767.245 Annotation
An existing underlying action affecting the family does not alone provide standing to petition under this section. The underlying action must threaten the integrity of a family unit. An action under this section does not apply to intact families. Because the father figure in a household was not the biological or adoptive father of one of the children did not mean the family was not intact. Marquardt v. Hegemann-Glascock,
190 Wis. 2d 447,
526 N.W.2d 834 (Ct. App. 1994).
767.245 Annotation
While his section does not apply outside the dissolution of a marriage, it does not preempt the consideration of visitation in circumstances not subject to the statute. A circuit court may consider visitation by a non-parent outside a marriage dissolution situation in the best interests of the child if the non-parent petitioner demonstrates a parent-like relationship with the child and shows a significant triggering event such as substantial interference with that relationship. Custody of H.S.H.-K.
193 Wis. 2d 649,
533 N.W.2d 419 (1995).
767.245 Annotation
Public policy does not prohibit a court, relying on its equitable powers, to grant visitation outside this section on the basis of a co-parenting agreement between a biological parent and another when visitation is in the child's best interest. Custody of H.S.H.-K.
193 Wis. 2d 649,
533 N.W.2d 419 (1995).
767.245 Annotation
When applying sub. (3), circuit courts must apply the presumption that a fit parent's decision regarding grandparent visitation is in the best interest of the child, but the court must still make its own assessment of the best interest of the child. Paternity of Roger D.H. 2002 WI App 35,
250 Wis. 2d 747,
641 N.W.2d 440.
767.245 Annotation
Grandparent Visitation Rights. Rothstein. Wis. Law. Nov. 1992.
767.245 Annotation
The Effect of C.G.F. and Section 48.925 on Grandparental Visitation Petitions. Hughes. Wis. Law. Nov. 1992.
767.245 Annotation
Third-party Visitation in Wisconsin. Herman & Cooper. Wis. Law. March 2001.
767.247
767.247
Prohibiting visitation or physical placement if a parent kills other parent. 767.247(1)
(1) Notwithstanding
ss. 767.23 (1) (am),
767.24 (1),
(4) and
(5),
767.51 (3) and
767.62 (4) (a) and except as provided in
sub. (2), in an action under this chapter that affects a minor child, a court or circuit court commissioner may not grant to the child's parent visitation or physical placement rights with the child if the parent 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 the child's other parent, and the conviction has not been reversed, set aside or vacated.
767.247(2)
(2) Subsection (1) does not apply if the court or circuit court commissioner determines by clear and convincing evidence that the visitation or periods of physical placement would be in the best interests of the child. The court or circuit court commissioner shall consider the wishes of the child in making the determination.
767.247 History
History: 1999 a. 9;
2001 a. 61.
767.25(1)(1) Whenever the court approves a stipulation for child support under
s. 767.10, enters a judgment of annulment, divorce or legal separation, or enters an order or a judgment in a paternity action or in an action under
s. 767.02 (1) (f) or
(j),
767.08 or
767.62 (3), the court shall do all of the following:
767.25(1)(a)
(a) Order either or both parents to pay an amount reasonable or necessary to fulfill a duty to support a child. The support amount must be expressed as a fixed sum unless the parties have stipulated to expressing the amount as a percentage of the payer's income and the requirements under
s. 767.10 (2) (am) 1. to
3. are satisfied.
767.25(1)(b)
(b) Ensure that the parties have stipulated which party, if either is eligible, will claim each child as an exemption for federal income tax purposes under
26 USC 151 (c) (1) (B), or as an exemption for state income tax purposes under
s. 71.07 (8) (b) or under the laws of another state. If the parties are unable to reach an agreement about the tax exemption for each child, the court shall make the decision in accordance with state and federal tax laws. In making its decision, the court shall consider whether the parent who is assigned responsibility for the child's health care expenses under
sub. (4m) is covered under a health insurance policy or plan, including a self-insured plan, that is not subject to
s. 632.897 (10) and that conditions coverage of a dependent child on whether the child is claimed by the insured parent as an exemption for purposes of federal or state income taxes.
767.25(1g)
(1g) In determining child support payments, the court may consider all relevant financial information or other information relevant to the parent's earning capacity, including information reported under
s. 49.22 (2m) to the department or the county child support agency under
s. 59.53 (5).
767.25(1j)
(1j) Except as provided in
sub. (1m), the court shall determine child support payments by using the percentage standard established by the department under
s. 49.22 (9).
767.25(1m)
(1m) Upon request by a party, the court may modify the amount of child support payments determined under
sub. (1j) if, after considering the following factors, the court finds by the greater weight of the credible evidence that use of the percentage standard is unfair to the child or to any of the parties:
767.25(1m)(bp)
(bp) The needs of each party in order to support himself or herself at a level equal to or greater than that established under
42 USC 9902 (2).
767.25(1m)(bz)
(bz) The needs of any person, other than the child, whom either party is legally obligated to support.
767.25(1m)(c)
(c) If the parties were married, the standard of living the child would have enjoyed had the marriage not ended in annulment, divorce or legal separation.
767.25(1m)(d)
(d) The desirability that the custodian remain in the home as a full-time parent.
767.25(1m)(e)
(e) The cost of day care if the custodian works outside the home, or the value of custodial services performed by the custodian if the custodian remains in the home.
767.25(1m)(ej)
(ej) The award of substantial periods of physical placement to both parents.
767.25(1m)(em)
(em) Extraordinary travel expenses incurred in exercising the right to periods of physical placement under
s. 767.24.
767.25(1m)(f)
(f) The physical, mental and emotional health needs of the child, including any costs for health insurance as provided for under
sub. (4m).
767.25(1m)(hs)
(hs) The earning capacity of each parent, based on each parent's education, training and work experience and the availability of work in or near the parent's community.
767.25(1m)(i)
(i) Any other factors which the court in each case determines are relevant.
767.25(1n)
(1n) If the court finds under
sub. (1m) that use of the percentage standard is unfair to the child or the requesting party, the court shall state in writing or on the record the amount of support that would be required by using the percentage standard, the amount by which the court's order deviates from that amount, its reasons for finding that use of the percentage standard is unfair to the child or the party, its reasons for the amount of the modification and the basis for the modification.
767.25(2)
(2) The court may protect and promote the best interests of the minor children by setting aside a portion of the child support which either party is ordered to pay in a separate fund or trust for the support, education and welfare of such children.
767.25(3)
(3) Violation of physical placement rights by the custodial parent does not constitute reason for failure to meet child support obligations.
767.25(4)
(4) The court shall order either party or both to pay for the support of any child of the parties who is less than 18 years old, or any child of the parties who is less than 19 years old if the child is pursuing an accredited course of instruction leading to the acquisition of a high school diploma or its equivalent.
767.25(4m)(a)(a) In this subsection, "health insurance" does not include medical assistance provided under
subch. IV of ch. 49.
767.25(4m)(b)
(b) In addition to ordering child support for a child under
sub. (1), the court shall specifically assign responsibility for and direct the manner of payment of the child's health care expenses. In assigning responsibility for a child's health care expenses, the court shall consider whether a child is covered under a parent's health insurance policy or plan at the time the court approves a stipulation for child support under
s. 767.10, enters a judgment of annulment, divorce or legal separation, or enters an order or a judgment in a paternity action or in an action under
s. 767.02 (1) (f) or
(j),
767.08 or
767.62 (3), the availability of health insurance to each parent through an employer or other organization, the extent of coverage available to a child and the costs to the parent for the coverage of the child. A parent may be required to initiate or continue health care insurance coverage for a child under this subsection. If a parent is required to do so, he or she shall provide copies of necessary program or policy identification to the custodial parent and is liable for any health care costs for which he or she receives direct payment from an insurer. This subsection shall not be construed to limit the authority of the court to enter or modify support orders containing provisions for payment of medical expenses, medical costs, or insurance premiums which are in addition to and not inconsistent with this subsection.
767.25(4m)(c)1.1. In directing the manner of payment of a child's health care expenses, the court may order that payment, including payment for health insurance premiums, be withheld from income and sent to the appropriate health care insurer, provider or plan, as provided in
s. 767.265 (3h), or sent to the department or its designee, whichever is appropriate, for disbursement to the person for whom the payment has been awarded if that person is not a health care insurer, provider or plan. If the court orders income withholding and assignment for the payment of health care expenses, the court shall send notice of assignment in the manner provided under
s. 767.265 (2r) and may include the notice of assignment under this subdivision with a notice of assignment under
s. 767.265. The department or its designee, whichever is appropriate, shall keep a record of all moneys received and disbursed by the department or its designee for health care expenses that are directed to be paid to the department or its designee.
767.25(4m)(c)2.
2. If the court orders a parent to initiate or continue health insurance coverage for a child under a health insurance policy that is available to the parent through an employer or other organization but the court does not specify the manner in which payment of the health insurance premiums shall be made, the clerk of court may provide notice of assignment in the manner provided under
s. 767.265 (2r) for the withholding from income of the amount necessary to pay the health insurance premiums. The notice of assignment under this subdivision may be sent with or included as part of any other notice of assignment under
s. 767.265, if appropriate. A person who receives notice of assignment under this subdivision shall send the withheld health insurance premiums to the appropriate health care insurer, provider or plan, as provided in
s. 767.265 (3h).
767.25(4m)(d)
(d) If the court orders a parent to provide coverage of the health care expenses of the parent's child and the parent is eligible for family coverage of health care expenses under a health benefit plan that is provided by an employer on an insured or on a self-insured basis, the employer shall do all of the following:
767.25(4m)(d)1.
1. Permit the parent to obtain family coverage of health care expenses for the child, if eligible for coverage, without regard to any enrollment period or waiting period restrictions that may apply.
767.25(4m)(d)2.
2. Provide family coverage of health care expenses for the child, if eligible for coverage, upon application by the parent, the child's other parent, the department or the county child support agency under
s. 59.53 (5), or upon receiving a notice under
par. (f) 1.
767.25(4m)(d)2m.
2m. Notify the county child support agency under
s. 59.53 (5) when coverage of the child under the health benefit plan is in effect and, upon request, provide copies of necessary program or policy identification to the child's other parent.
767.25(4m)(d)3.
3. After the child has coverage under the employer's health benefit plan, and as long as the parent is eligible for family coverage under the employer's health benefit plan, continue to provide coverage for the child unless the employer receives satisfactory written evidence that the court order is no longer in effect or that the child has coverage of health care expenses under another health insurance policy or health benefit plan that provides comparable coverage of health care expenses.
767.25(4m)(e)1.1. If a parent who has been ordered by a court to provide coverage of the health care expenses of a child who is eligible for medical assistance under
subch. IV of ch. 49 receives payment from a 3rd party for the cost of services provided to the child but does not pay the health care provider for the services or reimburse the department or any other person who paid for the services on behalf of the child, the department may obtain a judgment against the parent for the amount of the 3rd party payment.
767.25(4m)(f)1.1. If a parent who provides coverage of the health care expenses of a child under an order under this subsection changes employers and that parent has a court-ordered child support obligation with respect to the child, the county child support agency under
s. 59.53 (5) shall provide notice of the order to provide coverage of the child's health care expenses to the new employer and to the parent.
767.25(4m)(f)2.
2. The notice provided to the parent shall inform the parent that coverage for the child under the new employer's health benefit plan will be in effect upon the employer's receipt of the notice. The notice shall inform the parent that he or she may, within 10 business days after receiving the notice, by motion request a hearing before the court on the issue of whether the order to provide coverage of the child's health care expenses should remain in effect. A motion under this subdivision may be heard by a circuit court commissioner. If the parent requests a hearing and the court or circuit court commissioner determines that the order to provide coverage of the child's health care expenses should not remain in effect, the court shall provide notice to the employer that the order is no longer in effect.
767.25(6)
(6) A party ordered to pay child support under this section shall pay simple interest at the rate of 1% per month on any amount in arrears that is equal to or greater than the amount of child support due in one month. If the party no longer has a current obligation to pay child support, interest at the rate of 1% per month shall accrue on the total amount of child support in arrears, if any. Interest under this subsection is in lieu of interest computed under
s. 807.01 (4),
814.04 (4) or
815.05 (8) and is paid to the department or its designee under
s. 767.29. Except as provided in
s. 767.29 (1m), the department or its designee, whichever is appropriate, shall apply all payments received for child support as follows:
767.25(6)(a)
(a) First, to payment of child support due within the calendar month during which the payment is received.
767.25(6)(b)
(b) Second, to payment of unpaid child support due before the payment is received.
767.25(6)(c)
(c) Third, to payment of interest accruing on unpaid child support.
767.25(7)
(7) An order of joint legal custody under
s. 767.24 does not affect the amount of child support ordered.
767.25 History
History: 1971 c. 157;
1977 c. 29,
105,
418;
1979 c. 32 ss.
50,
92 (4);
1979 c. 196; Stats. 1979 s. 767.25;
1981 c. 20;
1983 a. 27;
1985 a. 29;
1987 a. 27,
37,
355,
413;
1989 a. 31,
212;
1991 a. 39;
1993 a. 481;
1995 a. 27 ss.
7101,
7102,
9126 (19);
1995 a. 201,
279,
404;
1997 a. 27,
35,
191;
1999 a. 9,
32;
2001 a. 16,
61.
767.25 Cross-reference
Cross Reference: See also ch.
DWD 40, Wis. adm. code.
767.25 Cross-reference
Cross-reference: See also Wisconsin Administrative Code Citations published in the Wisconsin Administrative Code for a list of citations to cases citing ch. HSS 80, HFS 80, and DWD 40, the child support percentage of income standard.
767.25 Cross-reference
Cross-reference: See also notes to s.
767.32 for decisions regarding postjudgment modifications.
767.25 Annotation
A provision in a judgment as to the education of children past the age of majority, inserted pursuant to a stipulation of the parties, cannot later be challenged and can be enforced by contempt proceedings. Bliwas v. Bliwas,
47 Wis. 2d 635,
178 N.W.2d 35 (1970).
767.25 Annotation
When parents each own a 1/2 interest in future proceeds of real estate and the state contributes to child support, the court may not order the custodial parent to pay child support in the form of an accumulating real estate lien in favor of the state. State ex rel. v. Reible,
91 Wis. 2d 394,
283 N.W.2d 427 (Ct. App. 1979).
767.25 Annotation
The trial court abused its discretion by setting child support payments without considering the needs of the children or the payer's ability to pay. Edwards v. Edwards,
97 Wis. 2d 111,
293 N.W.2d 160 (1980).
767.25 Annotation
A personal injury damage award to a noncustodial spouse can be considered as a change of circumstances justifying increased support. Sommer v. Sommer,
108 Wis. 2d 586,
323 N.W.2d 144 (Ct. App. 1982).
767.25 Annotation
Sub. (6) imposes interest on arrearages existing on July 2, 1983, as well as on those accruing afterward. Greenwood v. Greenwood,
129 Wis. 2d 388,
385 N.W.2d 213 (Ct. App. 1986).
767.25 Annotation
Federal Supplemental Security Income may not be considered to be an economic resource for purposes of computing a child support obligation. However, a seek-work order may be appropriate. Langlois v. Langlois,
150 Wis. 2d 101,
441 N.W.2d 286 (Ct. App. 1989).
767.25 Annotation
Educational grants and loans, AFDC, and other child support are not economic resources for purposes of computing a child support obligation. Thibadeau v. Thibadeau,
150 Wis. 2d 109,
441 N.W.2d 281 (Ct. App. 1989).
767.25 Annotation
Orders assigning health care responsibility pursuant to s. 767.25 (4m) are subject to revision under s. 767.32. Kuchenbecker v. Schultz,
151 Wis. 2d 868,
447 N.W.2d 80 (Ct. App. 1989).
767.25 Annotation
Consideration of expenses incurred by a child as an adult, including education expenses, is error. Resong v. Vier,
157 Wis. 2d 382,
459 N.W.2d 591 (Ct. App. 1990).
767.25 Annotation
A divorce stipulation waiving or setting a ceiling on child support and preventing modification is against public policy and will not be enforced. Ondrasek v. Tenneson,
158 Wis. 2d 690,
462 N.W.2d 915 (Ct. App. 1990).
767.25 Annotation
The trial court's use of a computer program to analyze financial evidence was not error. Bisone v. Bisone,
165 Wis. 2d 114,
477 N.W.2d 59 (Ct. App. 1991).
767.25 Annotation
A stepparent has no legal obligation to support a stepchild. Under appropriate circumstances the theory of equitable estoppel may apply to cases involving child support. Ulrich v. Cornell,
168 Wis. 2d 792,
484 N.W.2d 546 (1992).
767.25 Annotation
In a joint custody situation, the parent with primary physical custody may be ordered to pay child support. Matz v. Matz,
166 Wis. 2d 326,
479 N.W.2d 245 (Ct. App. 1991).
767.25 Annotation
The absence of a mortgage obligation is relevant to the assessment of a party's economic circumstances, but does not translate into imputed income under the applicable administrative rule. In Marriage of Zimmerman v. Zimmerman,
169 Wis. 2d 516,
485 N.W.2d 294 (Ct. App. 1992).
767.25 Annotation
A support order against actual AFDC grants is prohibited by Thibadeau, but an order against earned income of one who also receives AFDC is not. In Support of B., L., T. & K.
171 Wis. 2d 617,
492 N.W.2d 350 (Ct. App. 1992).
767.25 Annotation
No matter how corporate income is labeled, a family court may pierce the corporate shield if it is convinced the obligor's intent is to avoid financial obligations. Evjen v. Evjen,
171 Wis. 2d 677,
492 N.W.2d 360 (Ct. App. 1992).
767.25 Annotation
The parties' extrajudicial agreement that child support payments be discontinued was enforceable via the doctrine of equitable estoppel. Harms v. Harms,
174 Wis. 2d 780,
498 N.W.2d 229 (1993).
767.25 Annotation
The "serial family payer" rule adopted under the percentage standards referred to in sub. (1) [now sub. (1j)] is discussed. Brown v. Brown,
177 Wis. 2d 512,
503 N.W.2d 280 (Ct. App. 1993).
767.25 Annotation
The mandatory percentage standards for determining support do not allow for deferred payments. Kelly v. Hougham,
178 Wis. 2d 546,
504 N.W.2d 440 (Ct. App. 1993).
767.25 Annotation
An AFDC recipient assigns all rights to child support payments to the state. As such the payments may not be held in trust for the child under sub. (2). Paternity of Lachelle A.C.
180 Wis. 2d 708,
510 N.W.2d 718 (Ct. App. 1993).
767.25 Annotation
A lump sum separation benefit received upon termination of employment was properly considered to be income subject to the percentage standards for support. Gohde v. Gohde,
181 Wis. 2d 770,
512 N.W.2d 199 (Ct. App. 1993).
767.25 Annotation
In deciding not to apply the percentage standard, the court erred when it compared the parties available incomes after deducting the percentage amount from the payer's income, but failed to consider the assumed contribution of the same percentage by the payee. Kjelstrum v. Kjelstrum,
181 Wis. 2d 973,
512 N.W.2d 264 (Ct. App. 1994).
767.25 Annotation
A trial court could may not set child support at zero, convert post-divorce income to marital property and order that income to be held in trust to be distributed to the child when AFDC benefits ended. Luna v. Luna,
183 Wis. 2d 20,
515 N.W.2d 480 (Ct. App. 1994).
767.25 Annotation
If the interests of the children and custodial parent are protected, parties are free to contract in a settlement agreement that the primary custodian will not have spending discretion over child support. Jacquart v. Jacquart,
183 Wis. 2d 372,
515 N.W.2d 539 (Ct. App. 1994).
