Chapter 767

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.

767.481(2)(c)2. 2. Refer the parties to mediation, unless the court finds that attending mediation would cause undue hardship or endanger the health or safety of a party as provided in s. 767.405 (8) (b).

767.481(2)(c)3. 3. Except as provided in s. 767.407 (1) (am), appoint a guardian ad litem for the child. The court shall provide in the order for appointment, however, that if a mediator is ordered under subd. 2. the guardian ad litem is not required to commence investigation on behalf of the child unless the mediator notifies the court that the parties are unable to reach an agreement on the issue.

767.481(2)(c)4. 4. Set the matter for a further hearing to be held within 60 days.

767.481(3) (3) Relocation pending final hearing.

767.481(3)(a) (a) At the initial hearing, or at any time after the initial hearing but before the final hearing, the court may issue a temporary order under s. 767.225 (1) (bm) to allow the parent proposing the relocation to relocate with the child if the court finds that the relocation is in the child’s immediate best interest. The court shall inform the parties, however, that approval of the relocation is subject to revision at the final hearing.

767.481(3)(b) (b) If a court commissioner makes a determination, order, or ruling regarding relocation pending the final hearing under par. (a), either party may seek a review by hearing de novo under s. 757.69 (8). The motion requesting the de novo hearing must be filed with the court within 10 days after the court commissioner orally issues the determination, order, or ruling. The judge shall hold the de novo hearing within 30 days after the motion requesting the de novo hearing is filed, unless the court finds good cause for an extension.

767.481(4) (4) Standards for deciding relocation motions. At the final hearing, the court shall decide the matter as follows:

767.481(4)(a) (a) If the proposed relocation only minimally changes or affects the current placement schedule or does not affect or change the current placement schedule, the court shall approve the proposed relocation, set a new placement schedule if appropriate, and allocate the costs of and responsibility for transportation of the child between the parties under the new placement schedule.

767.481(4)(b) (b) In cases other than that specified in par. (a), the court shall, in determining whether to approve the proposed relocation and a new placement schedule, use the following factors:

767.481(4)(b)1. 1. The factors under s. 767.41 (5).

767.481(4)(b)2. 2. A presumption that the court should approve the plan of the parent proposing the relocation if the court determines that the objecting parent has not significantly exercised court-ordered physical placement.

767.481(4)(b)3. 3. A presumption that the court should approve the relocation plan if the court determines that the parent’s relocation is related to abuse, as defined in s. 813.122 (1) (a), of the child, as defined in s. 813.122 (1) (b); a pattern or serious incident of interspousal battery, as described under s. 940.19 or 940.20 (1m); or a pattern or serious incident of domestic abuse, as defined in s. 813.12 (1) (am).

767.481(4)(c) (c) If the objecting parent files a responsive motion that seeks a substantial change in physical placement or a change in legal custody, the court shall, in deciding the motion of the objecting parent, use the following factors:

767.481(4)(c)1. 1. The factors under s. 767.41 (5).

767.481(4)(c)2. 2. A presumption against transferring legal custody or the residence of the child to a parent who the court determines has significantly failed to exercise court-ordered physical placement.

767.481(4)(c)3. 3. A presumption that the court should approve the plan of the parent proposing the relocation if the court determines that the parent’s relocation is related to abuse, as defined in s. 813.122 (1) (a), of the child, as defined in s. 813.122 (1) (b); a pattern or serious incident of interspousal battery, as described under s. 940.19 or 940.20 (1m); or a pattern or serious incident of domestic abuse, as defined in s. 813.12 (1) (am).

767.481(4)(d) (d) The court shall decide all contested relocation motions and all related motions for modification of legal custody or physical placement in the best interest of the child. The movant bears the burden of proof in a contested relocation motion or a related motion for modification of legal custody or physical placement except in cases involving a presumption under par. (b) 2. or 3. or (c) 2. or 3. In cases involving a presumption under par. (b) 2. or 3. or (c) 2. or 3., the parent objecting to the relocation shall have the burden of proof in demonstrating the proposed relocation is not in the child’s best interest.