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.
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;
1999 a. 9;
2001 a. 109.
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
It was reversible error for the court to make a custody award when the court should have recognized the rule of comity and declined to exercise its jurisdiction. Sheridan v. Sheridan,
65 Wis. 2d 504,
223 N.W.2d 557 (1974).
767.24 Annotation
As a general matter, the child's best interests will be served by living with a parent. If circumstances compel a contrary conclusion, the interests of the child, not a supposed right of a parent to custody, controls. In a dispute between a father and a deceased mother's parents, the court erred in concluding that it must award custody to a natural parent unless he was unfit or unable to care for the children. LaChapell v. Mawhinney,
66 Wis. 2d 679,
225 N.W.2d 501 (1975).
767.24 Annotation
The record of a temporary hearing may be relevant at a divorce hearing, but is not controlling, and neither party has the burden of proving a change in circumstances to warrant a change from the temporary order. Kuesel v. Kuesel,
74 Wis. 2d 636,
247 N.W.2d 72 (1976).
767.24 Annotation
The trial court may not order a custodial parent to live in designated part of the state or else lose custody. Groh v. Groh,
110 Wis. 2d 117,
327 N.W.2d 655 (1983).
767.24 Annotation
In a custody dispute between a parent and a third party, unless the court finds that the parent is unfit or unable to care for the child, or that there are compelling reasons for denying custody to the parent, the court must grant custody to the parent. Barstad v. Frazier,
118 Wis. 2d 549,
348 N.W.2d 479 (1984).
767.24 Annotation
A contract between a parent and a non-parent to transfer permanent custody is unenforceable. Interest of Z.J.H.
162 Wis. 2d 1002,
471 N.W.2d 202 (1991). But see Custody of H.S.H-K,
193 Wis. 2d 649,
533 N.W.2d 419 (1995) regarding unmarried persons contracting for visitation in a co-parenting agreement.
767.24 Annotation
Revision of s. 767.24 to allow joint custody in cases in which both parties did not agree was not a "substantial change in circumstances" justifying a change to joint custody. Licary v. Licary,
168 Wis. 2d 686,
484 N.W.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 Wis. 2d 373, N.W.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 Wis. 2d 660,
536 N.W.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 Wis. 2d 221,
571 N.W.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 Wis. 2d 103,
580 N.W.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 Wis. 2d 605,
581 N.W.2d 564 (Ct. App. 1998).
767.24 Annotation
Sub. (5) (b), while requiring consideration of the child's wishes, leaves to the court's discretion whether to allow the child to testify. That the child is a competent witness under s. 906.01 does not affect the court's discretion. Hughes v. Hughes,
223 Wis. 2d 111,
588 N.W.2d 346 (Ct. App. 1998).
767.24 Annotation
Constitutional protections of a parent's right to his or her child do not prevent the application of the best interests of the child standard as the central focus of determining where the child shall live. "Best interests" and "safety" are not synonymous. Richard D. v. Rebecca G.
228 Wis. 2d 658,
599 N.W.2d 90 (Ct. App. 1999).
767.24 Annotation
Sub. (4) requires allocation of placement between the parents. Before a court may deny a parent all placement or contact with a child, it must find that the contact would endanger the child's physical, mental or emotional health. A parent who seeks to deny all contact by the other parent has the burden of proving the danger to the child. Wolfe v. Wolfe, 2000 WI App 93,
234 Wis. 2d 449,
610 N.W.2d 222.
767.24 Annotation
There is no presumption of equal placement. While sub. (4) (a) 2. requires the court to provide for placement that allows the child to have regularly occurring, meaningful periods of physical placement with each parent, that is not tantamount to a presumption of equal placement. Keller v. Keller, 2002 WI App 161, ___ Wis. 2d ___,
647 N.W.2d 426.
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
Recent Changes in Wisconsin's Law Regarding Child Custody and Placement. Rue. 2001 WLR 1177.
767.24 Annotation
Debating the Standard in Child Custody Placement Decisions. Molvig. Wis. Law. July 1998.
767.24 Annotation
Wisconsin's Custody, Placement and Paternity Reform Legislation. Walther. Wis.Law. April 2000.
767.242
767.242
Enforcement of physical placement orders. 767.242(1)(a)
(a) "Petitioner" means the parent filing a petition under this section, regardless of whether that parent was the petitioner in the action in which periods of physical placement were awarded under
s. 767.24.
767.242(1)(b)
(b) "Respondent" means the parent upon whom a petition under this section is served, regardless of whether that parent was the respondent in the action in which periods of physical placement were awarded under
s. 767.24.
767.242(2)
(2) Who may file. A parent who has been awarded periods of physical placement under
s. 767.24 may file a petition under
sub. (3) if any of the following applies:
767.242(2)(a)
(a) The parent has had one or more periods of physical placement denied by the other parent.
767.242(2)(b)
(b) The parent has had one or more periods of physical placement substantially interfered with by the other parent.
767.242(2)(c)
(c) The parent has incurred a financial loss or expenses as a result of the other parent's intentional failure to exercise one or more periods of physical placement under an order allocating specific times for the exercise of periods of physical placement.
767.242(3)(a)(a) The petition shall allege facts sufficient to show the following:
767.242(3)(a)1.
1. The name of the petitioner and that the petitioner has been awarded periods of physical placement.
767.242(3)(b)
(b) The petition shall request the imposition of a remedy or any combination of remedies under
sub. (5) (b) and
(c). This paragraph does not prohibit a judge or circuit court commissioner from imposing a remedy under
sub. (5) (b) or
(c) if the remedy was not requested in the petition.
767.242(3)(c)
(c) A judge or circuit court commissioner shall accept any legible petition for an order under this section.
767.242(3)(d)
(d) The petition shall be filed under the principal action under which the periods of physical placement were awarded.
767.242(4)
(4) Service on respondent; response. Upon the filing of a petition under
sub. (3), the petitioner shall serve a copy of the petition upon the respondent by personal service in the same manner as a summons is served under
s. 801.11. The respondent may respond to the petition either in writing before or at the hearing under
sub. (5) (a) or orally at that hearing.
767.242(5)(a)(a) A judge or circuit court commissioner shall hold a hearing on the petition no later than 30 days after the petition has been served, unless the time is extended by mutual agreement of the parties or upon the motion of a guardian ad litem and the approval of the judge or circuit court commissioner. The judge or circuit court commissioner may, on his or her own motion or the motion of any party, order that a guardian ad litem be appointed for the child prior to the hearing.
767.242(5)(b)
(b) If, at the conclusion of the hearing, the judge or circuit court commissioner finds that the respondent has intentionally and unreasonably denied the petitioner one or more periods of physical placement or that the respondent has intentionally and unreasonably interfered with one or more of the petitioner's periods of physical placement, the court or circuit court commissioner:
767.242(5)(b)1.a.
a. Issue an order granting additional periods of physical placement to replace those denied or interfered with.
