767.41(5)(am)12m.
12m. Whether any of the following has a criminal record and whether there is evidence that any of the following has engaged in abuse, as defined in
s. 813.122 (1) (a), of the child or any other child or neglected the child or any other child:
767.41(5)(am)12m.b.
b. A person who resides, has resided, or will reside regularly or intermittently in a proposed custodial household.
767.41(5)(am)14.
14. Whether either party has or had a significant problem with alcohol or drug abuse.
767.41(5)(am)15.
15. The reports of appropriate professionals if admitted into evidence.
767.41(5)(am)16.
16. Such other factors as the court may in each individual case determine to be relevant.
767.41(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.
767.41(5)(c)
(c) If a parent is a service member, as defined in
sub. (2) (e) 1., the court may not consider as a factor in determining the legal custody of a child whether the service member has been or may be called to active duty in the U.S. armed forces and consequently is, or in the future will be or may be, absent from the service member's home.
767.41(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.
767.41(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).
767.41(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.
767.41(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.
767.41(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.
767.41(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.
767.41(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.
767.41(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:
767.41(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.
767.41(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.
767.41(6)(g)3.
3. Requiring the party who committed the battery or abuse to pay the costs of supervised physical placement.
767.41(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.
767.41(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.
767.41(6)(g)6.
6. Prohibiting the party who committed the battery or abuse from having overnight physical placement with the child.
767.41(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.
767.41(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.
767.41(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.
767.41(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. 55.23 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.
767.41(7m)
(7m) Medical and medical history information. 767.41(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:
767.41(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.
767.41(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.
767.41(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.
767.41(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.
767.41(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.
767.41(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.
767.41 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;
2005 a. 101,
174,
264;
2005 a. 443 ss.
29,
94 to
98; Stats. 2005 s. 767.41;
2005 a. 471 ss.
1 to
5;
2007 a. 20;
2007 a. 96 ss.
141,
142;
2007 a. 97,
187.
767.41 Note
NOTE: 1987 Wis. Act 355, which made many changes in this section, contains a "legislative declaration" in section 1 and explanatory notes, and
2005 Wis. Act 443, which affected this section, contains explanatory notes.
767.41 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).
767.41 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 the parent was unfit or unable to care for the children. LaChapell v. Mawhinney,
66 Wis. 2d 679,
225 N.W.2d 501 (1975).
767.41 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).
767.41 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).
767.41 Annotation
In a custody dispute between a parent and a 3rd 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).
767.41 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.
767.41 Annotation
Revision of the statute 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).
767.41 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).
767.41 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.
767.41 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),
96-3642.
767.41 Annotation
Neither sub. (4) (b) nor s. 767.325 (4) [now s. 767.451 (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),
96-2746.
767.41 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),
97-0814.
767.41 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),
97-3539.
767.41 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),
99-0433.
767.41 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,
99-2201.
767.41 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,
256 Wis. 2d 401,
647 N.W.2d 426,
01-2970.
767.41 Annotation
While natural parents have a natural right to care and custody of their children, they do not have a fundamental right to equal placement periods after divorce. Arnold v. Arnold, 2004 WI App 62,
270 Wis. 2d 705,
679 N.W.2d 296,
03-1547.
767.41 Annotation
A trial court may consider whether a parent's particular lifestyle choices have an impact on the best interests of a specific child. Findings regarding instability in living conditions must be based upon evidence specific to the individual case, not generalizations. A court's finding that a parent's living situation was unstable based primarily upon the trial court's negative view of her unmarried status was improper. Helling v. Lambert, 2004 WI App 93,
272 Wis. 2d 796,
681 N.W.2d 552,
03-1097 767.41 Annotation
The sub. (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 s. 767.325 (1) (b) [now s. 767.451 (1) (b)] continues to apply in modification cases. Abbas v. Palmersheim, 2004 WI App 126,
275 Wis. 2d 311,
685 N.W.2d 546,
02-3390.
767.41 Annotation
An agreement approved by the court and incorporated into the judgment that gave impasse-breaking authority to the guardian ad litem and family court counselor on the issue of which school a child was to attend was consistent with the public policy favoring settlement in divorce cases. The particular decision was not reviewable by the court, but the other parent could move to modify the grant of power under s. 767.325 [now s. 767.451]. Lawrence v. Lawrence, 2004 WI App 170,
276 Wis. 2d 403,
687 N.W.2d 748,
03-1699.
767.41 Annotation
The court acted properly when it ordered child support under the standard percentage guideline, without a reduction under the shared-time payer provision, for a parent with care responsibility for 36% of overnight placements. Placement until 7:00 p.m. including an evening meal, is not equivalent to providing overnight placement for purposes of determining the amount of placement with a parent. Rumpff v. Rumpff, 2004 WI App 197,
276 Wis. 2d 606,
688 N.W.2d 699,
03-2646.
767.41 Annotation
Under sub. (1m) each parent is entitled to a copy of the other's parenting plan. The trial court should not even consider custody and placement until both parties have had the opportunity to review each other's plans. Guelig v. Guelig, 2005 WI App 212,
287 Wis. 2d 472,
704 N.W.2d 916,
05-0346.
767.41 Annotation
Sub. (1m) does not relieve the court of the obligation to articulate how its decision bears on the child's best interests if one parent, who does not timely file a parenting plan, waives the right to object to the other party's plan. Sub. (5) (am) requires the court to consider the child's best interests in absolute terms. Guelig v. Guelig, 2005 WI App 212,
287 Wis. 2d 472,
704 N.W.2d 916,
05-0346.
767.41 Annotation
Sub. (4) (a) 2. does not require a court to grant each parent equal placement if the court determines that the placement should be modified. In making modification determinations, the circuit court is to maximize the amount of time a child spends with his or her parents within an overall placement schedule, taking into account the best interests of the child, the presumption of the status quo under s. 767.325 (1) and (2) [now s. 767.451], the general factors listed in this section, and the particular factors listed under sub. (5) (am) when relevant to the child. With respect to the modification of legal custody and physical placement orders, maximizing the amount of time cannot be equated with the notion of equal placement. Landwehr v. Landwehr, 2006 WI 64,
291 Wis. 2d 49,
715 N.W.2d 180,
03-2555.
767.41 Annotation
In a custody dispute triggered by a petition for guardianship between a birth parent and a non-parent, the threshold inquiry is whether the parent is unfit, unable to care for the child, or there are compelling reasons for awarding custody to the non-parent. Consideration of a minor's nomination of a guardian presupposes that the need for a guardian has been established. If it is determined that the birth parent is fit and able to care for the child and no compelling reasons exist to appoint a non-parent guardian, then the minor's nomination of a guardian becomes moot. Nicholas C. L. v. Julie R. L. 2006 WI App 119,
293 Wis. 2d 819,
719 N.W.2d 508,
05-1754.
767.41 Annotation
Custody — to which parent? Podell, Peck, First, 56 MLR 51.
767.41 Annotation
The best interest of the child doctrine in Wisconsin custody cases. 64 MLR 343 (1980).
767.41 Annotation
In the Interest of a Child: A Comparative Look at the Treatment of Children Under Wisconsin and Minnesota Custody Statutes. Walsh. 85 MLR 929 (2002).
767.41 Annotation
Recent Changes in Wisconsin's Law Regarding Child Custody and Placement. Rue. 2001 WLR 1177.
767.41 Annotation
Debating the Standard in Child Custody Placement Decisions. Molvig. Wis. Law. July 1998.
767.41 Annotation
Wisconsin's Custody, Placement and Paternity Reform Legislation. Walther. Wis.Law. April 2000.
767.43
767.43
Visitation rights of certain persons. 767.43(1)
(1)
Petition, who may file. 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.
767.43(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.
767.43(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.
767.43(2)
(2) Wishes of the child. Whenever possible, in making a determination under
sub. (1), the court shall consider the wishes of the child.
767.43(2m)
(2m) When special grandparent provision applicable. 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.
767.43(3)
(3) Special grandparent visitation provision. 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:
767.43(3)(a)
(a) The child is a nonmarital child whose parents have not subsequently married each other.
767.43(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.
767.43(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.
767.43(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.
767.43(3)(f)
(f) The visitation is in the best interest of the child.
767.43(3c)
(3c) Action in which petition filed; alternatives. 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.
767.43(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.
767.43(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.
