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 Relocating a child's residence.
767.481(1) (1)Motion; filing and serving.
767.481(1)(a)(a) Except as provided in par. (d), if the court grants any periods of physical placement with a child to both parents and one parent intends to relocate and reside with the child 100 miles or more from the other parent, the parent who intends to relocate and reside with the child shall file a motion with the court seeking permission for the child's relocation.
767.481(1)(b) (b) The motion under par. (a) shall include all of the following:
767.481(1)(b)1. 1. A relocation plan including:
767.481(1)(b)1.a. a. The date of the proposed relocation.
767.481(1)(b)1.b. b. The municipality and state of the proposed new residence.
767.481(1)(b)1.c. c. The reason for the relocation.
767.481(1)(b)1.d. d. If applicable, a proposed new placement schedule, including placement during the school year, summers, and holidays.
767.481(1)(b)1.e. e. The proposed responsibility and allocation of costs for each parent for transportation of the child between the parties under any proposed new placement schedule.
767.481(1)(b)2. 2. If applicable, a request for a change in legal custody.
767.481(1)(b)3. 3. Notice to the other parent that, if he or she objects to the relocation, he or she must file and serve, no later than 5 days before the initial hearing, an objection to the relocation and any alternate proposal, including a modification of physical placement or legal custody.
767.481(1)(b)4. 4. An attached “Objection to Relocation" form, furnished by the court, for use by the other parent if he or she objects to the relocation.
767.481(1)(c) (c) The parent filing the motion shall serve a copy of the motion by mail on the other parent at his or her most recent address on file with the court. If the parent filing the motion has actual knowledge that the other parent has a different address from the one on file, the motion shall be served by mail at both addresses.
767.481(1)(d) (d) The requirement to file a motion under par. (a) does not apply if the child's parents already live more than 100 miles apart when a parent proposes to relocate and reside with the child. If the parents already live more than 100 miles apart, the parent who intends to relocate with the child shall serve written notice of his or her intent to relocate on the other parent at least 60 days before relocation. Such written notice shall include the date on which the parent intends to relocate and the parent's new address.
767.481(2) (2)Initial hearing.
767.481(2)(a)(a) Upon the filing of a motion under sub. (1) (a), the court shall schedule an initial hearing to be held within 30 days after the motion is filed and shall provide notice to the parents of the date of the initial hearing. The child may not be relocated pending the initial hearing.
767.481(2)(b) (b) If the court finds at the initial hearing that the parent not filing the motion was properly served and does not appear at the hearing, or appears at the hearing but does not object to the proposed relocation plan, the court shall approve the proposed relocation plan submitted by the parent filing the motion unless the court finds that the proposed relocation plan is not in the best interest of the child.
767.481(2)(c) (c) If the parent not filing the motion appears at the initial hearing and objects to the relocation plan, the court shall do all of the following:
767.481(2)(c)1. 1. Require the parent who objects to respond by stating in writing within 5 business days, if he or she has not already done so, the basis for the objection and his or her proposals for a new placement schedule and transportation responsibilities and costs under sub. (1) (b) 4. and 5. [sub. (1) (b) 1. d. and e.] in the event that the court grants the parent filing the motion permission to relocate with the child. The parent who objects shall file the response with the court and serve a copy of the response by mail on the other parent at his or her most recent address on file with the court. If the parent filing the response has actual knowledge that the other parent has a different address from the one on file, the response shall be served by mail to both addresses.
767.481 Note NOTE: The correct cross-reference is shown in brackets. Corrective legislation is pending.
767.481(2)(c)2. 2. Refer the parties to mediation, unless the court finds that attending mediation would cause undue hardship or endanger the health or safety of a party as provided in s. 767.405 (8) (b).
767.481(2)(c)3. 3. Except as provided in s. 767.407 (1) (am), appoint a guardian ad litem for the child. The court shall provide in the order for appointment, however, that if a mediator is ordered under subd. 2. the guardian ad litem is not required to commence investigation on behalf of the child unless the mediator notifies the court that the parties are unable to reach an agreement on the issue.
767.481(2)(c)4. 4. Set the matter for a further hearing to be held within 60 days.
767.481(3) (3)Relocation pending final hearing.
767.481(3)(a)(a) At the initial hearing, or at any time after the initial hearing but before the final hearing, the court may issue a temporary order under s. 767.225 (1) (bm) to allow the parent proposing the relocation to relocate with the child if the court finds that the relocation is in the child's immediate best interest. The court shall inform the parties, however, that approval of the relocation is subject to revision at the final hearing.
767.481(3)(b) (b) If a court commissioner makes a determination, order, or ruling regarding relocation pending the final hearing under par. (a), either party may seek a review by hearing de novo under s. 757.69 (8). The motion requesting the de novo hearing must be filed with the court within 10 days after the court commissioner orally issues the determination, order, or ruling. The judge shall hold the de novo hearing within 30 days after the motion requesting the de novo hearing is filed, unless the court finds good cause for an extension.
767.481(4) (4)Standards for deciding relocation motions. At the final hearing, the court shall decide the matter as follows:
767.481(4)(a) (a) If the proposed relocation only minimally changes or affects the current placement schedule or does not affect or change the current placement schedule, the court shall approve the proposed relocation, set a new placement schedule if appropriate, and allocate the costs of and responsibility for transportation of the child between the parties under the new placement schedule.
767.481(4)(b) (b) In cases other than that specified in par. (a), the court shall, in determining whether to approve the proposed relocation and a new placement schedule, use the following factors:
767.481(4)(b)1. 1. The factors under s. 767.41 (5).
767.481(4)(b)2. 2. A presumption that the court should approve the plan of the parent proposing the relocation if the court determines that the objecting parent has not significantly exercised court-ordered physical placement.
767.481(4)(b)3. 3. A presumption that the court should approve the relocation plan if the court determines that the parent's relocation is related to abuse, as defined in s. 813.122 (1) (a), of the child, as defined in s. 813.122 (1) (b); a pattern or serious incident of interspousal battery, as described under s. 940.19 or 940.20 (1m); or a pattern or serious incident of domestic abuse, as defined in s. 813.12 (1) (am).
767.481(4)(c) (c) If the objecting parent files a responsive motion that seeks a substantial change in physical placement or a change in legal custody, the court shall, in deciding the motion of the objecting parent, use the following factors:
767.481(4)(c)1. 1. The factors under s. 767.41 (5).
767.481(4)(c)2. 2. A presumption against transferring legal custody or the residence of the child to a parent who the court determines has significantly failed to exercise court-ordered physical placement.
767.481(4)(c)3. 3. A presumption that the court should approve the plan of the parent proposing the relocation if the court determines that the parent's relocation is related to abuse, as defined in s. 813.122 (1) (a), of the child, as defined in s. 813.122 (1) (b); a pattern or serious incident of interspousal battery, as described under s. 940.19 or 940.20 (1m); or a pattern or serious incident of domestic abuse, as defined in s. 813.12 (1) (am).
767.481(4)(d) (d) The court shall decide all contested relocation motions and all related motions for modification of legal custody or physical placement in the best interest of the child. The movant bears the burden of proof in a contested relocation motion or a related motion for modification of legal custody or physical placement except in cases involving a presumption under par. (b) 2. or 3. or (c) 2. or 3. In cases involving a presumption under par. (b) 2. or 3. or (c) 2. or 3., the parent objecting to the relocation shall have the burden of proof in demonstrating the proposed relocation is not in the child's best interest.
767.481(4)(e) (e) If the objecting parent files a responsive motion that seeks a substantial change in physical placement or a change in legal custody, and the parent proposing the relocation withdraws or otherwise fails to pursue his or her relocation motion or the court does not allow the relocation, the court shall proceed on the objecting parent's responsive motion under s. 767.451.
767.481(5) (5)Stipulations. At any time after a motion is filed under sub. (1), if the parties agree that one parent may relocate more than 100 miles away from the other parent, the parties may file a stipulation with the court that specifies that neither parent has any objection to the planned relocation and that sets out any agreed upon modification to legal custody or periods of physical placement, including responsibility and costs for transportation of the child between the parties under a proposed new placement schedule. The court shall incorporate the terms of the stipulation into an order for the relocation or a revised order of legal custody or physical placement, as appropriate, unless the court finds that the modification is not in the best interest of the child.
767.481(6) (6)Other notice required for removals. Except as otherwise provided in an order or judgment allocating periods of physical placement with a child, a person who has legal custody of and periods of physical placement with the child shall notify any other person who has periods of physical placement with the child before removing the child from the child's residence for a period of more than 14 consecutive days.
767.481(7) (7)Applicability.
767.481(7)(a)(a) The requirements and procedures under this section apply to relocations with or removals of a child in any of the following cases:
767.481(7)(a)1. 1. Cases that are originally commenced on or after April 5, 2018.
767.481(7)(a)2. 2. Cases that were originally commenced before April 5, 2018, but in which a legal custody or physical placement order is modified on or after April 5, 2018.
767.481(7)(b) (b) Except as provided in par. (a) 2., the requirements and procedures under s. 767.481, 2015 stats., apply to moves with or removals of a child in cases that were originally commenced before April 5, 2018.
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; 2017 a. 203.
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 Based on the unique facts of this case, the court did not err in ordering that the children be re-enrolled in specific schools and that the mother return to that district so their enrollment could be accomplished while continuing their primary placement with her. Shulka v. Sikraji, 2014 WI App 113, 358 Wis. 2d 639, 856 N.W.2d 617, 13-2080.
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.
767.501(1) (1)Definitions. In this section:
767.501(1)(a) (a) “Nonlegally responsible relative" means a relative who assumes responsibility for the care of a child without legal custody, but is not in violation of a court order. “Nonlegally responsible relative" does not include a relative who has physical custody of a child during a court-ordered visitation period.
767.501(1)(b) (b) “Relative" means any person connected with a child by blood, marriage or adoption.
767.501(2) (2)Who may commence; support determination.
767.501(2)(a)(a) If a person does not provide for the support and maintenance of his or her spouse or minor child, any of the following may commence a court action to compel the person to provide support and maintenance:
767.501(2)(a)1. 1. The person's spouse.
767.501(2)(a)2. 2. The minor child.
767.501(2)(a)3. 3. The person with legal custody of the child.
767.501(2)(a)4. 4. A nonlegally responsible relative.
767.501(2)(b) (b) The court in the action shall, under s. 767.511 or 767.56, determine the amount, if any, that the person should reasonably contribute to the support and maintenance of the spouse or child and how the sum shall be paid. The amount shall be expressed as a fixed sum unless the parties have stipulated to expressing the amount as a percentage of the payer's income and the requirements under s. 767.34 (2) (am) 1. to 3. are satisfied. The amount ordered to be paid may be modified by the court under s. 767.59 upon sufficient evidence.
767.501(2)(c) (c) The determination may be enforced by contempt proceedings, an account transfer under s. 767.76, or other enforcement mechanisms under s. 767.77.
767.501(2)(d) (d) In an action under this section, no filing fee or other costs are taxable to the person's spouse, the minor child, the person with legal custody, or the nonlegally responsible relative, but after the action has been commenced the court may order that all or part of any fees and costs incurred be paid by either party.
767.501(3) (3)Public assistance recipients; action by state. If the state or any subdivision of the state furnishes public aid to a spouse or dependent child for support and maintenance and the spouse, person with legal custody, or nonlegally responsible relative does not commence an action under this chapter for support or maintenance, the person in charge of county welfare activities, the county child support agency under s. 59.53 (5), or the department is a real party in interest under s. 767.205 (2) and shall commence an action under this section. An attorney employed by the state or a subdivision of the state may commence an action under this section. The title of the action shall be “In re the support or maintenance of A.B. (Child)".
767.501(4) (4)Legal custody and physical placement. Upon request of a party to an action under this section, the court may make orders concerning the legal custody and physical placement of any minor child of the parties in accordance with s. 767.41.
767.501 Note NOTE: 2005 Wis. Act 443 contains explanatory notes.
767.501 Annotation To find a party estopped from seeking a revision of a stipulation incorporated into a divorce judgment: 1) both parties must have entered into he stipulation knowingly and freely; 2) the overall settlement must be fair and equitable and not illegal or against public policy; and 3) one party subsequently seeks to be released form its terms on grounds that the court could not have entered the order it did without the parties agreement. Nichols v. Nichols, 162 Wis. 2d 96, 469 N.W.2d 619 (1991).
767.501 Annotation County child support agencies can initiate actions to compel support under this section without payment of a filing fee. 72 Atty. Gen. 72.
767.511 767.511 Child support.
767.511(1)(1)When ordered. When the court approves a stipulation for child support under s. 767.34, enters a judgment of annulment, divorce, or legal separation, or enters an order or a judgment in a paternity action or in an action under s. 767.001 (1) (f) or (j), 767.501, or 767.805 (3), the court shall do all of the following:
767.511(1)(a) (a) Order either or both parents to pay an amount reasonable or necessary to fulfill a duty to support a child. The support amount must be expressed as a fixed sum unless the parties have stipulated to expressing the amount as a percentage of the payer's income and the requirements under s. 767.34 (2) (am) 1. to 3. are satisfied.
767.511(1)(b) (b) Ensure that the parties have stipulated which party, if either is eligible, will claim each child as an exemption for federal income tax purposes under 26 USC 151 (c) (1) (B) [26 USC 151 (c)], or as an exemption for state income tax purposes under s. 71.07 (8) (b) or under the laws of another state. If the parties are unable to reach an agreement about the tax exemption for each child, the court shall make the decision in accordance with state and federal tax laws. In making its decision, the court shall consider whether the parent who is assigned responsibility for the child's health care expenses under s. 767.513 is covered under a health insurance policy or plan, including a self-insured plan, that is not subject to s. 632.897 (10) and that conditions coverage of a dependent child on whether the child is claimed by the insured parent as an exemption for purposes of federal or state income taxes.
767.511 Note NOTE: The correct cross-reference is shown in brackets. Corrective legislation is pending.
767.511(1)(c) (c) In addition to ordering child support for a child under par. (a), assign as a support obligation responsibility for, and direct the manner of payment of, the child's health care expenses under s. 767.513.
767.511(1g) (1g)Consideration of financial information. In determining child support payments, the court may consider all relevant financial information or other information relevant to the parent's earning capacity, including information reported under s. 49.22 (2m) to the department or the county child support agency under s. 59.53 (5).
767.511(1j) (1j)Percentage standard generally required. Except as provided in sub. (1m), the court shall determine child support payments by using the percentage standard established by the department under s. 49.22 (9).
767.511(1m) (1m)Deviation from standard; factors. Upon request by a party, the court may modify the amount of child support payments determined under sub. (1j) if, after considering the following factors, the court finds by the greater weight of the credible evidence that use of the percentage standard is unfair to the child or to any of the parties:
767.511(1m)(a) (a) The financial resources of the child.
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2015-16 Wisconsin Statutes updated through 2017 Wis. Act 273 and all Supreme Court and Controlled Substances Board Orders effective on or before April 14, 2018. Published and certified under s. 35.18. Changes effective after April 14, 2018 are designated by NOTES. (Published 4-14-18)