767.471(2) (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:
767.471(2)(a) (a) The parent has had one or more periods of physical placement denied by the other parent.
767.471(2)(b) (b) The parent has had one or more periods of physical placement substantially interfered with by the other parent.
767.471(2)(c) (c) 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.
767.471(3) (3)Motion.
767.471(3)(a)(a) The motion shall allege facts sufficient to show the following:
767.471(3)(a)1. 1. The name of the moving party and that the moving party has been awarded periods of physical placement.
767.471(3)(a)2. 2. The name of the responding party.
767.471(3)(a)3. 3. That one or more of the criteria in sub. (2) apply.
767.471(3)(b) (b) The motion shall request the imposition of a remedy or any combination of remedies under sub. (5) (b) and (c). This paragraph does not prohibit a court from imposing a remedy under sub. (5) (b) or (c) if the remedy was not requested in the motion.
767.471(3)(c) (c) A court shall accept any legible motion for an order under this section.
767.471(3)(d) (d) The motion shall be filed under the principal action under which the periods of physical placement were awarded.
767.471(3)(e) (e) A motion under this section is a motion for remedial sanction for purposes of s. 785.03 (1) (a).
767.471(4) (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.
767.471(5) (5)Hearing; remedies.
767.471(5)(a)(a) 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.
767.471(5)(b) (b) 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:
767.471(5)(b)1. 1. Shall do all of the following:
767.471(5)(b)1.a. a. Issue an order granting additional periods of physical placement to replace those denied or interfered with.
767.471(5)(b)1.b. b. Award the moving party a reasonable amount for the cost of maintaining an action under this section and for attorney fees.
767.471(5)(b)2. 2. May do one or more of the following:
767.471(5)(b)2.a. a. 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.
767.471(5)(b)2.b. b. Find the responding party in contempt of court under ch. 785.
767.471(5)(b)2.c. c. 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.
767.471(5)(c) (c) 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.
767.471(5)(d) (d) 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.
767.471(5)(e) (e) 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.
767.471(6) (6)Enforcement assistance.
767.471(6)(a)(a) 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.
767.471(6)(b) (b) 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.
767.471(6)(c) (c) 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.
767.471(8) (8)Penalty. Whoever intentionally violates an injunction issued under sub. (5) (b) 2. c. is guilty of a Class I felony.
767.471 History History: 1999 a. 9; 2001 a. 61, 109; 2005 a. 443 s. 100; Stats. 2005 s. 767.471.
767.471 Note NOTE: 2005 Wis. Act 443 contains explanatory notes.
767.471 Annotation 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, 04-0625.
767.471 Annotation 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, 05-0190.
767.471 Annotation 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, 07-1701.
767.471 Annotation Wisconsin's Custody, Placement and Paternity Reform Legislation. Walther. Wis.Law. April 2000.
767.481 767.481 Moving the child's residence within or outside the state.
767.481(1)(1) Notice to other parent.
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:
767.481(1)(a)1. 1. Establish his or her legal residence with the child at any location outside the state.
767.481(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.
767.481(1)(a)3. 3. Remove the child from this state for more than 90 consecutive days.
767.481(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).
767.481(2) (2)Objection; prohibition; mediation.
767.481(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.
767.481(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. 767.225 (1) (bm).
767.481(2)(c) (c) 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) to (5).
767.481(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:
767.481(3)(a)1.a. a. The modification is in the best interest of the child.
767.481(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.
767.481(3)(a)2. 2. With respect to subd. 1.:
767.481(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.
767.481(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.
767.481(3)(a)3. 3. Under this paragraph, the burden of proof is on the parent objecting to the move or removal.
767.481(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:
767.481(3)(b)1.a. a. Circumstances make it impractical for the parties to continue to have substantially equal periods of physical placement.
767.481(3)(b)1.b. b. The modification is in the best interest of the child.
767.481(3)(b)2. 2. Under this paragraph, the burden of proof is on the parent filing the petition, motion or order to show cause.
767.481(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.
767.481(3)(c)2. 2. Under this paragraph, the burden of proof is on the parent objecting to the move or removal.
767.481(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. 767.407 (1) (am) applies, and shall hold a hearing as soon as possible.
767.481(5) (5)Factors in court's determination. In making its determination under sub. (3), the court shall consider all of the following factors:
767.481(5)(a) (a) Whether the purpose of the proposed action is reasonable.
767.481(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.
767.481(5)(c) (c) The availability of alternative arrangements to foster and continue the child's relationship with and access to the other parent.
767.481(5m) (5m)Other factors. In making a determination under sub. (3):
767.481(5m)(a) (a) The court may consider the child's adjustment to the home, school, religion and community.
767.481(5m)(b) (b) The court may not use the availability of electronic communication as a factor in support of a modification of a physical placement order or in support of a refusal to prohibit a move.
767.481(6) (6)Notice required for other removals.
767.481(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.
767.481(6)(b) (b) Notwithstanding par. (a), if notice is required under sub. (1), a parent shall comply with sub. (1).
767.481(6)(c) (c) Except as provided in par. (b), subs. (1) to (5) do not apply to a notice provided under par. (a).
767.481 History History: 1987 a. 355, 364; 1991 a. 32, 269; 1995 a. 70; 1999 a. 9; 2001 a. 61; 2005 a. 174; 2005 a. 443 s. 164; Stats. 2005 s. 767.481.
767.481 Annotation The trial court may not order a custodial parent to live in designated part of the state or else lose custody. Groh v. Groh, 110 Wis. 2d 117, 327 N.W.2d 655 (1983).
767.481 Annotation The sub. (5) factors are an addenda to the best interest of the child considerations under s. 767.24 [now s. 767.41] 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).
767.481 Annotation Sections 767.325 and 76.327 [now ss. 767.451 and 767.481] do not conflict. If one party files a notification of intent to move under s. 767.327 [now s. 767.481], the other parent may file a motion to modify placement under s. 767.325 [now s. 767.451], 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), 97-3539.
767.481 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. Ardestani, 2001 WI App 46, 241 Wis. 2d 498, 624 N.W.2d 405, 00-1429.
767.481 Annotation Groh is still good law, subject to the expanded authority granted over intrastate moves of 150 or more miles. Accordingly, the circuit court in this case had no authority to prospectively order a parent not move beyond 45 miles from the marital home. By its enactment of this section, the legislature has made a judgment that moves of less than 150 miles are not subject to the best interests of the children standard. Rather than providing a court authority to prohibit geographical separation, s. 767.41 (4) (a) 2. presumes such separation exists and directs the court to consider the separation when establishing a placement schedule. Derleth v. Cordova, 2013 WI App 142, 352 Wis. 2d 51, 841 N.W.2d 552, 12-2018.
767.481 Annotation The circuit court's factual determination that the parent's homes were less than 150 miles apart, by considering a usual and direct route, was not clearly erroneous. Derleth v. Cordova, 2013 WI App 142, 352 Wis. 2d 51, 841 N.W.2d 552, 12-2018.
767.481 Annotation Wisconsin's Child Removal Law. Wis. Law. June 1993.
subch. VI of ch. 767 SUBCHAPTER VI
SUPPORT AND MAINTENANCE
767.501 767.501 Actions to compel support.
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2011-12 Wisconsin Statutes updated through 2013 Wis. Act 380 and all Supreme Court Orders entered before Oct. 4, 2014. Published and certified under s. 35.18. Changes effective after Oct. 4, 2014 are designated by NOTES. (Published 10-4-14)