767.23 History
History: 1971 c. 149;
1971 c. 211 s.
126;
1971 c. 220,
307;
1975 c. 283; Sup. Ct. Order, 73 W (2d) xxxi (1976);
1977 c. 105;
1979 c. 32 ss.
50,
92 (4);
1979 c. 111,
196;
1979 c. 352 s.
39; Stats. 1979 s. 767.23;
1983 a. 27;
1983 a. 204 s.
22;
1983 a. 447;
1985 a. 29 s.
3202 (9);
1987 a. 355,
364,
413;
1989 a. 212;
1991 a. 39;
1993 a. 78,
481,
490;
1995 a. 27 ss.
7100h,
9126 (19);
1995 a. 70,
404.
767.23 Annotation
Where a guardian ad litem is appointed where the issue of custody of a child is disputed, his fee should be divided between both parties when their ability to pay is equal. Lacey v. Lacey, 45 W (2d) 378, 173 NW (2d) 142.
767.23 Annotation
An order for attorney's fees is enforceable by contempt; if the judgment only refers to a stipulation for attorney's fees, it is not so enforceable. The court cannot enter a judgment in favor of the attorneys directly. Before a contempt order is issued the defendant must have notice of an application for it which must be made by the wife to whom the fees are payable. O'Connor v. O'Connor, 48 W (2d) 535, 180 NW (2d) 735.
767.23 Annotation
Order directing the husband to contribute $2,000 to the wife's attorney's fees is not an abuse of discretion. Tesch v. Tesch, 63 W (2d) 320, 217 NW (2d) 647.
767.23 Annotation
Denial of the wife's motion for attorneys' fees to prosecute the wife's appeal is held to constitute an abuse of discretion, since the issues in the case were vigorously contested and in no way frivolous. Markham v. Markham, 65 W (2d) 735, 223 NW (2d) 616.
767.23 Annotation
Sub. (3) (a) is strictly construed to apply to those situations expressly set forth in the statute, i.e., orders for dismissal, substitution of attorneys and vacation of judgments, in actions affecting families. In other cases, an action to recover legal fees may be instituted. Kotecki & Radtke, S.C. v. Johnson, 192 W (2d) 429, 531 NW (2d) 606 (Ct. App. 1995).
767.23 Annotation
The federal tax consequences of divorce. Meldman, Ryan, 57 MLR 229.
767.24
767.24
Custody and physical placement. 767.24(1)
(1)
General provisions. In rendering a judgment of annulment, divorce or legal separation, or in rendering a judgment in an action under
s. 767.02 (1) (e), the court shall make such provisions as it deems just and reasonable concerning the legal custody and physical placement of any minor child of the parties, as provided in this section.
767.24(2)
(2) Custody to party; joint or sole. 767.24(2)(a)(a) Subject to
par. (b), based on the best interest of the child and after considering the factors under
sub. (5), the court may give joint legal custody or sole legal custody of a minor child.
767.24(2)(b)
(b) The court may give joint legal custody only if it finds that doing so is in the child's best interest and that either of the following applies:
767.24(2)(b)2.
2. The parties do not agree to joint legal custody, but one party requests joint legal custody and the court specifically finds all of the following:
767.24(2)(b)2.a.
a. Both parties are capable of performing parental duties and responsibilities and wish to have an active role in raising the child.
767.24(2)(b)2.b.
b. No conditions exist at that time which would substantially interfere with the exercise of joint legal custody.
767.24(2)(b)2.c.
c. The parties will be able to cooperate in the future decision making required under an award of joint legal custody. In making this finding the court shall consider, along with any other pertinent items, any reasons offered by a party objecting to joint legal custody. Evidence that either party engaged in abuse, as defined in
s. 813.122 (1) (a), of the child, as defined in
s. 48.02 (2), or evidence of interspousal battery, as described under
s. 940.19 or
940.20 (1m), 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. 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.
767.24(3)(a)(a) If the interest of any child demands it, and if the court finds that neither parent is able to care for the child adequately or that neither parent is fit and proper to have the care and custody of the child, the court may declare the child to be in need of protection or services and transfer legal custody of the child to a relative of the child, as defined in
s. 48.02 (15), to a county department, as defined under
s. 48.02 (2g), or to a licensed child welfare agency. If the court transfers legal custody of a child under this subsection, in its order the court shall notify the parents of any applicable grounds for termination of parental rights under
s. 48.415.
767.24(3)(b)
(b) If the legal custodian appointed under
par. (a) is an agency, the agency shall report to the court on the status of the child at least once each year until the child reaches 18 years of age, is returned to the custody of a parent or is placed under the guardianship of an agency. The agency shall file an annual report no less than 30 days before the anniversary of the date of the order. An agency may file an additional report at any time if it determines that more frequent reporting is appropriate. A report shall summarize the child's permanency plan and the recommendations of the review panel under
s. 48.38 (5), if any.
767.24(3)(c)
(c) The court shall hold a hearing to review the permanency plan within 30 days after receiving a report under
par. (b). At least 10 days before the date of the hearing, the court shall provide notice of the time, date and purpose of the hearing to the agency that prepared the report, the child's parents, the child, if he or she is 12 years of age or over, and the child's foster parent, treatment foster parent or the operator of the facility in which the child is living.
767.24(3)(d)
(d) Following the hearing, the court shall make all of the determinations specified under
s. 48.38 (5) (c) and, if it determines that an alternative placement is in the child's best interest, may amend the order to transfer legal custody of the child to another relative, other than a parent, or to another agency specified under
par. (a).
767.24(3)(e)
(e) The charges for care furnished to a child whose custody is transferred under this subsection shall be pursuant to the procedure under
s. 48.36 (1) or
938.36 (1) except as provided in
s. 767.29 (3).
767.24(4)
(4) Allocation of physical placement. 767.24(4)(a)(a) Except as provided under
par. (b), if the court orders sole or joint legal custody under
sub. (2), the court shall allocate periods of physical placement between the parties in accordance with this subsection. In determining the allocation of periods of physical placement, the court shall consider each case on the basis of the factors in
sub. (5).
767.24(4)(b)
(b) A child is entitled to periods of physical placement with both parents unless, after a hearing, the court finds that physical placement with a parent would endanger the child's physical, mental or emotional health.
767.24(4)(c)
(c) No court may deny periods of physical placement for failure to meet, or grant periods of physical placement for meeting, any financial obligation to the child or the former spouse.
767.24(4)(cm)
(cm) If a court denies periods of physical placement under this section, the court shall give the parent that was denied periods of physical placement the warning provided under
s. 48.356.
767.24(4)(d)
(d) If the court grants periods of physical placement to more than one parent, it shall order a parent with legal custody and physical placement rights to provide the notice required under
s. 767.327 (1).
767.24(5)
(5) Factors in custody and physical placement determinations. In determining legal custody and periods of physical placement, the court shall consider all facts relevant to the best interest of the child. The court may not prefer one potential custodian over the other on the basis of the sex or race of the custodian. The court shall consider reports of appropriate professionals if admitted into evidence when legal custody or physical placement is contested. The court shall consider the following factors in making its determination:
767.24(5)(a)
(a) The wishes of the child's parent or parents.
767.24(5)(b)
(b) The wishes of the child, which may be communicated by the child or through the child's guardian ad litem or other appropriate professional.
767.24(5)(c)
(c) 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.
767.24(5)(d)
(d) The child's adjustment to the home, school, religion and community.
767.24(5)(e)
(e) The mental and physical health of the parties, the minor children and other persons living in a proposed custodial household.
767.24(5)(f)
(f) The availability of public or private child care services.
767.24(5)(g)
(g) Whether one party is likely to unreasonably interfere with the child's continuing relationship with the other party.
767.24(5)(j)
(j) Whether either party has or had a significant problem with alcohol or drug abuse.
767.24(5)(k)
(k) Such other factors as the court may in each individual case determine to be relevant.
767.24(6)(a)(a) If legal custody or physical placement is contested, the court shall state in writing why its findings relating to legal custody or physical placement are in the best interest of the child.
767.24(6)(am)
(am) In making an order of joint legal custody, upon the request of one parent the court shall specify major decisions in addition to those specified under
s. 767.001 (2m).
767.24(6)(b)
(b) Notwithstanding
s. 767.001 (1s), in making an order of joint legal custody, the court may give one party sole power to make specified decisions, while both parties retain equal rights and responsibilities for other decisions.
767.24(6)(c)
(c) In making an order of joint legal custody and periods of physical placement, the court may specify one parent as the primary caretaker of the child and one home as the primary home of the child, for the purpose of determining eligibility for aid under
s. 49.19 or benefits under
ss. 49.141 to
49.161 or for any other purpose the court considers appropriate.
767.24(6)(d)
(d) No party awarded joint legal custody may take any action inconsistent with any applicable physical placement order, unless the court expressly authorizes that action.
767.24(6)(e)
(e) In an order of physical placement, the court shall specify the right of each party to the physical control of the child in sufficient detail to enable a party deprived of that control to implement any law providing relief for interference with custody or parental rights.
767.24(7)(a)(a) Except under
par. (b) or unless otherwise ordered by the court, access to a child's medical, dental and school records is available to a parent regardless of whether the parent has legal custody of the child.
767.24(7)(b)
(b) A parent who has been denied periods of physical placement with a child under this section is subject to
s. 118.125 (2) (m) with respect to that child's school records,
s. 51.30 (5) (bm) with respect to the child's court or treatment records,
s. 55.07 with respect to the child's records relating to protective services and
s. 146.835 with respect to the child's patient health care records.
767.24(7m)
(7m) Medical and medical history information. 767.24(7m)(a)(a) In making an order of legal custody, the court shall order a parent who is not granted legal custody of a child to provide to the court medical and medical history information that is known to the parent. The court shall send the information to the physician or other health care provider with primary responsibility for the treatment and care of the child, as designated by the parent who is granted legal custody of the child, and advise the physician or other health care provider of the identity of the child to whom the information relates. The information provided shall include all of the following:
767.24(7m)(a)1.
1. The known medical history of the parent providing the information, including specific information about stillbirths or congenital anomalies in the parent's family, and the medical histories, if known, of the parents and siblings of the parent and any sibling of the child who is a child of the parent, except that medical history information need not be provided for a sibling of the child if the parent or other person who is granted legal custody of the child also has legal custody, including joint legal custody, of that sibling.
767.24(7m)(a)2.
2. A report of any medical examination that the parent providing the information had within one year before the date of the order.
767.24(7m)(am)
(am) The physician or other health care provider designated under
par. (a) shall keep the information separate from other records kept by the physician or other health care provider. The information shall be assigned an identification number and maintained under the name of the parent who provided the information to the court. The patient health care records of the child that are kept by the physician or other health care provider shall include a reference to that name and identification number. If the child's patient health care records are transferred to another physician or other health care provider or another health care facility, the records containing the information provided under
par. (a) shall be transferred along with the child's patient health care records. Notwithstanding
s. 146.819, the information provided under
par. (a) need not be maintained by a physician or other health care provider after the child reaches age 18.
767.24(7m)(b)1.
1. The physician or other health care provider with custody of the information, or any other record custodian at the request of the physician or other health care provider, shall have access to the information if, in the professional judgment of the physician or other health care provider, the information may be relevant to the child's medical condition.
767.24(7m)(b)2.
2. The physician or other health care provider may release only that portion of the information, and only to a person, that the physician or other health care provider determines is relevant to the child's medical condition.
767.24(8)
(8) Notice in judgment. A judgment which determines the legal custody or physical placement rights of any person to a minor child shall include notification of the contents of
s. 948.31.
767.24(9)
(9) Applicability. Notwithstanding
1987 Wisconsin Act 355, section 73, as affected by
1987 Wisconsin Act 364, the parties may agree to the adjudication of a custody or physical placement order under this section in an action affecting the family that is pending on May 3, 1988.
767.24 History
History: 1971 c. 149,
157,
211;
1975 c. 39,
122,
200,
283;
1977 c. 105,
418;
1979 c. 32 ss.
50,
92 (4);
1979 c. 196; Stats. 1979 s. 767.24;
1981 c. 391;
1985 a. 70,
176;
1987 a. 332 s.
64;
1987 a. 355,
364,
383,
403;
1989 a. 56 s.
259;
1989 a. 359;
1991 a. 32;
1993 a. 213,
446,
481;
1995 a. 77,
100,
275,
289,
343,
375;
1997 a. 35,
191.
767.24 Note
NOTE: 1987 Wis. Act 355, which made many changes in this section, contains a "legislative declaration" in section 1 and explanatory notes.
767.24 Annotation
Impropriety of the award of custody of the child to the mother cannot be predicated on the guardian ad litem's contrary recommendation. Heiting v. Heiting, 64 W (2d) 110, 218 NW (2d) 334.
767.24 Annotation
The award of custody to the father was reversible error where the trial court should have recognized the rule of comity and declined to exercise its jurisdiction. Sheridan v. Sheridan, 65 W (2d) 504, 223 NW (2d) 557.
767.24 Annotation
See note to 767.05, citing LaChapell v. Mawhinney, 66 W (2d) 679, 225 NW (2d) 501.
767.24 Annotation
Res judicata is not to be applied to custody matters with same strictness as to other matters. Kuesel v. Kuesel, 74 W (2d) 636, 247 NW (2d) 72.
767.24 Annotation
See note to 767.045, citing Allen v. Allen, 78 W (2d) 263, 254 NW (2d) 244.
767.24 Annotation
See note to 767.245, citing Bahr v. Galonski, 80 W (2d) 72, 257 NW (2d) 869.
767.24 Annotation
Consideration of evidence concerning mother's attempts to frustrate father's visitation privileges was proper in awarding custody. Marotz v. Marotz, 80 W (2d) 477, 259 NW (2d) 524.
767.24 Annotation
In contesting child custody where the award was by stipulation, full-scale hearing is necessary. Haugen v. Haugen, 82 W (2d) 411, 262 NW (2d) 769.
767.24 Annotation
Court may not order custodial parent to live in designated part of state or else lose custody of children. In re Marriage of Groh v. Groh, 110 W (2d) 117, 327 NW (2d) 655 (1983).
767.24 Annotation
See note to 767.01, citing In re Marriage of Biel v. Biel, 114 W (2d) 191, 336 NW (2d) 404 (Ct. App. 1983).
767.24 Annotation
In custody dispute between parent and third party, unless court finds that parent is unfit or unable to care for child or that there are compelling reasons for denying custody to parent, court must grant custody to parent. Barstad v. Frazier, 118 W (2d) 549, 348 NW (2d) 479 (1984).
767.24 Annotation
Custody and visitation are controlled by statute and case law and cannot be contracted away; co-parenting contract between parent and non-parent unenforceable. In re Interest of Z.J.H. 162 W (2d) 1002, 471 NW (2d) 202 (1991).
767.24 Annotation
Revision of 767.24 allowing joint custody in cases where both parties did not agree was not a "substantial change in circumstances" justifying change to joint custody. Licary v. Licary, 168 W (2d) 686, 484 NW (2d) 371 (Ct. App. 1992).
767.24 Annotation
Section 767.001 (2m) confers the right to choose a child's religion on the custodial parent. Reasonable restrictions on visitation to prevent subversion of this right do not violate the constitution. Lange v. Lange, 175 W (2d) 373, NW (2d) (Ct. App. 1993).
767.24 Annotation
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 W (2d) 660, 536 NW (2d) 216 (Ct. App. 1995).
767.24 Annotation
A custodial parent's right to make major decisions for the children does not give that parent the right to decide whether the actions of the noncustodial parent are consistent with those decisions. Wood v. DeHahn, 214 W (2d) 221, 571 NW (2d) 186 (Ct. App. 1997).
767.24 Annotation
Neither sub. (4) (b) nor s. 767.325 (4) permits a prospective order prohibiting a parent from requesting a change of physical placement in the future. Jocius v. Jocius, 218 W (2d) 103, 580 NW (2d) 708 (Ct. App. 1998).
767.24 Annotation
Section 813.122 implicitly envisions a change of placement and custody if the trial court issues a child abuse injunction under that section against a parent who has custody or placement of a child under a divorce order or judgment. Scott M.H. v. Kathleen M.H. 218 W (2d) 605, 581 NW (2d) 564 (Ct. App. 1998).
767.24 Annotation
Custody—to which parent? Podell, Peck, First, 56 MLR 51.
767.24 Annotation
The best interest of the child doctrine in Wisconsin custody cases. 64 MLR 343 (1980).
767.24 Annotation
Debating the Standard in Child Custody Placement Decisions. Molvig. Wis. Law. July 1998.
767.245
767.245
Visitation rights of certain persons. 767.245(1)
(1) Except as provided in
sub. (2m), upon petition by a grandparent, greatgrandparent, stepparent or person who has maintained a relationship similar to a parent-child relationship with the child, the court may grant reasonable visitation rights to that person if the parents have notice of the hearing and if the court determines that visitation is in the best interest of the child.
767.245(2)
(2) Whenever possible, in making a determination under
sub. (1), the court shall consider the wishes of the child.
767.245(2m)
(2m) Subsection (3), rather than
sub. (1), applies to a grandparent requesting visitation rights under this section if
sub. (3) (a) to
(c) applies to the child.
767.245(3)
(3) The court may grant reasonable visitation rights, with respect to a child, to a grandparent of the child if the child's parents have notice of the hearing and the court determines all of the following:
