767.23(1m)
(1m) If a circuit court commissioner believes that a temporary restraining order or injunction under
s. 813.12 is appropriate in an action, the circuit court commissioner shall inform the parties of their right to seek the order or injunction and the procedure to follow. On a motion for such a restraining order or injunction, the circuit court commissioner shall submit the motion to the court within 5 working days.
767.23(1n)
(1n) Before making any temporary order under
sub. (1), the court or circuit court commissioner shall consider those factors that the court is required by this chapter to consider before entering a final judgment on the same subject matter. In making a determination under
sub. (1) (a) or
(am), the court or circuit court commissioner shall consider the factors under
s. 767.24 (5). If the court or circuit court commissioner makes a temporary child support order that deviates from the amount of support that would be required by using the percentage standard established by the department under
s. 49.22 (9), the court or circuit court commissioner shall comply with the requirements of
s. 767.25 (1n). A temporary order under
sub. (1) may be based upon the written stipulation of the parties, subject to the approval of the court or circuit court commissioner. Temporary orders made by a circuit court commissioner may be reviewed by the court.
767.23(2)
(2) Notice of motion for an order or order to show cause under
sub. (1) may be served at the time the action is commenced or at any time thereafter and shall be accompanied by an affidavit stating the basis for the request for relief.
767.23(3)(a)(a) Upon making any order for dismissal of an action affecting the family or for substitution of attorneys in an action affecting the family or for vacation of a judgment theretofore granted in any such action, the court shall prior to or in its order render and grant separate judgment in favor of any attorney who has appeared for a party to the action and in favor of any guardian ad litem for a party or a child for the amount of fees and disbursements to which the attorney or guardian ad litem is, in the court's judgment, entitled and against the party responsible therefor.
767.23(3)(b)
(b) Upon making any order for dismissal of an action affecting the family or for vacation of a judgment granted in any such order, the court shall, prior to or in its order of dismissal or vacation, also preserve the right of the state or a political subdivision of the state to collect any arrearages, by an action under this chapter or under
ch. 785, owed to the state if either party in the case was a recipient of aid under
ch. 49.
767.23 History
History: 1971 c. 149;
1971 c. 211 s.
126;
1971 c. 220,
307;
1975 c. 283; Sup. Ct. Order, 73 Wis. 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;
1999 a. 9;
2001 a. 16,
61.
767.23 Cross-reference
Cross Reference: See also ch.
DWD 40, Wis. adm. code.
767.23 Annotation
Sub. (3) (a) is strictly construed to apply to those situations expressly set forth in the statute, such as 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 Wis. 2d 429,
531 N.W.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, legal separation or paternity, or in rendering a judgment in an action under
s. 767.02 (1) (e) or
767.62 (3), 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(1m)
(1m) Parenting plan. In an action for annulment, divorce or legal separation, an action to determine paternity or an action under
s. 767.02 (1) (e) or
767.62 (3) in which legal custody or physical placement is contested, a party seeking sole or joint legal custody or periods of physical placement shall file a parenting plan with the court before any pretrial conference. Except for cause shown, a party required to file a parenting plan under this subsection who does not timely file a parenting plan waives the right to object to the other party's parenting plan. A parenting plan shall provide information about the following questions:
767.24(1m)(a)
(a) What legal custody or physical placement the parent is seeking.
767.24(1m)(b)
(b) Where the parent lives currently and where the parent intends to live during the next 2 years. If there is evidence that the other parent engaged in interspousal battery, as described under
s. 940.19 or
940.20 (1m), or domestic abuse, as defined in
s. 813.12 (1) (am), with respect to the parent providing the parenting plan, the parent providing the parenting plan is not required to disclose the specific address but only a general description of where he or she currently lives and intends to live during the next 2 years.
767.24(1m)(c)
(c) Where the parent works and the hours of employment. If there is evidence that the other parent engaged in interspousal battery, as described under
s. 940.19 or
940.20 (1m), or domestic abuse, as defined in
s. 813.12 (1) (am), with respect to the parent providing the parenting plan, the parent providing the parenting plan is not required to disclose the specific address but only a general description of where he or she works.
767.24(1m)(d)
(d) Who will provide any necessary child care when the parent cannot and who will pay for the child care.
767.24(1m)(f)
(f) What doctor or health care facility will provide medical care for the child.
767.24(1m)(h)
(h) What the child's religious commitment will be, if any.
767.24(1m)(i)
(i) Who will make decisions about the child's education, medical care, choice of child care providers and extracurricular activities.
767.24(1m)(L)
(L) Whether and how the child will be able to contact the other parent when the child has physical placement with the parent providing the parenting plan.
767.24(1m)(m)
(m) How the parent proposes to resolve disagreements related to matters over which the court orders joint decision making.
767.24(1m)(n)
(n) What child support, family support, maintenance or other income transfer there will be.
767.24(1m)(o)
(o) If there is evidence that either party engaged in interspousal battery, as described under
s. 940.19 or
940.20 (1m), or domestic abuse, as defined in
s. 813.12 (1) (am), with respect to the other party, how the child will be transferred between the parties for the exercise of physical placement to ensure the safety of the child and the parties.
767.24(2)
(2) Custody to party; joint or sole. 767.24(2)(a)(a) Subject to
pars. (am),
(b) and
(c), 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)(am)
(am) The court shall presume that joint legal custody is in the best interest of the child.
767.24(2)(b)
(b) The court may give sole 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)1.
1. Both parties agree to sole legal custody with the same party.
767.24(2)(b)2.
2. The parties do not agree to sole legal custody with the same party, but at least one party requests sole legal custody and the court specifically finds any of the following:
767.24(2)(b)2.a.
a. One party is not capable of performing parental duties and responsibilities or does not wish to have an active role in raising the child.
767.24(2)(b)2.b.
b. One or more conditions exist at that time that would substantially interfere with the exercise of joint legal custody.
767.24(2)(b)2.c.
c. The parties will not 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) (am), creates a rebuttable presumption that the parties will not be able to cooperate in the future decision making required.
767.24(2)(c)
(c) The court may not give sole legal custody to a parent who refuses to cooperate with the other parent if the court finds that the refusal to cooperate is unreasonable.
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)1.1. 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.
767.24(4)(a)2.
2. In determining the allocation of periods of physical placement, the court shall consider each case on the basis of the factors in
sub. (5). The court shall 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 account geographic separation and accommodations for different households.
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, if the parties were married, to 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 parent or potential custodian over the other on the basis of the sex or race of the parent or potential custodian. 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, as shown by any stipulation between the parties, any proposed parenting plan or any legal custody or physical placement proposal submitted to the court at trial.
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)(cm)
(cm) The amount and quality of time that each parent has spent with the child in the past, any necessary changes to the parents' custodial roles and any reasonable life-style changes that a parent proposes to make to be able to spend time with the child in the future.
767.24(5)(d)
(d) The child's adjustment to the home, school, religion and community.
767.24(5)(dm)
(dm) The age of the child and the child's developmental and educational needs at different ages.
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)(em)
(em) The need for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child.
767.24(5)(f)
(f) The availability of public or private child care services.
767.24(5)(fm)
(fm) The cooperation and communication between the parties and whether either party unreasonably refuses to cooperate or communicate with the other party.
767.24(5)(g)
(g) Whether each party can support the other party's relationship with the child, including encouraging and facilitating frequent and continuing contact with the child, or 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)(jm)
(jm) The reports of appropriate professionals if admitted into evidence.
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.
