767.32 Annotation
The test for a substantial change in circumstances is the same whether the issue of maintenance was originally stipulated to or contested. The correct test regarding modification considers fairness to both parties under all circumstances, not whether it is unjust or inequitable to alter the original award. A judge who reviews a request to modify a maintenance award should adhere to the findings of fact made by the circuit court. Education expenses for an adult child do not have to be considered by the modifying court when examining a party's budget, but can be. Rohde-Giovanni v. Baumgart, 2004 WI 27,
269 Wis. 2d 598,
676 N.W.2d 452,
01-3014.
767.32 Annotation
A trial court's decision to deny an extension of maintenance, including deciding whether there is a substantial change in circumstances, is a discretionary decision. The trial court's decision on a substantial change in circumstances is upheld if there is a reasonable basis in the record for the trial court's decision. Cashin v. Cashin, 2004 WI App 92, ___ Wis. 2d ___, ___ N.W.2d ___,
03-1010.
767.32 Annotation
In a "shirking" case motivation is important, but only to the extent that it is undisputed that a party was not improperly motivated. Good motives, standing alone, do not necessarily weigh in favor of reasonableness. Ability to pay child support is an appropriate consideration for purposes of shirking analysis. If one parent can easily afford child support, that factor may weigh in favor of the reasonableness of the other's decision to remain unemployed. The benefit the children derive from the parent's decision to remain unemployed is a proper factor. Chen v. Warner, 2004 WI App 112, ___ Wis. 2d ___, ___ N.W.2d ___,
03-0288.
767.325
767.325
Revision of legal custody and physical placement orders. Except for matters under
s. 767.327 or
767.329, the following provisions are applicable to modifications of legal custody and physical placement orders:
767.325(1)(a)(a)
Within 2 years after initial order. Except as provided under
sub. (2), a court may not modify any of the following orders before 2 years after the initial order is entered under
s. 767.24, unless a party seeking the modification, upon petition, motion, or order to show cause shows by substantial evidence that the modification is necessary because the current custodial conditions are physically or emotionally harmful to the best interest of the child:
767.325(1)(a)2.
2. An order of physical placement if the modification would substantially alter the time a parent may spend with his or her child.
767.325(1)(b)1.1. Except as provided under
par. (a) and
sub. (2), upon petition, motion or order to show cause by a party, a court may modify an order of legal custody or an order of physical placement where the modification would substantially alter the time a parent may spend with his or her child if the court finds all of the following:
767.325(1)(b)1.b.
b. There has been a substantial change of circumstances since the entry of the last order affecting legal custody or the last order substantially affecting physical placement.
767.325(1)(b)2.a.
a. Continuing the current allocation of decision making under a legal custody order is in the best interest of the child.
767.325(1)(b)2.b.
b. Continuing the child's physical placement with the parent with whom the child resides for the greater period of time is in the best interest of the child.
767.325(1)(b)3.
3. A change in the economic circumstances or marital status of either party is not sufficient to meet the standards for modification under
subd. 1.
767.325(2)
(2) Modification of substantially equal physical placement orders. Notwithstanding
sub. (1):
767.325(2)(a)
(a) If the parties have substantially equal periods of physical placement pursuant to a court order and circumstances make it impractical for the parties to continue to have substantially equal physical placement, a court, upon petition, motion or order to show cause by a party, may modify such an order if it is in the best interest of the child.
767.325(2)(b)
(b) In any case in which
par. (a) does not apply and in which the parties have substantially equal periods of physical placement pursuant to a court order, a court, upon petition, motion or order to show cause of a party, may modify such an order based on the appropriate standard under
sub. (1). However, under
sub. (1) (b) 2., there is a rebuttable presumption that having substantially equal periods of physical placement is in the best interest of the child.
767.325(2m)
(2m) Modification of periods of physical placement for failure to exercise physical placement. Notwithstanding
subs. (1) and
(2), upon petition, motion or order to show cause by a party, a court may modify an order of physical placement at any time with respect to periods of physical placement if it finds that a parent has repeatedly and unreasonably failed to exercise periods of physical placement awarded under an order of physical placement that allocates specific times for the exercise of periods of physical placement.
767.325(3)
(3) Modification of other physical placement orders. Except as provided under
subs. (1) and
(2), upon petition, motion or order to show cause by a party, a court may modify an order of physical placement which does not substantially alter the amount of time a parent may spend with his or her child if the court finds that the modification is in the best interest of the child.
767.325(4)
(4) Denial of physical placement. Upon petition, motion or order to show cause by a party or on its own motion, a court may deny a parent's physical placement rights at any time if it finds that the physical placement rights would endanger the child's physical, mental or emotional health.
767.325(4m)
(4m) Denial of physical placement for killing other parent. 767.325(4m)(a)(a) Notwithstanding
subs. (1) to
(4), upon petition, motion or order to show cause by a party or on its own motion, a court shall modify a physical placement order by denying a parent physical placement with a 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.
767.325(4m)(b)
(b) Paragraph (a) does not apply if the court determines by clear and convincing evidence that physical placement with the parent would be in the best interests of the child. The court shall consider the wishes of the child in making the determination.
767.325(5)
(5) Reasons for modification. If either party opposes modification or termination of a legal custody or physical placement order under this section the court shall state, in writing, its reasons for the modification or termination.
767.325(5m)
(5m) Factors to consider. In all actions to modify legal custody or physical placement orders, the court shall consider the factors under
s. 767.24 (5) (am), subject to
s. 767.24 (5) (bm), and shall make its determination in a manner consistent with
s. 767.24.
767.325(6)
(6) Notice. No court may enter an order for modification under this section until notice of the petition, motion or order to show cause requesting modification has been given to the child's parents, if they can be found, and to any relative or agency having custody of the child.
767.325(6m)
(6m) Parenting plan. In any action to modify a legal custody or physical placement order under
sub. (1), the court may require the party seeking the modification to file with the court a parenting plan under
s. 767.24 (1m) before any hearing is held.
767.325(7)
(7) Transfer to department. The court may order custody transferred to the department of health and family services only if that department agrees to accept custody.
767.325(8)
(8) Petition, motion or order to show cause. A petition, motion or order to show cause under this section shall include notification of the availability of information under
s. 767.081 (2).
767.325(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 modification of a legal custody or physical placement order under this section in an action affecting the family that is pending on May 3, 1988.
767.325 Note
NOTE: 1987 Wis. Act 355, which created this section, contains explanatory notes.
767.325 Annotation
"Necessary" implies that a change of custody itself is needed because custodial conditions are harmful in some way to the best interest of the child.. Millikin v. Millikin,
115 Wis. 2d 16,
339 N.W.2d 573 (1983).
767.325 Annotation
The revision of s. 767.24 allowing joint custody in cases where 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).
767.325 Annotation
Sub. (1) (a) prohibits a change of custody solely to correct a mother's unreasonable interference with physical placement of the child with the father. Sub. (1) (a) provides a 2-year truce period. Judicial intervention during this period must be compelling. Paternity of Stephanie R.N.
174 Wis. 2d 745,
488 N.W.2d 235 (1993).
767.325 Annotation
"Necessary" embodies at least 2 concepts: 1) that the modification must operate to protect the child from alleged harmful custodial conditions; and 2) that the physical or emotional harm threatened by the current custodial conditions must be severe enough to warrant modification. Paternity of Stephanie R.N.
174 Wis. 2d 745,
488 N.W.2d 235 (1993).
767.325 Annotation
Section 767.325 does not limit a court's authority to hold a hearing or enter an order during the 2-year "truce period" with the order effective on the conclusion of the truce period. Paternity of Bradford J.B.
181 Wis. 2d 304,
510 N.W.2d 775 (Ct. App. 1993).
767.325 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),
94-2834.
767.325 Annotation
Sub. (1) (b) is inapplicable in guardianship litigation between a parent and a 3rd-party guardian. Howard M. v. Jean R.
196 Wis. 2d 16,
539 N.W.2d 104 (Ct. App. 1995),
94-0955.
767.325 Annotation
Neither sub. (4) nor s. 767.24 (4) (b) 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).
767.325 Annotation
Sections 767.325 and 767.327 do not conflict. If one party files a notification of intention to move under s. 767.327, the other parent may file a motion to modify placement under s. 767.325, and the court may consider all relevant circumstances, including, but not limited to, the move. Hughes v. Hughes,
223 Wis. 2d 111,
588 N.W.2d 346 (Ct. App. 1998).
767.325 Annotation
The sub. (1) prohibition against modification of placement orders applies to both primary placement and physical placement. Trost v. Trost, 2000 WI App 222,
239 Wis. 2d 1,
619 N.W.2d 105.
767.325 Annotation
When a court denies a parent physical placement, it has the authority to impose conditions for regaining placement, which may include mental health treatment, anger management, individual or family counseling, and parenting training. Conditions imposed must be necessary to protect the child from the danger of physical, emotional, or mental harm if the child is placed with the parent. State v. Alice H. 2000 WI App 228,
239 Wis. 2d 194,
619 N.W.2d 151.
767.325 Annotation
A change in amount of placement days does not, in and of itself, establish a substantial change in circumstances. State v. Beaudoin, 2001 WI App 42,
241 Wis. 2d 350,
625 N.W.2d 619.
767.325 Annotation
By asking the trial court for what constituted a substantial modification of placement, the movant effectively conceded that there was a substantial change in circumstances to merit placement modification under sub. (1) (b) 1. and could not maintain a contrary position on appeal. Keller v. Keller, 2002 WI App 161, ___ Wis. 2d ___,
647 N.W.2d 426.
767.325 Annotation
A divorce judgment effecting a prospective change in physical placement, contingent on an assessment of the children's needs, is invalid. A circuit court lacks authority to order a change of physical placement that is both prospective and contingent on the occurrence of an anticipated event. Custody and placement determinations must embody a sense of contemporaneity, whether in original or modification proceedings. Culligan v. Cindric, 2003 WI App 180,
266 Wis. 2d 534,
669 N.W.2d 175,
02-2275.
767.325 Annotation
An order that modifies payments for child support is not an order substantially affecting physical placement as contemplated by sub. (1) (b). Parties have a right to informally agree to change their children's physical placement schedule. That a court order modifying child support acknowledges an informal agreement does not affect physical placement for purposes of this section, and the order to be considered under this section is that which set the placement schedule that was informally modified. Culligan v. Cindric, 2003 WI App 180,
266 Wis. 2d 534,
669 N.W.2d 175,
02-2275.
767.325 Annotation
Sub. (1) (b) does not violate equal protection. Continuity in custody and placement circumstances is beneficial for children, which constitutes a compelling state interest, even when the mother originally acquired custody due to the sole legal custody presumption. Abbas v. Palmersheim, 2004 WI App 126, ___ Wis. 2d ___, ___ N.W.2d ___,
02-3390.
767.325 Annotation
The s. 767.24 (2) (am) presumption that joint legal custody is in the child's best interest applies only in initial legal custody determinations, not in modification determinations. The presumption that the current custody and physical placement arrangement is in the child's best interest under sub. (1) (b) continues to apply in modification cases. Abbas v. Palmersheim, 2004 WI App 126, ___ Wis. 2d ___, ___ N.W.2d ___,
02-3390.
767.327
767.327
Moving the child's residence within or outside the state. 767.327(1)(a)(a) If the court grants periods of physical placement to more than one parent, it shall order a parent with legal custody of and physical placement rights to a child to provide not less than 60 days written notice to the other parent, with a copy to the court, of his or her intent to:
767.327(1)(a)1.
1. Establish his or her legal residence with the child at any location outside the state.
767.327(1)(a)2.
2. Establish his or her legal residence with the child at any location within this state that is at a distance of 150 miles or more from the other parent.
767.327(1)(a)3.
3. Remove the child from this state for more than 90 consecutive days.
767.327(1)(b)
(b) The parent shall send the notice under
par. (a) by certified mail. The notice shall state the parent's proposed action, including the specific date and location of the move or specific beginning and ending dates and location of the removal, and that the other parent may object within the time specified in
sub. (2) (a).
767.327(2)(a)(a) Within 15 days after receiving the notice under
sub. (1), the other parent may send to the parent proposing the move or removal, with a copy to the court, a written notice of objection to the proposed action.
767.327(2)(b)
(b) If the parent who is proposing the move or removal receives a notice of objection under
par. (a) within 20 days after sending a notice under
sub. (1) (a), the parent may not move with or remove the child pending resolution of the dispute, or final order of the court under
sub. (3), unless the parent obtains a temporary order to do so under
s. 767.23 (1) (bm).
767.327(2)(c)
(c) Upon receipt of a copy of a notice of objection under
par. (a), the court or circuit court commissioner shall promptly refer the parents for mediation or other family court counseling services under
s. 767.11 and may appoint a guardian ad litem. Unless the parents agree to extend the time period, if mediation or counseling services do not resolve the dispute within 30 days after referral, the matter shall proceed under
subs. (3) to
(5).
767.327(3)
(3) Standards for modification or prohibition if move or removal contested. 767.327(3)(a)1.1. Except as provided under
par. (b), if the parent proposing the move or removal has sole legal or joint legal custody of the child and the child resides with that parent for the greater period of time, the parent objecting to the move or removal may file a petition, motion or order to show cause for modification of the legal custody or physical placement order affecting the child. The court may modify the legal custody or physical placement order if, after considering the factors under
sub. (5), the court finds all of the following:
767.327(3)(a)1.b.
b. The move or removal will result in a substantial change of circumstances since the entry of the last order affecting legal custody or the last order substantially affecting physical placement.
767.327(3)(a)2.a.
a. There is a rebuttable presumption that continuing the current allocation of decision making under a legal custody order or continuing the child's physical placement with the parent with whom the child resides for the greater period of time is in the best interest of the child. This presumption may be overcome by a showing that the move or removal is unreasonable and not in the best interest of the child.
767.327(3)(a)2.b.
b. A change in the economic circumstances or marital status of either party is not sufficient to meet the standards for modification under that subdivision.
767.327(3)(a)3.
3. Under this paragraph, the burden of proof is on the parent objecting to the move or removal.
767.327(3)(b)1.1. If the parents have joint legal custody and substantially equal periods of physical placement with the child, either parent may file a petition, motion or order to show cause for modification of the legal custody or physical placement order. The court may modify an order of legal custody or physical placement if, after considering the factors under
sub. (5), the court finds all of the following:
767.327(3)(b)1.a.
a. Circumstances make it impractical for the parties to continue to have substantially equal periods of physical placement.
767.327(3)(b)2.
2. Under this paragraph, the burden of proof is on the parent filing the petition, motion or order to show cause.
767.327(3)(c)1.1. If the parent proposing the move or removal has sole legal or joint legal custody of the child and the child resides with that parent for the greater period of time or the parents have substantially equal periods of physical placement with the child, as an alternative to the petition, motion or order to show cause under
par. (a) or
(b), the parent objecting to the move or removal may file a petition, motion or order to show cause for an order prohibiting the move or removal. The court may prohibit the move or removal if, after considering the factors under
sub. (5), the court finds that the prohibition is in the best interest of the child.
767.327(3)(c)2.
2. Under this paragraph, the burden of proof is on the parent objecting to the move or removal.
767.327(4)
(4) Guardian ad litem; prompt hearing. After a petition, motion or order to show cause is filed under
sub. (3), the court shall appoint a guardian ad litem, unless
s. 767.045 (1) (am) applies, and shall hold a hearing as soon as possible.
767.327(5)
(5) Factors in court's determination. In making its determination under
sub. (3), the court shall consider all of the following factors:
767.327(5)(a)
(a) Whether the purpose of the proposed action is reasonable.
767.327(5)(b)
(b) The nature and extent of the child's relationship with the other parent and the disruption to that relationship which the proposed action may cause.
767.327(5)(c)
(c) The availability of alternative arrangements to foster and continue the child's relationship with and access to the other parent.
767.327(5m)
(5m) Discretionary factors to consider. In making a determination under
sub. (3), the court may consider the child's adjustment to the home, school, religion and community.
767.327(6)
(6) Notice required for other removals. 767.327(6)(a)(a) Unless the parents agree otherwise, a parent with legal custody and physical placement rights shall notify the other parent before removing the child from his or her primary residence for a period of not less than 14 days.
767.327(6)(b)
(b) Notwithstanding
par. (a), if notice is required under
sub. (1), a parent shall comply with
sub. (1).
