LRB-4439/1
PJK:kjf:rs
2005 - 2006 LEGISLATURE
February 8, 2006 - Introduced by Senators Plale, Reynolds, A. Lasee and Lazich,
cosponsored by Representatives
Pridemore, Gronemus, Gunderson,
Gundrum, Hahn, Hines, Kestell, Krawczyk, Kreibich, F. Lasee, Musser, Nass,
Ott, Van Roy, Wood, Strachota and Vos. Referred to Committee on Judiciary,
Corrections and Privacy.
SB586,1,9
1An Act to repeal 767.325 (1) (title), 767.325 (1) (b), 767.325 (2) and 767.325 (5m)
2(title);
to renumber and amend 767.325 (1) (a), 767.325 (5m) and 767.325
3(5m) (b);
to amend 767.001 (3), 767.045 (4), 767.11 (10) (intro.), 767.11 (12) (a),
4767.23 (1n) (a), 767.24 (1m) (intro.), 767.24 (4) (a) 2., 767.24 (4) (b), 767.24 (5)
5(am) (intro.), 767.24 (6) (a), 767.325 (2m), 767.325 (3) and 767.325 (6m); and
to
6create 767.325 (2c) (title) of the statutes;
relating to: preparing and filing
7parenting plans, equalizing periods of physical placement to the highest degree
8possible, using parenting plans to determine periods of physical placement, and
9modifying physical placement and custody orders.
Analysis by the Legislative Reference Bureau
Equalizing physical placement; parenting plans
Under current law, in an action affecting the family, such as a divorce or a
paternity action, a court must determine the legal custody of a minor child based on
the best interest of the child. In current law, there is a presumption that joint legal
custody is in the child's best interest. The court also must allocate periods of physical
placement between the parties. The court is required to set a placement schedule
that allows the child to have regularly occurring, meaningful periods of physical
placement with each parent and that maximizes the amount of time the child may
spend with each parent, taking into consideration geographic separation and
accommodations for different households. The court may deny periods of physical
placement with a parent only if the court finds that the physical placement would
endanger the child's physical, mental, or emotional health. When determining
custody and periods of physical placement, the court is required, under current law,
to consider a number of factors (custody and placement factors), such as the wishes
of the child and of the parties, the interaction and interrelationship of the child with
his or her parents, the amount and quality of time that each party has spent with the
child in the past, the mental and physical health of the parties and the child, the
child's adjustment to the home, school, and community, the child's age, the child's
developmental and educational needs, and the cooperation and communication
between the parties.
Also under current law, in an action affecting the family in which legal custody
of, or physical placement with, a child is contested, a party seeking physical
placement or sole or joint legal custody is required to file a parenting plan with the
court before any pretrial conference. In a parenting plan, a parent provides
information about his or her residence and employment and about how he or she
intends to address various issues relating to the child, such as where the child will
go to school, who will provide any necessary child care, who will provide medical
services to the child and how they will be paid, how the holidays will be divided, what
the summer schedule will be, and how disagreements between the parties over
matters relating to the child will be resolved.
Under the bill, a parenting plan must be filed before or when a party makes his
or her first appearance before a judge or circuit court commissioner. The bill requires
a party, when preparing a parenting plan, to consider all facts relevant to the best
interest of the child and the custody and placement factors that the court considers
under current law.
The bill generally changes what the court considers when determining physical
placement. Instead of considering the custody and placement factors, the court must
consider the parenting plans that are filed by the parties. In addition, instead of
maximizing the amount of time a child may spend with each parent, as under current
law, the court must set a placement schedule that equalizes to the highest degree
possible the amount of time the child may spend with each parent, taking into
account geographic separation and accommodations for different households.
However, if the court finds by clear and convincing evidence that equalizing the
amount of time a child may spend with each parent would endanger the child's
physical, mental, or emotional health, then the court must consider the custody and
placement factors and set a placement schedule that protects and promotes the
general welfare and best interests of the child, which may include denying periods
of physical placement to a parent.
Under current law, if legal custody or physical placement is contested, the court
must state in writing why its findings relating to legal custody or physical placement
are in the best interest of the child. Under the bill, if legal custody or physical
placement is contested and the court orders sole legal custody or a placement
schedule that does not equalize placement to the highest degree possible, the court
must state in writing the reasons for its decision.
Modifications to legal custody and physical placement
Under current law, within two years after making an initial order of legal
custody or physical placement a court may not revise legal custody or physical
placement in a manner that substantially alters the time a parent may spend with
his or her child unless the party seeking the modification shows by substantial
evidence that the modification is necessary because the current custodial conditions
are physically or emotionally harmful to the best interest of the child. After two
years, however, the court may make such a modification if the court finds that the
modification is in the best interest of the child and that there has been a substantial
change in circumstances since the last order was made. There is a rebuttable
presumption that continuing the current allocation of decision making concerning
the child and 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.
Current law addresses other situations involving modifications to physical
placement: if the parties have substantially equal periods of physical placement
with the child but circumstances make if impractical for this to continue, the court
may modify physical placement if it is in the best interest of the child; the court may
modify physical placement at any time if the court finds that a parent has repeatedly
and unreasonably failed to exercise specifically allocated periods of physical
placement; the court may modify periods of physical placement in a manner that does
not substantially alter the amount of time each parent spends with the child if it is
in the child's best interest; the court may modify physical placement by denying it
if the court finds that physical placement with a parent would endanger the child's
physical, mental, or emotional health; and the court must modify physical placement
by denying it if a parent has been convicted of the first-degree intentional homicide
of the child's other parent.
Current law also provides that in all cases in which modification of legal
custody or physical placement is sought, the court must consider the custody and
placement factors that the court considers when making initial custody and physical
placement orders and must make its determination in a manner consistent with the
requirements for making its initial determinations on legal custody and physical
placement.
This bill retains the following provisions in current law that apply to
modifications: the provision related to the limited circumstances under which a
court may modify legal custody or physical placement within two years after the
initial order; the provision related to modifying physical placement at any time if the
court finds that a parent has repeatedly and unreasonably failed to exercise
specifically allocated periods of physical placement; the provision related to
modifying periods of physical placement in a manner that does not substantially
alter the amount of time each parent spends with the child if it is in the child's best
interest; the provision related to modifying physical placement by denying it if the
court finds that physical placement with a parent would endanger the child's
physical, mental, or emotional health; and the provision related to modifying
physical placement by denying it if a parent has been convicted of the first-degree
intentional homicide of the child's other parent.
The bill eliminates the following provisions in current law: the provision that
allows the court to modify legal custody or physical placement after two years after
the initial determination if the court finds that the modification is in the best interest
of the child and that there has been a substantial change in circumstances since the
last order was made and the rebuttable presumption that continuing the current
allocation of decision making concerning the child and 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; the provision that allows the court to modify
physical placement if it is in the best interest of the child if the parties have
substantially equal periods of physical placement with the child but circumstances
make if impractical for that to continue; and the requirement that the court consider
the custody and placement factors that the court considers under current law when
making initial custody or physical placement orders. However, the bill retains the
requirement that the court make modification determinations in a manner
consistent with the requirements for making its initial determinations on legal
custody and physical placement.
As a result of these changes in the statutes, the primary changes that the bill
makes to legal custody and physical placement modifications are the following: the
court will not use the custody and placement factors when determining modifications
to legal custody and physical placement; a substantial change in circumstances will
not be required for modifying a legal custody or physical placement order more than
two years after the initial order and there will be no presumption in favor of
continuing the current allocation of decision making or time spent with each parent;
for physical placement modifications after two years after the initial determination,
except for those specific situations related to modifying physical placement that are
retained from current law, the court will be required to set a physical placement
schedule that equalizes to the highest degree possible the time each parent spends
with his or her child; and for modifications of legal custody after two years after the
initial order, there will be a presumption that joint legal custody is in the child's best
interest.
In Abbas v. Palmersheim, 2004 WI App 126, a case related to modifying legal
custody and physical placement, one issue was how to harmonize the rebuttable
presumption in modification actions in favor of continuing the current allocation of
decision making and time spent with each parent with the requirement that the
court make modification determinations in a manner consistent with the
requirements for making its initial determinations on legal custody and physical
placement, including the presumption that joint legal custody is in the child's best
interest. The two provisions taken together would require two different
presumptions in cases to modify legal custody in which the parties did not already
have joint legal custody. The Wisconsin Court of Appeals determined that the
presumption in favor of continuity applied in modification actions and the
presumption in favor of joint legal custody applied only in initial custody
determinations. By eliminating the presumption in favor of continuity in
modification actions, this bill overrules the way in which the court harmonized the
statutes.
Mediation and guardians ad litem
Finally, under current law, mediation in actions affecting the family is defined
in terms of the parties resolving their own disagreements with the best interest of
the child as the paramount consideration. This bill changes that definition so that
the parties' disagreements are resolved in a manner consistent with the
requirements that apply to a court in making its initial determinations on legal
custody and physical placement. Under current law, a mediator is to be guided by
the best interest of the child in executing his or her responsibilities and must certify
to the court that any mediation agreement is in the best interest of the child. The
court may approve or reject a mediation agreement based on the best interest of the
child. Under the bill, a mediator is guided by, and must certify that any mediation
agreement is consistent with, the requirements that apply to a court in making its
initial determinations on legal custody and physical placement and the court may
approve or reject a mediation agreement based on whether it is consistent with those
requirements.
Also under current law, a guardian ad litem in an action affecting the family is
to be an advocate for the best interests of the child and must consider the positions
of others as to the best interest of the child. The bill modifies this so that a guardian
ad litem's advocacy for the best interests of the child must be consistent with the
requirements that apply to a court in making its initial determinations on legal
custody and physical placement and a guardian ad litem is no longer required to
consider the positions of others as to the best interest of the child.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB586, s. 1
1Section
1. 767.001 (3) of the statutes is amended to read:
SB586,5,62
767.001
(3) "Mediation" means a cooperative process involving the parties and
3a mediator, the purpose of which is to help the parties, by applying communication
4and dispute resolution skills, define and resolve their own disagreements,
with the
5best interest of the child as the paramount consideration in a manner consistent with
6s. 767.24.
SB586, s. 2
7Section
2. 767.045 (4) of the statutes is amended to read:
SB586,6,158
767.045
(4) Responsibilities. The guardian ad litem shall be an advocate for
9protecting the welfare of a minor child and for the best interests of
a the minor child
1as to paternity
,; legal custody
, and physical placement
, consistent with s. 767.24; and
2support. The guardian ad litem shall function independently, in the same manner
3as an attorney for a party to the action, and shall consider, but shall not be bound by,
4the wishes of the minor child
or the positions of others as to the best interests of the
5minor child. The guardian ad litem shall consider the factors under s. 767.24 (5)
6(am), subject to s. 767.24 (5) (bm), and custody studies under s. 767.11 (14). The
7guardian ad litem shall investigate whether there is evidence that either parent has
8engaged in interspousal battery, as described in s. 940.19 or 940.20 (1m), or domestic
9abuse, as defined in s. 813.12 (1) (am), and shall report to the court on the results of
10the investigation. The guardian ad litem shall review and comment to the court on
11any mediation agreement and stipulation made under s. 767.11 (12) and on any
12parenting plan filed under s. 767.24 (1m). Unless the child otherwise requests, the
13guardian ad litem shall communicate to the court the wishes of the child as to the
14child's legal custody or physical placement under s. 767.24 (5) (am) 2. The guardian
15ad litem has none of the rights or duties of a general guardian.
SB586, s. 3
16Section
3. 767.11 (10) (intro.) of the statutes is amended to read:
SB586,6,1917
767.11
(10) Powers and duties of mediator. (intro.) A mediator assigned
18under sub. (6) (a) shall be guided by
the best interest of the child s. 767.24 and may
19do any of the following, at his or her discretion:
SB586, s. 4
20Section
4. 767.11 (12) (a) of the statutes is amended to read:
SB586,7,821
767.11
(12) (a) Any agreement which resolves issues of legal custody or periods
22of physical placement between the parties reached as a result of mediation under this
23section shall be prepared in writing, reviewed by the attorney, if any, for each party
, 24and by any appointed guardian ad litem, and submitted to the court to be included
25in the court order as a stipulation. Any reviewing attorney or guardian ad litem shall
1certify on the mediation agreement that he or she reviewed it and the guardian ad
2litem, if any, shall comment on the agreement based on the best interest of the child.
3The mediator shall certify that the written mediation agreement is
in the best
4interest of the child consistent with s. 767.24 based on the information presented to
5the mediator and accurately reflects the agreement made between the parties. The
6court may approve or reject the agreement, based on
the best interest of the child 7whether the agreement is consistent with s. 767.24. The court shall state in writing
8its reasons for rejecting an agreement.
SB586, s. 5
9Section
5. 767.23 (1n) (a) of the statutes is amended to read:
SB586,7,1510
767.23
(1n) (a) Before making any temporary order under sub. (1), the court
11or circuit court commissioner shall consider those factors
and other information that
12the court is required by this chapter to consider before entering a final judgment on
13the same subject matter.
In making a determination under sub. (1) (a) or (am), the
14court or circuit court commissioner shall consider the factors under s. 767.24 (5) (am),
15subject to s. 767.24 (5) (bm).
SB586, s. 6
16Section
6. 767.24 (1m) (intro.) of the statutes is amended to read:
SB586,8,217
767.24
(1m) Parenting plan. (intro.) In an action for annulment, divorce
, or
18legal separation, an action to determine paternity
, or an action under s. 767.02 (1)
19(e) or 767.62 (3) in which legal custody or physical placement is contested, a party
20seeking sole or joint legal custody or periods of physical placement shall file a
21parenting plan with the court
at or before
any pretrial conference the party's first
22appearance before the court or circuit court commissioner. Except for cause shown,
23a party required to file a parenting plan under this subsection who does not timely
24file a parenting plan waives the right to object to the other party's parenting plan.
25In preparing a parenting plan, a party shall consider all facts relevant to the best
1interest of the child and the factors under sub. (5) (am) 1. to 15., subject to sub. (5)
2(bm). A parenting plan shall provide information about the following questions:
SB586, s. 7
3Section
7. 767.24 (4) (a) 2. of the statutes is amended to read:
SB586,8,124
767.24
(4) (a) 2.
In Except as provided in par. (b), in determining the allocation
5of periods of physical placement, the court shall consider each case on the basis of the
6factors in sub. (5) (am), subject to sub. (5) (bm). The parenting plan or plans filed with
7the court under sub. (1m). Except as provided in par. (b), the court shall set a
8placement schedule that allows the child to have regularly occurring, meaningful
9periods of physical placement with each parent and that
maximizes equalizes to the
10highest degree possible the amount of time the child may spend with each parent,
11taking into account geographic separation and accommodations for different
12households.
SB586, s. 8
13Section
8. 767.24 (4) (b) of the statutes is amended to read:
SB586,8,2214
767.24
(4) (b) A child is entitled to periods of physical placement with both
15parents
as provided in par. (a) 2., unless, after a hearing, the court finds that physical
16placement with a parent would endanger the child's physical, mental
, or emotional
17health.
If the court finds by clear and convincing evidence that a placement schedule
18determined as provided in par. (a) 2. would endanger the child's physical, mental, or
19emotional health, the court shall consider the factors under sub. (5) (am), subject to
20sub. (5) (bm), and set a placement schedule that protects and promotes the general
21welfare and best interests of the child, which may include denying a parent periods
22of physical placement.
SB586, s. 9
23Section
9. 767.24 (5) (am) (intro.) of the statutes is amended to read:
SB586,9,624
767.24
(5) (am) (intro.) Subject to par. (bm), in determining legal custody
and
25periods of physical placement, the court shall consider all facts relevant to the best
1interest of the child.
The In determining legal custody and periods of physical
2placement, the court may not prefer one parent or potential custodian over the other
3on the basis of the sex or race of the parent or potential custodian. Subject to par.
4(bm),
in determining legal custody and, if sub. (4) (b) applies, periods of physical
5placement, the court shall consider the following factors in making its
6determination:
SB586, s. 10
7Section
10. 767.24 (6) (a) of the statutes is amended to read:
SB586,9,128
767.24
(6) (a) If legal custody or physical placement is contested
and the court
9orders sole legal custody or a placement schedule that does not equalize to the
10highest degree possible the amount of time that the child may spend with each
11parent, the court shall state in writing
why its findings the reasons for its decision 12relating to legal custody or physical placement
are in the best interest of the child.
SB586, s. 11
13Section
11. 767.325 (1) (title) of the statutes is repealed.
SB586, s. 12
14Section
12. 767.325 (1) (a) of the statutes is renumbered 767.325 (1), and
15767.325 (1) (intro.), as renumbered, is amended to read:
SB586,9,2116
767.325
(1) Within Modification within 2 years after initial order. (intro.)
17Except as provided under sub. (2), a A court may not modify any of the following
18orders before 2 years after the initial order is entered under s. 767.24, unless a party
19seeking the modification, upon petition, motion, or order to show cause shows by
20substantial evidence that the modification is necessary because the current custodial
21conditions are physically or emotionally harmful to the best interest of the child:
SB586, s. 13
22Section
13. 767.325 (1) (b) of the statutes is repealed.
SB586, s. 14
23Section
14. 767.325 (2) of the statutes is repealed.
SB586, s. 15
24Section
15. 767.325 (2c) (title) of the statutes is created to read:
SB586,9,2525
767.325
(2c) (title)
Modification after 2-year period.
SB586, s. 16
1Section
16. 767.325 (2m) of the statutes is amended to read:
SB586,10,92
767.325
(2m) Modification of periods of physical placement for failure to
3exercise physical placement. Notwithstanding
subs. sub. (1)
and (2), upon petition,
4motion
, or order to show cause by a party, a court may modify an order of physical
5placement at any time with respect to periods of physical placement if it finds that
6a parent has repeatedly and unreasonably failed to exercise periods of physical
7placement awarded under an order of physical placement that allocates specific
8times for the exercise of periods of physical placement.
Subsection (2c) does not apply
9to a modification under this subsection.
SB586, s. 17
10Section
17. 767.325 (3) of the statutes is amended to read: