Chapter 767

767.451 Annotation The revision of s. 767.24 [now s. 767.41] allowing joint custody in cases where 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).

767.451 Annotation Sub. (1) (a) prohibits a change of custody solely to correct a mother’s unreasonable interference with physical placement of the child with the father. Sub. (1) (a) provides a two-year truce period. Judicial intervention during this period must be compelling. Andrew J.N. v. Wendy L.D., 174 Wis. 2d 745, 498 N.W.2d 235 (1993).

767.451 Annotation “Necessary” embodies at least two concepts: 1) that the modification must operate to protect the child from alleged harmful custodial conditions; and 2) that the physical or emotional harm threatened by the current custodial conditions must be severe enough to warrant modification. Andrew J.N. v. Wendy L.D., 174 Wis. 2d 745, 498 N.W.2d 235 (1993).

767.451 Annotation This section does not limit a court’s authority to hold a hearing or enter an order during the two-year “truce period” with the order effective on the conclusion of the truce period. Paul M.J. v. Dorene A.G., 181 Wis. 2d 304, 510 N.W.2d 775 (Ct. App. 1993).

767.451 Annotation Sub. (1) (b) is inapplicable in guardianship litigation between a parent and a third-party guardian. Howard M. v. Jean R., 196 Wis. 2d 16, 539 N.W.2d 104 (Ct. App. 1995), 94-0955.

767.451 Annotation Neither sub. (4) nor s. 767.24 (4) (b) [now s. 767.41 (4) (b)] 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.

767.451 Annotation Sections 767.325 and 767.327 [now this section and s. 767.481] do not conflict. If one party files a notification of intention 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 this section], and the court may consider all relevant circumstances, including, but not limited to, the move. Hughes v. Hughes, 223 Wis. 2d 111, 588 N.W.2d 346 (Ct. App. 1998), 97-3539.

767.451 Annotation The sub. (1) prohibition against modification of placement orders applies to both primary placement and physical placement. Trost v. Trost, 2000 WI App 222, 239 Wis. 2d 1, 619 N.W.2d 105, 99-1236.

767.451 Annotation When a court denies a parent physical placement, it has the authority to impose conditions for regaining placement, which may include mental health treatment, anger management, individual or family counseling, and parenting training. Conditions imposed must be necessary to protect the child from the danger of physical, emotional, or mental harm if the child is placed with the parent. State v. Alice H., 2000 WI App 228, 239 Wis. 2d 194, 619 N.W.2d 151, 99-2812.

767.451 Annotation A change in amount of placement days does not, in and of itself, establish a substantial change in circumstances. Beaudoin v. Beaudoin, 2001 WI App 42, 241 Wis. 2d 350, 625 N.W.2d 619, 00-0825.

767.451 Annotation By asking the trial court for what constituted a substantial modification of placement, the movant effectively conceded that there was a substantial change in circumstances to merit placement modification under sub. (1) (b) 1. and could not maintain a contrary position on appeal. Keller v. Keller, 2002 WI App 161, 256 Wis. 2d 401, 647 N.W.2d 426, 01-2970.

767.451 Annotation An order that modifies payments for child support is not an order substantially affecting physical placement as contemplated by sub. (1) (b). Parties have a right to informally agree to change their children’s physical placement schedule. That a court order modifying child support acknowledges an informal agreement does not affect physical placement for purposes of this section, and the order to be considered under this section is that which set the placement schedule that was informally modified. Culligan v. Cindric, 2003 WI App 180, 266 Wis. 2d 534, 669 N.W.2d 175, 02-2275.

767.451 Annotation Sub. (1) (b) does not violate equal protection. Continuity in custody and placement circumstances is beneficial for children, which constitutes a compelling state interest, even when the mother originally acquired custody due to the sole legal custody presumption. Abbas v. Palmersheim, 2004 WI App 126, 275 Wis. 2d 311, 685 N.W.2d 546, 02-3390.

767.451 Annotation The s. 767.24 (2) (am) [now s. 767.41 (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 sub. (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.

767.451 Annotation Under s. 767.24 (6) (b) [now s. 767.41 (6) (b)], the court may give one party with joint custody sole power to make specified decisions while both parties retain equal responsibility for others. Because sub. (1) permits a court to modify legal custody and physical placement, the court may modify the terms of the parties’ joint custody in a manner that results in a change in the amount of time the child spends in the home of the parent having primary physical placement. The court was authorized to award one party authority to determine school enrollment and to permit that parent’s choice of a boarding school although it reduced the amount of time the child spent with the other parent. Greene v. Hahn, 2004 WI App 214, 277 Wis. 2d 473, 689 N.W.2d 657, 03-3311.

767.451 Annotation That a child grows older does not, in and of itself, create a substantial change in circumstances. However, when the age change is from infant to adolescent and is accompanied by a pattern of adjustment difficulties, educational failure, and harmful or illegal behavior, and the parties are unable to agree on a major decision affecting the child’s life, a substantial change in circumstances has been shown. Greene v. Hahn, 2004 WI App 214, 277 Wis. 2d 473, 689 N.W.2d 657, 03-3311.

767.451 Annotation Section 767.24 (4) (a) 2. [now s. 767.41] 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 subs. (1) and (2), the general factors listed in s. 767.24, and the particular factors listed under s. 767.24 (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.

767.451 Annotation Absent a motion, petition, or order to show cause brought by a party, as required by sub. (1) (b) 1., the trial court lacked authority to amend or modify the custody order from joint custody to sole legal custody. State v. Lucas, 2006 WI App 112, 293 Wis. 2d 781, 718 N.W.2d 184, 05-1180.

767.451 Annotation As in sub. (1), a court is authorized to modify an order under sub. (3) only upon petition, motion, or order to show cause by a party. The statute does not authorize a court to modify a placement order on its own motion. Stumpner v. Cutting, 2010 WI App 65, 324 Wis. 2d 820, 783 N.W.2d 874, 09-0094.

767.461 767.461 Revisions agreed to by stipulation. If after an initial order is entered under s. 767.41 the parties agree to a modification in an order of physical placement or legal custody and file a stipulation with the court that specifies the agreed upon modification, including a modification to physical placement or legal custody 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, the court shall incorporate the terms of the stipulation into a revised order of physical placement or legal custody unless the court finds that the modification is not in the best interest of the child. The court may not incorporate the terms of a stipulation that is based on an anticipated behavior modification of a party, including for the completion of any of the following:

767.461(1) (1) An anger management course or therapy.

767.461(2) (2) A batterers intervention program.

767.461(3) (3) A drug or alcohol treatment or therapy.

767.461(4) (4) A term of incarceration, extended supervision, parole, or probation for a violation of s. 940.01, 940.02, 940.03, 940.05, 940.06, 940.08, 940.09, 940.10, 940.19, 940.195, 940.20, 940.201 (2), 940.203 (2), 940.204, 940.225 (1), (2), or (3), 940.23, 940.235, 940.24 (1), 940.30, 940.302 (2), 940.305, 940.31, 940.32 (2), (2e), or (2m), 940.42, 940.43, 940.44, 940.45, 941.20, 941.29, 941.30, 941.39, 943.011 (2), 947.012, 947.013, 948.02 (1) or (2), 948.025, 948.03, 948.04, 948.05, 948.051, 948.055, 948.06, 948.07, 948.08, 948.085, 948.095, 948.30, 948.55, or 951.02 or any felony to which the penalty enhancer under s. 939.621 could be imposed, for a violation of a 72-hour no contact order under s. 968.075 (5), for a violation of a domestic abuse restraining order, child abuse restraining order, or harassment restraining order, or for a violation to which a penalty enhancer for the use of a dangerous weapon is applied.

767.461 History History: 1987 a. 355; 2005 a. 443 s. 166; Stats. 2005 s. 767.461; 2021 a. 20, 209; 2021 a. 240 s. 30.

767.461 Note NOTE: 2005 Wis. Act 443 contains explanatory notes.

767.461 Annotation Acceptance of a stipulation is not mandatory. The trial court is not prohibited from examining the best interests of the child. Racine Family Court Commissioner v. M.E., 165 Wis. 2d 530, 478 N.W.2d 21 (Ct. App. 1991).

767.471 767.471 Enforcement of physical placement orders.

767.471(1) (1) Definitions. In this section:

767.471(1)(a) (a) “Moving party” means the parent filing a motion under this section, regardless of whether that parent was the petitioner in the action in which periods of physical placement were awarded under s. 767.41.

767.471(1)(b) (b) “Responding party” means the parent upon whom a motion under this section is served, regardless of whether that parent was the respondent in the action in which periods of physical placement were awarded under s. 767.41.

767.471(2) (2) Who may file. A parent who has been awarded periods of physical placement under s. 767.41 may file a motion under sub. (3) if any of the following applies:

767.471(2)(a) (a) The parent has had one or more periods of physical placement denied by the other parent.

767.471(2)(b) (b) The parent has had one or more periods of physical placement substantially interfered with by the other parent.

767.471(2)(c) (c) The parent has incurred a financial loss or expenses as a result of the other parent’s intentional failure to exercise one or more periods of physical placement under an order allocating specific times for the exercise of periods of physical placement.

767.471(3) (3) Motion.

767.471(3)(a) (a) The motion shall allege facts sufficient to show the following:

767.471(3)(a)1. 1. The name of the moving party and that the moving party has been awarded periods of physical placement.

767.471(3)(a)2. 2. The name of the responding party.

767.471(3)(a)3. 3. That one or more of the criteria in sub. (2) apply.

767.471(3)(b) (b) The motion shall request the imposition of a remedy or any combination of remedies under sub. (5) (b) and (c). This paragraph does not prohibit a court from imposing a remedy under sub. (5) (b) or (c) if the remedy was not requested in the motion.

767.471(3)(c) (c) A court shall accept any legible motion for an order under this section.

767.471(3)(d) (d) The motion shall be filed under the principal action under which the periods of physical placement were awarded.

767.471(3)(e) (e) A motion under this section is a motion for remedial sanction for purposes of s. 785.03 (1) (a).

767.471(4) (4) Service on responding party; response. Upon the filing of a motion under sub. (3), the moving party shall serve a copy of the motion upon the responding party by personal service in the same manner as a summons is served under s. 801.11. The responding party may respond to the motion either in writing before or at the hearing under sub. (5) (a) or orally at that hearing.

767.471(5) (5) Hearing; remedies.

767.471(5)(a) (a) The court shall hold a hearing on the motion no later than 30 days after the motion has been served, unless the time is extended by mutual agreement of the parties or upon the motion of a guardian ad litem and the approval of the court. The court may, on its own motion or the motion of any party, order that a guardian ad litem be appointed for the child prior to the hearing.

767.471(5)(b) (b) If at the conclusion of the hearing the court finds that the responding party has intentionally and unreasonably denied the moving party one or more periods of physical placement or that the responding party has intentionally and unreasonably interfered with one or more of the moving party’s periods of physical placement, the court:

767.471(5)(b)1. 1. Shall do all of the following:

767.471(5)(b)1.a. a. Issue an order granting additional periods of physical placement to replace those denied or interfered with.

767.471(5)(b)1.b. b. Award the moving party a reasonable amount for the cost of maintaining an action under this section and for attorney fees.

767.471(5)(b)2. 2. May do one or more of the following:

767.471(5)(b)2.a. a. If the underlying order or judgment relating to periods of physical placement does not provide for specific times for the exercise of periods of physical placement, issue an order specifying the times for the exercise of periods of physical placement.

767.471(5)(b)2.b. b. Find the responding party in contempt of court under ch. 785.

767.471(5)(b)2.c. c. Grant an injunction ordering the responding party to strictly comply with the judgment or order relating to the award of physical placement. In determining whether to issue an injunction, the court shall consider whether alternative remedies requested by the moving party would be as effective in obtaining compliance with the order or judgment relating to physical placement.

767.471(5)(c) (c) If at the conclusion of the hearing the court finds that the moving party has incurred a financial loss or expenses as a result of the responding party’s failure, intentionally and unreasonably and without adequate notice to the moving party, to exercise one or more periods of physical placement under an order allocating specific times for the exercise of periods of physical placement, the court may issue an order requiring the responding party to pay to the moving party a sum of money sufficient to compensate the moving party for the financial loss or expenses.

767.471(5)(d) (d) Except as provided in par. (b) 1. a. and 2. a., the court may not modify an order of legal custody or physical placement in an action under this section.

767.471(5)(e) (e) An injunction issued under par. (b) 2. c. is effective according to its terms for the period of time that the moving party requests, but not more than 2 years.

767.471(6) (6) Enforcement assistance.

767.471(6)(a) (a) If an injunction is issued under sub. (5) (b) 2. c., upon request by the moving party the court shall order the sheriff to assist the moving party in executing or serving the injunction.

767.471(6)(b) (b) Within 24 hours after a request by the moving party, the clerk of the circuit court shall send a copy of an injunction issued under sub. (5) (b) 2. c. to the sheriff or to any other local law enforcement agency that is the central repository for orders and that has jurisdiction over the responding party’s residence. If the responding party does not reside in this state, the clerk shall send a copy of the injunction to the sheriff of the county in which the circuit court is located.

767.471(6)(c) (c) The sheriff or other appropriate local law enforcement agency under par. (b) shall make available to other law enforcement agencies, through a verification system, information on the existence and status of any injunction issued under sub. (5) (b) 2. c. The information need not be maintained after the injunction is no longer in effect.

767.471(8) (8) Penalty. Whoever intentionally violates an injunction issued under sub. (5) (b) 2. c. is guilty of a Class I felony.

767.471 History History: 1999 a. 9; 2001 a. 61, 109; 2005 a. 443 s. 100; Stats. 2005 s. 767.471.

767.471 Note NOTE: 2005 Wis. Act 443 contains explanatory notes.

767.471 Annotation A successful party in a proceeding under this section is entitled to recover the guardian ad litem fees attributable to the party as part of the cost of maintaining an action under sub. (5) (b) 1. b., insuring that the full cost of enforcing physical placement rights falls on the interfering parent, not on the aggrieved parent. Under s. 767.045 (6) [now s. 767.407 (6)], a circuit court may allocate guardian ad litem fees between the parties when it makes a finding that a respondent has intentionally and unreasonably denied physical placement or interfered with the petitioner’s periods of physical placement. When it makes one or both of those findings, the court must then award the petitioner whatever amount it has allocated to the petitioner. Bernier v. Bernier, 2006 WI App 2, 288 Wis. 2d 743, 709 N.W.2d 453, 04-0625.

767.471 Annotation The award “of a reasonable amount for the cost of maintaining an action under this section and for attorney fees” under sub. (5) (b) is mandatory. Sub. (5) (b) does not require that documentation of attorney fees must be received into the evidentiary record of a hearing on the merits of a petition filed under that section in order for a court to make an award of attorney fees. Other cases establish that it is common practice for parties to litigate the amount of attorney fees in proceedings that follow a court’s determination of the substantive issues. Borreson v. Yunto, 2006 WI App 63, 292 Wis. 2d 231, 713 N.W.2d 656, 05-0190.

767.471 Annotation A parent cannot delegate physical placement rights to another in the parent’s absence. Thus a father could not seek to enforce his physical placement with his son by transferring that placement to his current spouse. Lubinski v. Lubinski, 2008 WI App 151, 314 Wis. 2d 395, 761 N.W.2d 676, 07-1701.

767.471 Annotation Wisconsin’s Custody, Placement, and Paternity Reform Legislation. Walther. Wis. Law. Apr. 2000.

767.481 767.481 Relocating a child’s residence.

767.481(1) (1) Motion; filing and serving.

767.481(1)(a) (a) Except as provided in par. (d), if the court grants any periods of physical placement with a child to both parents and one parent intends to relocate and reside with the child 100 miles or more from the other parent, the parent who intends to relocate and reside with the child shall file a motion with the court seeking permission for the child’s relocation.

767.481(1)(b) (b) The motion under par. (a) shall include all of the following:

767.481(1)(b)1. 1. A relocation plan including:

767.481(1)(b)1.a. a. The date of the proposed relocation.

767.481(1)(b)1.b. b. The municipality and state of the proposed new residence.

767.481(1)(b)1.c. c. The reason for the relocation.

767.481(1)(b)1.d. d. If applicable, a proposed new placement schedule, including placement during the school year, summers, and holidays.

767.481(1)(b)1.e. e. The proposed responsibility and allocation of costs for each parent for transportation of the child between the parties under any proposed new placement schedule.

767.481(1)(b)2. 2. If applicable, a request for a change in legal custody.

767.481(1)(b)3. 3. Notice to the other parent that, if he or she objects to the relocation, he or she must file and serve, no later than 5 days before the initial hearing, an objection to the relocation and any alternate proposal, including a modification of physical placement or legal custody.

767.481(1)(b)4. 4. An attached “Objection to Relocation” form, furnished by the court, for use by the other parent if he or she objects to the relocation.

767.481(1)(c) (c) The parent filing the motion shall serve a copy of the motion by mail on the other parent at his or her most recent address on file with the court. If the parent filing the motion has actual knowledge that the other parent has a different address from the one on file, the motion shall be served by mail at both addresses.

767.481(1)(d) (d) The requirement to file a motion under par. (a) does not apply if the child’s parents already live more than 100 miles apart when a parent proposes to relocate and reside with the child. If the parents already live more than 100 miles apart, the parent who intends to relocate with the child shall serve written notice of his or her intent to relocate on the other parent at least 60 days before relocation. Such written notice shall include the date on which the parent intends to relocate and the parent’s new address.

767.481(2) (2) Initial hearing.

767.481(2)(a) (a) Upon the filing of a motion under sub. (1) (a), the court shall schedule an initial hearing to be held within 30 days after the motion is filed and shall provide notice to the parents of the date of the initial hearing. The child may not be relocated pending the initial hearing.

767.481(2)(b) (b) If the court finds at the initial hearing that the parent not filing the motion was properly served and does not appear at the hearing, or appears at the hearing but does not object to the proposed relocation plan, the court shall approve the proposed relocation plan submitted by the parent filing the motion unless the court finds that the proposed relocation plan is not in the best interest of the child.

767.481(2)(c) (c) If the parent not filing the motion appears at the initial hearing and objects to the relocation plan, the court shall do all of the following:

767.481(2)(c)1. 1. Require the parent who objects to respond by stating in writing within 5 business days, if he or she has not already done so, the basis for the objection and his or her proposals for a new placement schedule and transportation responsibilities and costs under sub. (1) (b) 1. d. and e. in the event that the court grants the parent filing the motion permission to relocate with the child. The parent who objects shall file the response with the court and serve a copy of the response by mail on the other parent at his or her most recent address on file with the court. If the parent filing the response has actual knowledge that the other parent has a different address from the one on file, the response shall be served by mail to both addresses.