sub. (1)
, the court may require the party seeking the modification to file with the court a parenting plan under s. 767.41 (1m)
before any hearing is held.
(7) Transfer to department.
The court may order custody transferred to the department only if the department agrees to accept custody. If the court orders custody transferred to the department, the order transferring custody shall include the findings and order specified in s. 767.41 (3) (am)
(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. 767.105 (2)
"Necessary" implies that a change of custody itself is needed because custodial conditions are harmful in some way to the best interest of the child. Millikin v. Millikin, 115 Wis. 2d 16
, 339 N.W.2d 573
The revision of s. 767.24 [now s. 767.41] allowing joint custody in cases where both parties did not agree was not a "substantial change in circumstances" justifying a change to joint custody. Licary v. Licary, 168 Wis. 2d 686
, 484 N.W.2d 371
(Ct. App. 1992).
Sub. (1) (a) prohibits a change of custody solely to correct a mother's unreasonable interference with physical placement of the child with the father. Sub. (1) (a) provides a 2-year truce period. Judicial intervention during this period must be compelling. Paternity of Stephanie R.N. 174 Wis. 2d 745
, 488 N.W.2d 235
"Necessary" embodies at least 2 concepts: 1) that the modification must operate to protect the child from alleged harmful custodial conditions; and 2) that the physical or emotional harm threatened by the current custodial conditions must be severe enough to warrant modification. Paternity of Stephanie R.N. 174 Wis. 2d 745
, 488 N.W.2d 235
Section 767.325 does not limit a court's authority to hold a hearing or enter an order during the 2-year "truce period" with the order effective on the conclusion of the truce period. Paternity of Bradford J.B. 181 Wis. 2d 304
, 510 N.W.2d 775
(Ct. App. 1993).
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 Wis. 2d 660
, 536 N.W.2d 216
(Ct. App. 1995), 94-2834
Sub. (1) (b) is inapplicable in guardianship litigation between a parent and a 3rd-party guardian. Howard M. v. Jean R. 196 Wis. 2d 16
, 539 N.W.2d 104
(Ct. App. 1995), 94-0955
Neither sub. (4) nor s. 767.24 (4) (b) [mow s. 767.41 (4) (b)] permits a prospective order prohibiting a parent from requesting a change of physical placement in the future. Jocius v. Jocius, 218 Wis. 2d 103
, 580 N.W.2d 708
(Ct. App. 1998), 96-2746
Sections 767.325 and 767.327 [now ss. 767.451 and 767.481] do not conflict. If one party files a notification of intention 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, but not limited to, the move. Hughes v. Hughes, 223 Wis. 2d 111
, 588 N.W.2d 346
(Ct. App. 1998), 97-3539
When a court denies a parent physical placement, it has the authority to impose conditions for regaining placement, which may include mental health treatment, anger management, individual or family counseling, and parenting training. Conditions imposed must be necessary to protect the child from the danger of physical, emotional, or mental harm if the child is placed with the parent. State v. Alice H. 2000 WI App 228
, 239 Wis. 2d 194
, 619 N.W.2d 151
By asking the trial court for what constituted a substantial modification of placement, the movant effectively conceded that there was a substantial change in circumstances to merit placement modification under sub. (1) (b) 1. and could not maintain a contrary position on appeal. Keller v. Keller, 2002 WI App 161
, 256 Wis. 2d 401
, 647 N.W.2d 426
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
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
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
, 275 Wis. 2d 311
, 685 N.W.2d 546
The s. 767.24 (2) (am) [now s. 767.41 (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
, 275 Wis. 2d 311
, 685 N.W.2d 546
Under s. 767.24 (6) (b) [now s. 767.41 (6) (b)] the court may give one party with joint custody sole power to make specified decisions while both parties retain equal responsibility for others. Because sub. (1) permits a court to modify legal custody and physical placement, the court may modify the terms of the parties' joint custody in a manner that results in a change in the amount of time the child spends in the home of the parent having primary physical placement. The court was authorized to award one party authority to determine school enrollment and to permit that parent's choice of a boarding school although it reduced the amount of time the child spent with the other parent. Greene v. Hahn, 2004 WI App 214
, 277 Wis. 2d 473
, 689 N.W.2d 657
That a child grows older does not, in and of itself, create a substantial change in circumstances. However, when the age change is from infant to adolescent and is accompanied by a pattern of adjustment difficulties, educational failure, and harmful or illegal behavior, and the parties are unable to agree on a major decision affecting the child's life, a substantial change in circumstances has been shown. Greene v. Hahn, 2004 WI App 214
, 277 Wis. 2d 473
, 689 N.W.2d 657
Absent a motion, petition, or order to show cause brought by a party, as required by sub. (1) (b) 1., the trial court lacked authority to amend or modify the custody order from joint custody to sole legal custody. Pero v. Lucas, 2006 WI App 112
, 293 Wis. 2d 781
, 718 N.W.2d 184
Section 767.24 (4) (a) 2. [now s. 767.41] does not require a court to grant each parent equal placement if the court determines that the placement should be modified. In making modification determinations, the circuit court is to maximize the amount of time a child spends with his or her parents within an overall placement schedule, taking into account the best interests of the child, the presumption of the status quo under subs. (1) and (2), the general factors listed in s. 767.24, and the particular factors listed under s. 767.24(5) (am) when relevant to the child. With respect to the modification of legal custody and physical placement orders, maximizing the amount of time cannot be equated with the notion of equal placement. Landwehr v. Landwehr, 2006 WI 64
, 291 Wis. 2d 49
, 715 N.W.2d 180
As in sub. (1), a court is authorized to modify an order under sub. (3) only upon petition, motion, or order to show cause by a party. The statute does not authorize a court to modify a placement order on its own motion. Stumpner v. Cutting, 2010 WI App 65
, 324 Wis. 2d 820
, 783 N.W.2d 874
Revisions agreed to by stipulation.
If after an initial order is entered under s. 767.41
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 unless the court finds that the modification is not in the best interest of the child.
History: 1987 a. 355
; 2005 a. 443
; Stats. 2005 s. 767.461.
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).
Enforcement of physical placement orders. 767.471(1)(a)
"Moving party" means the parent filing a motion under this section, regardless of whether that parent was the petitioner in the action in which periods of physical placement were awarded under s. 767.41
"Responding party" means the parent upon whom a motion under this section is served, regardless of whether that parent was the respondent in the action in which periods of physical placement were awarded under s. 767.41
(2) Who may file.
A parent who has been awarded periods of physical placement under s. 767.41
may file a motion under sub. (3)
if any of the following applies:
The parent has had one or more periods of physical placement denied by the other parent.
The parent has had one or more periods of physical placement substantially interfered with by the other parent.
The parent has incurred a financial loss or expenses as a result of the other parent's intentional failure to exercise one or more periods of physical placement under an order allocating specific times for the exercise of periods of physical placement.
The motion shall allege facts sufficient to show the following:
The name of the moving party and that the moving party has been awarded periods of physical placement.
The motion shall request the imposition of a remedy or any combination of remedies under sub. (5) (b)
. This paragraph does not prohibit a court from imposing a remedy under sub. (5) (b)
if the remedy was not requested in the motion.
A court shall accept any legible motion for an order under this section.
The motion shall be filed under the principal action under which the periods of physical placement were awarded.
(4) Service on responding party; response.
Upon the filing of a motion under sub. (3)
, the moving party shall serve a copy of the motion upon the responding party by personal service in the same manner as a summons is served under s. 801.11
. The responding party may respond to the motion either in writing before or at the hearing under sub. (5) (a)
or orally at that hearing.
The court shall hold a hearing on the motion no later than 30 days after the motion has been served, unless the time is extended by mutual agreement of the parties or upon the motion of a guardian ad litem and the approval of the court. The court may, on its own motion or the motion of any party, order that a guardian ad litem be appointed for the child prior to the hearing.
If at the conclusion of the hearing the court finds that the responding party has intentionally and unreasonably denied the moving party one or more periods of physical placement or that the responding party has intentionally and unreasonably interfered with one or more of the moving party's periods of physical placement, the court:
Issue an order granting additional periods of physical placement to replace those denied or interfered with.
Award the moving party a reasonable amount for the cost of maintaining an action under this section and for attorney fees.
If the underlying order or judgment relating to periods of physical placement does not provide for specific times for the exercise of periods of physical placement, issue an order specifying the times for the exercise of periods of physical placement.
Grant an injunction ordering the responding party to strictly comply with the judgment or order relating to the award of physical placement. In determining whether to issue an injunction, the court shall consider whether alternative remedies requested by the moving party would be as effective in obtaining compliance with the order or judgment relating to physical placement.
If at the conclusion of the hearing the court finds that the moving party has incurred a financial loss or expenses as a result of the responding party's failure, intentionally and unreasonably and without adequate notice to the moving party, to exercise one or more periods of physical placement under an order allocating specific times for the exercise of periods of physical placement, the court may issue an order requiring the responding party to pay to the moving party a sum of money sufficient to compensate the moving party for the financial loss or expenses.
Except as provided in par. (b) 1. a.
and 2. a.
, the court may not modify an order of legal custody or physical placement in an action under this section.
An injunction issued under par. (b) 2. c.
is effective according to its terms for the period of time that the moving party requests, but not more than 2 years.
If an injunction is issued under sub. (5) (b) 2. c.
, upon request by the moving party the court shall order the sheriff to assist the moving party in executing or serving the injunction.
Within 24 hours after a request by the moving party, the clerk of the circuit court shall send a copy of an injunction issued under sub. (5) (b) 2. c.
to the sheriff or to any other local law enforcement agency that is the central repository for orders and that has jurisdiction over the responding party's residence. If the responding party does not reside in this state, the clerk shall send a copy of the injunction to the sheriff of the county in which the circuit court is located.
The sheriff or other appropriate local law enforcement agency under par. (b)
shall make available to other law enforcement agencies, through a verification system, information on the existence and status of any injunction issued under sub. (5) (b) 2. c.
The information need not be maintained after the injunction is no longer in effect.
Whoever intentionally violates an injunction issued under sub. (5) (b) 2. c.
is guilty of a Class I felony.
History: 1999 a. 9
; 2001 a. 61
; 2005 a. 443
; Stats. 2005 s. 767.471.
A successful party in a proceeding under this section is entitled to recover the guardian ad litem fees attributable to him or her as part of the cost of maintaining an action under sub. (5) (b) 1. b, insuring that the full cost of enforcing physical placement rights falls on the interfering parent, not on the aggrieved parent. Under s. 767.045 (6) [now s. 767.407 (6)], a circuit court may allocate guardian ad litem fees between the parties when it makes a finding that a respondent has intentionally and unreasonably denied physical placement or interfered with the petitioner's periods of physical placement. When it makes one or both of those findings, the court must then award the petitioner whatever amount it has allocated to the petitioner. Bernier v. Bernier, 2006 WI App 2
, 288 Wis. 2d 743
, 709 N.W.2d 453
The award "of a reasonable amount for the cost of maintaining an action under this section and for attorney fees" under sub. (5) (b) is mandatory. Sub. (5) (b) does not require that documentation of attorney fees must be received into the evidentiary record of a hearing on the merits of a petition filed under that section in order for a court to make an award of attorney fees. Other cases establish that it is common practice for parties to litigate the amount of attorney fees in proceedings that follow a court's determination of the substantive issues. Borreson v. Yunto, 2006 WI App 63
, 292 Wis. 2d 231
, 713 N.W.2d 656
A parent cannot delegate physical placement rights to another in his or her absence. Thus a father could not seek to enforce his physical placement with his son by transferring that placement to his current spouse. Lubinski v. Lubinski, 2008 WI App 151
, 314 Wis. 2d 395
, 761 N.W.2d 676
Wisconsin's Custody, Placement and Paternity Reform Legislation. Walther. Wis.Law. April 2000.
Moving the child's residence within or outside the state. 767.481(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:
Establish his or her legal residence with the child at any location outside the state.
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.
Remove the child from this state for more than 90 consecutive days.
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)
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.
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. 767.225 (1) (bm)
Upon receipt of a copy of a notice of objection under par. (a)
, the court shall promptly refer the parents for mediation or other family court services under s. 767.405
and may appoint a guardian ad litem. Unless the parents agree to extend the time period, if mediation or family court services do not resolve the dispute within 30 days after referral, the matter shall proceed under subs. (3)
(3) Standards for modification or prohibition if move or removal contested. 767.481(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: