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.
767.24(5)(bm)
(bm) If the court finds under
sub. (2) (d) that a parent 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), the safety and well-being of the child and the safety of the parent who was the victim of the battery or abuse shall be the paramount concerns in determining legal custody and periods of physical placement.
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(6)(f)
(f) If the court finds under
sub. (2) (d) 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), the court shall state in writing whether the presumption against awarding joint or sole legal custody to that party is rebutted and, if so, what evidence rebutted the presumption, and why its findings relating to legal custody and physical placement are in the best interest of the child.
767.24(6)(g)
(g) If the court finds under
sub. (2) (d) 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 the court awards periods of physical placement to both parties, the court shall provide for the safety and well-being of the child and for the safety of the party who was the victim of the battery or abuse. For that purpose the court, giving consideration to the availability of services or programs and to the ability of the party who committed the battery or abuse to pay for those services or programs, shall impose one or more of the following, as appropriate:
767.24(6)(g)1.
1. Requiring the exchange of the child to occur in a protected setting or in the presence of an appropriate 3rd party who agrees by affidavit or other supporting evidence to assume the responsibility assigned by the court and to be accountable to the court for his or her actions with respect to the responsibility.
767.24(6)(g)2.
2. Requiring the child's periods of physical placement with the party who committed the battery or abuse to be supervised by an appropriate 3rd party who agrees by affidavit or other supporting evidence to assume the responsibility assigned by the court and to be accountable to the court for his or her actions with respect to the responsibility.
767.24(6)(g)3.
3. Requiring the party who committed the battery or abuse to pay the costs of supervised physical placement.
767.24(6)(g)4.
4. Requiring the party who committed the battery or abuse to attend and complete, to the satisfaction of the court, treatment for batterers provided through a certified treatment program or by a certified treatment provider as a condition of exercising his or her periods of physical placement.
767.24(6)(g)5.
5. If the party who committed the battery or abuse has a significant problem with alcohol or drug abuse, prohibiting that party from being under the influence of alcohol or any controlled substance when the parties exchange the child for periods of physical placement and from possessing or consuming alcohol or any controlled substance during his or her periods of physical placement.
767.24(6)(g)6.
6. Prohibiting the party who committed the battery or abuse from having overnight physical placement with the child.
767.24(6)(g)7.
7. Requiring the party who committed the battery or abuse to post a bond for the return and safety of the child.
767.24(6)(g)8.
8. Imposing any condition not specified in
subds. 1. to
7. that the court determines is necessary for the safety and well-being of the child or the safety of the party who was the victim of the battery or abuse.
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;
2003 a. 130.
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).
