Chapter 767

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:

767.41(5)(am)7.a. a. A party.

767.41(5)(am)7.b. b. A person with whom a parent of the child has a dating relationship, as defined in s. 813.12 (1) (ag).

767.41(5)(am)7.c. c. A person who resides, has resided, or will reside regularly or intermittently in a proposed custodial household.

767.41(5)(am)8. 8. The child’s adjustment to the home, school, religion, and community.

767.41(5)(am)9. 9. The age of the child and the child’s developmental and educational needs at different ages.

767.41(5)(am)10. 10. Whether the mental or physical health of a party, minor child, or other person living in a proposed custodial household negatively affects the child’s intellectual, physical, or emotional well-being.

767.41(5)(am)11. 11. Whether any of the following has a criminal record or whether there is evidence that any of the following has engaged in abuse, as defined in s. 813.122 (1) (a), of the child or any other child or neglected the child or any other child:

767.41(5)(am)11.a. a. A party.

767.41(5)(am)11.b. b. A person with whom a parent of the child has a dating relationship, as defined in s. 813.12 (1) (ag).

767.41(5)(am)11.c. c. A person who resides, has resided, or will reside regularly or intermittently in a proposed custodial household.

767.41(5)(am)12. 12. Whether there is 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).

767.41(5)(am)13. 13. The reports of appropriate professionals if admitted into evidence.

767.41(5)(am)14. 14. Any other factor that the court determines to be relevant.

767.41(5)(bm) (bm) If the court finds under sub. (2) (d) that a parent 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), the safety and well-being of the child and the safety of the parent who was the victim of the battery or abuse shall be the paramount concerns in determining legal custody and periods of physical placement.

767.41(5)(c) (c) Except as provided under ch. 324, if a parent is a service member, as defined in sub. (2) (e) 1., 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(5m) (5m) Approval of stipulation for modifications contingent on future event. In making an order of legal custody under sub. (2) or (3) or physical placement under sub. (4), the court may approve a stipulation for modifications to legal custody or physical placement upon the occurrence of a specified future event, as defined in s. 767.34 (3) (a), that is reasonably certain to occur within 2 years of the date of the stipulation and incorporate the terms of the stipulation into the order. The court may not approve a stipulation under this subsection that is based on an anticipated behavior modification of a party.

767.41(6) (6) Final order.

767.41(6)(a) (a) If legal custody or physical placement is contested, the court shall state in writing why its findings relating to legal custody or physical placement are in the best interest of the child. If the court grants physical placement to one parent for less than 25 percent of the time, as determined under s. 49.22 (9), the court shall enter specific findings of fact as to the reasons that a greater allocation of physical placement with that parent is not in the best interests of the child.

767.41(6)(am) (am) In making an order of joint legal custody, upon the request of one parent the court shall specify major decisions in addition to those specified under s. 767.001 (2m).

767.41(6)(b) (b) Notwithstanding s. 767.001 (1s), in making an order of joint legal custody, the court may give one party sole power to make specified decisions, while both parties retain equal rights and responsibilities for other decisions.

767.41(6)(c) (c) In making an order of joint legal custody and periods of physical placement, the court may specify one parent as the primary caretaker of the child and one home as the primary home of the child, for the purpose of determining eligibility for aid under s. 49.19 or benefits under ss. 49.141 to 49.161 or for any other purpose the court considers appropriate.

767.41(6)(d) (d) No party awarded joint legal custody may take any action inconsistent with any applicable physical placement order, unless the court expressly authorizes that action.

767.41(6)(e) (e) In an order of physical placement, the court shall specify the right of each party to the physical control of the child in sufficient detail to enable a party deprived of that control to implement any law providing relief for interference with custody or parental rights.

767.41(6)(f) (f) If the court finds under sub. (2) (d) 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), the court shall state in writing whether the presumption against awarding joint or sole legal custody to that party is rebutted and, if so, what evidence rebutted the presumption, and why its findings relating to legal custody and physical placement are in the best interest of the child.

767.41(6)(g) (g) If the court finds under sub. (2) (d) 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), and the court awards periods of physical placement to both parties, the court shall provide for the safety and well-being of the child and for the safety of the party who was the victim of the battery or abuse. For that purpose the court, giving consideration to the availability of services or programs and to the ability of the party who committed the battery or abuse to pay for those services or programs, shall impose one or more of the following, as appropriate:

767.41(6)(g)1. 1. Requiring the exchange of the child to occur in a protected setting or in the presence of an appropriate 3rd party who agrees by affidavit or other supporting evidence to assume the responsibility assigned by the court and to be accountable to the court for his or her actions with respect to the responsibility.

767.41(6)(g)2. 2. Requiring the child’s periods of physical placement with the party who committed the battery or abuse to be supervised by an appropriate 3rd party who agrees by affidavit or other supporting evidence to assume the responsibility assigned by the court and to be accountable to the court for his or her actions with respect to the responsibility.

767.41(6)(g)3. 3. Requiring the party who committed the battery or abuse to pay the costs of supervised physical placement.

767.41(6)(g)4. 4. Requiring the party who committed the battery or abuse to attend and complete, to the satisfaction of the court, treatment for batterers provided through a certified treatment program or by a certified treatment provider as a condition of exercising his or her periods of physical placement.

767.41(6)(g)5. 5. If the party who committed the battery or abuse has a significant problem with alcohol or drug abuse, prohibiting that party from being under the influence of alcohol or any controlled substance when the parties exchange the child for periods of physical placement and from possessing or consuming alcohol or any controlled substance during his or her periods of physical placement.

767.41(6)(g)6. 6. Prohibiting the party who committed the battery or abuse from having overnight physical placement with the child.

767.41(6)(g)7. 7. Requiring the party who committed the battery or abuse to post a bond for the return and safety of the child.

767.41(6)(g)8. 8. Imposing any condition not specified in subds. 1. to 7. that the court determines is necessary for the safety and well-being of the child or the safety of the party who was the victim of the battery or abuse.

767.41(6)(h) (h) In making an order of legal custody and periods of physical placement, the court shall in writing inform the parents, and any other person granted legal custody of the child, of all of the following:

767.41(6)(h)1. 1. That each parent must notify the other parent, the child support agency, and the clerk of court of the address at which they may be served within 10 business days of moving to that address. The address may be a street or post office address.

767.41(6)(h)2. 2. That the address provided to the court is the address on which the other parties may rely for service of any motion relating to modification of legal custody or physical placement or to relocating the child’s residence.

767.41(6)(h)3. 3. That a parent granted periods of physical placement with the child must obtain a court order before relocating with the child 100 miles or more from the other parent if the other parent also has court-ordered periods of physical placement with the child.

767.41(7) (7) Access to records.

767.41(7)(a) (a) Except under par. (b) or unless otherwise ordered by the court, access to a child’s medical, dental and school records is available to a parent regardless of whether the parent has legal custody of the child.

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 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.

767.41 Annotation In a custody dispute triggered by a petition for guardianship between a birth parent and a non-parent, the threshold inquiry is whether the parent is unfit, unable to care for the child, or there are compelling reasons for awarding custody to the non-parent. Consideration of a minor’s nomination of a guardian presupposes that the need for a guardian has been established. If it is determined that the birth parent is fit and able to care for the child and no compelling reasons exist to appoint a non-parent guardian, then the minor’s nomination of a guardian becomes moot. Nicholas C.L. v. Julie R.L., 2006 WI App 119, 293 Wis. 2d 819, 719 N.W.2d 508, 05-1754.

767.41 Annotation Enforcement of surrogacy agreements promotes stability and permanence in family relationships because it allows the intended parents to plan for the arrival of their child, reinforces the expectations of all parties to the agreement, and reduces contentious litigation. Because the agreement in this case was a valid, enforceable contract, the circuit court’s exclusion of the agreement and decision to render a custody and placement order without consideration of the agreement constituted an erroneous exercise of discretion. Rosecky v. Schissel, 2013 WI 66, 349 Wis. 2d 84, 833 N.W.2d 634, 11-2166.

767.41 Annotation Groh, 110 Wis. 2d 117 (1983), 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 to not move beyond 45 miles from the marital home. By its enactment of s. 767.481, 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, sub. (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.

767.41 Annotation Sub. (2) (d) permits, but does not mandate, an analysis of whether a party has engaged in a pattern or serious incident of domestic abuse. The legislature chose to require the parties and guardian ad litem to ask the court to consider whether there was a pattern or serious incident of domestic abuse. By not doing so at the time of the original divorce, the parties waived the right to seek application of the presumption in sub. (2) (d) based upon the facts that existed at the time they stipulated to joint custody. A party is free to seek application of the presumption in a post-divorce action if new facts support the presumption. Glidewell v. Glidewell, 2015 WI App 64, 364 Wis. 2d 588, 869 N.W.2d 796, 14-1957.

767.41 Annotation One may only overcome the presumption against sole or joint custody set forth in sub. (2) (d) 1. by successfully completing treatment designed for batterers and provided by a certified program or provider. Valadez v. Valadez, 2022 WI App 2, 400 Wis. 2d 523, 969 N.W.2d 770, 20-1006.

767.41 Annotation Custody—To Which Parent? Podell, Peck, & First. 56 MLR 51 (1972).

767.41 Annotation The Best Interest of the Child Doctrine in Wisconsin Custody Cases. Hofer. 64 MLR 343 (1980).

767.41 Annotation In the Interest of a Child: A Comparative Look at the Treatment of Children Under Wisconsin and Minnesota Custody Statutes. Walsh. 85 MLR 929 (2002).

767.41 Annotation Gender Equity and Procrustean Presumptions: A comment on the Recent Changes in Wisconsin’s Law Regarding Child Custody and Placement. Rue. 2001 WLR 1177.