767.451(4m)(4m)Denial of physical placement for killing other parent.
767.451(4m)(a)(a) Notwithstanding subs. (1) to (4), upon petition, motion or order to show cause by a party or on its own motion, a court shall modify a physical placement order by denying a parent physical placement with a child if the parent has been convicted under s. 940.01 of the first-degree intentional homicide, or under s. 940.05 of the 2nd-degree intentional homicide, of the child’s other parent, and the conviction has not been reversed, set aside or vacated.
767.451(4m)(b)(b) Paragraph (a) does not apply if the court determines by clear and convincing evidence that physical placement with the parent would be in the best interests of the child. The court shall consider the wishes of the child in making the determination.
767.451(5)(5)Reasons for modification. If either party opposes modification or termination of a legal custody or physical placement order under this section the court shall state, in writing, its reasons for the modification or termination.
767.451(5m)(5m)Factors to consider.
767.451(5m)(a)(a) Subject to pars. (b) and (c), in all actions to modify legal custody or physical placement orders, the court shall consider the factors under s. 767.41 (5) (am), subject to s. 767.41 (5) (bm), and shall make its determination in a manner consistent with s. 767.41.
767.451(5m)(b)(b) In determining the best interest of the child under this section, in addition to the factor under s. 767.41 (5) (am) 11., the court shall consider whether a stepparent of the child has a criminal record and whether there is evidence that a stepparent of the child 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.
767.451(5m)(c)(c) In an action to modify a legal custody order, if a party is a service member, as defined in s. 767.41 (2) (e) 1., the court may not consider as a factor in making a determination 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.
767.451(6)(6)Notice. No court may enter an order for modification under this section until notice of the petition, motion or order to show cause requesting modification has been given to the child’s parents, if they can be found, and to any relative or agency having custody of the child.
767.451(6m)(6m)Parenting plan. In any action to modify a legal custody or physical placement order under sub. (1), the court may require the party seeking the modification to file with the court a parenting plan under s. 767.41 (1m) before any hearing is held.
767.451(7)(7)Transfer to department. The court may order custody transferred to the department only if the department agrees to accept custody. If the court orders custody transferred to the department, the order transferring custody shall include the findings and order specified in s. 767.41 (3) (am).
767.451(8)(8)Petition, motion, or order to show cause. A petition, motion, or order to show cause under this section shall include notification of the availability of information under s. 767.105 (2).
767.451 HistoryHistory: 1987 a. 355, 364; 1995 a. 27 s. 9126 (19); 1999 a. 9; 2003 a. 130; 2005 a. 101; 2005 a. 443 ss. 160 to 162; Stats. 2005 s. 767.451; 2005 a. 471 ss. 6 to 8; 2007 a. 20; 2007 a. 96 ss. 143 to 146; 2021 a. 20, 37, 161.
767.451 NoteNOTE: 1987 Wis. Act 355 and 2005 Wis. Act 443 contain explanatory notes.
767.451 Annotation“Necessary” implies that a change of custody itself is needed because custodial conditions are harmful in some way to the best interest of the child. Millikin v. Millikin, 115 Wis. 2d 16, 339 N.W.2d 573 (1983).
767.451 AnnotationThe 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 AnnotationSub. (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 AnnotationThis 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 AnnotationSub. (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 AnnotationNeither 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 AnnotationSections 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 AnnotationThe 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 AnnotationWhen 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 AnnotationA 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 AnnotationBy 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 AnnotationAn 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 AnnotationSub. (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 AnnotationThe 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.