LRB-4203/2
PJK/JEO:ibw/kmg:mkd
1995 - 1996 LEGISLATURE
November 14, 1995 - Introduced by
Joint Legislative Council. Referred to
Committee on Health, Human Services and Aging.
SB420,1,11
1An Act to repeal 767.24 (2) (b) (intro.), 1. and 2. (intro.), a. and b.;
to renumber
2and amend 767.327 (2);
to consolidate, renumber and amend 767.24 (2)
3(a) and (b) 2. c.;
to amend 767.02 (1) (k), 767.23 (1) (a), 767.25 (1m) (em), 767.32
4(2), 767.327 (1) (a) 1., 767.327 (1) (a) 2., 767.327 (1) (b), 767.327 (2) (title),
5767.327 (3) (title), 767.327 (3) (a) 1. (intro.), 767.327 (3) (a) 1. b., 767.327 (3) (a)
62. a., 767.327 (3) (a) 3., 767.327 (3) (b) 1. (intro.) and 814.615 (1) (a) 3.; and
to
7create 767.23 (1) (bm), 767.24 (5) (jm), 767.248, 767.325 (2m), 767.327 (1) (a)
83., 767.327 (2) (b), 767.327 (3) (c), 767.327 (3) (d) and 948.31 (2m) of the statutes;
9relating to: joint legal custody, a custodial parent moving with, or removing,
10a child after divorce, enforcement of physical placement orders, the fee for a
11custody study and providing a penalty.
Analysis by the Legislative Reference Bureau
This bill is explained in the Notes provided by the joint legislative council in
the bill.
For further information see the local fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
Prefatory note: This bill was prepared at the direction of the joint legislative
council's special committee on child custody, support and visitation laws.
The bill includes provisions on the following subjects:
Joint Legal Custody
The bill modifies current law relating to the award of joint legal custody. Under
current law, in rendering a judgment of annulment, divorce, legal separation or custody,
the court may grant joint legal custody of a child to the parties only if the court finds that
to do so is in the child's best interest and both parties agree to joint legal custody or one
party requests joint legal custody and the court specifically finds that both parties are
capable of fulfilling parental obligations and wish to take an active role in child rearing,
both parties will be able to cooperate in future decision-making under joint legal custody
and there are no existing conditions that would substantially interfere with the exercise
of joint legal custody.
This bill removes the above-described conditions on the award of joint legal
custody and provides that, in rendering a judgment of annulment, divorce, legal
separation or custody, the court may give joint legal custody or sole legal custody of a
minor child based on the best interest of the child and after considering certain statutory
factors contained in current law. Those factors are:
1. The wishes of the child's parent or parents.
2. The wishes of the child, which may be communicated by the child or through the
child's guardian ad litem or other appropriate professional.
3. The interaction and interrelationship of the child with his or her parent or
parents, siblings and any other person who may significantly affect the child's best
interest.
4. The child's adjustment to the home, school, religion and community.
5. The mental and physical health of the parties, the minor children and other
persons living in a proposed custodial household.
6. The availability of public or private child care services.
7. Whether one party is likely to unreasonably interfere with the child's continuing
relationship with the other party.
8. Whether there is evidence that a party engaged in abuse of the child, as defined
in s. 48.981 (1) (a) and (b) or 813.122 (1) (a).
9. Whether there is evidence of interspousal battery as described under s. 940.19
or domestic abuse as defined in s. 813.12 (1) (a).
10. Whether either party has or had a significant problem with alcohol or drug
abuse.
11. Such other factors as the court may in each individual case determine to be
relevant.
The bill also adds an additional factor for the courts to consider; namely, whether
the parties will be able to cooperate in the future decision-making required under an
award of joint legal custody.
The bill retains the provision contained in current law that evidence that either
party engaged in abuse of a child as defined in s. 48.981 (1) (a) and (b) or 813.122 (1) (a)
or evidence of interspousal battery as described under s. 940.19 or domestic abuse as
defined in s. 813.12 (1) (a) creates a rebuttable presumption that the parties will not be
able to cooperate in the future decision-making required for joint legal custody. This
presumption may be rebutted by clear and convincing evidence that the abuse will not
interfere with the parties' ability to cooperate in the future decision-making required.
Enforcement of Physical Placement Orders
The bill establishes a mechanism for the enforcement of physical placement orders.
The bill provides that a parent who has been awarded periods of physical placement may
file a petition to enforce the award of physical placement if one of the following applies:
(1) the parent has had one or more periods of physical placement denied by the other
parent; (2) the parent has had one or more periods of physical placement substantially
interfered with by the other parent; or (3) 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 petition must be filed under the principal action under
which the periods of physical placement were awarded. The petition must be served upon
the respondent. The respondent may respond to the petition either in writing before or
at the hearing or orally at the hearing.
The petition must allege facts sufficient to show the identity of the petitioner and
that the petitioner has been awarded periods of physical placement, the name of the
respondent and that one of the criteria identified above applies. The petition must
request that a remedy, or a combination of remedies, described below be imposed on the
respondent. A judge or family court commissioner is not prohibited from imposing a
remedy that was not requested in the petition. A judge or family court commissioner must
accept any legible petition for an order under this section.
The bill requires a judge or family court commissioner to hold a hearing on the
petition no later than 30 days after the petition has been served. A judge or family court
commissioner may, on his or her own motion or the motion of any party, order that a
guardian ad litem be appointed for the child prior to the hearing.
At the conclusion of the hearing, if the judge or family court commissioner finds
that the respondent has intentionally and unreasonably denied or interfered with one or
more of the petitioner's periods of physical placement, the judge or family court
commissioner may issue one of the following orders: (1) an order granting additional
periods of physical placement to replace those denied or interfered with; or (2) an order
specifying times for the exercise of periods of physical placement if the original order or
judgment relating to periods of physical placement does not specify times for physical
placement. Other than granting periods of makeup visitation or entering an order
specifying times for the exercise of periods of physical placement, the bill prohibits the
judge or family court commissioner from otherwise modifying an order of legal custody
or physical placement in an action to enforce physical placement orders.
If the judge or family court commissioner finds that the respondent has
intentionally and unreasonably failed to exercise one or more periods of physical
placement under an order allocating specific times for the exercise of periods of physical
placement without adequate notice to the petitioner which results in the incurrence by
the petitioner of a financial loss or expenses, the judge or family court commissioner may
issue an order requiring the payment of a sum of money sufficient to compensate the
petitioner for the financial loss or expenses.
If the judge or family court commissioner finds that the respondent has
intentionally, unreasonably and repeatedly or intentionally, unreasonably and
egregiously denied or interfered with the petitioner's periods of physical placement, the
judge or family court commissioner may issue an injunction ordering the respondent to
strictly comply with the judgment or order relating to the award of physical placement
or find the respondent in contempt of court.
Under this bill, in determining whether to issue an injunction, the judge or family
court commissioner must consider whether alternative remedies requested by the
petitioner would be as effective in obtaining compliance with the order or judgment
relating to physical placement. An injunction issued as provided in the bill is effective
according to its terms for the period of time that the petitioner requests, but not more than
2 years. If an injunction is issued, the court or family court commissioner, upon request
by the petitioner, must order the sheriff to assist the petitioner to execute or serve the
injunction. Within 24 hours after the petitioner's request, the clerk of court must send
a copy of the injunction to the sheriff or to any other local law enforcement agency which
is the central repository for orders and which has jurisdiction over the respondent's
residence. If the respondent resides outside of Wisconsin, the clerk of court must send
a copy of the injunction to the sheriff of the county in which the court is located. The
sheriff must make available to other law enforcement agencies information on the
existence and status of any injunction issued. The bill also provides that a law
enforcement officer may arrest and take a person into custody if the petitioner presents
a law enforcement officer with a copy of an injunction and the law enforcement officer has
probable cause to believe that the person has violated the injunction issued against the
person. Under provisions of the bill, the first violation of an injunction is a Class B
misdemeanor, and 2nd and subsequent violations constitute a Class E felony if the person
has a previous conviction for intentionally violating an injunction.
Under this bill, in all actions to enforce a physical placement order, the judge or
family court commissioner may also order the respondent to pay a reasonable amount for
the cost to the petitioner of maintaining an action for the enforcement of physical
placement orders and for the petitioner's attorney fees.
The bill also authorizes a court, in an action to modify an order of custody or
physical placement, to modify an order of periods of physical placement if it finds that a
parent has repeatedly and unreasonably failed to exercise periods of physical placement
awarded under an order of physical placement which allocates specific times for the
exercise of periods of physical placement without giving reasonable advance notice to the
other parent.
Child Removal
The bill modifies current law relating to a custodial parent moving with, or
removing, a child after divorce. Under current law, if a court grants periods of physical
placement with a child to both parents in a divorce, a parent who has sole or joint legal
custody of the child must give the other parent notice if he or she intends to establish his
or her legal residence outside the state and remove the child from the state for more than
90 consecutive days or establish his or her legal residence and remove the child within
the state at a distance of 150 miles or more from the other parent. The parent receiving
the notice may send to the parent proposing the action, with a copy to the court, a notice
of objection. The court or family court commissioner must then refer the parties to
mediation. If mediation is not successful in resolving the dispute, the parent who opposes
the move may file with the court a petition, motion or order to show cause for modification
of legal custody or physical placement. The court may modify legal custody or physical
placement if the move will result in a substantial change of circumstances since the last
order affecting legal custody or physical placement and if modification is in the child's
best interest. The court must consider whether the proposed action is reasonable; the
nature and extent of the child's relationship with the other parent and the disruption to
the relationship that the proposed action may cause; and the availability of alternative
arrangements to foster and continue the child's relationship with and access to the other
parent. There is a rebuttable presumption that it is in the child's best interest to remain
with the parent with whom the child currently resides for the greater period of time.
This bill requires a parent who has legal custody of and physical placement with
a child to provide notice to the other parent if he or she intends to establish his or her legal
residence with the child at any location outside the state or at any location within the
state at a distance of 150 miles or more from the other parent or if he or she intends to
remove the child from the state for more than 90 consecutive days. The bill requires that
the notice specifically include the planned date of the move, or the beginning and ending
dates of the removal, and the specific location of the move or removal. If the other parent
sends a notice of objection, the parent proposing the move or removal is prohibited from
taking the proposed action until the dispute is resolved, unless the parent obtains a
temporary order from the court or family court commissioner allowing the move or
removal. As under current law, if mediation is not successful, the parent objecting to the
proposed action may file a petition, motion or order to show cause for modification of legal
custody or physical placement, and the matter proceeds to a hearing before the court. The
bill provides that, as an alternative to modification of legal custody or physical placement,
the objecting parent may request an order prohibiting the move or the removal of the
child. The court considers the same factors as under current law in making its
determination of whether to prohibit the move or the removal of the child. The court may
prohibit the move or the removal if it finds that doing so is in the child's best interest. The
burden of proof is on the parent objecting to the move or removal.
The bill also provides that the rebuttable presumption that it is in the child's best
interest to remain with the parent with whom the child currently resides for the greater
period of time, which applies when the court is asked to modify legal custody or physical
placement, may be overcome by a showing that the move or removal is unreasonable and
not in the child's best interest.
The bill also provides that when making a disposition on a move or removal
petition, motion or order to show cause, the court must allocate responsibility for the
payment of transportation costs for the exercise of physical placement. The court may,
on its own motion or on request of a party, make a finding that its disposition will result
in extraordinary travel expenses incurred in exercising physical placement which may
serve as a basis for adjusting an existing child support order. If the court so finds, it may
modify the child support order in the manner provided in current law. To permit a court
to specifically consider these extraordinary travel expenses, the bill adds a reference to
those expenses incurred as a result of a disposition under s. 767.327 in s. 767.25 (1m) (em),
the current child support factor which permits deviation from the percentage-of-income
standard for extraordinary travel expenses incurred in exercising periods of physical
placement.
Custody Study Fee
Finally, the bill modifies the statutory fee for a custody study. Under current law,
a county may use one of 2 methods to collect fees for the provision of family court
counseling services under s. 767.11, including mediation and custody studies. The county
may establish a fee schedule to recover its reasonable cost of providing those services or
it may collect statutorily prescribed fees for various services. Currently, the statutory fee
for a custody study is $300. This bill increases that fee to $600.
SB420, s. 1
1Section
1
. 767.02 (1) (k) of the statutes is amended to read:
SB420,5,42
767.02
(1) (k) Concerning periods of physical placement or visitation rights to
3children
, including an action to prohibit a move with or the removal of a child under
4s. 767.327 (3) (c).
Note: Sections 1
, 3 and 11 to 24 are identical to the provisions contained in 1995
Senate Bill 132, relating to a custodial parent moving with, or removing, a child after
divorce.
SB420, s. 2
5Section
2
. 767.23 (1) (a) of the statutes is amended to read:
SB420,6,26
767.23
(1) (a) Upon request of one party, granting legal custody of the minor
7children to the parties jointly, to one party solely or to a relative or agency specified
8under s. 767.24 (3).
The court or family court commissioner may order joint legal
9custody without the agreement of the other party and without the findings required
1under s. 767.24 (2) (b) 2. This order may not have a binding effect on a final custody
2determination.
SB420, s. 3
3Section
3
. 767.23 (1) (bm) of the statutes is created to read:
SB420,6,54
767.23
(1) (bm) Allowing a party to move with or remove a child after a notice
5of objection has been filed under s. 767.327 (2) (a).
SB420, s. 4
6Section
4
. 767.24 (2) (a) and (b) 2. c. of the statutes are consolidated,
7renumbered 767.24 (2) and amended to read:
SB420,6,208
767.24
(2) Custody to party; joint or sole. Subject to par. (b), based Based on
9the best interest of the child and after considering the factors under sub. (5), the court
10may give joint legal custody or sole legal custody of a minor child.
(b) 2. c. The parties
11will be able to cooperate in the future decision making required under an award of
12joint legal custody. In making this finding the court shall consider, along with any
13other pertinent items, any reasons offered by a party objecting to joint legal custody. 14Evidence that either party engaged in abuse of the child as defined in s. 48.981 (1)
15(a) and (b) or 813.122 (1) (a) or evidence of interspousal battery as described under
16s. 940.19 or domestic abuse as defined in s. 813.12 (1) (a) creates a rebuttable
17presumption
for purposes of sub. (5) (jm) that the parties will not be able to cooperate
18in the future decision making required
for joint legal custody. This presumption may
19be rebutted by clear and convincing evidence that the abuse will not interfere with
20the parties' ability to cooperate in the future decision making required.
SB420, s. 5
21Section
5
. 767.24 (2) (b) (intro.), 1. and 2. (intro.), a. and b. of the statutes are
22repealed.
Note: Sections 4 and 5 remove the current law conditions on the award of joint
legal custody and provide that the court may give joint legal custody or sole legal custody
of a minor child based on the best interest of the child and after considering certain
statutory factors under current law. The bill retains the presumption contained in
current law that evidence of child abuse or domestic abuse creates a rebuttable
presumption that the parties will not be able to cooperate in future decision-making
required for joint legal custody.
SB420, s. 6
1Section
6. 767.24 (5) (jm) of the statutes is created to read:
SB420,7,32
767.24
(5) (jm) For legal custody, whether the parties will be able to cooperate
3in the future decision making required under an award of joint legal custody.
Note: Creates another factor for the court to consider in deciding legal custody.
SB420, s. 7
4Section
7
. 767.248 of the statutes is created to read:
SB420,7,7
5767.248 Enforcement of physical placement orders. (1) Who may file.
6 A parent who has been awarded periods of physical placement under s. 767.24 may
7file a petition under sub. (4) if any of the following apply:
SB420,7,98
(a) The parent has had one or more periods of physical placement denied by the
9other parent.
SB420,7,1110
(b) The parent has had one or more periods of physical placement substantially
11interfered with by the other parent.
SB420,7,1512
(c) The parent has incurred a financial loss or expenses as a result of the other
13parent's intentional failure to exercise one or more periods of physical placement
14under an order allocating specific times for the exercise of periods of physical
15placement.
SB420,7,19
16(2) Service on respondent; response. Upon the filing of a petition under sub.
17(4), the petitioner shall serve upon the respondent a copy of the petition. The
18respondent may respond to the petition either in writing before or at the hearing
19under sub. (3) (a) or orally at that hearing.
SB420,8,2
20(3) Hearing; remedies. (a) A judge or family court commissioner shall hold a
21hearing on the petition no later than 30 days after the petition has been served. The
22judge or family court commissioner may, on his or her own motion or the motion of
1any party, order that a guardian ad litem be appointed for the child prior to the
2hearing.
SB420,8,43
(b) At the conclusion of the hearing, the judge or family court commissioner
4may do any of the following:
SB420,8,95
1. If the judge or family court commissioner finds that the respondent has
6intentionally and unreasonably denied the petitioner one or more periods of physical
7placement or that the respondent has intentionally and unreasonably interfered
8with one or more of the petitioner's periods of physical placement, issue either of the
9following:
SB420,8,1110
a. An order granting additional periods of physical placement to replace those
11denied or interfered with.
SB420,8,1412
b. If the underlying order or judgment relating to periods of physical placement
13does not provide for specific times for the exercise of periods of physical placement,
14an order specifying the times for the exercise of periods of physical placement.
SB420,8,2415
2. If the judge or family court commissioner finds that the respondent has
16intentionally, unreasonably and repeatedly or intentionally, unreasonably and
17egregiously denied the petitioner periods of physical placement or interfered with
18the petitioner's periods of physical placement, find the respondent in contempt of
19court under ch. 785 or grant an injunction ordering the respondent to strictly comply
20with the judgment or order relating to the award of physical placement. In
21determining whether to issue an injunction, the judge or family court commissioner
22shall consider whether alternative remedies requested by the petitioner would be as
23effective in obtaining compliance with the order or judgment relating to physical
24placement.
SB420,9,7
13. If the judge or family court commissioner finds that the respondent has
2intentionally and unreasonably failed to exercise one or more periods of physical
3placement under an order allocating specific times for the exercise of periods of
4physical placement without adequate notice to the petitioner which results in the
5incurrence by the petitioner of a financial loss or expenses, issue an order requiring
6the payment of a sum of money sufficient to compensate the petitioner for the
7financial loss or expenses.
SB420,9,108
(c) Except as provided in par. (b) 1. a. and b., the judge or family court
9commissioner may not modify an order of legal custody or physical placement in an
10action under this section.
SB420,9,1311
(d) The judge or family court commissioner may order the respondent to pay
12a reasonable amount for the cost to the petitioner of maintaining an action under this
13section and for the petitioner's attorney fees.
SB420,9,1514
(e) An injunction issued under par. (b) 2. is effective according to its terms, for
15the period of time that the petitioner requests, but not more than 2 years.
SB420,9,16
16(4) Petition. (a) The petition shall allege facts sufficient to show the following:
SB420,9,1817
1. The name of the petitioner and that the petitioner has been awarded periods
18of physical placement.
SB420,9,1919
2. The name of the respondent.