Chapter 767

767.407 Note Judicial Council Note, 1990: This section clarifies and expands s. 767.045, as it was amended by 1987 Wisconsin Act 355. It also incorporates the substance of s. 809.85 into it. Sub. (1) (a) specifies the situations in which the court is required to appoint a guardian ad litem. Sub. (1) (a) 1. reflects the desirability of broad discretion for the court to appoint a guardian ad litem. Of special note is sub. (1) (b). While the court has always had the discretion to appoint a guardian ad litem in such situations, the committee concluded that it is desirable to specifically identify these situations as requiring special attention.

767.407 Note Sub. (2) is the present law which takes into account the need for mediation.

767.407 Note Sub. (4) defines the role of the guardian ad litem. It clarifies that the responsibility is as an advocate for the best interests of the child. It emphasizes the need for the guardian ad litem to function independently, while giving broad consideration to the views of others, including the children, social workers and the like. It also specifies that the guardian ad litem shall function in the same manner as the lawyer for a party. Among other things, this means that the guardian ad litem communicates with the court and other lawyers in the same manner as a lawyer for a party, presents information on relevant issues through the presentation of evidence or in other appropriate ways and generally functions as the lawyer for a party. In this case the “party” is the best interests of the children. Sub. (4) also enumerates specific duties to emphasize their particular importance.

767.407 Note The discretion for the guardian ad litem to communicate the wishes of the child in sub. (4) was added in 1987 Wisconsin Act 355, as was much of sub. (6). These are unchanged.

767.407 Note Sub. (5) specifies that the appointment terminates at the final order or the conclusion of the appeal unless the court otherwise directs. The court may reappoint or continue the appointment of the guardian ad litem after this but is required to state the scope of the responsibilities for such period. [Re Order effective Jan. 1, 1990]

767.407 Annotation If both spouses have ability to pay, each should be required to contribute to the payment of the guardian ad litem’s fee, with the percentage to be paid by each to be determined in the court’s discretion. Tesch v. Tesch, 63 Wis. 2d 320, 217 N.W.2d 647 (1974).

767.407 Annotation When the guardian ad litem’s report was timely disclosed to both parties, the trial court did not err in failing to introduce the report during a custody hearing. Allen v. Allen, 78 Wis. 2d 263, 254 N.W.2d 244 (1977).

767.407 Annotation An increase of visitation rights from 24 days to 75 days per year had sufficient impact upon the welfare of the children to require the appointment of a guardian ad litem. Bahr v. Galonski, 80 Wis. 2d 72, 257 N.W.2d 869 (1977).

767.407 Annotation The appointment of a guardian ad litem pursuant to sub. (1) and s. 891.39 (1) (a) is mandated when paternity is questioned and also when there are special concerns. Special concerns arise when a child’s welfare is directly at issue, as is the case when an existing family is disrupted. Johnson v. Johnson, 157 Wis. 2d 490, 460 N.W.2d 166 (Ct. App. 1990).

767.407 Annotation A guardian ad litem may not be called as a witness in a custody proceeding. The guardian ad litem is to communicate with the court as a lawyer for a party and to present information by presenting evidence. Hollister v. Hollister, 173 Wis. 2d 413, 496 N.W.2d 642 (Ct. App. 1992).

767.407 Annotation A guardian ad litem could act in a separate action involving the child outside of the court of original appointment even though another guardian ad litem had been appointed by the court when the separate action was brought. David S. v. Laura S., 179 Wis. 2d 114, 507 N.W.2d 94 (1993).

767.407 Annotation The court’s power to appropriate compensation for court-appointed counsel is necessary for the effective operation of the judicial system. In ordering compensation for court-ordered attorneys, a court should abide by the s. 977.08 (4m) rate when it can retain qualified, effective counsel at that rate, but should order compensation at the rate under SCR 81.01 or 81.02 or a higher rate when necessary to secure effective counsel. State ex rel. Friedrich v. Circuit Court, 192 Wis. 2d 1, 531 N.W.2d 32 (1995).

767.407 Annotation The denial of a child’s request to intervene in a divorce action was correct. The guardian ad litem fulfills the requirement that a child is entitled to representation. Joshua K. v. Nancy K., 201 Wis. 2d 655, 549 N.W.2d 494 (Ct. App. 1996), 94-3420.

767.407 Annotation Quasi-judicial immunity extends to a guardian ad litem’s negligent performance in a divorce proceeding. Paige K.B. v. Molepske, 219 Wis. 2d 418, 580 N.W.2d 289 (1998), 96-2620.

767.407 Annotation Under sub. (6), if only one of the parties is indigent, the court may not order the county or the indigent party to pay guardian ad litem fees. The court’s only option is to order the non-indigent party to pay. Olmsted v. Circuit Court, 2000 WI App 261, 240 Wis. 2d 197, 622 N.W.2d 29, 00-0620.

767.407 Annotation The quasi-judicial immunity of a guardian ad litem described in Paige K.B., 219 Wis. 2d 418 (1998), applies only to liability for the negligent performance of the guardian ad litem’s duties, not as a shield against court-imposed sanctions for failure to obey a court order. Evans v. Luebke, 2003 WI App 207, 267 Wis. 2d 596, 671 N.W.2d 304, 02-2210.

767.407 Annotation The guardian ad litem is an advocate for the child’s best interest, not a fact-finder or a consultant for the court. A trial court may decide, in individual cases, to weigh the guardian’s recommendation more heavily than the other statutory factors, but the court cannot rewrite the statute to create a fixed hierarchy of factors. Goberville v. Goberville, 2005 WI App 58, 280 Wis. 2d 405, 694 N.W.2d 503, 04-2440.

767.407 Annotation A circuit court may not, when the issue is contested, determine the primary placement of a child without appointing a guardian ad litem for the child. Because the interests affected by the absence of a guardian ad litem are the child’s and not the parties’, neither parent is empowered to waive a child’s right to have the child’s best interests represented and advocated for in a placement proceeding, and the court will decline to address the issue on the basis of either waiver or the doctrine of invited error. State v. Freymiller, 2007 WI App 6, 298 Wis. 2d 333, 727 N.W.2d 334, 05-2460.

767.407 Annotation The “Why” Behind Appointing Guardians Ad Litem for Children in Divorce Proceedings. Podell. 57 MLR 103 (1973).

767.41 767.41 Custody and physical placement.

767.41(1) (1) General provisions.

767.41(1)(a) (a) Subject to ch. 822, the question of a child’s custody may be determined as an incident of any action affecting the family or in an independent action for custody. The effect of any determination of a child’s custody is not binding personally against any parent or guardian unless the parent or guardian has been made personally subject to the jurisdiction of the court in the action as provided under ch. 801 or has been notified under s. 822.08, as provided in s. 822.06. Nothing in this chapter may be construed to foreclose a person other than a parent who has physical custody of a child from proceeding under ch. 822.

767.41(1)(b) (b) In rendering a judgment of annulment, divorce, legal separation, or paternity, or in rendering a judgment in an action under s. 767.001 (1) (e), 767.501, 767.804 (2), or 767.805 (3), the court shall make such provisions as it deems just and reasonable concerning the legal custody and physical placement of any minor child of the parties, as provided in this section.

767.41(1m) (1m) Parenting plan. Unless the court orders otherwise, in an action for annulment, divorce, or legal separation, an action to determine paternity, or an action under s. 767.001 (1) (e), 767.501, 767.804 (2), or 767.805 (3), in which legal custody or physical placement is contested, a party seeking sole or joint legal custody or periods of physical placement shall file a proposed parenting plan with the court if the court waives the requirement to attend mediation under s. 767.405 (8) (b) or if the parties have attended mediation and the mediator notifies the court under s. 767.405 (12) (b) that the parties have not reached an agreement. Unless the court orders otherwise, the proposed parenting plan shall be filed within 60 days after the court waives the mediation requirement or the mediator notifies the court that no agreement has been reached. Except for cause shown, a party required to file a proposed parenting plan under this subsection who does not timely file a proposed parenting plan waives the right to object to the other party’s parenting plan. A proposed parenting plan shall provide information about the following questions:

767.41(1m)(a) (a) What legal custody or physical placement the parent is seeking.

767.41(1m)(b) (b) Where the parent lives currently and where the parent intends to live during the next 2 years. If there is evidence that the other parent engaged in interspousal battery, as described under s. 940.19 or 940.20 (1m), or domestic abuse, as defined in s. 813.12 (1) (am), with respect to the parent providing the parenting plan, the parent providing the parenting plan is not required to disclose the specific address but only a general description of where he or she currently lives and intends to live during the next 2 years.

767.41(1m)(c) (c) Where the parent works and the hours of employment. If there is evidence that the other parent engaged in interspousal battery, as described under s. 940.19 or 940.20 (1m), or domestic abuse, as defined in s. 813.12 (1) (am), with respect to the parent providing the parenting plan, the parent providing the parenting plan is not required to disclose the specific address but only a general description of where he or she works.

767.41(1m)(cm) (cm) With specific detail, what proposed variable costs are expected to be incurred by or on behalf of the child.

767.41(1m)(d) (d) Who will provide any necessary child care when the parent cannot and who will pay for the child care.

767.41(1m)(e) (e) Where the child will go to school.

767.41(1m)(f) (f) What doctor or health care facility will provide medical care for the child.

767.41(1m)(h) (h) What the child’s religious commitment will be, if any.

767.41(1m)(i) (i) Who will make decisions about the child’s education, medical care, choice of child care providers and extracurricular activities.

767.41(1m)(j) (j) How the holidays will be divided.

767.41(1m)(k) (k) What the child’s summer schedule will be.

767.41(1m)(L) (L) Whether and how the child will be able to contact the other parent when the child has physical placement with the parent providing the parenting plan, and what electronic communication, if any, the parent is seeking.

767.41(1m)(Lm) (Lm) Whether equipment for providing electronic communication is reasonably available to both parents.

767.41(1m)(m) (m) How the parent proposes to resolve disagreements related to matters over which the court orders joint decision making.

767.41(1m)(o) (o) If there is evidence that either party engaged in interspousal battery, as described under s. 940.19 or 940.20 (1m), or domestic abuse, as defined in s. 813.12 (1) (am), with respect to the other party, how the child will be transferred between the parties for the exercise of physical placement to ensure the safety of the child and the parties.

767.41(2) (2) Custody to party; joint or sole.

767.41(2)(a) (a) Subject to pars. (am) to (e), based on the best interest of the child and after considering the factors under sub. (5) (am), subject to sub. (5) (bm), the court may give joint legal custody or sole legal custody of a minor child.

767.41(2)(am) (am) Except as provided in par. (d), the court shall presume that joint legal custody is in the best interest of the child.

767.41(2)(b) (b) Except as provided in par. (d) and subject to par. (e), the court may give sole legal custody only if it finds that doing so is in the child’s best interest and that either of the following applies:

767.41(2)(b)1. 1. Both parties agree to sole legal custody with the same party.

767.41(2)(b)2. 2. The parties do not agree to sole legal custody with the same party, but at least one party requests sole legal custody and the court specifically finds any of the following:

767.41(2)(b)2.a. a. One party is not capable of performing parental duties and responsibilities or does not wish to have an active role in raising the child.

767.41(2)(b)2.b. b. One or more conditions exist at that time that would substantially interfere with the exercise of joint legal custody.

767.41(2)(b)2.c. c. The parties will not be able to cooperate in the future decision making required under an award of joint legal custody. In making this finding the court shall consider, along with any other pertinent items, any reasons offered by a party objecting to joint legal custody. Evidence that either party engaged in abuse, as defined in s. 813.122 (1) (a), of the child, as defined in s. 813.122 (1) (b), or evidence of interspousal battery, as described under s. 940.19 or 940.20 (1m), or domestic abuse, as defined in s. 813.12 (1) (am), creates a rebuttable presumption that the parties will not be able to cooperate in the future decision making required.

767.41(2)(c) (c) Except as provided in par. (d), the court may not give sole legal custody to a parent who refuses to cooperate with the other parent if the court finds that the refusal to cooperate is unreasonable.

767.41(2)(d) (d)

767.41(2)(d)1. 1. Except as provided in subd. 4., if the court finds by a preponderance of the evidence that a party has engaged in a pattern or serious incident of interspousal battery, as described under s. 940.19 or 940.20 (1m), or domestic abuse, as defined in s. 813.12 (1) (am), pars. (am), (b), and (c) do not apply and there is a rebuttable presumption that it is detrimental to the child and contrary to the best interest of the child to award joint or sole legal custody to that party. The presumption under this subdivision may be rebutted only by a preponderance of evidence of all of the following:

767.41(2)(d)1.a. a. The party who committed the battery or abuse has successfully completed treatment for batterers provided through a certified treatment program or by a certified treatment provider and is not abusing alcohol or any other drug.

767.41(2)(d)1.b. b. It is in the best interest of the child for the party who committed the battery or abuse to be awarded joint or sole legal custody based on a consideration of the factors under sub. (5) (am).

767.41(2)(d)2. 2. If the court finds under subd. 1. that both parties engaged in a pattern or serious incident of interspousal battery, as described under s. 940.19 or 940.20 (1m), or domestic abuse, as defined in s. 813.12 (1) (am), the party who engaged in the battery or abuse for purposes of the presumption under subd. 1. is the party that the court determines was the primary physical aggressor. Except as provided in subd. 3., in determining which party was the primary physical aggressor, the court shall consider all of the following:

767.41(2)(d)2.a. a. Prior acts of domestic violence between the parties.

767.41(2)(d)2.b. b. The relative severity of the injuries, if any, inflicted upon a party by the other party in any of the prior acts of domestic violence under subd. 2. a.

767.41(2)(d)2.c. c. The likelihood of future injury to either of the parties resulting from acts of domestic violence.

767.41(2)(d)2.d. d. Whether either of the parties acted in self-defense in any of the prior acts of domestic violence under subd. 2. a.

767.41(2)(d)2.e. e. Whether there is or has been a pattern of coercive and abusive behavior between the parties.

767.41(2)(d)2.f. f. Any other factor that the court considers relevant to the determination under this subdivision.

767.41(2)(d)3. 3. If the court must determine under subd. 2. which party was the primary physical aggressor and one, but not both, of the parties has been convicted of a crime that was an act of domestic abuse, as defined in s. 813.12 (1) (am), with respect to the other party, the court shall find the party who was convicted of the crime to be the primary physical aggressor.

767.41(2)(d)4. 4. The presumption under subd. 1. does not apply if the court finds that both parties engaged in a pattern or serious incident of interspousal battery or domestic abuse but the court determines that neither party was the primary physical aggressor.

767.41(2)(e) (e)

767.41(2)(e)1. 1. In this paragraph, “service member” has the meaning given in s. 324.02 (16).

767.41(2)(e)2. 2. Except as provided under ch. 324, if a party is a service member, the court may not consider as a factor in determining the legal custody of a child 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.

767.41(3) (3) Custody to agency or relative.

767.41(3)(a) (a) If the interest of any child demands it, and if the court finds that neither parent is able to care for the child adequately or that neither parent is fit and proper to have the care and custody of the child, the court may declare the child to be in need of protection or services and transfer legal custody of the child to a relative of the child, as defined in s. 48.02 (15), to a county department, as defined under s. 48.02 (2g), to a licensed child welfare agency, or, in a county having a population of 750,000 or more, the department of children and families. If the court transfers legal custody of a child under this subsection, in its order the court shall notify the parents of any applicable grounds for termination of parental rights under s. 48.415. If the court transfers legal custody under this section to an agency, the court shall also refer the matter to the court intake worker, as defined in s. 48.02 (3), who shall conduct an inquiry under s. 48.24 to determine whether a petition should be filed under s. 48.13.

767.41(3)(am) (am) If the court transfers legal custody of a child under this subsection, the order transferring custody shall include a finding that placement of the child in his or her home would be contrary to the welfare of the child and a finding that reasonable efforts have been made to prevent the removal of the child from the home, while assuring that the health and safety of the child are the paramount concerns, unless any of the circumstances specified in s. 48.355 (2d) (b) 1. to 5. applies. If the legal custodian appointed under par. (a) is a county department, the court shall order the child into the placement and care responsibility of the county department as required under 42 USC 672 (a) (2) and shall assign the county department primary responsibility for providing services to the child. The court shall make the findings specified in this paragraph on a case-by-case basis based on circumstances specific to the child and shall document or reference the specific information on which those findings are based in the court order. A court order that merely references this paragraph without documenting or referencing that specific information in the court order or an amended court order that retroactively corrects an earlier court order that does not comply with this paragraph is not sufficient to comply with this paragraph.

767.41(3)(b) (b) If the legal custodian appointed under par. (a) is an agency, the agency shall report to the court on the status of the child at least once each year until the child reaches 18 years of age, is returned to the custody of a parent or is placed under the guardianship of an agency. The agency shall file an annual report no less than 30 days before the anniversary of the date of the order. An agency may file an additional report at any time if it determines that more frequent reporting is appropriate. A report shall summarize the child’s permanency plan and the recommendations of the review panel under s. 48.38 (5), if any.

767.41(3)(c) (c) The court shall hold a hearing to review the permanency plan within 30 days after receiving a report under par. (b). At least 10 days before the date of the hearing, the court shall provide notice of the time, place, and purpose of the hearing to the agency that prepared the report; the child; the child’s parents, guardian, and legal custodian; and the child’s foster parent, the operator of the facility in which the child is living, or the relative with whom the child is living.

767.41(3)(d) (d) Following the hearing, the court shall make all of the determinations specified under s. 48.38 (5) (c) and, if it determines that an alternative placement is in the child’s best interest, may amend the order to transfer legal custody of the child to another relative, other than a parent, or to another agency specified under par. (a).

767.41(3)(e) (e) The charges for care furnished to a child whose custody is transferred under this subsection shall be pursuant to the procedure under s. 48.36 (1) or 938.36 (1) except as provided in s. 767.57 (3).

767.41(4) (4) Allocation of physical placement.

767.41(4)(a) (a)

767.41(4)(a)1. 1. Except as provided under par. (b), if the court orders sole or joint legal custody under sub. (2), the court shall allocate periods of physical placement between the parties in accordance with this subsection.

767.41(4)(a)2. 2. In determining the allocation of periods of physical placement, the court shall consider each case on the basis of the factors in sub. (5) (am), subject to sub. (5) (bm). The court shall set a placement schedule that allows the child to have regularly occurring, meaningful periods of physical placement with each parent and that maximizes the amount of time the child may spend with each parent, taking into account geographic separation and accommodations for different households.

767.41(4)(b) (b) A child is entitled to periods of physical placement with both parents unless, after a hearing, the court finds that physical placement with a parent would endanger the child’s physical, mental or emotional health.

767.41(4)(c) (c) No court may deny periods of physical placement for failure to meet, or grant periods of physical placement for meeting, any financial obligation to the child or, if the parties were married, to the former spouse.

767.41(4)(cm) (cm) If a court denies periods of physical placement under this section, the court shall give the parent that was denied periods of physical placement the warning provided under s. 48.356.

767.41(4)(e) (e) If the court grants periods of physical placement to more than one parent, the court may grant to either or both parents a reasonable amount of electronic communication at reasonable hours during the other parent’s periods of physical placement with the child. Electronic communication with the child may be used only to supplement a parent’s periods of physical placement with the child. Electronic communication may not be used as a replacement or as a substitute for a parent’s periods of physical placement with the child. Granting a parent electronic communication with the child during the other parent’s periods of physical placement shall be based on whether it is in the child’s best interest and whether equipment for providing electronic communication is reasonably available to both parents. If the court grants electronic communication to a parent whose physical placement with the child is supervised, the court shall also require that the parent’s electronic communication with the child be supervised.

767.41(5) (5) Factors in custody and physical placement determinations.

767.41(5)(am) (am) Subject to pars. (bm) and (c), in determining legal custody and periods of physical placement, the court shall consider all facts relevant to the best interest of the child. The court may not prefer one parent or potential custodian over the other on the basis of the sex or race of the parent or potential custodian. Subject to pars. (bm) and (c), the court shall consider all of the following factors, which are not necessarily listed in order of importance, in making its determination:

767.41(5)(am)1. 1. The wishes of the child’s parent or parents, as shown by any stipulation between the parties, any proposed parenting plan or any legal custody or physical placement proposal submitted to the court at trial.

767.41(5)(am)2. 2. The wishes of the child, which may be communicated by the child or through the child’s guardian ad litem or other appropriate professional.

767.41(5)(am)3. 3. The cooperation and communication between the parties and whether either party unreasonably refuses to cooperate or communicate with the other party.

767.41(5)(am)4. 4. Whether each party can support the other party’s relationship with the child, including encouraging and facilitating frequent and continuing contact with the child, or whether one party is likely to unreasonably interfere with the child’s continuing relationship with the other party.

767.41(5)(am)5. 5. The interaction and interrelationship of the child with his or her siblings, and any other person who may significantly affect the child’s best interest.

767.41(5)(am)6. 6. The interaction and interrelationship of the child with his or her parent or parents and the amount and quality of time that each parent has spent with the child in the past, any necessary changes to the parents’ custodial roles, and any reasonable lifestyle changes that a parent proposes to make to maximize placement with the child.

767.41(5)(am)7. 7. Whether any of the following has or had a significant problem with alcohol or drug abuse: