767.471 History
History: 1999 a. 9;
2001 a. 61,
109;
2005 a. 443 s.
100; Stats. 2005 s. 767.471.
767.471 Annotation
A successful party in a proceeding under this section is entitled to recover the guardian ad litem fees attributable to him or her as part of the cost of maintaining an action under sub. (5) (b) 1. b, insuring that the full cost of enforcing physical placement rights falls on the interfering parent, not on the aggrieved parent. Under s. 767.045 (6) [now s. 767.407 (6)], a circuit court may allocate guardian ad litem fees between the parties when it makes a finding that a respondent has intentionally and unreasonably denied physical placement or interfered with the petitioner's periods of physical placement. When it makes one or both of those findings, the court must then award the petitioner whatever amount it has allocated to the petitioner. Bernier v. Bernier,
2006 WI App 2,
288 Wis. 2d 743,
709 N.W.2d 453,
04-0625.
767.471 Annotation
The award “of a reasonable amount for the cost of maintaining an action under this section and for attorney fees" under sub. (5) (b) is mandatory. Sub. (5) (b) does not require that documentation of attorney fees must be received into the evidentiary record of a hearing on the merits of a petition filed under that section in order for a court to make an award of attorney fees. Other cases establish that it is common practice for parties to litigate the amount of attorney fees in proceedings that follow a court's determination of the substantive issues. Borreson v. Yunto,
2006 WI App 63,
292 Wis. 2d 231,
713 N.W.2d 656,
05-0190.
767.471 Annotation
A parent cannot delegate physical placement rights to another in his or her absence. Thus a father could not seek to enforce his physical placement with his son by transferring that placement to his current spouse. Lubinski v. Lubinski,
2008 WI App 151,
314 Wis. 2d 395,
761 N.W.2d 676,
07-1701.
767.471 Annotation
Wisconsin's Custody, Placement and Paternity Reform Legislation. Walther. Wis.Law. April 2000.
767.481
767.481
Moving the child's residence within or outside the state. 767.481(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:
767.481(1)(a)1.
1. Establish his or her legal residence with the child at any location outside the state.
767.481(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.
767.481(1)(a)3.
3. Remove the child from this state for more than 90 consecutive days.
767.481(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).
767.481(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.
767.481(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. 767.225 (1) (bm).
767.481(2)(c)
(c) Upon receipt of a copy of a notice of objection under
par. (a), the court shall promptly refer the parents for mediation or other family court services under
s. 767.405 and may appoint a guardian ad litem. Unless the parents agree to extend the time period, if mediation or family court services do not resolve the dispute within 30 days after referral, the matter shall proceed under
subs. (3) to
(5).
767.481(3)
(3) Standards for modification or prohibition if move or removal contested. 767.481(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:
767.481(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.
767.481(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.
767.481(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.
767.481(3)(a)3.
3. Under this paragraph, the burden of proof is on the parent objecting to the move or removal.
767.481(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:
767.481(3)(b)1.a.
a. Circumstances make it impractical for the parties to continue to have substantially equal periods of physical placement.
767.481(3)(b)2.
2. Under this paragraph, the burden of proof is on the parent filing the petition, motion or order to show cause.
767.481(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.
767.481(3)(c)2.
2. Under this paragraph, the burden of proof is on the parent objecting to the move or removal.
767.481(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. 767.407 (1) (am) applies, and shall hold a hearing as soon as possible.
767.481(5)
(5) Factors in court's determination. In making its determination under
sub. (3), the court shall consider all of the following factors:
767.481(5)(a)
(a) Whether the purpose of the proposed action is reasonable.
767.481(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.
767.481(5)(c)
(c) The availability of alternative arrangements to foster and continue the child's relationship with and access to the other parent.
767.481(5m)
(5m) Other factors. In making a determination under
sub. (3):
767.481(5m)(a)
(a) The court may consider the child's adjustment to the home, school, religion and community.
767.481(5m)(b)
(b) The court may not use the availability of electronic communication as a factor in support of a modification of a physical placement order or in support of a refusal to prohibit a move.
767.481(6)
(6) Notice required for other removals. 767.481(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.
767.481(6)(b)
(b) Notwithstanding
par. (a), if notice is required under
sub. (1), a parent shall comply with
sub. (1).
767.481 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).
767.481 Annotation
The sub. (5) factors are an addenda to the best interest of the child considerations under s. 767.24 [now s. 767.41] and are a reminder to the court to tailor the best interest of the child standard to problems unique to a removal situation. Kerkvliet v. Kerkvliet,
166 Wis. 2d 930,
480 N.W.2d 823 (Ct. App. 1992).
767.481 Annotation
Sections 767.325 and 76.327 [now ss. 767.451 and 767.481] do not conflict. If one party files a notification of intent to move under s. 767.327 [now s. 767.481], the other parent may file a motion to modify placement under s. 767.325 [now s. 767.451], and the court may consider all relevant circumstances, including the move. Hughes v. Hughes,
223 Wis. 2d 111,
588 N.W.2d 346 (Ct. App. 1998),
97-3539.
767.481 Annotation
There is no law prohibiting a parent with joint legal custody and physical placement from taking a child outside the state, including to a foreign country, for less than 90 days. When parents agree that one parent must move the court to prohibit the other from taking a particular trip with the children, the moving party has the burden of producing evidence and persuading the court that prohibiting the trip is in the children's best interests. Long v. Ardestani,
2001 WI App 46,
241 Wis. 2d 498,
624 N.W.2d 405,
00-1429.
767.481 Annotation
Groh is still good law, subject to the expanded authority granted over intrastate moves of 150 or more miles. Accordingly, the circuit court in this case had no authority to prospectively order a parent not move beyond 45 miles from the marital home. By its enactment of this section, the legislature has made a judgment that moves of less than 150 miles are not subject to the best interests of the children standard. Rather than providing a court authority to prohibit geographical separation, s. 767.41 (4) (a) 2. presumes such separation exists and directs the court to consider the separation when establishing a placement schedule. Derleth v. Cordova,
2013 WI App 142,
352 Wis. 2d 51,
841 N.W.2d 552,
12-2018.
767.481 Annotation
The circuit court's factual determination that the parent's homes were less than 150 miles apart, by considering a usual and direct route, was not clearly erroneous. Derleth v. Cordova,
2013 WI App 142,
352 Wis. 2d 51,
841 N.W.2d 552,
12-2018.
767.481 Annotation
Based on the unique facts of this case, the court did not err in ordering that the children be re-enrolled in specific schools and that the mother return to that district so their enrollment could be accomplished while continuing their primary placement with her. Shulka v. Sikraji,
2014 WI App 113,
358 Wis. 2d 639,
856 N.W.2d 617,
13-2080.
767.481 Annotation
Wisconsin's Child Removal Law. Wis. Law. June 1993.
SUPPORT AND MAINTENANCE
767.501
767.501
Actions to compel support. 767.501(1)(a)
(a) “Nonlegally responsible relative" means a relative who assumes responsibility for the care of a child without legal custody, but is not in violation of a court order. “Nonlegally responsible relative" does not include a relative who has physical custody of a child during a court-ordered visitation period.
767.501(1)(b)
(b) “Relative" means any person connected with a child by blood, marriage or adoption.
767.501(2)
(2) Who may commence; support determination. 767.501(2)(a)(a) If a person does not provide for the support and maintenance of his or her spouse or minor child, any of the following may commence a court action to compel the person to provide support and maintenance:
767.501(2)(b)
(b) The court in the action shall, under
s. 767.511 or
767.56, determine the amount, if any, that the person should reasonably contribute to the support and maintenance of the spouse or child and how the sum shall be paid. The amount shall be expressed as a fixed sum unless the parties have stipulated to expressing the amount as a percentage of the payer's income and the requirements under
s. 767.34 (2) (am) 1. to
3. are satisfied. The amount ordered to be paid may be modified by the court under
s. 767.59 upon sufficient evidence.
767.501(2)(c)
(c) The determination may be enforced by contempt proceedings, an account transfer under
s. 767.76, or other enforcement mechanisms under
s. 767.77.
767.501(2)(d)
(d) In an action under this section, no filing fee or other costs are taxable to the person's spouse, the minor child, the person with legal custody, or the nonlegally responsible relative, but after the action has been commenced the court may order that all or part of any fees and costs incurred be paid by either party.
767.501(3)
(3) Public assistance recipients; action by state. If the state or any subdivision of the state furnishes public aid to a spouse or dependent child for support and maintenance and the spouse, person with legal custody, or nonlegally responsible relative does not commence an action under this chapter for support or maintenance, the person in charge of county welfare activities, the county child support agency under
s. 59.53 (5), or the department is a real party in interest under
s. 767.205 (2) and shall commence an action under this section. An attorney employed by the state or a subdivision of the state may commence an action under this section. The title of the action shall be “In re the support or maintenance of A.B. (Child)".
767.501(4)
(4) Legal custody and physical placement. Upon request of a party to an action under this section, the court may make orders concerning the legal custody and physical placement of any minor child of the parties in accordance with
s. 767.41.
767.501 Annotation
To find a party estopped from seeking a revision of a stipulation incorporated into a divorce judgment: 1) both parties must have entered into he stipulation knowingly and freely; 2) the overall settlement must be fair and equitable and not illegal or against public policy; and 3) one party subsequently seeks to be released form its terms on grounds that the court could not have entered the order it did without the parties agreement. Nichols v. Nichols,
162 Wis. 2d 96,
469 N.W.2d 619 (1991).
767.501 Annotation
County child support agencies can initiate actions to compel support under this section without payment of a filing fee.
72 Atty. Gen. 72.
767.511(1)(1)
When ordered. When the court approves a stipulation for child support under
s. 767.34, enters a judgment of annulment, divorce, or legal separation, or enters an order or a judgment in a paternity action or in an action under
s. 767.001 (1) (f) or
(j),
767.501, or
767.805 (3), the court shall do all of the following:
767.511(1)(a)
(a) Order either or both parents to pay an amount reasonable or necessary to fulfill a duty to support a child. The support amount must be expressed as a fixed sum unless the parties have stipulated to expressing the amount as a percentage of the payer's income and the requirements under
s. 767.34 (2) (am) 1. to
3. are satisfied.
767.511(1)(b)
(b) Ensure that the parties have stipulated which party, if either is eligible, will claim each child as an exemption for federal income tax purposes under
26 USC 151 (c) (1) (B) [
26 USC 151 (c)], or as an exemption for state income tax purposes under
s. 71.07 (8) (b) or under the laws of another state. If the parties are unable to reach an agreement about the tax exemption for each child, the court shall make the decision in accordance with state and federal tax laws. In making its decision, the court shall consider whether the parent who is assigned responsibility for the child's health care expenses under
s. 767.513 is covered under a health insurance policy or plan, including a self-insured plan, that is not subject to
s. 632.897 (10) and that conditions coverage of a dependent child on whether the child is claimed by the insured parent as an exemption for purposes of federal or state income taxes.
767.511 Note
NOTE: The correct cross-reference is shown in brackets. Corrective legislation is pending.
767.511(1)(c)
(c) In addition to ordering child support for a child under
par. (a), assign as a support obligation responsibility for, and direct the manner of payment of, the child's health care expenses under
s. 767.513.
767.511(1g)
(1g) Consideration of financial information. In determining child support payments, the court may consider all relevant financial information or other information relevant to the parent's earning capacity, including information reported under
s. 49.22 (2m) to the department or the county child support agency under
s. 59.53 (5).
767.511(1j)
(1j) Percentage standard generally required. Except as provided in
sub. (1m), the court shall determine child support payments by using the percentage standard established by the department under
s. 49.22 (9).
767.511(1m)
(1m) Deviation from standard; factors. Upon request by a party, the court may modify the amount of child support payments determined under
sub. (1j) if, after considering the following factors, the court finds by the greater weight of the credible evidence that use of the percentage standard is unfair to the child or to any of the parties:
767.511(1m)(bp)
(bp) The needs of each party in order to support himself or herself at a level equal to or greater than that established under
42 USC 9902 (2).
