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 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; 2013 a. 334; 2015 a. 172; 2017 a. 203; 2019 a. 95; 2021 a. 20, 36, 37, 161.

767.41 Note NOTE: 1987 Wis. Act 355 contains a “legislative declaration” in section 1 and explanatory notes and 2005 Wis. Act 443 contains explanatory notes.

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 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 Annotation In 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 Annotation A 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 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, 502 N.W.2d 143 (Ct. App. 1993).

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) [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 Annotation Constitutional 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 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 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.

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.

767.41 Annotation The court acted properly when it ordered child support under the standard percentage guideline, without a reduction under the shared-time payer provision, for a parent with care responsibility for 36 percent of overnight placements. Placement until 7:00 p.m. including an evening meal, is not equivalent to providing overnight placement for purposes of determining the amount of placement with a parent. Rumpff v. Rumpff, 2004 WI App 197, 276 Wis. 2d 606, 688 N.W.2d 699, 03-2646.

767.41 Annotation Under sub. (1m) each parent is entitled to a copy of the other’s parenting plan. The trial court should not even consider custody and placement until both parties have had the opportunity to review each other’s plans. Guelig v. Guelig, 2005 WI App 212, 287 Wis. 2d 472, 704 N.W.2d 916, 05-0346.

767.41 Annotation Sub. (1m) does not relieve the court of the obligation to articulate how its decision bears on the child’s best interests if one parent, who does not timely file a parenting plan, waives the right to object to the other party’s plan. Sub. (5) (am) requires the court to consider the child’s best interests in absolute terms. Guelig v. Guelig, 2005 WI App 212, 287 Wis. 2d 472, 704 N.W.2d 916, 05-0346.

767.41 Annotation Sub. (4) (a) 2. 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 the child’s parents within an overall placement schedule, taking into account the best interests of the child, the presumption of the status quo under s. 767.325 (1) and (2) [now s. 767.451], the general factors listed in this section, and the particular factors listed under sub. (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.