767.41(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), to a licensed child welfare agency, or, in a county having a population of 500,000 or more, the department of children and families. 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. If the court transfers legal custody under this section to an agency, the court shall also refer the matter to the court intake worker, as defined in
s. 48.02 (3), who shall conduct an inquiry under
s. 48.24 to determine whether a petition should be filed under
s. 48.13.
767.41(3)(am)
(am) If the court transfers legal custody of a child under this subsection, the order transferring custody shall include a finding that placement of the child in his or her home would be contrary to the welfare of the child and a finding that reasonable efforts have been made to prevent the removal of the child from the home, while assuring that the health and safety of the child are the paramount concerns, unless any of the circumstances specified in
s. 48.355 (2d) (b) 1. to
5. applies. If the legal custodian appointed under
par. (a) is a county department, the court shall order the child into the placement and care responsibility of the county department as required under
42 USC 672 (a) (2) and shall assign the county department primary responsibility for providing services to the child. The court shall make the findings specified in this paragraph on a case-by-case basis based on circumstances specific to the child and shall document or reference the specific information on which those findings are based in the court order. A court order that merely references this paragraph without documenting or referencing that specific information in the court order or an amended court order that retroactively corrects an earlier court order that does not comply with this paragraph is not sufficient to comply with this paragraph.
767.41(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.
767.41(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, place, and purpose of the hearing to the agency that prepared the report; the child; the child's parents, guardian, and legal custodian; and the child's foster parent, the operator of the facility in which the child is living, or the relative with whom the child is living.
767.41(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).
767.41(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. 767.57 (3).
767.41(4)
(4) Allocation of physical placement. 767.41(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.
767.41(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.
767.41(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.
767.41(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.
767.41(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.
767.41(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. 767.481 (1).
767.41(4)(e)
(e) If the court grants periods of physical placement to more than one parent, the court may grant to either or both parents a reasonable amount of electronic communication at reasonable hours during the other parent's periods of physical placement with the child. Electronic communication with the child may be used only to supplement a parent's periods of physical placement with the child. Electronic communication may not be used as a replacement or as a substitute for a parent's periods of physical placement with the child. Granting a parent electronic communication with the child during the other parent's periods of physical placement shall be based on whether it is in the child's best interest and whether equipment for providing electronic communication is reasonably available to both parents. If the court grants electronic communication to a parent whose physical placement with the child is supervised, the court shall also require that the parent's electronic communication with the child be supervised.
767.41(5)
(5) Factors in custody and physical placement determinations. 767.41(5)(am)(am) Subject to
pars. (bm) and
(c), 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
pars. (bm) and
(c), the court shall consider the following factors in making its determination:
767.41(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.
767.41(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.
767.41(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.
767.41(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.
767.41(5)(am)5.
5. The child's adjustment to the home, school, religion and community.
767.41(5)(am)6.
6. The age of the child and the child's developmental and educational needs at different ages.
767.41(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.
767.41(5)(am)8.
8. The need for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child.
767.41(5)(am)9.
9. The availability of public or private child care services.
767.41(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.
767.41(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.
767.41(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;
2009 a. 28,
79.
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.
