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).
767.511(1m)(bz)
(bz) The needs of any person, other than the child, whom either party is legally obligated to support.
767.511(1m)(c)
(c) If the parties were married, the standard of living the child would have enjoyed had the marriage not ended in annulment, divorce or legal separation.
767.511(1m)(d)
(d) The desirability that the custodian remain in the home as a full-time parent.
767.511(1m)(e)
(e) The cost of child care if the custodian works outside the home, or the value of custodial services performed by the custodian if the custodian remains in the home.
767.511(1m)(ej)
(ej) The award of substantial periods of physical placement to both parents.
767.511(1m)(em)
(em) Extraordinary travel expenses incurred in exercising the right to periods of physical placement under
s. 767.41.
767.511(1m)(f)
(f) The physical, mental, and emotional health needs of the child, including any costs for health insurance as provided for under
s. 767.513.
767.511(1m)(hs)
(hs) The earning capacity of each parent, based on each parent's education, training and work experience and the availability of work in or near the parent's community.
767.511(1m)(i)
(i) Any other factors which the court in each case determines are relevant.
767.511(1n)
(1n) Deviation from standard; record. If the court finds under
sub. (1m) that use of the percentage standard is unfair to the child or the requesting party, the court shall state in writing or on the record the amount of support that would be required by using the percentage standard, the amount by which the court's order deviates from that amount, its reasons for finding that use of the percentage standard is unfair to the child or the party, its reasons for the amount of the modification and the basis for the modification.
767.511(2)
(2) Separate fund or trust. The court may protect and promote the best interests of the minor children by setting aside a portion of the child support which either party is ordered to pay in a separate fund or trust for the support, education and welfare of such children.
767.511(3)
(3) Effect of physical placement violation. Violation of physical placement rights by the custodial parent does not constitute reason for failure to meet child support obligations.
767.511(4)
(4) Age of child eligible for support. The court shall order either party or both to pay for the support of any child of the parties who is less than 18 years old, or any child of the parties who is less than 19 years old if the child is pursuing an accredited course of instruction leading to the acquisition of a high school diploma or its equivalent.
767.511(5)
(5) Liability for past support. Subject to
ss. 767.805 (4m) and
767.89 (4), liability for past support is limited to the period after the birth of the child.
767.511(6)
(6) Interest on arrearage. Subject to
sub. (6m), a party ordered to pay child support under this section shall pay simple interest at the rate of 1 percent per month on any amount in arrears that is equal to or greater than the amount of child support due in one month. Subject to
sub. (6m), if the party no longer has a current obligation to pay child support, interest at the rate of 1 percent per month shall accrue on the total amount of child support in arrears, if any. Interest under this subsection is in lieu of interest computed under
s. 807.01 (4),
814.04 (4), or
815.05 (8) and is paid to the department or its designee under
s. 767.57. Except as provided in
s. 767.57 (1m) and except as required under federal statutes or regulations, the department or its designee shall apply all payments received for child support as follows:
767.511(6)(a)
(a) First, to payment of child support due within the calendar month during which the payment is received.
767.511(6)(b)
(b) Second, to payment of unpaid child support due before the payment is received.
767.511(6)(c)
(c) Third, to payment of interest accruing on unpaid child support.
767.511(6m)
(6m) Pilot program on interest rate. The department may conduct a pilot program under which the interest that accrues on the amounts in arrears specified in
sub. (6) and in
s. 767.531 shall be at the rate of 0.5 percent per month instead of 1 percent per month. If the department conducts a pilot program under this subsection, the program may begin at any time after December 31, 2013, and the new rate shall apply to interest that accrues during that time.
767.511(7)
(7) Effect of joint legal custody. An order of joint legal custody under
s. 767.41 does not affect the amount of child support ordered.
767.511 History
History: 1971 c. 157;
1977 c. 29,
105,
418;
1979 c. 32 ss.
50,
92 (4);
1979 c. 196; Stats. 1979 s. 767.25;
1981 c. 20;
1983 a. 27;
1985 a. 29;
1987 a. 27,
37,
355,
413;
1989 a. 31,
212;
1991 a. 39;
1993 a. 481;
1995 a. 27 ss.
7101,
7102,
9126 (19);
1995 a. 201,
279,
404;
1997 a. 27,
35,
191;
1999 a. 9,
32;
2001 a. 16,
61;
2005 a. 253,
342;
2005 a. 443 ss.
103,
105,
219; Stats. 2005 s. 767.511;
2009 a. 185;
2011 a. 32;
2013 a. 20.
767.511 Cross-reference
Cross-reference: See also ch.
DCF 150, Wis. adm. code.
767.511 Cross-reference
Cross-reference: See also Wisconsin Administrative Code Citations published in the Wisconsin Administrative Code for a list of citations to cases citing chs.
DCF 150,
HSS 80, HFS 80, and DWD 40, the child support percentage of income standard.
