767.43 Annotation
Under Troxel v. Granville,
530 U.S. 57, the due process clause prevents a court from starting with a clean slate when assessing whether grandparent visitation is in the best interests of the child. Within the best interests framework, the court must afford a parent's decision special weight by applying a rebuttable presumption that the fit parent's decision regarding grandparent visitation is in the best interest of the child. It is up to the party advocating for nonparental visitation to rebut the presumption by presenting evidence that the offer is not in the child's best interests. Martin L. v. Julie R. L.
2007 WI App 37,
299 Wis. 2d 768,
731 N.W.2d 288,
06-0199.
767.43 Annotation
When an existing informal arrangement was sufficient to maintain the established relationship between grandparents and children, state interference in the form of court-ordered placement with the grandparents was unwarranted. The question is not whether the additional time sought by the grandparents with their grandchildren might be good for all concerned. The questions are whether, under the facts of the case, the state should intervene to dictate to the parent with primary placement, that added visitation time is warranted, and, if so, which parent should forfeit a portion of his or her placement time to accommodate the grandparent visitation. Rogers v. Rogers,
2007 WI App 50,
300 Wis. 2d 532,
731 N.W.2d 532,
06-1766. See also Lubinski v. Lubinski,
2008 WI App 151,
314 Wis. 2d 395,
761 N.W.2d 676,
07-1701.
767.43 Annotation
The award of overnights and a week during the summer in a grandparent visitation order under s. 54.56 was not contrary to law for being akin to a physical placement award found in divorce cases. There is no difference between the quantity of "physical placement" as that term is used in s. 767.001 (5) and the quantity of "visitation" as that word is used in s. 54.56. The proper amount of that time is a decision made by the family court in the best interests of the children. The quantity of time ordered does not depend on whether it is a visitation order or a physical placement order. Rick v. Opichka,
2010 WI App 23,
323 Wis. 2d 510,
780 N.W.2d 159,
09-0040.
767.43 Annotation
When children visit their grandparents and stay with them as a guest, the grandparents have the responsibility to make routine daily decisions regarding the child's care but may not make any decisions inconsistent with the major decisions made by a person having legal custody. The same is true of a parent who does not have joint legal custody, but does have a right to physical placement. In both instances, the same rules apply: routine daily decisions may be made, but nothing greater. Rick v. Opichka,
2010 WI App 23,
323 Wis. 2d 510,
780 N.W.2d 159,
09-0040.
767.43 Annotation
Under Holtzman v. Knott,
193 Wis. 2d 649 (1995), a circuit court may exercise its equitable powers to hear and grant visitation to a non-parent in circumstances when the ch. 767 non-parent visitation provisions do not apply. To apply these equitable powers a circuit court must determine that the petitioner has a "parent-like relationship" with the child and that a "significant triggering event" exists justifying state intervention in the child's relationship with a biological or adoptive parent. The triggering event required by Holtzman does not apply to cases brought under the special grandparent provision of sub. (3). Wohlers v. Broughton,
2011 WI App 122,
337 Wis. 2d 107,
805 N.W.2d 118,
09-0488.
767.43 Annotation
Grandparent Visitation Rights. Rothstein. Wis. Law. Nov. 1992.
767.43 Annotation
The Effect of C.G.F. and Section 48.925 on Grandparental Visitation Petitions. Hughes. Wis. Law. Nov. 1992.
767.43 Annotation
Third-party Visitation in Wisconsin. Herman & Cooper. Wis. Law. March 2001.
767.44
767.44
Prohibiting visitation or physical placement if a parent kills other parent. 767.44(1)
(1)
When prohibited. Notwithstanding
ss. 767.225 (1) (am),
767.41 (1),
(4), and
(5),
767.805 (4) (a), and
767.89 (3) and except as provided in
sub. (2), in an action under this chapter that affects a minor child, a court 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.
767.44(2)
(2) When not applicable. Subsection (1) does not apply if the court 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 shall consider the wishes of the child in making the determination.
767.44 History
History: 1999 a. 9;
2001 a. 61;
2005 a. 443 s.
102; Stats. 2005 s. 767.44.
767.451
767.451
Revision of legal custody and physical placement orders. Except for matters under
s. 767.461 or
767.481, the following provisions are applicable to modifications of legal custody and physical placement orders:
767.451(1)(a)(a)
Within 2 years after final judgment. Except as provided under
sub. (2), a court may not modify any of the following orders before 2 years after the final judgment determining legal custody or physical placement is entered under
s. 767.41, 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:
767.451(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.
767.451(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:
767.451(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.
767.451(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.
767.451(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.
767.451(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.
767.451(2)
(2) Modification of substantially equal physical placement orders. Notwithstanding
sub. (1):
767.451(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 the order if it is in the best interest of the child.
767.451(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 the 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.
767.451(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.
767.451(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.
767.451(3m)
(3m) Reinstatement of former physical placement allocation and schedule. If a party is a service member, as defined in
s. 767.41 (2) (e) 1., and the court modifies an order of physical placement on the basis that the service member has been or will be called to active duty in the U.S. armed forces, notwithstanding
sub. (1) the court shall require in the order that the allocation of periods of physical placement and, if applicable, the physical placement schedule that were in effect before the modification are reinstated immediately upon the service member's discharge or release from active duty.
767.451(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.
767.451(4m)
(4m) Denial of physical placement for killing other parent. 767.451(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.
767.451(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.
767.451(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.
767.451(5m)(a)(a) Subject to
pars. (b) and
(c), in all actions to modify legal custody or physical placement orders, the court shall consider the factors under
s. 767.41 (5) (am), subject to
s. 767.41 (5) (bm), and shall make its determination in a manner consistent with
s. 767.41.
767.451(5m)(b)
(b) In determining the best interest of the child under this section, in addition to the factor under
s. 767.41 (5) (am) 12m., the court shall consider whether a stepparent of the child has a criminal record and whether there is evidence that a stepparent of the child 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.
767.451(5m)(c)
(c) In an action to modify a legal custody order, if a party is a service member, as defined in
s. 767.41 (2) (e) 1., the court may not consider as a factor in making a determination 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.
767.451(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.
767.451(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. 767.41 (1m) before any hearing is held.
767.451(7)
(7) Transfer to department. The court may order custody transferred to the department only if the department agrees to accept custody. If the court orders custody transferred to the department, the order transferring custody shall include the findings and order specified in
s. 767.41 (3) (am).
767.451(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. 767.105 (2).
767.451 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).
767.451 Annotation
The revision of s. 767.24 [now s. 767.41] 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).
767.451 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).
767.451 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).
767.451 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).
767.451 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.
767.451 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.
767.451 Annotation
Neither sub. (4) nor s. 767.24 (4) (b) [mow s. 767.41 (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),
96-2746.
767.451 Annotation
Sections 767.325 and 767.327 [now ss. 767.451 and 767.481] 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),
97-3539.
767.451 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,
99-2812.
767.451 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,
256 Wis. 2d 401,
647 N.W.2d 426,
01-2970.
767.451 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.
767.451 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.
767.451 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,
275 Wis. 2d 311,
685 N.W.2d 546,
02-3390.
767.451 Annotation
The s. 767.24 (2) (am) [now s. 767.41 (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,
275 Wis. 2d 311,
685 N.W.2d 546,
02-3390.
767.451 Annotation
Under s. 767.24 (6) (b) [now s. 767.41 (6) (b)] the court may give one party with joint custody sole power to make specified decisions while both parties retain equal responsibility for others. Because sub. (1) permits a court to modify legal custody and physical placement, the court may modify the terms of the parties' joint custody in a manner that results in a change in the amount of time the child spends in the home of the parent having primary physical placement. The court was authorized to award one party authority to determine school enrollment and to permit that parent's choice of a boarding school although it reduced the amount of time the child spent with the other parent. Greene v. Hahn,
2004 WI App 214,
277 Wis. 2d 473,
689 N.W.2d 657,
03-3311.
767.451 Annotation
That a child grows older does not, in and of itself, create a substantial change in circumstances. However, when the age change is from infant to adolescent and is accompanied by a pattern of adjustment difficulties, educational failure, and harmful or illegal behavior, and the parties are unable to agree on a major decision affecting the child's life, a substantial change in circumstances has been shown. Greene v. Hahn,
2004 WI App 214,
277 Wis. 2d 473,
689 N.W.2d 657,
03-3311.
767.451 Annotation
Absent a motion, petition, or order to show cause brought by a party, as required by sub. (1) (b) 1., the trial court lacked authority to amend or modify the custody order from joint custody to sole legal custody. Pero v. Lucas,
2006 WI App 112,
293 Wis. 2d 781,
718 N.W.2d 184,
05-1180.
767.451 Annotation
Section 767.24 (4) (a) 2. [now s. 767.41] 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 subs. (1) and (2), the general factors listed in s. 767.24, and the particular factors listed under s. 767.24(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.
767.451 Annotation
As in sub. (1), a court is authorized to modify an order under sub. (3) only upon petition, motion, or order to show cause by a party. The statute does not authorize a court to modify a placement order on its own motion. Stumpner v. Cutting,
2010 WI App 65,
324 Wis. 2d 820,
783 N.W.2d 874,
09-0094.
767.461
767.461
Revisions agreed to by stipulation. If after an initial order is entered under
s. 767.41 the parties agree to a modification in an order of physical placement or legal custody and file a stipulation with the court that specifies the agreed upon modification, the court shall incorporate the terms of the stipulation into a revised order of physical placement or legal custody unless the court finds that the modification is not in the best interest of the child.
767.461 History
History: 1987 a. 355;
2005 a. 443 s.
166; Stats. 2005 s. 767.461.
767.461 Annotation
Acceptance of a stipulation is not mandatory. The trial court is not prohibited from examining the best interests of the child. Paternity of S.A.
165 Wis. 2d 530,
478 N.W.2d 21 (Ct. App. 1991).
767.471
767.471
Enforcement of physical placement orders. 767.471(1)(a)
(a) "Moving party" means the parent filing a motion under this section, regardless of whether that parent was the petitioner in the action in which periods of physical placement were awarded under
s. 767.41.
767.471(1)(b)
(b) "Responding party" means the parent upon whom a motion under this section is served, regardless of whether that parent was the respondent in the action in which periods of physical placement were awarded under
s. 767.41.
767.471(2)
(2) Who may file. A parent who has been awarded periods of physical placement under
s. 767.41 may file a motion under
sub. (3) if any of the following applies:
767.471(2)(a)
(a) The parent has had one or more periods of physical placement denied by the other parent.
767.471(2)(b)
(b) The parent has had one or more periods of physical placement substantially interfered with by the other parent.
767.471(2)(c)
(c) The parent has incurred a financial loss or expenses as a result of the other parent's intentional failure to exercise one or more periods of physical placement under an order allocating specific times for the exercise of periods of physical placement.
767.471(3)(a)(a) The motion shall allege facts sufficient to show the following:
767.471(3)(a)1.
1. The name of the moving party and that the moving party has been awarded periods of physical placement.
767.471(3)(b)
(b) The motion shall request the imposition of a remedy or any combination of remedies under
sub. (5) (b) and
(c). This paragraph does not prohibit a court from imposing a remedy under
sub. (5) (b) or
(c) if the remedy was not requested in the motion.
767.471(3)(c)
(c) A court shall accept any legible motion for an order under this section.
767.471(3)(d)
(d) The motion shall be filed under the principal action under which the periods of physical placement were awarded.
