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.
767.242(5)(b)1.b.
b. Award the petitioner a reasonable amount for the cost of maintaining an action under this section and for attorney fees.
767.242(5)(b)2.a.
a. If the underlying order or judgment relating to periods of physical placement does not provide for specific times for the exercise of periods of physical placement, issue an order specifying the times for the exercise of periods of physical placement.
767.242(5)(b)2.c.
c. Grant an injunction ordering the respondent to strictly comply with the judgment or order relating to the award of physical placement. In determining whether to issue an injunction, the judge or circuit court commissioner shall consider whether alternative remedies requested by the petitioner would be as effective in obtaining compliance with the order or judgment relating to physical placement.
767.242(5)(c)
(c) If, at the conclusion of the hearing, the judge or circuit court commissioner finds that the petitioner has incurred a financial loss or expenses as a result of the respondent's failure, intentionally and unreasonably and without adequate notice to the petitioner, to exercise one or more periods of physical placement under an order allocating specific times for the exercise of periods of physical placement, the judge or circuit court commissioner may issue an order requiring the respondent to pay to the petitioner a sum of money sufficient to compensate the petitioner for the financial loss or expenses.
767.242(5)(d)
(d) Except as provided in
par. (b) 1. a. and
2. a., the judge or circuit court commissioner may not modify an order of legal custody or physical placement in an action under this section.
767.242(5)(e)
(e) An injunction issued under
par. (b) 2. c. is effective according to its terms, for the period of time that the petitioner requests, but not more than 2 years.
767.242(6)(a)(a) If an injunction is issued under
sub. (5) (b) 2. c., upon request by the petitioner the judge or circuit court commissioner shall order the sheriff to assist the petitioner in executing or serving the injunction.
767.242(6)(b)
(b) Within 24 hours after a request by the petitioner, the clerk of the circuit court shall send a copy of an injunction issued under
sub. (5) (b) 2. c. to the sheriff or to any other local law enforcement agency that is the central repository for orders and that has jurisdiction over the respondent's residence. If the respondent does not reside in this state, the clerk shall send a copy of the injunction to the sheriff of the county in which the circuit court is located.
767.242(6)(c)
(c) The sheriff or other appropriate local law enforcement agency under
par. (b) shall make available to other law enforcement agencies, through a verification system, information on the existence and status of any injunction issued under
sub. (5) (b) 2. c. The information need not be maintained after the injunction is no longer in effect.
767.242(8)
(8) Penalty. Whoever intentionally violates an injunction issued under
sub. (5) (b) 2. c. is guilty of a Class I felony.
Effective date note
NOTE: Sub. (8) is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
(8) Penalty. Whoever intentionally violates an injunction issued under sub. (5) (b) 2. c. may be fined not more than $10,000 or imprisoned for not more than 2 years or both.
767.242 History
History: 1999 a. 9;
2001 a. 61,
109.
767.242 Annotation
Wisconsin's Custody, Placement and Paternity Reform Legislation. Walther. Wis.Law. April 2000.
767.245
767.245
Visitation rights of certain persons. 767.245(1)
(1) Except as provided in
subs. (1m) and
(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(1m)(a)(a) Except as provided in
par. (b), the court may not grant visitation rights under
sub. (1) to a person who has been convicted under
s. 940.01 of the first-degree intentional homicide, or under
s. 940.05 of the 2nd-degree intentional homicide, of a parent of the child, and the conviction has not been reversed, set aside or vacated.
767.245(1m)(b)
(b) Paragraph (a) does not apply if the court determines by clear and convincing evidence that the visitation would be in the best interests of the child. The court shall consider the wishes of the child in making the determination.
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(6)(a)(a) If a person granted visitation rights with a child under this section is convicted under
s. 940.01 of the first-degree intentional homicide, or under
s. 940.05 of the 2nd-degree intentional homicide, of a parent of the child, and the conviction has not been reversed, set aside or vacated, the court shall modify the visitation order by denying visitation with the child upon petition, motion or order to show cause by a parent or guardian of the child, or upon the court's own motion, and upon notice to the person granted visitation rights.
767.245(6)(b)
(b) Paragraph (a) does not apply if the court determines by clear and convincing evidence that the visitation would be in the best interests of the child. The court shall consider the wishes of the child in making that determination.
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. Soergel v. Soergel,
154 Wis. 2d 564,
453 N.W.2d 624 (1990).
767.245 Annotation
The visitation petition of a custodial parent's widow did not meet the criteria of sub. (1) when, prior to the custodial parent's death, the non-custodial parent had filed a motion to revise custody. Section 880.155 governs visitation in the event of a parent's death. Cox v. Williams,
177 Wis. 2d 433,
502 N.W.2d 128 (1993).
767.245 Annotation
A paternity case in which 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 Wis. 2d 666,
512 N.W.2d 189 (Ct. App. 1993).
