767.32 Annotation
See note to 767.25 citing In Marriage of Zimmerman v. Zimmerman, 169 W (2d) 516, 485 NW (2d) 294 (Ct. App. 1992).
767.32 Annotation
Even though incarceration results from intentional criminal conduct, it is a change in circumstance under sub. (1). In re Marriage of Voecks v. Voecks, 171 W (2d) 184, 491 NW (2d) 107 (Ct. App. 1992).
767.32 Annotation
Where a payor spouse's termination of employment is voluntary, an order may be based on the spouse's earning capacity whether or not bad faith is shown. In re Marriage of Roberts v. Roberts, 173 W (2d) 406, 496 NW (2d) 210 (Ct. App. 1992).
767.32 Annotation
A payor spouse should be allowed a fair choice of livelihood even though an income reduction may result, but the spouse may be found to be shirking where the choice is not reasonable in light of the payor's support obligation. Marriage of Van Offeren v. Van Offeren, 173 W (2d) 482, 496 NW (2d) 660 (Ct. App. 1992).
767.32 Annotation
Parties' extrajudicial agreement that child support payments be discontinued was enforceable via the doctrine of equitable estoppel. Harms v. Harms, 174 W (2d) 780, 498 NW (2d) 229 (1993).
767.32 Annotation
The date when a maintenance order is vacated under sub. (3) is a discretionary determination based on the specific facts and equities of the case. Hansen v. Hansen, 176 W (2d) 327, 500 NW (2d) 357 (Ct. App. 1993).
767.32 Annotation
In the absence of a specific agreement that maintenance payments continue after the payee's remarriage, the payor was not estopped from seeking termination upon the payee's remarriage. Jacobson v. Jacobson, 177 W (2d) 539, 502 NW (2d) 869 (Ct. App. 1993).
767.32 Annotation
An agreement that the husband would complete his education when the wife completed hers and the wife's increased income upon completion of her education were both relevant to the husband's request for a change in support upon returning to graduate school full time. Kelly v. Hougham, 178 W (2d) 546, 504 NW (2d) 440 (Ct. App. 1993).
767.32 Annotation
Where a broadly worded settlement agreement required the payor to meet the children's current and changing needs rather than to pay a set amount or percentage, a change in the children's needs, although a change in circumstances, did not require a modification of child support to impose percentage guidelines where the court found those needs were being met. Jacquart v. Jacquart 183 W (2d) 372, 515 NW (2d) 539 (Ct. App. 1994).
767.32 Annotation
Unlike an initial award of maintenance, a party seeking to change maintenance has the burden of proof. Haeuser v. Haeuser, 200 W (2d) 750, 548 NW (2d) 750 (Ct. App. 1996).
767.32 Annotation
Under sub. (1r) a court is without discretion to grant credits against arrearages for direct payments made for child support regardless of when the order was entered. Douglas County Child Support v. Fisher, 200 W (2d) 807, 547 NW (2d) 801 (Ct. App. 1996).
767.32 Annotation
A change in an administrative rule, absent a change in factual circumstances, is not grounds for modification a child support order. Beaupre v. Airriess, 208 W (2d) 238, 560 NW (2d) 285 (Ct. App. 1997).
767.32 Annotation
Where a support order is not based on the percentage standards, the passage of 33 months gives a party a prima facie claim under sub. (1) (b) 2. that child support should be modified, but the family court maintains it discretion whether the percentage guidelines should be applied. Zutz v. Zutz, 208 W (2d) 338, 559 NW (2d) 914 (Ct. App. 1997).
767.32 Annotation
A stipulation incorporated into a divorce judgment is in the nature of a contract. That a stipulation appears imprudent is not grounds for construction of an unambiguous agreement. Rosplock v. Rosplock, 217 W (2d) 22, 577 NW (2d) 32 (Ct. App. 1998).
767.32 Annotation
The purpose of maintenance is, at least in part, to put the recipient in a solid financial position that allows the recipient to become self-supporting by the end of the maintenance period. That the recipient becomes employed and makes productive investments of property division proceeds and maintenance payments is not a substantial change in circumstances, but an expected result of receiving maintenance. Rosplock v. Rosplock, 217 W (2d) 22, 577 NW (2d) 32 (Ct. App. 1998).
767.32 Annotation
The "fairness objective" of equalizing total income does not apply in a postdivorce situation. Modification of maintenance has nothing to do with contributions, economic or noneconomic, made during the marriage. Johnson v. Johnson, 217 W (2d) 124, 576 NW (2d) 585 (Ct. App. 1998).
767.32 Annotation
The limitation under sub. (1m) that a court may not revise the amount of child support due or the amount of arrearages restricts the court's authority to that of correcting mathematical errors only. State v. Jeffrie C. B. 218 W (2d) 145, 579 NW (2d) 69 (Ct. App. 1997).
767.32 Annotation
See also Wisconsin Administrative Code Citations published in the Wisconsin Administrative Code for a list of citations to cases citing ch. HSS 80, the percentage standards developed by the Department of Health and Social Services.
767.325
767.325
Revision of legal custody and physical placement orders. Except for matters under
s. 767.327 or
767.329, the following provisions are applicable to modifications of legal custody and physical placement orders:
767.325(1)(a)(a)
Within 2 years after initial order. Except as provided under
sub. (2), a court may not modify any of the following orders before 2 years after the initial order is entered under
s. 767.24, unless a party seeking the modification, upon petition, motion, or order to show cause 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:
767.325(1)(a)2.
2. An order of physical placement if the modification would substantially alter the time a parent may spend with his or her child.
767.325(1)(b)1.1. Except as provided under
par. (a) and
sub. (2), upon petition, motion or order to show cause by a party, a court may modify an order of legal custody or an order of physical placement where the modification would substantially alter the time a parent may spend with his or her child if the court finds all of the following:
767.325(1)(b)1.b.
b. There has been a substantial change of circumstances since the entry of the last order affecting legal custody or the last order substantially affecting physical placement.
767.325(1)(b)2.a.
a. Continuing the current allocation of decision making under a legal custody order is in the best interest of the child.
767.325(1)(b)2.b.
b. 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.
767.325(1)(b)3.
3. A change in the economic circumstances or marital status of either party is not sufficient to meet the standards for modification under
subd. 1.
767.325(2)
(2) Modification of substantially equal physical placement orders. Notwithstanding
sub. (1):
767.325(2)(a)
(a) If the parties have substantially equal periods of physical placement pursuant to a court order and circumstances make it impractical for the parties to continue to have substantially equal physical placement, a court, upon petition, motion or order to show cause by a party, may modify such an order if it is in the best interest of the child.
767.325(2)(b)
(b) In any case in which
par. (a) does not apply and in which the parties have substantially equal periods of physical placement pursuant to a court order, a court, upon petition, motion or order to show cause of a party, may modify such an order based on the appropriate standard under
sub. (1). However, under
sub. (1) (b) 2., there is a rebuttable presumption that having substantially equal periods of physical placement is in the best interest of the child.
767.325(3)
(3) Modification of other physical placement orders. Except as provided under
subs. (1) and
(2), upon petition, motion or order to show cause by a party, a court may modify an order of physical placement which does not substantially alter the amount of time a parent may spend with his or her child if the court finds that the modification is in the best interest of the child.
767.325(4)
(4) Denial of physical placement. Upon petition, motion or order to show cause by a party or on its own motion, a court may deny a parent's physical placement rights at any time if it finds that the physical placement rights would endanger the child's physical, mental or emotional health.
767.325(5)
(5) Reasons for modification. If either party opposes modification or termination of a legal custody or physical placement order under this section the court shall state, in writing, its reasons for the modification or termination.
767.325(6)
(6) Notice. No court may enter an order for modification under this section until notice of the petition, motion or order to show cause requesting modification has been given to the child's parents, if they can be found, and to any relative or agency having custody of the child.
767.325(7)
(7) Transfer to department. The court may order custody transferred to the department of health and family services only if that department agrees to accept custody.
767.325(8)
(8) Petition, motion or order to show cause. A petition, motion or order to show cause under this section shall include notification of the availability of information under
s. 767.081 (2).
767.325(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 modification of a legal custody or physical placement order under this section in an action affecting the family that is pending on May 3, 1988.
767.325 History
History: 1987 a. 355,
364;
1995 a. 27 s.
9126 (19).
767.325 Note
NOTE: 1987 Wis. Act 355, which created this section, contains explanatory notes.
767.325 Annotation
Sub. (1) (a) prohibits change of custody solely to correct mother's unreasonable interference with physical placement of the child with the father. Sub. (1) (a) provides a two year truce period, judicial intervention during this period must be compelling. Paternity of Stephanie R.N. 174 W (2d) 745, 488 NW (2d) 235 (1993).
767.325 Annotation
Section 767.325 does not limit a court's authority to hold a hearing or enter an order during the two year "truce period" with the order effective on the conclusion of the truce period. Paternity of Bradford J.B., 181 W (2d) 304, 510 NW (2d) 775 (Ct. App. 1993).
767.325 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).
767.325 Annotation
Sub. (1) (b) is inapplicable in guardianship litigation between a parent and a third party guardian. Howard M. v. Jean R. 196 W (2d) 16, 539 NW (2d) 104 (Ct. App. 1995).
767.325 Annotation
Neither sub. (4) nor s. 767.24 (4) (b) 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).
767.327
767.327
Moving the child's residence within or outside the state. 767.327(1)(a)(a) If the court grants periods of physical placement to more than one parent, it shall order a parent with legal custody of and physical placement rights to a child to provide not less than 60 days written notice to the other parent, with a copy to the court, of his or her intent to:
767.327(1)(a)1.
1. Establish his or her legal residence with the child at any location outside the state.
767.327(1)(a)2.
2. Establish his or her legal residence with the child at any location within this state that is at a distance of 150 miles or more from the other parent.
767.327(1)(a)3.
3. Remove the child from this state for more than 90 consecutive days.
767.327(1)(b)
(b) The parent shall send the notice under
par. (a) by certified mail. The notice shall state the parent's proposed action, including the specific date and location of the move or specific beginning and ending dates and location of the removal, and that the other parent may object within the time specified in
sub. (2) (a).
767.327(2)(a)(a) Within 15 days after receiving the notice under
sub. (1), the other parent may send to the parent proposing the move or removal, with a copy to the court, a written notice of objection to the proposed action.
767.327(2)(b)
(b) If the parent who is proposing the move or removal receives a notice of objection under
par. (a) within 20 days after sending a notice under
sub. (1) (a), the parent may not move with or remove the child pending resolution of the dispute, or final order of the court under
sub. (3), unless the parent obtains a temporary order to do so under
s. 767.23 (1) (bm).
767.327(2)(c)
(c) Upon receipt of a copy of a notice of objection under
par. (a), the court or family court commissioner shall promptly refer the parents for mediation or other family court counseling services under
s. 767.11 and may appoint a guardian ad litem. Unless the parents agree to extend the time period, if mediation or counseling services do not resolve the dispute within 30 days after referral, the matter shall proceed under
subs. (3) to
(5).
767.327(3)
(3) Standards for modification or prohibition if move or removal contested. 767.327(3)(a)1.1. Except as provided under
par. (b), if the parent proposing the move or removal has sole legal or joint legal custody of the child and the child resides with that parent for the greater period of time, the parent objecting to the move or removal may file a petition, motion or order to show cause for modification of the legal custody or physical placement order affecting the child. The court may modify the legal custody or physical placement order if, after considering the factors under
sub. (5), the court finds all of the following:
767.327(3)(a)1.b.
b. The move or removal will result in a substantial change of circumstances since the entry of the last order affecting legal custody or the last order substantially affecting physical placement.
767.327(3)(a)2.a.
a. There is a rebuttable presumption that continuing the current allocation of decision making under a legal custody order or 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. This presumption may be overcome by a showing that the move or removal is unreasonable and not in the best interest of the child.
767.327(3)(a)2.b.
b. A change in the economic circumstances or marital status of either party is not sufficient to meet the standards for modification under that subdivision.
767.327(3)(a)3.
3. Under this paragraph, the burden of proof is on the parent objecting to the move or removal.
767.327(3)(b)1.1. If the parents have joint legal custody and substantially equal periods of physical placement with the child, either parent may file a petition, motion or order to show cause for modification of the legal custody or physical placement order. The court may modify an order of legal custody or physical placement if, after considering the factors under
sub. (5), the court finds all of the following:
767.327(3)(b)1.a.
a. Circumstances make it impractical for the parties to continue to have substantially equal periods of physical placement.
767.327(3)(b)2.
2. Under this paragraph, the burden of proof is on the parent filing the petition, motion or order to show cause.
767.327(3)(c)1.1. If the parent proposing the move or removal has sole legal or joint legal custody of the child and the child resides with that parent for the greater period of time or the parents have substantially equal periods of physical placement with the child, as an alternative to the petition, motion or order to show cause under
par. (a) or
(b), the parent objecting to the move or removal may file a petition, motion or order to show cause for an order prohibiting the move or removal. The court may prohibit the move or removal if, after considering the factors under
sub. (5), the court finds that the prohibition is in the best interest of the child.
767.327(3)(c)2.
2. Under this paragraph, the burden of proof is on the parent objecting to the move or removal.
767.327(4)
(4) Guardian ad litem; prompt hearing. After a petition, motion or order to show cause is filed under
sub. (3), the court shall appoint a guardian ad litem and hold a hearing as soon as possible.
767.327(5)
(5) Factors in court's determination. In making its determination under
sub. (3), the court shall consider all of the following factors:
767.327(5)(a)
(a) Whether the purpose of the proposed action is reasonable.
767.327(5)(b)
(b) The nature and extent of the child's relationship with the other parent and the disruption to that relationship which the proposed action may cause.
767.327(5)(c)
(c) The availability of alternative arrangements to foster and continue the child's relationship with and access to the other parent.
767.327(6)
(6) Notice required for other removals. 767.327(6)(a)(a) Unless the parents agree otherwise, a parent with legal custody and physical placement rights shall notify the other parent before removing the child from his or her primary residence for a period of not less than 14 days.
767.327(6)(b)
(b) Notwithstanding
par. (a), if notice is required under
sub. (1), a parent shall comply with
sub. (1).
767.327(7)
(7) Applicability. Notwithstanding
1987 Wisconsin Act 355, section 73, as affected by
1987 Wisconsin Act 364, the parties may agree to the adjudication of a modification of a legal custody or physical placement order under this section in an action affecting the family that is pending on May 3, 1988.
767.327 Annotation
Discussion of application of (5) factors to determination of best interests of child. In re Marriage of Kerkvliet v. Kerkvliet, 166 W (2d) 930, 480 NW (2d) 823 (Ct. App. 1992).
767.327 Annotation
Wisconsin's Child Removal Law. Wis. Law. June 1993.
