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:
767.245(3)(a)
(a) The child is a nonmarital child whose parents have not subsequently married each other.
767.245(3)(b)
(b) Except as provided in
sub. (4), the paternity of the child has been determined under the laws of this state or another jurisdiction if the grandparent filing the petition is a parent of the child's father.
767.245(3)(d)
(d) The grandparent has maintained a relationship with the child or has attempted to maintain a relationship with the child but has been prevented from doing so by a parent who has legal custody of the child.
767.245(3)(e)
(e) The grandparent is not likely to act in a manner that is contrary to decisions that are made by a parent who has legal custody of the child and that are related to the child's physical, emotional, educational or spiritual welfare.
767.245(3)(f)
(f) The visitation is in the best interest of the child.
767.245(3c)
(3c) A grandparent requesting visitation under
sub. (3) may file a petition to commence an independent action for visitation under this chapter or may file a petition for visitation in an underlying action affecting the family under this chapter that affects the child.
767.245(3m)(a)(a) A pretrial hearing shall be held before the court in an action under
sub. (3). At the pretrial hearing the parties may present and cross-examine witnesses and present other evidence relevant to the determination of visitation rights. A record or minutes of the proceeding shall be kept.
767.245(3m)(b)
(b) On the basis of the information produced at the pretrial hearing, the court shall evaluate the probability of granting visitation rights to a grandparent in a trial and shall so advise the parties. On the basis of the evaluation, the court may make an appropriate recommendation for settlement to the parties.
767.245(3m)(c)
(c) If a party or the guardian ad litem refuses to accept a recommendation under this subsection, the action shall be set for trial.
767.245(3m)(d)
(d) The informal hearing under this subsection may be terminated and the action set for trial if the court finds it unlikely that all parties will accept a recommendation under this subsection.
767.245(4)
(4) If the paternity of the child has not yet been determined in an action under
sub. (3) that is commenced by a person other than a parent of the child's mother but the person filing the petition under
sub. (3) has, in conjunction with that petition, filed a petition or motion under
s. 767.45 (1) (k), the court shall make a determination as to paternity before determining visitation rights under
sub. (3).
767.245(5)
(5) Any person who interferes with visitation rights granted under
sub. (1) or
(3) may be proceeded against for contempt of court under
ch. 785, except that a court may impose only the remedial sanctions specified in
s. 785.04 (1) (a) and
(c) against that person.
767.245 Annotation
Biological grandparents had no right to visitation following termination of their son's parental rights and adoption by the child's stepfather. In re Marriage of Soergel, 154 W (2d) 564, 453 NW (2d) 624 (1990).
767.245 Annotation
The visitation petition of a custodial parent's widow did not meet the criteria of sub. (1) where, prior to the custodial parent's death the non-custodial parent had filed a motion to revise custody; s. 880.155 governs visitation in the event of a parent's death. In re Marriage of Cox v. Williams, 177 W (2d) 433, 502 NW (2d) 128 (1993).
767.245 Annotation
A paternity case where the court has retained postjudgment authority to enforce the judgment constitutes an underlying action under which a petition for grandparent visitation may be brought. Paternity of Nastassja L.H.-J., 181 W (2d) 666, 512 NW (2d) 189 (Ct. App. 1993).
767.245 Annotation
An existing underlying action affecting the family does not alone provide standing to petition under this section. The underlying action must threaten the integrity of a family unit. An action under this section does not apply to intact families. Because the father figure in a household was not the biological or adoptive father of one of the children did not mean the family was not intact. Marquardt v. Hegemann-Glascock, 190 W (2d) 447, 526 NW (2d) 834 (Ct. App. 1994).
767.245 Annotation
This section does not apply outside the dissolution of a marriage, but it does not preempt the consideration of visitation in circumstances not subject to the statute. A circuit court may consider visitation by a non-parent outside a marriage dissolution situation in the best interests of the child if the non-parent petitioner demonstrates a parent-like relationship with the child and shows a significant triggering event such as substantial interference with that relationship. Custody of H.S.H-K, 193 W (2d) 649, 533 NW (2d) 419 (1995).
767.245 Annotation
Grandparent Visitation Rights. Rothstein. Wis. Law. Nov. 1992.
767.245 Annotation
The Effect of C.G.F. and Section 48.925 on Grandparental Visitation Petitions. Hughes. Wis. Law. Nov. 1992.
767.25(1)(1) Whenever the court approves a stipulation for child support under
s. 767.10, enters a judgment of annulment, divorce or legal separation, or enters an order or a judgment in an action under
s. 767.02 (1) (f) or
(j) or
767.08, the court shall do all of the following:
767.25(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 may be expressed as a percentage of parental income or as a fixed sum, or as a combination of both in the alternative by requiring payment of the greater or lesser of either a percentage of parental income or a fixed sum.
767.25(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), 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
sub. (4m) 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.
767.25(1g)
(1g) 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).
767.25(1j)
(1j) 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).
767.25(1m)
(1m) 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:
