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)(a)(a) 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) (am), subject to
s. 767.24 (5) (bm).
767.23(1n)(b)1.1. 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).
767.23(1n)(b)2.
2. If the court or circuit court commissioner finds by a preponderance of the evidence that a party has engaged in a pattern or serious incident of interspousal battery, as described under
s. 940.19 or
940.20 (1m), or domestic abuse, as defined in
s. 813.12 (1) (am), and makes a temporary order awarding joint or sole legal custody or periods of physical placement to the party, the court or circuit court commissioner shall comply with the requirements of
s. 767.24 (6) (f) and, if appropriate,
s. 767.24 (6) (g).
767.23(1n)(c)
(c) A temporary order under
sub. (1) may be based upon the written stipulation of the parties, subject to the approval of the court or the 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;
2003 a. 130,
326.
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),
(c), and
(d), based on the best interest of the child and after considering the factors under
sub. (5) (am), subject to
sub. (5) (bm), the court may give joint legal custody or sole legal custody of a minor child.
767.24(2)(am)
(am) Except as provided in
par. (d), the court shall presume that joint legal custody is in the best interest of the child.
767.24(2)(b)
(b) Except as provided in
par. (d), 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) Except as provided in
par. (d), 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(2)(d)1.1. Except as provided in
subd. 4., if the court finds by a preponderance of the evidence that a party has engaged in a pattern or serious incident of interspousal battery, as described under
s. 940.19 or
940.20 (1m), or domestic abuse, as defined in
s. 813.12 (1) (am),
pars. (am),
(b), and
(c) do not apply and there is a rebuttable presumption that it is detrimental to the child and contrary to the best interest of the child to award joint or sole legal custody to that party. The presumption under this subdivision may be rebutted only by a preponderance of evidence of all of the following:
767.24(2)(d)1.a.
a. The party who committed the battery or abuse has successfully completed treatment for batterers provided through a certified treatment program or by a certified treatment provider and is not abusing alcohol or any other drug.
767.24(2)(d)1.b.
b. It is in the best interest of the child for the party who committed the battery or abuse to be awarded joint or sole legal custody based on a consideration of the factors under
sub. (5) (am).
767.24(2)(d)2.
2. If the court finds under
subd. 1. that both parties engaged in a pattern or serious incident of interspousal battery, as described under
s. 940.19 or
940.20 (1m), or domestic abuse, as defined in
s. 813.12 (1) (am), the party who engaged in the battery or abuse for purposes of the presumption under
subd. 1. is the party that the court determines was the primary physical aggressor. Except as provided in
subd. 3., in determining which party was the primary physical aggressor, the court shall consider all of the following:
767.24(2)(d)2.b.
b. The relative severity of the injuries, if any, inflicted upon a party by the other party in any of the prior acts of domestic violence under
subd. 2. a.
767.24(2)(d)2.c.
c. The likelihood of future injury to either of the parties resulting from acts of domestic violence.
767.24(2)(d)2.d.
d. Whether either of the parties acted in self-defense in any of the prior acts of domestic violence under
subd. 2. a.
767.24(2)(d)2.e.
e. Whether there is or has been a pattern of coercive and abusive behavior between the parties.
767.24(2)(d)2.f.
f. Any other factor that the court considers relevant to the determination under this subdivision.
767.24(2)(d)3.
3. If the court must determine under
subd. 2. which party was the primary physical aggressor and one, but not both, of the parties has been convicted of a crime that was an act of domestic abuse, as defined in
s. 813.12 (1) (am), with respect to the other party, the court shall find the party who was convicted of the crime to be the primary physical aggressor.
767.24(2)(d)4.
4. The presumption under
subd. 1. does not apply if the court finds that both parties engaged in a pattern or serious incident of interspousal battery or domestic abuse but the court determines that neither party was the primary physical aggressor.
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) (am), subject to
sub. (5) (bm). 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. 767.24(5)(am)(am) Subject to
par. (bm), 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. Subject to
par. (bm), the court shall consider the following factors in making its determination:
767.24(5)(am)1.
1. 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)(am)2.
2. 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)(am)3.
3. 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)(am)4.
4. 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)(am)5.
5. The child's adjustment to the home, school, religion and community.
767.24(5)(am)6.
6. The age of the child and the child's developmental and educational needs at different ages.
767.24(5)(am)7.
7. Whether the mental or physical health of a party, minor child, or other person living in a proposed custodial household negatively affects the child's intellectual, physical, or emotional well-being.
767.24(5)(am)8.
8. The need for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child.
767.24(5)(am)9.
9. The availability of public or private child care services.
767.24(5)(am)10.
10. The cooperation and communication between the parties and whether either party unreasonably refuses to cooperate or communicate with the other party.
767.24(5)(am)11.
11. 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)(am)14.
14. Whether either party has or had a significant problem with alcohol or drug abuse.
767.24(5)(am)15.
15. The reports of appropriate professionals if admitted into evidence.
767.24(5)(am)16.
16. Such other factors as the court may in each individual case determine to be relevant.
