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1 Updated 07−08 Wis. Stats. Database ACTIONS AFFECTING THE FAMILY 767.
CHAPTER 767
ACTIONS AFFECTING THE FAMILY
SUBCHAPTER I DEFINITIONS, SCOPE, JURISDICTION, AND RECOGNITION OF JUDGMENTS 767.001 Definitions. 767.005 Scope. 767.01 Jurisdiction. 767.041 Full faith and credit; comity. 767.055 Uniform Divorce Recognition Act. SUBCHAPTER II PROVISIONS OF GENERAL APPLICATION 767.105 Information from the office of family court commissioner. 767.117 Prohibited acts during pendency of action. 767.127 Financial disclosure. 767.13 Impoundment of record. 767.16 Circuit court commissioner or law partner; when interested; procedure. 767.17 Review of circuit court commissioner decisions. 767.18 Actions to affirm marriage. SUBCHAPTER III GENERAL PROCEDURE 767.201 Civil procedure generally governs. 767.205 Parties; title of actions. 767.215 Initiating action; petition and response. 767.217 Notice to Child Support Program. 767.225 Orders during pendency of action. 767.235 Trial or hearing on judgment. 767.241 Award of attorney fees and other fees and costs. 767.251 Content, preparation, and approval of judgment. 767.264 Dismissal; vacation; substitution or withdrawal of attorney. 767.273 Allowances pending appeal. 767.281 Filing procedures and orders for enforcement or modification of judg- ments or orders. SUBCHAPTER IV ANNULMENT, DIVORCE, AND LEGAL SEPARATION 767.301 Residence requirements. 767.313 Annulment. 767.315 Grounds for divorce and legal separation. 767.317 Defenses abolished. 767.323 Suspension of proceedings to effect reconciliation. 767.331 Actions for certain interspousal remedies. 767.335 Waiting period for final hearing or trial. 767.34 Court−approved stipulation. 767.35 Judgment of divorce or legal separation. 767.36 Copies of judgment to parties. 767.375 Effect on transfers at death. 767.385 Maintenance, legal custody, and support when divorce or separation denied. 767.395 Name of spouse. SUBCHAPTER V CHILD CUSTODY, PLACEMENT, AND VISITATION 767.401 Educational programs and classes. 767.405 Family court services. 767.407 Guardian ad litem for minor children. 767.41 Custody and physical placement. 767.43 Visitation rights of certain persons. 767.44 Prohibiting visitation or physical placement if a parent kills other parent.
767.451 Revision of legal custody and physical placement orders. 767.461 Revisions agreed to by stipulation. 767.471 Enforcement of physical placement orders. 767.481 Moving the child’s residence within or outside the state. SUBCHAPTER VI SUPPORT AND MAINTENANCE 767.501 Actions to compel support. 767.511 Child support. 767.513 Child health care expenses. 767.521 Action by state for child support. 767.531 Family support. 767.54 Required exchange of financial information. 767.55 Child support: employment−related orders. 767.553 Annual adjustments in support orders. 767.56 Maintenance. 767.57 Maintenance, child support, and family support payments; fees. 767.58 Notice of change of employer, address, and ability to pay; other informa- tion. 767.59 Revision of support and maintenance orders. SUBCHAPTER VII PROPERTY DIVISION 767.61 Property division. 767.63 Disposed assets may be subject to division. SUBCHAPTER VIII ENFORCEMENT 767.70 Child support enforcement: notice and service of process. 767.71 Reconciling percentage−expressed support orders. 767.73 Delinquent child or family support; suspension of operating privilege. 767.75 Assignment of income for payment obligations. 767.76 Account transfers. 767.77 Enforcement of payment obligations. 767.78 Enforcement; contempt proceedings. SUBCHAPTER IX PATERNITY 767.80 Determination of paternity. 767.803 Determination of marital children. 767.805 Voluntary acknowledgment of paternity. 767.813 Summons. 767.814 Names on pleadings after paternity determined. 767.815 Enlargement of time in a paternity proceeding. 767.82 Paternity procedures. 767.83 Right to counsel. 767.84 Genetic tests in paternity actions. 767.85 Temporary orders. 767.853 Paternity hearings and records; confidentiality. 767.855 Dismissal if adjudication not in child’s best interest. 767.86 Time of first appearance. 767.863 First appearance. 767.865 Deceased respondent. 767.87 Testimony and evidence relating to paternity. 767.88 Pretrial paternity proceedings. 767.883 Trial. 767.89 Paternity judgment. 767.893 Default and stipulated judgments. 767.895 Motion to reopen judgment based on statement acknowledging paternity.
NOTE: Chapter 767 was substantially renumbered and revised by 2005 Wis. Act 443. Explanatory notes are contained in the Act. A conversion table showing the treatment of the prior statutes by the Act, which was included in the notes to the Act, is reprinted at the end of this chapter.
SUBCHAPTER I
DEFINITIONS, SCOPE, JURISDICTION, AND
RECOGNITION OF JUDGMENTS
767.001 Definitions. In this chapter: (1) “Action affecting the family” means any of the following actions: (a) To affirm marriage. (b) Annulment. (c) Divorce.
(d) Legal separation (formerly divorce from bed and board). (e) Custody. (f) For child support. (g) For maintenance payments. (h) For property division. (i) To enforce or modify a judgment or order in an action affect- ing the family granted in this state or elsewhere. (j) For periodic family support payments. (k) Concerning periods of physical placement or visitation rights to children, including an action to prohibit a move with or the removal of a child under s. 767.481 (3) (c). (L) To determine paternity. (m) To enforce or revise an order for support entered under s. 48.355 (2) (b) 4., 48.357 (5m) (a), 48.363 (2), 938.183 (4), 938.355 (2) (b) 4., 938.357 (5m) (a) or 938.363 (2).
767.001 ACTIONS AFFECTING THE FAMILY Updated 07−08 Wis. Stats. Database^2
(1b) “Court” includes the circuit court commissioner when the circuit court commissioner has been authorized by law to exer- cise the authority of the court or has been delegated that authority as authorized by law. (1d) “Department” means the department of children and families.
(1f) “Divorce” means dissolution of the marriage relation- ship. (1g) “Electronic communication” means time during which a parent and his or her child communicate by using communication tools such as the telephone, electronic mail, instant messaging, video conferencing or other wired or wireless technologies via the Internet, or another medium of communication.
(1m) “Genetic test” means a test that examines genetic mark- ers present on blood cells, skin cells, tissue cells, bodily fluid cells or cells of another body material for the purpose of determining the statistical probability of an alleged father’s paternity. (1s) “Joint legal custody” means the condition under which both parties share legal custody and neither party’s legal custody rights are superior, except with respect to specified decisions as set forth by the court or the parties in the final judgment or order. (2) “Legal custody” means: (a) With respect to any person granted legal custody of a child, other than a county agency or a licensed child welfare agency under par. (b), the right and responsibility to make major decisions concerning the child, except with respect to specified decisions as set forth by the court or the parties in the final judgment or order. (b) With respect to the department or a county agency specified in s. 48.56 (1) or a licensed child welfare agency granted legal cus- tody of a child, the rights and responsibilities specified under s. 48.02 (12).
(2m) “Major decisions” includes, but is not limited to, deci- sions regarding consent to marry, consent to enter military service, consent to obtain a motor vehicle operator’s license, authorization for nonemergency health care and choice of school and religion.
(5) “Physical placement” means the condition under which a party has the right to have a child physically placed with that party and has the right and responsibility to make, during that place- ment, routine daily decisions regarding the child’s care, consistent with major decisions made by a person having legal custody. (6) “Sole legal custody” means the condition under which one party has legal custody. History: 1987 a. 355; 1995 a. 100, 279 , 404 ; 1997 a. 3, 27 , 35 ; 2005 a. 174; 2005 a. 443 ss. 7 , 8 , 15 , 16 ; 2007 a. 20. NOTE: 1987 Wis. Act 355, which created this section, and 2005 Wis. Act 443, which affected this section, contain explanatory notes. Sub. (2m) confers the right to choose a child’s religion on the custodial parent. Lange v. Lange, 175 Wis. 2d 373, N.W.2d (Ct. App. 1993). 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 con- sistent with those decisions. Wood v. DeHahn, 214 Wis. 2d 221, 571 N.W.2d 186 (Ct. App. 1997), 96−3642. Sub. (1) (i) allows all actions to modify a judgment in an action affecting marriage to be commenced in any court having jurisdiction under s. 767.01. 68 Atty. Gen. 106.
767.005 Scope. This chapter applies to actions affecting the family. History: 2005 a. 443. NOTE: 2005 Wis. Act 443, which affected this section, contains explanatory notes.
767.01 Jurisdiction. (1) GENERALLY. The circuit courts have jurisdiction of all actions affecting the family and have authority to do all acts and things necessary and proper in those actions and to carry their orders and judgments into execution as prescribed in this chapter. Except as provided in subs. (2) and (2m), jurisdiction may be exercised as provided under ch. 801.
(2) PATERNITY AND CHILD SUPPORT. In an action to establish paternity or to establish or enforce a child support obligation, in regard to a child who is the subject of the action, a person is subject
to the jurisdiction of the courts of this state as provided in s. 769.201 or 801.05. (2m) CHILD CUSTODY. All proceedings relating to the custody of children shall comply with the requirements of ch. 822. History: 1975 c. 39; 1977 c. 449; 1979 c. 32 s. 50 ; 1979 c. 196, 352 ; Stats. 1979 s. 767.01; 1987 a. 27; 1993 a. 326; 2005 a. 443 ss. 10 to 13. NOTE: 2005 Wis. Act 443, which affected this section, contains explanatory notes. Cross−reference: See s. 765.001 for provision as to intent and construction of this chapter. The trial court has broad authority to enforce its family court judgments and may employ any remedy customarily available to courts of equity. It was appropriate to direct the defendant to pay the plaintiff’s medical expenses when the defendant had not converted an insurance policy as ordered under a divorce decree. Rotter v. Rotter, 80 Wis. 2d 56, 257 N.W.2d 861 (1977). When a husband complied with the original court order to make property division installment payments, the court had no authority to order the husband to pay the wife’s income tax on installments. Wright v. Wright, 92 Wis. 2d 246, 284 N.W.2d 894 (1979). When possession of the party’s homestead was awarded by the divorce judgment to the wife to be sold upon her death with the proceeds divided between the parties, the family court and probate court had concurrent jurisdiction. Morrissette v. Morris- sette, 99 Wis. 2d 467, 299 N.W.2d 590 (Ct. App. 1980). A circuit court does not have subject matter jurisdiction in a divorce action to deter- mine attorney fees between an attorney and client that the attorney continues to repre- sent in the divorce action. Stasey v. Stasey, 168 Wis. 2d 37, 483 N.W.2d 221 (1992). The joinder of divorce and contract actions between spouses is not required. Caul- field v. Caulfield, 183 Wis. 2d 83, 515 N.W.2d 278 (Ct. App. 1994). When one party to a divorce dies during the action the court loses jurisdiction, including jurisdiction to enforce prior orders. Socha v. Socha, 183 Wis. 2d 390, 515 N.W.2d 337 (Ct. App. 1994). An injunction against a man, whose petition to establish himself as father of 2 chil- dren had been denied, to stay away from the children until they reach age 18 was within the court’s power to enforce its judgments and orders. Paternity of C.A.S. & C.D.S. 185 Wis. 2d 468, 518 N.W.2d 285 (Ct. App. 1994). A divorce action terminates on the death of a spouse. After the death an order pro- hibiting an act in regard to marital property entered in the divorce may not be enforced under ch. 767. As the parties are legally married at the time of death, the sole remedy for resolving disputes over marital property lies under s. 766.70. Socha v. Socha, 204 Wis. 2d 474, 555 N.W.2d 152 (Ct. App. 1996), 95−1641. A family court has jurisdiction to hear equitable claims against 3rd parties that affect the rights of parties to a divorce, such as a claim against a 3rd−party title holder of property claimed to actually be part of the marital estate. Zabel v. Zabel, 210 Wis. 2d 336, 565 N.W.2d 240 (Ct. App. 1997), 96−3092. There is no authority in this chapter to allow a name change for children in a divorce action. Jocius v. Jocius, 218 Wis. 2d 103, 580 N.W.2d 708 (Ct. App. 1998), 96−2746. A cause of action under s. 766.70 requires that the complained of conduct arise as a result of the marital relationship and a breach of the good faith duty between spouses. Once a divorce is commenced, the claim must be resolved in divorce court. A cause of action between spouses arising outside the marital relationship, such as a stockbroker−client relationship, does not fall within s. 766.70 and may be main- tained independent of the divorce. Knafelc v. Dain Bosworth, Inc. 224 Wis. 2d 346, 591 N.W.2d 611 (Ct. App. 1999), 98−0067. Chapter 822, the Uniform Child Custody Jurisdiction Act, does not, in and of itself, establish a sufficient statutory basis for personal jurisdiction over a nonresident defendant in a paternity proceeding. Paula M.S. v. Neal A. R. 226 Wis. 2d 79, 593 N.W.2d 486 (Ct. App. 1999), 98−1158. A common law action for unjust enrichment cannot be litigated in a divorce action. Dahlke v. Dahlke, 2002 WI App 282, 258 Wis. 2d 764, 654 N.W.2d 73, 02−0194.
767.041 Full faith and credit; comity. (1) ACTIONS IN COURTS OF OTHER STATES. (a) Full faith and credit shall be given in all courts of this state to a judgment in any action affecting the family, except an action relating to child custody, by a court of competent jurisdiction in another state, territory, or possession of the United States, when both spouses personally appear or when the respondent has been personally served. Full faith and credit shall also be given in all courts of this state to the amount of arrear- ages owed for nonpayment or late payment of a child support, family support, or maintenance payment under an order issued by a court of competent jurisdiction in another state, territory, or pos- session of the United States. A court in this state may not adjust the amount of arrearages owed except as provided in s. 767. (1m). (b) Full faith and credit shall be given in all courts of this state to a determination of paternity made by any other state, whether established through voluntary acknowledgment or an administra- tive or judicial process. (2) ACTIONS IN COURTS OF FOREIGN COUNTRIES. Any court of this state may recognize a judgment in any action affecting the family involving Wisconsin domiciliaries, except an action relat- ing to child custody, by a court of competent jurisdiction in a for-
767.127 ACTIONS AFFECTING THE FAMILY Updated 07−08 Wis. Stats. Database^4
(2) FILING DISCLOSURE FORMS. Disclosure forms required under this section shall be filed within 90 days after the service of summons or the filing of a joint petition or at a time ordered by the court. Information on the forms shall be updated on the record to the date of hearing.
(3) CONFIDENTIALITY OF DISCLOSED INFORMATION. (a) Except as provided in par. (b), information disclosed under this section and under s. 767.54 is confidential and may not be made available to any person for any purpose other than the adjudication, appeal, modification, or enforcement of judgment of an action affecting the family of the disclosing parties. (b) The clerk of circuit court shall provide information from court records to the department under s. 59.40 (2) (p).
(4) FAILURE TO TIMELY FILE. If either party fails timely to file a complete disclosure statement as required by this section, the court may accept as accurate any information provided in the statement of the other party or obtained under s. 49.22 (2m) by the department or the county child support agency under s. 59.53 (5).
(5) FAILURE TO DISCLOSE; CONSTRUCTIVE TRUST. If a party intentionally or negligently fails to disclose information required by sub. (1) and as a result any asset with a fair market value of $ or more is omitted from the final distribution of property, the party aggrieved by the nondisclosure may at any time petition the court granting the annulment, divorce, or legal separation to declare the creation of a constructive trust as to all undisclosed assets, for the benefit of the parties and their minor or dependent children, if any, with the party in whose name the assets are held declared the constructive trustee. The trust shall include such terms and condi- tions as the court may determine. The court shall grant the petition upon a finding of a failure to disclose assets as required under sub. (1). History: 1977 c. 105; 1979 c. 32 ss. 50 , 92 (4); 1979 c. 196; 1979 c. 352 s. 39 ; Stats. 1979 s. 767.27; 1985 a. 29; 1987 a. 413; 1993 a. 112, 481 ; 1995 a. 27 s. 9126 (19); 1995 a. 201, 404 ; 1997 a. 27, 35 , 191 ; 2001 a. 16, 61 , 105 ; 2005 a. 443 ss. 68 , 121 , 123 ; Stats. 2005 s. 767.127. NOTE: 2005 Wis. Act 443, which affected this section, contains explanatory notes. In the event of a property division determined by arbitration, the closing of the arbi- tration record does not create a categorical exception under sub. (2) to alter the gen- eral rule of valuing property at the date of divorce, although the closing of the arbitra- tion record could serve as the date of valuation. Franke v. Franke, 2004 WI 8, 268 Wis. 2d 360, 674 N.W.2d 832, 01−3316.
767.13 Impoundment of record. Except as provided in s. 767.127 (3), the record or evidence in an action affecting the fam- ily may not be impounded, and access to the record or evidence may not be refused, except by written order of the court for good cause shown. No person may permit a copy of any impounded record or evidence, or the substance of the record or evidence, to be taken by any person other than a party to the action or his or her attorney of record, unless a court orders otherwise. History: 1977 c. 105, 273 ; 1979 c. 32 s. 50 ; 1979 c. 352 s. 39 ; Stats. s. 767.19; 2005 a. 443 s. 76 ; Stats. 2005 s. 767.13. NOTE: 2005 Wis. Act 443, which affected this section, contains explanatory notes.
767.16 Circuit court commissioner or law partner; when interested; procedure. A circuit court commissioner assisting in matters affecting the family or a member of the com- missioner’s law firm may not appear in any action affecting the family in any court held in the county in which the circuit court commissioner is acting. If a circuit court commissioner or a mem- ber of the commissioner’s law firm is interested in an action affect- ing the family and no other circuit court commissioner is avail- able, the presiding judge shall appoint an attorney to act as circuit court commissioner in that action. The appointed attorney shall take and file the oath and receive the compensation provided by law. History: 1979 c. 32 ss. 50 , 92 (4); 1979 c. 176; 1979 c. 352 s. 39 ; Stats. 1979 s. 767.16; 2001 a. 61; 2005 a. 443. NOTE: 2005 Wis. Act 443, which affected this section, contains explanatory notes.
767.17 Review of circuit court commissioner deci- sions. A decision of a circuit court commissioner under this chapter is reviewable under s. 757.69 (8). History: 2005 a. 443. NOTE: 2005 Wis. Act 443, which affected this section, contains explanatory notes.
767.18 Actions to affirm marriage. If the validity of a mar- riage is denied or doubted by either of the parties the other party may commence an action to affirm the marriage. The judgment in an action to affirm marriage shall declare the marriage valid or annul the marriage, and is conclusive upon all persons concerned. History: 1979 c. 32 s. 50 ; Stats. 1979 s. 767.04; 2005 a. 443 s. 24 ; Stats. 2005 s. 767.18.
SUBCHAPTER III
GENERAL PROCEDURE
767.201 Civil procedure generally governs. Except as otherwise provided in the statutes, chs. 801 to 847 govern proce- dure and practice in an action affecting the family. Except as pro- vided in this chapter, chs. 801 and 802 apply to the content and form of the pleadings and summons in an action affecting the fam- ily. History: 2005 a. 443. NOTE: 2005 Wis. Act 443, which affected this section, contains explanatory notes.
767.205 Parties; title of actions. (1) PARTIES. The party initiating an action affecting the family is the petitioner. The party responding to the action is the respondent. All references to “plaintiff” in chs. 801 to 807 apply to the petitioner, and all refer- ences to “defendant” in chs. 801 to 807 apply to the respondent. Both parties may initiate the petition together by signing and filing a joint petition. The parties to a joint petition are joint petitioners. The parties to a joint petition shall state in the petition that both parties consent to personal jurisdiction and waive service of sum- mons. (2) WHEN THE STATE IS A REAL PARTY IN INTEREST. (a) The state is a real party in interest within the meaning of s. 803.01 for pur- poses of establishing paternity, securing reimbursement of aid paid, future support and costs as appropriate in an action affecting the family in any of the following circumstances:
- An action to establish paternity whenever there is a com- pleted application for legal services filed with the child support program under s. 49.22 or whenever s. 767.80 (6m) or (6r) applies.
- An action to establish or enforce a child support or mainte- nance obligation whenever there is a completed application for legal services filed with the child support program under s. 49.22.
- Whenever aid under s. 48.57 (3m) or (3n), 48.645, 49.19, or 49.45 is provided on behalf of a dependent child or benefits are provided to the child’s custodial parent under ss. 49.141 to 49.161.
- Whenever aid under s. 48.57 (3m) or (3n), 48.645, 49.19, or 49.45 has, in the past, been provided on behalf of a dependent child, or benefits have, in the past, been provided to the child’s custodial parent under ss. 49.141 to 49.161, and the child’s family is eligible for continuing child support services under 45 CFR 302.33. (b) 1. Except as provided in subd. 2., in any action affecting the family under a child support enforcement program, an attor- ney acting under s. 49.22 or 59.53 (5), including any district attor- ney or corporation counsel, represents only the state. Child sup- port services provided by an attorney as specified in par. (a) do not create an attorney−client relationship with any other party.
- Subdivision 1. does not apply to an attorney who is employed by the department under s. 49.22 or a county under s. 59.53 (5) or (6) (a) to act as the guardian ad litem of the minor child for the purpose of establishing paternity.
5 Updated 07−08 Wis. Stats. Database ACTIONS AFFECTING THE FAMILY 767.
(3) TITLE OF ACTIONS. An action affecting the family described in s. 767.001 (1) (a) to (d) or (g) to (k) shall be entitled “In re the marriage of A.B. and C.D.”, except that an independent action for visitation under s. 767.43 (3) shall be entitled “In re visi- tation with A. B.”. An action affecting the family described in s. 767.001 (1) (f) or (m) shall be entitled “In re the support of A.B.”. A child custody action shall be entitled “In re the custody of A.B.”. History: 1977 c. 418; 1979 c. 32 s. 50 ; 1979 c. 352 s. 39 ; Stats. 1979 s. 767.075; 1983 a. 27 s. 2202 (57); 1987 a. 413; 1989 a. 31; 1993 a. 326, 481 ; 1995 a. 27 s. 9126 (19); 1995 a. 201, 275 , 289 , 404 ; 1997 a. 35, 105 ; 2005 a. 443 ss. 30 , 32 , 37 , 81 ; 2007 a. 20. When parents each own a 1/2 interest in the future proceeds of real estate and the state contributes to child support, the court may not order the custodial parent to pay child support in the form of an accumulating real estate lien in favor of the state. State ex rel. v. Reible, 91 Wis. 2d 394, 283 N.W.2d 427 (Ct. App. 1979). A mother is a necessary party in a paternity action brought by the state. Paternity of Joshua E. 171 Wis. 2d 327, 491 N.W.2d 136 (Ct. App. 1992). A mother’s and child’s interests in a paternity action are not sufficiently identical to place them in privity for the purpose of res judicata. Chad M.G. v. Kenneth J.Z. 194 Wis. 2d 690, 535 N.W.2d 97 (Ct. App. 1995). Sub. (2) (b) [now sub. (2) (b) 2.] allows a county corporation counsel to act as the guardian ad litem for a child in a paternity action so long as he or she only represents the child and does not represent the state in the action. Chad M.G. v. Kenneth J.Z. 194 Wis. 2d 690, 535 N.W.2d 97 (Ct. App. 1995). Because a child has a right to bring an independent action for paternity under s. 767.45 [now s. 767.80], if the child was not a party to an earlier state instituted pater- nity action, it would be a violation of the child’s due process rights to preclude the child from litigating the paternity issue. Mayonia M.M. v. Kieth N. 202 Wis. 2d 460, 551 N.W.2d 34 (Ct. App. 1996), 95−2838.
767.215 Initiating action; petition and response. (1) INITIATION OF ACTION. (a) Either or both of the parties to the marriage may initiate the action. The party initiating the action or his or her attorney shall sign the petition. Both parties or their respective attorneys shall sign a joint petition. (b) The clerk of court shall provide without charge, to each per- son filing a petition requesting child support, a document setting forth the percentage standard established by the department under s. 49.22 (9) and listing the factors that a court may consider under s. 767.511 (1m).
(c) The clerk of court shall provide, without charge, to each person filing a petition showing that the parties have a minor child, a copy of s. 767.41 (1m) or a parenting plan form if a standard form for parenting plans is used in the county. (2) PETITION CONTENT. Except as otherwise provided, in an action affecting the family, the petition shall state: (a) The name and birthdate of the parties, the date and place of marriage, and the facts relating to the residence of both parties. (b) The name and birthdate of each minor child of the parties and each other child born to the wife during the marriage, and whether the wife is pregnant.
(c) If the relief requested is a divorce or a legal separation in which the parties do not file a petition under s. 767.315 (2), that the marriage is irretrievably broken, or, alternatively, that both parties agree that the marriage is irretrievably broken. (cm) If the relief requested is a legal separation and the parties have filed a petition under s. 767.315 (2), that both parties agree that the marital relationship is broken.
(d) Whether an action for divorce or legal separation by either of the parties has been at any time commenced, or is pending in any other court, in this state or elsewhere. (dm) Whether either party was previously married and, if so, the manner in which the marriage was terminated, and, if termi- nated by court judgment, the name of the court that granted the judgment and the time and place the judgment was granted, if known. (e) Whether the parties have entered into a written agreement as to support, legal custody, and physical placement of the chil- dren, maintenance of either party, or property division. If so, the written agreement shall be attached. (f) The relief requested. If the relief requested is a legal sepa- ration, the petition shall state the specific reason for requesting that relief.
(h) That during the pendency of the action, the parties are pro- hibited from, and may be held in contempt of court for, harassing, intimidating, physically abusing or imposing any restraint on the personal liberty of the other party or a minor child of either party. (i) If the action is one under s. 767.001 (1) (a), (b), (c), (d), (h), or (i), that during the pendency of the action, without the consent of the other party or an order of the court, the parties are prohibited from, and may be held in contempt of court for, encumbering, con- cealing, damaging, destroying, transferring, or otherwise dispos- ing of property owned by either or both of the parties, except in the usual course of business, in order to secure necessities, or in order to pay reasonable costs and expenses of the action, including attorney fees. (j) Unless the action is one under s. 767.001 (1) (g) or (h), that during the pendency of the action the parties are prohibited from, and may be held in contempt of court for, doing any of the follow- ing without the consent of the other party or an order of the court:
- Establishing a residence with a minor child of the parties outside the state or more than 150 miles from the residence of the other party within the state.
- Removing a minor child of the parties from the state for more than 90 consecutive days.
- Concealing a minor child of the parties from the other party. (2e) RELATIONSHIP OF PETITION TO COMPLAINT. All references to a “complaint” in chs. 801 to 807 apply to petitions under this section. (2m) SUMMONS, CONTENT. (a) Except as provided in par. (b), if only one party initiates the action and the parties have minor children, the summons served on the other party:
- Shall include notification of the availability of information under s. 767.105 (2) and of the contents of s. 948.31.
- Shall be accompanied by a document, provided without charge by the clerk of court, setting forth the percentage standard established by the department under s. 49.22 (9) and listing the factors that a court may consider under s. 767.511 (1m).
- Shall be accompanied by a copy of s. 767.41 (1m) or a stan- dard parenting plan form used in the county, provided without charge by the clerk of court. (b) If service is by publication, notification regarding s. 948. may consist of references to the statute numbers and titles, and information relating to the percentage standard and the factors and completing and filing parenting plans need not be provided. (3) SERVICE. If only one party initiates the action, the other shall be served under ch. 801 and may serve a response or counter- claim within 20 days after the date of service, except that ques- tions of jurisdiction may be raised at any time prior to judgment. Service shall be made upon the petitioner, and the original copy of the response shall be filed in court. If the parties together initi- ate the action with a joint petition, service of summons is not required. (4) EXTENSION OF TIME FOR SERVICE. (a) Except as provided in par. (b) and s. 767.815, extension of time is governed by s. 801.15 (2). (b) The court may, upon the petitioner’s demonstration of good cause, and without notice, order one additional 60−day extension for service of the initial papers in the action if the extension motion is made within 90 days after filing the initial papers. If the exten- sion motion is not made within the 90−day period, the court may grant the motion only if it finds excusable neglect for failure to act and good cause shown for granting the extension. (5) SOCIAL SECURITY NUMBERS. (a) When the petition under this section is filed with the court, the party filing the petition shall submit a separate form, furnished by the court, containing all of the following:
- The name, date of birth, and social security number of each party.
7 Updated 07−08 Wis. Stats. Database ACTIONS AFFECTING THE FAMILY 767.
481 , 490 ; 1995 a. 27 ss. 7100h, 9126 (19); 1995 a. 70, 404 ; 1999 a. 9; 2001 a. 16, 61 ; 2003 a. 130, 326 ; 2005 a. 174, 342 ; 2005 a. 443 ss. 86 to 91 ; Stats. 2005 s. 767.225; 2007 a. 96. Cross Reference: See also ch. DCF 150, Wis. adm. code.
767.235 Trial or hearing on judgment. (1) BEFORE COURT. In an action affecting the family, all hearings and trials to determine whether judgment shall be granted, except hearings under s. 757.69 (1) (p) 3., shall be before the court. Testimony shall be taken by the reporter and shall be transcribed and filed with the record if so ordered by the court. Custody proceedings have priority in being set for hearing.
(2) APPEARANCE OF LITIGANTS. Unless nonresidence in the state is shown by competent evidence, service is by publication, or the court for other good cause orders otherwise, both parties in actions affecting the family shall appear upon the final hearing or trial. An order of the court to that effect shall be procured by the moving party, and shall be served upon the nonmoving party before the hearing or trial. No order is required in the case of a joint petition. (3) EXCLUSION FROM COURTROOM. The court may on its own motion, or on motion of any party to an action affecting the family, exclude from the courtroom all persons other than the parties, their attorneys and any guardians ad litem. History: 2005 a. 443 ss. 65 , 67 , 77 , 93. NOTE: 2005 Wis. Act 443, which affected this section, contains explanatory notes.
767.241 Award of attorney fees and other fees and costs. (1) COURT AUTHORITY. The court, after considering the financial resources of both parties, may do the following:
(a) Order either party to pay a reasonable amount for the cost to the other party of maintaining or responding to an action affect- ing the family and for attorney fees to either party.
(b) If one party receives services under s. 49.22 or services pro- vided by the state or county as a result of an assignment of income under s. 49.19, order the other party to pay any fee chargeable under s. 49.22 (6) or the cost of services rendered by the state or county under s. 49.19. (2) PREACTION AND POSTACTION FEES. Any amount ordered under sub. (1) may include sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment.
(3) TO WHOM PAID. The court may order that the amount be paid directly to the attorney or to the state or the county providing services under s. 49.22 or 49.19, who may enforce the order in its name. (4) PAYMENT BY STATE OR COUNTY. (a) Except as provided in par. (b), no court may order payment of costs under this section by the state or any county which may be a party to the action.
(b) The court may order payment of costs under this section by the department or its designee, whichever is appropriate, in an action in which the court finds that the record of payments and arrearages kept by the department or its designee is substantially incorrect and that the department or its designee has failed to cor- rect the record within 30 days after having received information that the court determines is sufficient for making the correction. History: 1977 c. 105; 1979 c. 32 s. 50 ; 1979 c. 352 s. 39 ; Stats. 1979 s. 767.262; 1983 a. 27; 1993 a. 481, 490 ; 1995 a. 201, 279 , 404 ; 1997 a. 27, 35 , 252 ; 2005 a. 443 ss. 99 , 112 ; Stats. 2005 s. 767.241. An allowance for the wife’s attorney fees was not excessive when it was obvious that the court reasonably believed that a considerable portion of the attorney fees were attributable to the husband who, represented by 4 successive attorneys, caused a needlessly protracted trial, made numerous defense motions, and prosecuted a merit- less appeal. Martin v. Martin, 46 Wis. 2d 218, 174 N.W.2d 468 (1970). An allowance of $1,000 attorney fees on appeal, after the award of a generous property settlement, constituted a penalty for appealing. Molloy v. Molloy, 46 Wis. 2d 682, 176 N.W.2d 292 (1970). Attorney fees on appeal depend on need, ability to pay, and whether there is a rea- sonable ground for the appeal. Klipstein v. Klipstein, 47 Wis. 2d 314, 177 N.W.2d 57 (1970). An order for attorney fees is enforceable by contempt. The court cannot enter a judgment in favor of the attorney directly. Before a contempt order is issued, the defendant must have notice of an application by the spouse to whom the fees are pay- able. O’Connor v. O’Connor, 48 Wis. 2d 535, 180 N.W.2d 735 (1970).
Denial of the wife’s motion for her husband to contribute to attorney fees to prose- cute the wife’s appeal was an abuse of discretion when the issues in the case were vig- orously contested and in no way frivolous. Markham v. Markham, 65 Wis. 2d 735, 223 N.W.2d 616 (1974). A circuit court does not have subject matter jurisdiction in a divorce action to deter- mine attorney fees between an attorney and client who the attorney continues to rep- resent in the divorce action. Stasey v. Stasey, 168 Wis. 2d 37, 483 N.W.2d 221 (1992). Nonmarital assets may be considered in determining whether to order one party to contribute to the other’s fees. Doerr v. Doerr, 189 Wis. 2d 112, 525 N.W.2d 745 (Ct. App. 1994). The public policy that an innocent party who is the victim of overtrial should not be burdened with the payment of extra and unnecessary attorney fees occasioned by the other party under Ondrasek , 126 Wis. 2d at 484, is equally applicable with respect to guardian ad litem fees. Hottenroth v. Hetsko, 2006 WI App 249, 298 Wis. 2d 200, 727 N.W.2d 38, 05−1212.
767.251 Content, preparation, and approval of judg- ment. (1) CONTENT. In an action affecting the family, if the court orders maintenance payments or other allowances for a party or children or retains jurisdiction in those matters, the written judg- ment shall include a statement that disobedience of the court order is punishable under ch. 785 by commitment to the county jail or house of correction until the judgment is complied with and the costs and expenses of the proceedings are paid or until the party committed is otherwise discharged, according to law. Final writ- ten agreements and stipulations of the parties shall, unless set forth in the judgment, be appended to the judgment and incorporated by reference. (2) PREPARATION. The findings of fact, conclusions of law, and the written judgment shall be drafted by the petitioner unless the court otherwise directs, and shall be submitted to the court and filed with the clerk of the court within 30 days after judgment is granted. (3) APPROVAL. The draft findings, conclusions, and judgment shall be approved by all counsel appearing, including a guardian ad litem and county child support enforcement agency attorney, and any other person designated by the court or local rule. After necessary approvals are obtained, the findings of fact, conclusions of law, and judgment shall be submitted to the court. History: 2005 a. 443 ss. 169 , 170. NOTE: 2005 Wis. Act 443, which affected this section, contains explanatory notes.
767.264 Dismissal; vacation; substitution or with- drawal of attorney. (1) OPPORTUNITY TO RESPOND. An action affecting the family may not be dismissed under s. 805.04 (1) unless all the parties who have appeared in the action have been served with a copy of the notice of dismissal and have had an opportunity to file a responsive pleading or motion. (2) ATTORNEY FEES AND OTHER AMOUNTS OWING. (a) Upon making an order for dismissal of, for substitution of attorney in, for withdrawal of attorney from, or for vacation of a judgment granted in an action affecting the family, the court shall, prior to or in its order, grant separate judgment in favor of an attorney who has appeared for a party to the action and in favor of a guardian ad litem for a party or a child for the amount of fees and disburse- ments to which the attorney or guardian ad litem is, in the court’s judgment, entitled and against the party responsible for the fees and disbursements. (b) Upon making an order for dismissal of an action affecting the family or for vacation of a judgment granted in the order, the court shall, prior to or in its order of dismissal or vacation, pre- serve the right of the state or a political subdivision of the state to collect any arrearages, by an action under this chapter or under ch. 785 , owed to the state if either party in the case was a recipient of aid under ch. 49. History: 2005 a. 443 ss. 33 , 92 , 114. NOTE: 2005 Wis. Act 443, which affected this section, contains explanatory notes. Sub. (3) (a) [now sub. (2) (a)] is strictly construed to apply to those situations expressly set forth in the statute, such as orders for dismissal, substitution of attor- neys, and vacation of judgments, in actions affecting families. In other cases an action to recover legal fees may be instituted. Kotecki & Radtke, S.C. v. Johnson, 192 Wis. 2d 429, 531 N.W.2d 606 (Ct. App. 1995). The only reasonable meaning of sub. (3) (a) [now sub. (2) (a)] is that it gives the court authority to enter a judgment for the fees owed by the client to an attorney who is permitted by order of the court to withdraw, regardless when or if the client retains
767.264 ACTIONS AFFECTING THE FAMILY Updated 07−08 Wis. Stats. Database^8
another attorney to replace the withdrawing attorney in that action. Kohl v. DeWitt Ross & Stevens, 2005 WI App 196, 287 Wis. 2d 289, 704 N.W.2d 586, 04−0328. The federal tax consequences of divorce. Meldman, Ryan, 57 MLR 229.
767.273 Allowances pending appeal. In an action affect- ing the family pending in appellate court, an allowance for suit money, counsel fees, or disbursements in the court or for tempo- rary maintenance or support payments to the spouse or the chil- dren during the pendency of the appeal may be made by the proper trial court upon motion made and decided after entry of the order or judgment appealed from and prior to the return of the record to appellate court. If the allowance is ordered before the appeal is taken, the order shall be conditioned upon the taking of the appeal and is not effective until the record is transmitted to appellate court. History: 1975 c. 94; 1977 c. 105; 1977 c. 187 s. 89 ; 1979 c. 32 s. 50 ; 1979 c. 352 s. 39 ; Stats. 1979 s. 767.39; Sup. Ct. Order, 146 Wis. 2d xiii (1988); 2005 a. 443 s.
NOTE: 2005 Wis. Act 443, which affected this section, contains explanatory notes.
767.281 Filing procedures and orders for enforcement or modification of judgments or orders. (1) APPLICABIL- ITY. This section applies to all enforcement or modification peti- tions, motions or orders to show cause filed for actions affecting the family under s. 767.001 (1) (i).
(1m) GENERALLY. Except as provided in sub. (2), if a petition, motion, or order to show cause requesting enforcement or modifi- cation of a judgment or order in an action affecting the family that was granted by a court of this state is filed in a county other than the county in which the judgment or order was rendered, the peti- tioner or party bringing the motion or order to show cause shall send a copy of the petition, motion, or order to show cause and summons to the clerk of the court in which the judgment or order was rendered. If a question arises as to which court should exer- cise jurisdiction, a conference involving both judges, all counsel, and guardians ad litem may be convened under s. 807.13 (3) to resolve the question. The petitioner shall send a copy of any order rendered pursuant to the petition, motion, or order to show cause to the clerk of the court in which the original judgment or order was rendered. (2) SUPPORT OR MAINTENANCE ORDERS. (a) Except as provided in ch. 769 , if the petition, motion or order to show cause is for enforcement or modification of a child support, family support or maintenance order, the petition, motion or order to show cause shall be filed in the county in which the original judgment or order was rendered or in the county where the minor children reside unless any of the following applies:
- All parties, including the state or its delegate if support, support arrearages, costs or expenses are assigned under ch. 49 , stipulate to filing in another county.
- The court in the county which rendered the original judg- ment or order orders, upon good cause shown, the enforcement or modification petition, motion or order to show cause to be filed in another county. (b) If the parties have stipulated to filing in another county under par. (a) 1., the petitioner or party bringing the motion or order to show cause shall send a copy of the petition, motion or order to show cause and the summons to the clerk of court in the county in which the original judgment or order was rendered. (c) If the court in the county which rendered the original judg- ment or order orders the petition, motion or order to show cause to be filed in another county under par. (a) 2., the petitioner or party bringing the motion or order to show cause shall attach a copy of the order when filing the petition, motion or order to show cause in the other county. (4) SUPPORT AND MAINTENANCE PAYMENTS TO DEPARTMENT. If a petition, motion or order to show cause for enforcement or modi- fication of a child support, family support or maintenance order is filed and heard, regardless of whether it is filed and heard in a county other than the county in which the original judgment or
order was rendered, any judgment or order enforcing or modify- ing the original judgment or order shall specify that payments of support or maintenance, and payments of arrearages in support or maintenance, if any, are payable to the department or its designee, whichever is appropriate. History: 1989 a. 212; 1993 a. 326, 481 ; 1995 a. 279; 1997 a. 27; 2005 a. 443 ss. 17 to 20 , 126 ; Stats. 2005 s. 767.281. Venue for a petition to modify or enforce an out−of−state custody decree is the county where the judgment is filed even though the judgment may be filed in any county. Sharp v. Sharp, 185 Wis. 2d 416, 518 N.W.2d 254 (Ct. App. 1994).
SUBCHAPTER IV
ANNULMENT, DIVORCE, AND LEGAL SEPARATION
767.301 Residence requirements. No action to affirm marriage or for annulment under s. 767.001 (1) (a) or (b) may be brought unless at least one of the parties has been a bona fide resi- dent of the county in which the action is brought for not less than 30 days next preceding the commencement of the action, or unless the marriage has been contracted within this state within one year prior to the commencement of the action. No action for divorce or legal separation under s. 767.001 (1) (c) or (d) may be brought unless at least one of the parties has been a bona fide resident of the county in which the action is brought for not less than 30 days next preceding the commencement of the action. No action for divorce under s. 767.001 (1) (c) may be brought unless at least one of the parties has been a bona fide resident of this state for not less than 6 months next preceding the commencement of the action. History: 2005 a. 443 s. 27. NOTE: 2005 Wis. Act 443, which affected this section, contains explanatory notes. When a divorce action was brought before the residency requirement was met, an action was never commenced and the petition could not be amended after the require- ment was met. Siemering v. Siemering, 95 Wis. 2d 111, 288 N.W.2d 881 (Ct. App. 1980).
767.313 Annulment. (1) GROUNDS; WHEN SUIT MAY BE BROUGHT. A court may annul a marriage upon any of the following grounds: (a) A party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of age, because of mental incapacity or infirmity or because of the influence of alcohol, drugs, or other incapacitating substances, or a party was induced to enter into a marriage by force or duress, or by fraud involving the essentials of marriage. Suit may be brought by either party, or by the legal representative of a party lacking the capacity to consent, no later than one year after the petitioner obtained knowledge of the described condition. (b) A party lacks the physical capacity to consummate the mar- riage by sexual intercourse, and at the time the marriage was sol- emnized the other party did not know of the incapacity. Suit may be brought by either party no later than one year after the petitioner obtained knowledge of the incapacity. (c) A party was 16 or 17 years of age and did not have the con- sent of his or her parent or guardian or judicial approval, or a party was under 16 years of age. Suit may be brought by the underaged party or a parent or guardian at any time prior to the party’s attain- ing the age of 18 years, but a parent or guardian must bring suit within one year of obtaining knowledge of the marriage. (d) The marriage is prohibited by the laws of this state. Suit may be brought by either party within 10 years of the marriage, except that the 10−year limitation shall not apply where the mar- riage is prohibited because either party has another spouse living at the time of the marriage and the impediment has not been removed under s. 765.24. (2) JUDICIAL PROCEEDING REQUIRED; NO ANNULMENT AFTER DEATH. A judicial proceeding is required to annul a marriage. A marriage may not be annulled after the death of a party to the mar- riage. History: 1977 c. 105; 1979 c. 32 ss. 50 , 92 (2); Stats. 1979 s. 767.03; 2005 a. 443 ss. 22 , 23 , 145 ; Stats. 2005 s. 767.313.
767.34 ACTIONS AFFECTING THE FAMILY Updated 07−08 Wis. Stats. Database^10
of whether the agreement adequately provides for the parties. Ray v. Ray, 57 Wis. 2d 77, 203 N.W.2d 724 (1973). There are 2 types of postnuptial agreements: 1) family settlement agreements that contemplate the continuation of the marriage, and 2) separation agreements that are made after separation or in contemplation of separation. The former are presumed binding on the parties under s. 767.255 (3) (L) [now s. 767.61 (3) (L)]. The latter are governed by s. 767.10 [now s. 767.34] and constitute a recommendation jointly made by the parties to the court regarding what the judgment provide. Evenson v. Evenson, 228 Wis. 2d 676, 598 N.W.2d 232 (Ct. App. 1999), 98−0803. See also Van Boxtel v. Van Boxtel, 2001 WI 40, 242 Wis. 2d 474, 625 N.W.2d 284, 99−0341. An agreement made in contemplation of divorce, entered into after the parties agreed to the divorce, was subject to s. 767.10 [now s. 767.34], not s. 767.255 [now s. 767.61]. When a party withdrew his consent before court approval, the agreement was unenforceable. Ayres v. Ayres, 230 Wis. 2d 431, 602 N.W.2d 132 (Ct. App. 1999), 98−3450. A trial court may refuse to incorporate a stipulation in a divorce judgment when a party repudiates his or her consent. A party is free to withdraw from a stipulation until it is incorporated in a judgment, and repudiation may render the stipulation non- existent. Van Boxtel v. Van Boxtel, 2001 WI 40, 242 Wis. 2d 474, 625 N.W.2d 284, 99−0341. The specific language of sub. (1) controls stipulations in divorces rather than the general language of s. 807.05. All agreements entered into after a divorce is filed are stipulations subject to sub. (1) and must be approved by the court. Polakowski v. Polakowski, 2003 WI App 20, 259 Wis. 2d 765, 657 N.W.2d 102, 02−1961. A stipulation under this section is not a contract that would be binding on the parties once entered into, but is only a recommendation to the court. The court need not accept it but has a duty to decide whether that recommendation is a fair and reasonable resolution of the issues that the court wants to adopt. When a court adopts a stipula- tion, it does so on its own responsibility within it’s discretion, and the provisions become the court’s judgment. Once the court decides to do so, the right of a party to withdraw from the stipulation comes to an end. Hottenroth v. Hetsko, 2006 WI App 249, 298 Wis. 2d 200, 727 N.W.2d 38, 05−1212. Before approving a stipulation, the circuit court is not required to take evidence and make an investigation in essentially the same manner as if the stipulated matters were contested. Under the facts of this case it was unnecessary to define the minimum requirements that must be met before a court approves a stipulation. Hottenroth v. Hetsko, 2006 WI App 249, 298 Wis. 2d 200, 727 N.W.2d 38, 05−1212.
767.35 Judgment of divorce or legal separation. (1) WHEN GRANTED. A court shall grant a judgment of divorce or legal separation if all of the following conditions are met: (a) The requirements of this chapter as to residence and attend- ance at an educational program under s. 767.401 have been com- plied with. (b) 1. In connection with a judgment of divorce or legal separa- tion, the court finds that the marriage is irretrievably broken under s. 767.315 (1) (a) or (b) 1. or 2., unless subd. 2. applies.
- In connection with a judgment of legal separation, the court finds that the marital relationship is broken under s. 767.315 (2). (c) To the extent that it has jurisdiction to do so, the court has considered and approved or made provision for legal custody and physical placement, the support of any child of the marriage entitled to support, the maintenance of either spouse, the support of the family under s. 767.531, and the disposition of property.
(2) GRANTING DIVORCE OR LEGAL SEPARATION. When a party requests a legal separation rather than a divorce, the court shall grant a judgment of legal separation unless the other party requests a divorce, in which case the court shall hear and deter- mine which judgment shall be granted. (3) WHEN DIVORCE JUDGMENT EFFECTIVE. A judgment of divorce is effective when granted. A court granting a judgment of divorce shall inform the parties appearing in court that the judg- ment is effective when granted but that it is unlawful under s. 765.03 (2) for a party to marry again until 6 months after the judg- ment is granted. (4) REVOCATION OF LEGAL SEPARATION JUDGMENT UPON REC- ONCILIATION. A judgment of legal separation shall provide that, if a reconciliation occurs at any time after the judgment, the parties may apply for a revocation of the judgment. Upon application for a revocation of the judgment, the court shall make such orders as may be just and reasonable. (5) CONVERSION OF LEGAL SEPARATION TO DIVORCE. By stipu- lation of both parties, or upon motion of either party not earlier than one year after entry of a judgment of legal separation, the court shall convert the judgment to a judgment of divorce.
(6) VACATING OR MODIFYING DIVORCE JUDGMENT AS IT AFFECTS MARITAL STATUS. So far as a judgment of divorce affects the mari-
tal status of the parties, the court may vacate or modify the judg- ment for sufficient cause shown, upon its own motion, or upon the application of both parties to the action, at any time within 6 months from the granting of the judgment. If the judgment is vacated it shall restore the parties to the marital relation that existed before the granting of the judgment. If a judgment of divorce is set aside under this subsection, the court shall order the record in the action impounded without regard to s. 767.13. After the record is impounded, the record may not be offered or admitted in whole or in part into evidence in any action or pro- ceeding except by special order of the court of jurisdiction upon good cause shown in any paternity proceedings under this chapter or by special order of a court of record upon a showing of necessity to clear title to real estate. (7) DIVORCE JUDGMENT REVOKED ON REMARRIAGE OF PARTIES. When a judgment of divorce has been granted and the parties sub- sequently intermarry, the court, upon their joint application and upon satisfactory proof of the marriage, shall revoke all judg- ments and any orders that will not affect the right of 3rd persons. If the judgment is revoked, the court shall order the record impounded without regard to s. 767.13, and the record may not be offered or admitted, in whole or in part, into evidence in any action or proceeding except by special order of the court of jurisdiction upon good cause shown in a paternity proceeding under this chap- ter or by special order of a court of record upon a showing of necessity to clear title to real estate. History: 1971 c. 220; 1977 c. 105; 1979 c. 32 ss. 50 , 92 (4); Stats. 1979 s. 767.07; 1987 a. 355; 1989 a. 132; 2005 a. 443 ss. 35 , 36 , 53 , 172 , 173 , 174 ; Stats. 2005 s. 767.35. NOTE: 2005 Wis. Act 443, which affected this section, contains explanatory notes. Sub. (2) [now sub. (6)] does not authorize vacating or modifying a finding of pater- nity of children determined in the original divorce judgment. E. v. E. 57 Wis. 2d 436, 204 N.W.2d 503 (1973). Sub. (2) [now sub. (6)] provides no authority for reopening a divorce judgment as it relates to a property division. Conrad v. Conrad, 92 Wis. 2d 407, 284 N.W.2d 674 (1979). The death of a party within 6 months of a divorce judgment did not void the judg- ment or divest the court of jurisdiction to order property division. Roeder v. Roeder, 103 Wis. 2d 411, 308 N.W.2d 904 (Ct. App. 1981). A divorce judgment did not bar a wife’s action against her former husband for torts allegedly committed during the marriage. Stuart v. Stuart, 143 Wis. 2d 347, 421 N.W.2d 505 (1988). If the requirements of sub. (2) [now sub. (5)] are met, conversion to a divorce decree is mandatory. Bartz v. Bartz, 153 Wis. 2d 756, 452 N.W.2d 160 (Ct. App. 1989).
767.36 Copies of judgment to parties. At the time of fil- ing a judgment for an annulment, divorce, or legal separation, the party who prepared the judgment shall furnish to the clerk of court 2 true copies of the judgment, including any attachments to the judgment referenced in the judgment, in addition to the original judgment. Until the copies are presented, the clerk may refuse to accept the judgment for filing. After the judgment is filed, the clerk shall mail a copy promptly to each party to the action at the last−known address, and the mailing shall be shown in the court record. History: 2005 a. 443 s. 171. NOTE: 2005 Wis. Act 443, which affected this section, contains explanatory notes.
767.375 Effect on transfers at death. (1) REVOCATION OF DEATH PROVISIONS IN MARITAL PROPERTY AGREEMENT. Unless the judgment provides otherwise, a judgment of annulment, divorce or legal separation revokes a provision in a marital property agree- ment under s. 766.58 that provides for any of the following: (a) That, upon the death of either spouse, any of either or both spouses’ property, including after−acquired property, passes with- out probate to a designated person, trust or other entity by nontes- tamentary disposition. (b) That one or both spouses will make a particular disposition in a will or other governing instrument, as defined in s. 854.01 (2). (2) REVOCATION OF REVOCABLE TRANSFERS AT DEATH. Unless sub. (1) applies, revocation of revocable transfers at death by a for-
11 Updated 07−08 Wis. Stats. Database ACTIONS AFFECTING THE FAMILY 767.
mer spouse to the other former spouse, or to relatives of the other former spouse, under an instrument executed before the judgment of annulment, divorce or legal separation is governed by s. 854.15. History: 1991 a. 301; 1997 a. 188; 2005 a. 216; 2005 a. 443 s. 119 ; Stats. 2005 s. 767.375. NOTE: 1991 Wis. Act 301, which affected this section, contains extensive leg- islative council notes.
767.385 Maintenance, legal custody, and support when divorce or separation denied. If a judgment in an action for divorce or legal separation denies the divorce or legal separation, the court may make such order as the nature of the case renders just and reasonable for the legal custody of and periods of physical placement with any of the minor children, and for the maintenance of either spouse and support of the children by either spouse out of property or income. If the court orders child support under this section, the court shall determine the child support pay- ments in a manner consistent with s. 767.511, regardless of the fact that a judgment of divorce or legal separation has not been entered. History: 1971 c. 220; 1979 c. 32 s. 50 ; Stats. 1979 s. 767.28; 1987 a. 355; 1993 a. 481; 2005 a. 443 s. 125 ; Stats. 2005 s. 767.385.
767.395 Name of spouse. Except as provided in s. 301.47, the court, upon granting a divorce, shall allow either spouse, upon request, to resume a former legal surname, if any. History: 1975 c. 94; 1979 c. 32 s. 50 ; Stats. 1979 s. 767.20; 2003 a. 52; 2005 a. 443 s. 78 ; Stats. 2005 s. 767.395. Women’s names in Wisconsin: In Re Petition of Kruzel. MacDougall, 1975 WBB No. 4.
SUBCHAPTER V
CHILD CUSTODY, PLACEMENT, AND VISITATION
767.401 Educational programs and classes. (1) PRO- GRAMS: EFFECTS OF DISSOLUTION ON CHILDREN; PARENTING SKILLS. (a) During the pendency of an action affecting the family in which a minor child is involved and in which the court determines that it is appropriate and in the best interest of the child, the court, on its own motion, may order the parties to attend a program speci- fied by the court concerning the effects on a child of a dissolution of the marriage. If the court orders the parties to attend a program under this paragraph and there is evidence that one or both of the parties have engaged in interspousal battery, as described in s. 940.19 or 940.20 (1m), or domestic abuse, as defined in s. 813. (1) (am), the court may not require the parties to attend the pro- gram together or at the same time. (b) During the pendency of an action to determine the paternity of a child, or an action affecting the family for which the underly- ing action was an action to determine the paternity of a child, if the court determines that it is appropriate and in the best interest of the child, the court, on its own motion, may order either or both of the parties to attend a program specified by the court providing train- ing in parenting or coparenting skills, or both. (c) A program under par. (a) or (b) shall be educational rather than therapeutic in nature and may not exceed a total of 4 hours in length. The parties shall be responsible for the cost, if any, of attendance at the program. The court may specifically assign responsibility for payment of any cost. No facts or information obtained in the course of the program, and no report resulting from the program, is admissible in any action or proceeding. (d) Notwithstanding s. 767.35 (1), the court may require the parties to an action affecting the family in which a minor child is involved to attend a program under par. (a) or (b) as a condition to the granting of a final judgment or order in the action affecting the family. (e) A party who fails to attend a program ordered under par. (a) or (b) or pay costs specifically ordered under par. (c) may be pro- ceeded against under ch. 785 for contempt of court. (2) CLASSES ON PARENTING. (a) During the pendency of a divorce or paternity action, the court may order the parties to
attend a class that is approved by the court and that addresses such issues as child development, family dynamics, how parental sepa- ration affects a child’s development, and what parents can do to make raising a child in a separated situation less stressful for the child. (b) The court may not require the parties to attend a class under this subsection as a condition to the granting of the final judgment or order in the divorce or paternity action, however, the court may refuse to hear a custody or physical placement motion of a party who refuses to attend a class ordered under this subsection. (c) 1. Except as provided in subd. 2., the parties shall be responsible for any cost of attending the class.
- If the court finds that a party is indigent, any costs that would be the responsibility of that party shall be paid by the county. History: 1993 a. 225; 1997 a. 45; 1999 a. 9; 2001 a. 61; 2003 a. 130; 2005 a. 443 ss. 59 to 63 , 180 ; Stats. 2005 s. 767.401.
767.405 Family court services. (1) DEFINITIONS. In this section: (a) “Mediation” means a cooperative process involving the parties and a mediator, the purpose of which is to help the parties, by applying communication and dispute resolution skills, define and resolve their own disagreements, with the best interest of the child as the paramount consideration. (b) “Mediator” means a person with special skills and training in dispute resolution. (1m) DIRECTOR. (a) Except as provided in par. (b) and subject to approval by the chief judge of the judicial administrative dis- trict, the circuit judge or judges in each county shall designate a person meeting the qualifications under sub. (4) as the director of family court services in that county. (b) If 2 or more contiguous counties enter into a cooperative agreement under sub. (3) (b), the circuit judges for the counties involved shall, subject to approval by the chief judge of the judi- cial administrative district, designate a person meeting the qualifi- cations under sub. (4) as the director of family court services for those counties. (c) A county or counties may designate the supervisor of the office of family court commissioner as the director under par. (a) or (b). (2) DUTIES. A director of family court services designated under sub. (1m) shall administer a family court services office if such an office is established under sub. (3) (a) or (b). Regardless of whether the office is established, the director shall: (a) Employ staff to perform mediation and to perform any legal custody and physical placement study services authorized under sub. (14), arrange and monitor staff training, and assign and moni- tor staff case load. (b) Contract under sub. (3) (c) with a person or public or private entity to perform mediation and to perform any legal custody and physical placement study services authorized under sub. (14). (c) Supervise and perform mediation and any legal custody and physical placement study services authorized under sub. (14), and evaluate the quality of the mediation or study services. (d) Administer and manage funding for family court services. (3) MEDIATION PROVIDED. Mediation shall be provided in every county in this state by any of the following means: (a) A county may establish a family court services office to provide mediation in that county. (b) Two or more contiguous counties may enter into a coopera- tive agreement to establish one family court services office to pro- vide mediation in those counties. (c) A director of family court services designated under sub. (1m) may contract with any person or public or private entity, located in a county in which the director administers family court services or in a contiguous county, to provide mediation in the county in which the person or entity is located.
13 Updated 07−08 Wis. Stats. Database ACTIONS AFFECTING THE FAMILY 767.
vided in s. 767.407 (1) (am), the court shall promptly appoint a guardian ad litem under s. 767.407. Regardless of whether the court appoints a guardian ad litem, the court shall, if appropriate, refer the matter for a legal custody or physical placement study under sub. (14). If the parties come to agreement on legal custody or physical placement after the matter has been referred for a study, the study shall be terminated. The parties may return to mediation at any time before any trial of or final hearing on legal custody or periods of physical placement. If the parties return to mediation, the county shall collect any applicable fee under s. 814.615. (13) POWERS OF COURT. Except as provided in sub. (8), refer- ring parties to mediation under this section does not affect the power of the court to make any necessary order relating to the par- ties during the course of the mediation.
(14) LEGAL CUSTODY AND PHYSICAL PLACEMENT STUDY. (a) A county or 2 or more contiguous counties shall provide legal cus- tody and physical placement study services. The county or coun- ties may elect to provide these services by any of the means set forth in sub. (3) with respect to mediation. Regardless of whether a county so elects, whenever legal custody or physical placement of a minor child is contested and mediation under this section is not used or does not result in agreement between the parties, or at any other time the court considers it appropriate, the court may order a person or entity designated by the county to investigate the following matters relating to the parties:
- The conditions of the child’s home.
- Each party’s performance of parental duties and responsi- bilities relating to the child.
2m. Whether either party has engaged in interspousal battery, as described in s. 940.19 or 940.20 (1m), or domestic abuse, as defined in s. 813.12 (1) (am).
- Any other matter relevant to the best interest of the child. (b) The person or entity investigating the parties under par. (a) shall complete the investigation and submit the results to the court. The court shall make the results available to both parties. The report shall be a part of the record in the action unless the court orders otherwise.
(c) No person who provided mediation to the parties under this section may investigate the parties under this subsection unless each party personally so consents by written stipulation after mediation has ended and after receiving notice from the person who provided mediation that consent waives the inadmissibility of communications in mediation under s. 904.085. History: 1987 a. 355; 1989 a. 56; 1991 a. 269; Sup. Ct. Order No. 93−03, 179 Wis. 2d xv; 1995 a. 275, 343 ; 1999 a. 9; 2001 a. 61, 109 ; 2003 a. 130; 2005 a. 443 ss. 8 , 56 , 57 , 181 ; Stats. 2005 s. 767.405; 2007 a. 187. NOTE: 1987 Wis. Act 355, which created this section, and 2005 Wis. Act 443, which affected this section, contain explanatory notes. Judicial Council Note, 1993. Subsections (5) (a) and (14) (c) are amended because the rule of inadmissibility under s. 904.085 is not a privilege; it is waivable only if the parties stipulate that the mediator may conduct the custody investigation. The director, is an agent of the circuit court judges, and the director’s statutory authority and responsibilities are to be carried out under the supervision of the circuit court judges. A collective bargaining agreement cannot trump such statutory, judicial branch authority because doing so would violate separation of powers principles. A collective bargaining agreement may not abrogate a statutory function of the judicial branch. Any such provisions in a collective bargaining agreement are invalid and unenforceable. Racine County v. International Association of Machinists and Aero- space Workers, 2008 WI 70, ___ Wis. 2d ___, 751 N.W.2d 312, 06−0964.
767.407 Guardian ad litem for minor children. (1) APPOINTMENT. (a) The court shall appoint a guardian ad litem for a minor child in any action affecting the family if any of the following conditions exists:
- The court has reason for special concern as to the welfare of a minor child.
- Except as provided in par. (am), the legal custody or physi- cal placement of the child is contested.
(am) The court is not required to appoint a guardian ad litem under par. (a) 2. if all of the following apply:
- Legal custody or physical placement is contested in an action to modify legal custody or physical placement under s. 767.451 or 767.481.
- The modification sought would not substantially alter the amount of time that a parent may spend with his or her child.
- The court determines any of the following: a. That the appointment of a guardian ad litem will not assist the court in the determination regarding legal custody or physical placement because the facts or circumstances of the case make the likely determination clear. b. That a party seeks the appointment of a guardian ad litem solely for a tactical purpose, or for the sole purpose of delay, and not for a purpose that is in the best interest of the child. (b) The court may appoint a guardian ad litem for a minor child in any action affecting the family if the child’s legal custody or physical placement is stipulated to be with any person or agency other than a parent of the child or, if at the time of the action, the child is in the legal custody of, or physically placed with, any per- son or agency other than the child’s parent by prior order or by stipulation in this or any other action. (c) The attorney responsible for support enforcement under s. 59.53 (6) (a) may request that the court appoint a guardian ad litem to bring an action or motion on behalf of a minor who is a nonmari- tal child whose paternity has not been acknowledged under s. 767.805 (1) or a substantially similar law of another state or adju- dicated for the purpose of determining the paternity of the child, and the court shall appoint a guardian ad litem, if any of the fol- lowing applies:
- Aid is provided under s. 48.57 (3m) or (3n), 48.645, 49.19, or 49.45 on behalf of the child, or benefits are provided to the child’s custodial parent under ss. 49.141 to 49.161, but the state and its delegate under s. 49.22 (7) are barred by a statute of limita- tions from commencing an action under s. 767.80 on behalf of the child.
- An application for legal services has been filed with the child support program under s. 49.22 on behalf of the child, but the state and its delegate under s. 49.22 (7) are barred by a statute of limitations from commencing an action under s. 767.80 on behalf of the child. (d) A guardian ad litem appointed under par. (c) shall bring an action or motion for the determination of the child’s paternity if the guardian ad litem determines that the determination of the child’s paternity is in the child’s best interest. (e) Nothing in this subsection prohibits the court from making a temporary order under s. 767.225 that concerns the child before a guardian ad litem is appointed or before the guardian ad litem has made a recommendation to the court, if the court determines that the temporary order is in the best interest of the child. (2) TIME FOR APPOINTMENT. The court shall appoint a guardian ad litem under sub. (1) (a) 1. or (b) whenever the court deems it appropriate. The court shall appoint a guardian ad litem under sub. (1) (a) 2. at the time specified in s. 767.405 (12) (b), unless upon motion by a party or its own motion the court determines that earlier appointment is necessary. (3) QUALIFICATIONS. The guardian ad litem shall be an attor- ney admitted to practice in this state. No person who is an inter- ested party in a proceeding, appears as counsel in a proceeding on behalf of any party or is a relative or representative of an interested party may be appointed guardian ad litem in that proceeding. (4) RESPONSIBILITIES. The guardian ad litem shall be an advo- cate for the best interests of a minor child as to paternity, legal cus- tody, physical placement, and support. The guardian ad litem shall function independently, in the same manner as an attorney for a party to the action, and shall consider, but shall not be bound by, the wishes of the minor child or the positions of others as to the best interests of the minor child. The guardian ad litem shall con- sider the factors under s. 767.41 (5) (am), subject to s. 767.41 (5)
767.407 ACTIONS AFFECTING THE FAMILY Updated 07−08 Wis. Stats. Database^14
(bm), and custody studies under s. 767.405 (14). The guardian ad litem shall investigate whether there is evidence that either parent has engaged in interspousal battery, as described in s. 940.19 or 940.20 (1m), or domestic abuse, as defined in s. 813.12 (1) (am), and shall report to the court on the results of the investigation. The guardian ad litem shall review and comment to the court on any mediation agreement and stipulation made under s. 767.405 (12) and on any parenting plan filed under s. 767.41 (1m). Unless the child otherwise requests, the guardian ad litem shall communicate to the court the wishes of the child as to the child’s legal custody or physical placement under s. 767.41 (5) (am) 2. The guardian ad litem has none of the rights or duties of a general guardian. (4m) STATUS HEARING. (a) Subject to par. (b), at any time after 120 days after a guardian ad litem is appointed under this section, a party may request that the court schedule a status hearing related to the actions taken and work performed by the guardian ad litem in the matter. (b) A party may, not sooner than 120 days after a status hearing under this subsection is held, request that the court schedule another status hearing on the actions taken and work performed by the guardian ad litem in the matter. (5) TERMINATION AND EXTENSION OF APPOINTMENT. The appointment of a guardian ad litem under sub. (1) terminates upon the entry of the court’s final order or upon the termination of any appeal in which the guardian ad litem participates. The guardian ad litem may appeal, may participate in an appeal or may do nei- ther. If an appeal is taken by any party and the guardian ad litem chooses not to participate in that appeal, he or she shall file with the appellate court a statement of reasons for not participating. Irrespective of the guardian ad litem’s decision not to participate in an appeal, the appellate court may order the guardian ad litem to participate in the appeal. At any time, the guardian ad litem, any party or the person for whom the appointment is made may request in writing that the court extend or terminate the appointment or reappointment. The court may extend that appointment, or reap- point a guardian ad litem appointed under this section, after the final order or after the termination of the appeal, but the court shall specifically state the scope of the responsibilities of the guardian ad litem during the period of that extension or reappointment. (6) COMPENSATION. The guardian ad litem shall be compen- sated at a rate that the court determines is reasonable. The court shall order either or both parties to pay all or any part of the com- pensation of the guardian ad litem. In addition, upon motion by the guardian ad litem, the court shall order either or both parties to pay the fee for an expert witness used by the guardian ad litem, if the guardian ad litem shows that the use of the expert is neces- sary to assist the guardian ad litem in performing his or her func- tions or duties under this chapter. If both parties are indigent, the court may direct that the county of venue pay the compensation and fees. If the court orders a county to pay the compensation of the guardian ad litem, the amount ordered may not exceed the compensation paid to private attorneys under s. 977.08 (4m) (b). The court may order a separate judgment for the amount of the reimbursement in favor of the county and against the party or par- ties responsible for the reimbursement. The court may enforce its orders under this subsection by means of its contempt power. History: Sup. Ct. Order, 50Wis. 2d vii (1971); 1977 c. 105, 299 ; 1979 c. 32 ss. 50 , 92 (4); 1979 c. 196; 1979 c. 352 s. 39 ; Stats. 1979 s. 767.045; 1987 a. 355; Sup. Ct. Order, 151 Wis. 2d xxv (1989); 1993 a. 16, 481 ; 1995 a. 27, 201 , 289 , 404 ; 1997 a. 105, 191 ; 1999 a. 9; 2001 a. 61; 2003 a. 130; 2005 a. 443 s. 25 ; Stats. 2005 s. 767.407; 2007 a. 20. 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. Sub. (2) is the present law which takes into account the need for mediation. 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 informa- tion 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. 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. Sub. (5) specifies that the appointment terminates at the final order or the conclu- sion of the appeal unless the court otherwise directs. The court may reappoint or con- tinue 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] If both spouses have ability to pay, each should be required to contribute to the pay- ment of the guardian ad litem’s fee, with the percentage to be paid by each to be deter- mined in the court’s discretion. Tesch v. Tesch, 63 Wis. 2d 320, 217 N.W.2d 647 (1974). 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). 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). 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). A guardian ad litem may not be called as a witness in a custody proceeding. The G.A.L. is to communicate with the court as a lawyer for a party and to present infor- mation by presenting evidence. Hollister v. Hollister, 173 Wis. 2d 413, 496 N.W.2d 642 (Ct. App. 1992). 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. Interest of Brandon S.S. 179 Wis. 2d 114, 507 N.W.2d 94 (1993). 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. Friedrich v. Dane County Circuit Ct. 192 Wis. 2d 1, 531 N.W.2d 32 (1995). 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. 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. 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 for Dane County, 2000 WI App 261, 240 Wis. 2d 197, 622 N.W.2d 29, 00−0620. The quasi−judicial immunity of a guardian ad litem described in Paige K.B. applies only to liability for the negligent performance of his or her duties, not as a shield against court−imposed sanctions for failure to obey a court order. Reed v. Luebke, 2003 WI App 207, 267 Wis. 2d 596, 671 N.W.2d 304, 02−2211. 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 405, 04−2440. A circuit court may not, when the issue is contested, determine the primary place- ment 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 par- ties’, neither parent is empowered to waive a child’s right to have its best interests rep- resented 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. The “why” behind appointing guardians ad litem for children in divorce proceed- ings. Podell, 57 MLR 103.
767.41 Custody and physical placement. (1) GENERAL PROVISIONS. (a) Subject to ch. 822 , the question of a child’s cus- tody 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 physi- cal custody of a child from proceeding under ch. 822. (b) In rendering a judgment of annulment, divorce, legal sepa- ration, or paternity, or in rendering a judgment in an action under s. 767.001 (1) (e), 767.501, 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 ACTIONS AFFECTING THE FAMILY Updated 07−08 Wis. Stats. Database^16
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.
- 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.
(e) 1. In this paragraph, “service member” means a member of the national guard or of a reserve unit of the U.S. armed forces.
- 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.
(3) CUSTODY TO AGENCY OR RELATIVE. (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. (2g), to a licensed child welfare agency, or, in a county having a population of 500,000 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. (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 para- mount 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 depart- ment 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 spe- cific 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 docu- menting 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 suffi- cient to comply with this paragraph. (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.
(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, date and purpose of the hearing to the agency that prepared the report, the child’s parents, the child, if he or she is 12 years of age or over, and the child’s foster parent, treatment
foster parent or the operator of the facility in which the child is liv- ing. (d) Following the hearing, the court shall make all of the deter- minations 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). (e) The charges for care furnished to a child whose custody is transferred under this subsection shall be pursuant to the proce- dure under s. 48.36 (1) or 938.36 (1) except as provided in s. 767.57 (3). (4) ALLOCATION OF PHYSICAL PLACEMENT. (a) 1. Except as provided under par. (b), if the court orders sole or joint legal cus- tody under sub. (2), the court shall allocate periods of physical placement between the parties in accordance with this subsection.
- In determining the allocation of periods of physical place- ment, 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 occur- ring, 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. (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. (c) No court may deny periods of physical placement for fail- ure 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. (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. (d) If the court grants periods of physical placement to more than one parent, it shall order a parent with legal custody and physical placement rights to provide the notice required under s. 767.481 (1). (e) If the court grants periods of physical placement to more than one parent, the court may grant to either or both parents a rea- sonable 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 replace- ment 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. (5) FACTORS IN CUSTODY AND PHYSICAL PLACEMENT DETER- MINATIONS. (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 custo- dian. Subject to pars. (bm) and (c), the court shall consider the fol- lowing factors in making its determination:
- 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.
17 Updated 07−08 Wis. Stats. Database ACTIONS AFFECTING THE FAMILY 767.
- The wishes of the child, which may be communicated by the child or through the child’s guardian ad litem or other appro- priate professional.
- The interaction and interrelationship of the child with his or her parent or parents, siblings, and any other person who may significantly affect the child’s best interest.
- 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 life−style changes that a parent proposes to make to be able to spend time with the child in the future.
- The child’s adjustment to the home, school, religion and community.
- The age of the child and the child’s developmental and edu- cational needs at different ages.
- 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.
- The need for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child.
- The availability of public or private child care services.
- The cooperation and communication between the parties and whether either party unreasonably refuses to cooperate or communicate with the other party.
- Whether each party can support the other party’s relation- ship with the child, including encouraging and facilitating fre- quent and continuing contact with the child, or whether one party is likely to unreasonably interfere with the child’s continuing rela- tionship with the other party.
- Whether there is evidence that a party engaged in abuse, as defined in s. 813.122 (1) (a), of the child, as defined in s. 48. (2). 12m. Whether any of the following has a criminal record and 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: a. A person with whom a parent of the child has a dating rela- tionship, as defined in s. 813.12 (1) (ag). b. A person who resides, has resided, or will reside regularly or intermittently in a proposed custodial household.
- 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).
- Whether either party has or had a significant problem with alcohol or drug abuse.
- The reports of appropriate professionals if admitted into evidence.
- Such other factors as the court may in each individual case determine to be relevant. (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 cus- tody and periods of physical placement. (c) 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 cus- tody 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 mem- ber’s home. (6) FINAL ORDER. (a) If legal custody or physical placement is contested, the court shall state in writing why its findings relat- ing to legal custody or physical placement are in the best interest of the child.
(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). (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. (c) In making an order of joint legal custody and periods of physical placement, the court may specify one parent as the pri- mary 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 pur- pose the court considers appropriate. (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. (e) In an order of physical placement, the court shall specify the right of each party to the physical control of the child in suffi- cient detail to enable a party deprived of that control to implement any law providing relief for interference with custody or parental rights. (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 pre- sumption 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. (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 place- ment 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 fol- lowing, as appropriate:
- 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 responsi- bility assigned by the court and to be accountable to the court for his or her actions with respect to the responsibility.
- 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 support- ing 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.
- Requiring the party who committed the battery or abuse to pay the costs of supervised physical placement.
- 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.
- If the party who committed the battery or abuse has a signif- icant problem with alcohol or drug abuse, prohibiting that party from being under the influence of alcohol or any controlled sub- stance when the parties exchange the child for periods of physical placement and from possessing or consuming alcohol or any con- trolled substance during his or her periods of physical placement.
- Prohibiting the party who committed the battery or abuse from having overnight physical placement with the child.
- Requiring the party who committed the battery or abuse to post a bond for the return and safety of the child.
19 Updated 07−08 Wis. Stats. Database ACTIONS AFFECTING THE FAMILY 767.
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. 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. 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. 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 his or her 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 can- not 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. 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. Custody — to which parent? Podell, Peck, First, 56 MLR 51. The best interest of the child doctrine in Wisconsin custody cases. 64 MLR 343 (1980). 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). Recent Changes in Wisconsin’s Law Regarding Child Custody and Placement. Rue. 2001 WLR 1177. Debating the Standard in Child Custody Placement Decisions. Molvig. Wis. Law. July 1998. Wisconsin’s Custody, Placement and Paternity Reform Legislation. Walther. Wis.Law. April 2000.
767.43 Visitation rights of certain persons. (1) PETI- TION, WHO MAY FILE. Except as provided in subs. (1m) and (2m), upon petition by a grandparent, greatgrandparent, stepparent or person who has maintained a relationship similar to a parent−child relationship with the child, the court may grant reasonable visita- tion rights to that person if the parents have notice of the hearing and if the court determines that visitation is in the best interest of the child. (1m) EXCEPTION; HOMICIDE CONVICTION. (a) Except as pro- vided in par. (b), the court may not grant visitation rights under sub. (1) to a person who 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 a parent of the child, and the con- viction has not been reversed, set aside or vacated.
(b) Paragraph (a) does not apply if the court determines by clear and convincing evidence that the visitation would be in the best interests of the child. The court shall consider the wishes of the child in making the determination.
(2) WISHES OF THE CHILD. Whenever possible, in making a determination under sub. (1), the court shall consider the wishes of the child. (2m) WHEN SPECIAL GRANDPARENT PROVISION APPLICABLE. Subsection (3), rather than sub. (1), applies to a grandparent requesting visitation rights under this section if sub. (3) (a) to (c) applies to the child. (3) SPECIAL GRANDPARENT VISITATION PROVISION. The court may grant reasonable visitation rights, with respect to a child, to a grandparent of the child if the child’s parents have notice of the hearing and the court determines all of the following: (a) The child is a nonmarital child whose parents have not sub- sequently married each other. (b) Except as provided in sub. (4), the paternity of the child has been determined under the laws of this state or another jurisdiction if the grandparent filing the petition is a parent of the child’s father.
(c) The child has not been adopted. (d) The grandparent has maintained a relationship with the child or has attempted to maintain a relationship with the child but
has been prevented from doing so by a parent who has legal cus- tody of the child. (e) The grandparent is not likely to act in a manner that is con- trary to decisions that are made by a parent who has legal custody of the child and that are related to the child’s physical, emotional, educational or spiritual welfare. (f) The visitation is in the best interest of the child. (3c) ACTION IN WHICH PETITION FILED; ALTERNATIVES. A grandparent requesting visitation under sub. (3) may file a petition to commence an independent action for visitation under this chap- ter or may file a petition for visitation in an underlying action affecting the family under this chapter that affects the child. (3m) PRETRIAL HEARING; RECOMMENDATION. (a) A pretrial hearing shall be held before the court in an action under sub. (3). At the pretrial hearing the parties may present and cross−examine witnesses and present other evidence relevant to the determina- tion of visitation rights. A record or minutes of the proceeding shall be kept. (b) On the basis of the information produced at the pretrial hearing, the court shall evaluate the probability of granting visita- tion rights to a grandparent in a trial and shall so advise the parties. On the basis of the evaluation, the court may make an appropriate recommendation for settlement to the parties. (c) If a party or the guardian ad litem refuses to accept a recom- mendation under this subsection, the action shall be set for trial. (d) The informal hearing under this subsection may be termi- nated and the action set for trial if the court finds it unlikely that all parties will accept a recommendation under this subsection. (4) PATERNITY DETERMINATION. If the paternity of the child has not yet been determined in an action under sub. (3) that is com- menced by a person other than a parent of the child’s mother but the person filing the petition under sub. (3) has, in conjunction with that petition, filed a petition or motion under s. 767.80 (1) (k), the court shall make a determination as to paternity before deter- mining visitation rights under sub. (3). (5) INTERFERENCE WITH VISITATION RIGHTS. Any person who interferes with visitation rights granted under sub. (1) or (3) may be proceeded against for contempt of court under ch. 785 , except that a court may impose only the remedial sanctions specified in s. 785.04 (1) (a) and (c) against that person. (6) MODIFICATION OF ORDER IF HOMICIDE CONVICTION. (a) If a person granted visitation rights with a child under this section is convicted under s. 940.01 of the first−degree intentional homi- cide, or under s. 940.05 of the 2nd−degree intentional homicide, of a parent of the child, and the conviction has not been reversed, set aside or vacated, the court shall modify the visitation order by denying visitation with the child upon petition, motion or order to show cause by a parent or guardian of the child, or upon the court’s own motion, and upon notice to the person granted visitation rights. (b) Paragraph (a) does not apply if the court determines by clear and convincing evidence that the visitation would be in the best interests of the child. The court shall consider the wishes of the child in making that determination. History: 1971 c. 220; 1977 c. 105 ss. 35 , 39 ; 1979 c. 32 ss. 50 , 92 (4); Stats. 1979 s. 767.245; 1983 a. 447, 450 ; 1987 a. 355; 1995 a. 68; 1999 a. 9; 2005 a. 443 ss. 101 , 183 ; Stats. 2005 s. 767.43. Biological grandparents had no right to visitation following termination of their son’s parental rights and adoption by the child’s stepfather. Soergel v. Soergel, 154 Wis. 2d 564, 453 N.W.2d 624 (1990). The visitation petition of a custodial parent’s widow did not meet the criteria of sub. (1) when, prior to the custodial parent’s death, the non−custodial parent had filed a motion to revise custody. Section 880.155 [now s. 54.56] governs visitation in the event of a parent’s death. Cox v. Williams, 177 Wis. 2d 433, 502 N.W.2d 128 (1993). A paternity case in which the court has retained postjudgment authority to enforce the judgment constitutes an underlying action under which a petition for grandparent visitation may be brought. Paternity of Nastassja L.H.−J. 181 Wis. 2d 666, 512 N.W.2d 189 (Ct. App. 1993). An existing underlying action affecting the family does not alone provide standing to petition under this section. The underlying action must threaten the integrity of a family unit. An action under this section does not apply to intact families. Because the father figure in a household was not the biological or adoptive father of one of the
767.43 ACTIONS AFFECTING THE FAMILY Updated 07−08 Wis. Stats. Database^20
children did not mean the family was not intact. Marquardt v. Hegemann−Glascock, 190 Wis. 2d 447, 526 N.W.2d 834 (Ct. App. 1994). While his section does not apply outside the dissolution of a marriage, it does not preempt the consideration of visitation in circumstances not subject to the statute. A circuit court may consider visitation by a non−parent outside a marriage dissolution situation in the best interests of the child if the non−parent petitioner demonstrates a parent−like relationship with the child and shows a significant triggering event such as substantial interference with that relationship. Custody of H.S.H.−K. 193 Wis. 2d 649 , 533 N.W.2d 419 (1995). Public policy does not prohibit a court, relying on its equitable powers, to grant vis- itation outside this section on the basis of a co−parenting agreement between a biolog- ical parent and another when visitation is in the child’s best interest. Custody of H.S.H.−K. 193 Wis. 2d 649, 533 N.W.2d 419 (1995). When applying sub. (3), circuit courts must apply the presumption that a fit parent’s decision regarding grandparent visitation is in the best interest of the child, but the court must still make its own assessment of the best interest of the child. Paternity of Roger D.H. 2002 WI App 35, 250 Wis. 2d 747, 641 N.W.2d 440, 00−3333. Under Troxel v. Granville , 530 U.S. 57, the due process clause prevents a court from starting with a clean slate when assessing whether grandparent visitation is in the best interests of the child. Within the best interests framework, the court must afford a parent’s decision special weight by applying a rebuttable presumption that the fit parent’s decision regarding grandparent visitation is in the best interest of the child. It is up to the party advocating for nonparental visitation to rebut the presump- tion by presenting evidence that the offer is not in the child’s best interests. Martin L. v. Julie R. L. 2007 WI App 37, 299 Wis. 2d 768, 731 N.W.2d 288, 06−0199. When an existing informal arrangement was sufficient to maintain the established relationship between grandparents and children, state interference in the form of court−ordered placement with the grandparents was unwarranted. The question is not whether the additional time sought by the grandparents with their grandchildren might be good for all concerned. The questions are whether, under the facts of the case, the state should intervene to dictate to the parent with primary placement, that added visitation time is warranted, and, if so, which parent should forfeit a portion of his or her placement time to accommodate the grandparent visitation. Rogers v. Rogers, 2007 WI App 50, 300 Wis. 2d 532, 731 N.W.2d 532, 06−1766. Grandparent Visitation Rights. Rothstein. Wis. Law. Nov. 1992. The Effect of C.G.F. and Section 48.925 on Grandparental Visitation Petitions. Hughes. Wis. Law. Nov. 1992. Third−party Visitation in Wisconsin. Herman & Cooper. Wis. Law. March 2001.
767.44 Prohibiting visitation or physical placement if a parent kills other parent. (1) WHEN PROHIBITED. Notwith- standing ss. 767.225 (1) (am), 767.41 (1), (4), and (5), 767.805 (4) (a), and 767.89 (3) and except as provided in sub. (2), in an action under this chapter that affects a minor child, a court may not grant to the child’s parent visitation or physical placement rights with the 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. (2) WHEN NOT APPLICABLE. Subsection (1) does not apply if the court determines by clear and convincing evidence that the visitation or periods of physical placement would be in the best interests of the child. The court shall consider the wishes of the child in making the determination. History: 1999 a. 9; 2001 a. 61; 2005 a. 443 s. 102 ; Stats. 2005 s. 767.44.
767.451 Revision of legal custody and physical place- ment orders. Except for matters under s. 767.461 or 767.481, the following provisions are applicable to modifications of legal custody and physical placement orders: (1) SUBSTANTIAL MODIFICATIONS. (a) Within 2 years after final judgment. Except as provided under sub. (2), a court may not modify any of the following orders before 2 years after the final judgment determining legal custody or physical placement is entered under s. 767.41, unless a party seeking the modification, upon petition, motion, or order to show cause, shows by substan- tial evidence that the modification is necessary because the cur- rent custodial conditions are physically or emotionally harmful to the best interest of the child:
- An order of legal custody.
- An order of physical placement if the modification would substantially alter the time a parent may spend with his or her child.
(b) After 2−year period. 1. Except as provided under par. (a) and sub. (2), upon petition, motion or order to show cause by a party, a court may modify an order of legal custody or an order of physical placement where the modification would substantially alter the time a parent may spend with his or her child if the court finds all of the following:
a. The modification is in the best interest of the child. b. There has been a substantial change of circumstances since the entry of the last order affecting legal custody or the last order substantially affecting physical placement.
- With respect to subd. 1., there is a rebuttable presumption that: a. Continuing the current allocation of decision making under a legal custody order is in the best interest of the child. b. Continuing the child’s physical placement with the parent with whom the child resides for the greater period of time is in the best interest of the child.
- A change in the economic circumstances or marital status of either party is not sufficient to meet the standards for modifica- tion under subd. 1. (2) MODIFICATION OF SUBSTANTIALLY EQUAL PHYSICAL PLACE- MENT ORDERS. Notwithstanding sub. (1): (a) If the parties have substantially equal periods of physical placement pursuant to a court order and circumstances make it impractical for the parties to continue to have substantially equal physical placement, a court, upon petition, motion, or order to show cause by a party, may modify the order if it is in the best interest of the child. (b) In any case in which par. (a) does not apply and in which the parties have substantially equal periods of physical placement pursuant to a court order, a court, upon petition, motion, or order to show cause of a party, may modify the order based on the appro- priate standard under sub. (1). However, under sub. (1) (b) 2., there is a rebuttable presumption that having substantially equal periods of physical placement is in the best interest of the child. (2m) MODIFICATION OF PERIODS OF PHYSICAL PLACEMENT FOR FAILURE TO EXERCISE PHYSICAL PLACEMENT. Notwithstanding subs. (1) and (2), upon petition, motion or order to show cause by a party, a court may modify an order of physical placement at any time with respect to periods of physical placement if it finds that a parent has repeatedly and unreasonably failed to exercise peri- ods of physical placement awarded under an order of physical placement that allocates specific times for the exercise of periods of physical placement. (3) MODIFICATION OF OTHER PHYSICAL PLACEMENT ORDERS. Except as provided under subs. (1) and (2), upon petition, motion or order to show cause by a party, a court may modify an order of physical placement which does not substantially alter the amount of time a parent may spend with his or her child if the court finds that the modification is in the best interest of the child. (3m) REINSTATEMENT OF FORMER PHYSICAL PLACEMENT ALLOCATION AND SCHEDULE. If a party is a service member, as defined in s. 767.41 (2) (e) 1., and the court modifies an order of physical placement on the basis that the service member has been or will be called to active duty in the U.S. armed forces, notwith- standing sub. (1) the court shall require in the order that the alloca- tion of periods of physical placement and, if applicable, the physi- cal placement schedule that were in effect before the modification are reinstated immediately upon the service member’s discharge or release from active duty. (4) DENIAL OF PHYSICAL PLACEMENT. Upon petition, motion or order to show cause by a party or on its own motion, a court may deny a parent’s physical placement rights at any time if it finds that the physical placement rights would endanger the child’s physi- cal, mental or emotional health. (4m) DENIAL OF PHYSICAL PLACEMENT FOR KILLING OTHER PAR- ENT. (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. of the 2nd−degree intentional homicide, of the child’s other par- ent, and the conviction has not been reversed, set aside or vacated.
