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)(b) Notwithstanding ss. 146.81 to 146.835, the information shall be kept confidential, except only as follows:
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 HistoryHistory: 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; 2013 a. 334; 2015 a. 172; 2017 a. 203; 2019 a. 95; 2021 a. 20, 36, 37, 161.
767.41 NoteNOTE: 1987 Wis. Act 355 contains a “legislative declaration” in section 1 and explanatory notes and 2005 Wis. Act 443 contains explanatory notes.
767.41 AnnotationIt 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 AnnotationAs 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 AnnotationThe 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 AnnotationThe trial court may not order a custodial parent to live in a designated part of the state or else lose custody. Groh v. Groh, 110 Wis. 2d 117, 327 N.W.2d 655 (1983).
767.41 AnnotationIn a custody dispute between a parent and a third 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 AnnotationA contract between a parent and a non-parent to transfer permanent custody is unenforceable. Sporleder v. Hermes, 162 Wis. 2d 1002, 471 N.W.2d 202 (1991). But see Holtzman v. Knott, 193 Wis. 2d 649, 533 N.W.2d 419 (1995).
767.41 AnnotationRevision 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 AnnotationSection 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, 502 N.W.2d 143 (Ct. App. 1993).
767.41 AnnotationA 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 AnnotationNeither 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 AnnotationSection 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 AnnotationSub. (5) (b) [now sub. (5) (am) 2.], 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 AnnotationConstitutional protections of a parent’s right to the parent’s 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 AnnotationSub. (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 AnnotationThere 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 AnnotationWhile 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 AnnotationA 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 the parent’s unmarried status was improper. Helling v. Lambert, 2004 WI App 93, 272 Wis. 2d 796, 681 N.W.2d 552, 03-1097.