(1) General provisions. In rendering a judgment of annulment, divorce or legal separation, or in rendering a judgment in an action under s. 767.02(1)(e), 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.

(2) Custody to party; joint or sole. (a) Subject to par. (b), based on the best interest of the child and after considering the factors under sub. (5), the court may give joint legal custody or sole legal custody of a minor child.

(b) The court may give joint legal custody only if it finds that doing so is in the child's best interest and that either of the following applies:

1. Both parties agree to joint legal custody.

2. The parties do not agree to joint legal custody, but one party requests joint legal custody and the court specifically finds all of the following:

a. Both parties are capable of performing parental duties and responsibilities and wish to have an active role in raising the child.

b. No conditions exist at that time which would substantially interfere with the exercise of joint legal custody.

c. The parties will be able to cooperate in the future decision making required under an award of joint legal custody. In making this finding the court shall consider, along with any other pertinent items, any reasons offered by a party objecting to joint legal custody. Evidence that either party engaged in abuse, as defined in s. 813.122(1)(a), of the child, as defined in s. 48.02(2), or evidence of interspousal battery, as described under s. 940.19or 940.20(1m), or domestic abuse, as defined in s. 813.12(1)(a), creates a rebuttable presumption that the parties will not be able to cooperate in the future decision making required. This presumption may be rebutted by clear and convincing evidence that the abuse will not interfere with the parties' ability to cooperate in the future decision making required.

(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. 48.02(2g), or to a licensed child welfare agency. 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.

(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 living.

(d) Following the hearing, the court shall make all of the determinations 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 procedure under s. 48.36(1) or 938.36(1) except as provided in s. 767.29(3).

(4) Allocation of physical placement. (a) Except as provided under par. (b), if the court orders sole or joint legal custody 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 placement, the court shall consider each case on the basis of the factors in sub. (5).

(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 failure to meet, or grant periods of physical placement for meeting, any financial obligation to the child or 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. 767.327(1).

(5) Factors in custody and physical placement determinations. 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 potential custodian over the other on the basis of the sex or race of the custodian. The court shall consider reports of appropriate professionals if admitted into evidence when legal custody or physical placement is contested. The court shall consider the following factors in making its determination:

(a) The wishes of the child's parent or parents.

(b) The wishes of the child, which may be communicated by the child or through the child's guardian ad litem or other appropriate professional.

(c) 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.

(d) The child's adjustment to the home, school, religion and community.

(e) The mental and physical health of the parties, the minor children and other persons living in a proposed custodial household.

(f) The availability of public or private child care services.

(g) Whether one party is likely to unreasonably interfere with the child's continuing relationship with the other party.

(h) 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. 48.02(2).

(i) 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)(a).

(j) Whether either party has or had a significant problem with alcohol or drug abuse.

(k) Such other factors as the court may in each individual case determine to be relevant.

(6) Final order. (a) If legal custody or physical placement is contested, the court shall state in writing why its findings relating to legal custody or physical placement are in the best interest of the child.

(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 primary caretaker of the child and one home as the primary home of the child, for the purpose of determining eligibility for aid under s. 49.19 or benefits under ss. 49.141 to 49.161 or for any other purpose the court considers appropriate.

(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 sufficient detail to enable a party deprived of that control to implement any law providing relief for interference with custody or parental rights.

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

(b) A parent who has been denied periods of physical placement with a child under this section is subject to s. 118.125(2)(m) with respect to that child's school records, s. 51.30(5)(bm) with respect to the child's court or treatment records, s. 55.07 with respect to the child's records relating to protective services and s. 146.835 with respect to the child's patient health care records.

(7m) Medical and medical history information. (a) In making an order of legal custody, the court shall order a parent who is not granted legal custody of a child to provide to the court medical and medical history information that is known to the parent. The court shall send the information to the physician or other health care provider with primary responsibility for the treatment and care of the child, as designated by the parent who is granted legal custody of the child, and advise the physician or other health care provider of the identity of the child to whom the information relates. The information provided shall include all of the following:

1. The known medical history of the parent providing the information, including specific information about stillbirths or congenital anomalies in the parent's family, and the medical histories, if known, of the parents and siblings of the parent and any sibling of the child who is a child of the parent, except that medical history information need not be provided for a sibling of the child if the parent or other person who is granted legal custody of the child also has legal custody, including joint legal custody, of that sibling.

2. A report of any medical examination that the parent providing the information had within one year before the date of the order.

(am) The physician or other health care provider designated under par. (a) shall keep the information separate from other records kept by the physician or other health care provider. The information shall be assigned an identification number and maintained under the name of the parent who provided the information to the court. The patient health care records of the child that are kept by the physician or other health care provider shall include a reference to that name and identification number. If the child's patient health care records are transferred to another physician or other health care provider or another health care facility, the records containing the information provided under par. (a) shall be transferred along with the child's patient health care records. Notwithstanding s. 146.819, the information provided under par. (a) need not be maintained by a physician or other health care provider after the child reaches age 18.

(b) Notwithstanding ss. 146.81 to 146.835, the information shall be kept confidential, except only as follows:

1. The physician or other health care provider with custody of the information, or any other record custodian at the request of the physician or other health care provider, shall have access to the information if, in the professional judgment of the physician or other health care provider, the information may be relevant to the child's medical condition.

2. The physician or other health care provider may release only that portion of the information, and only to a person, that the physician or other health care provider determines is relevant to the child's medical condition.

(8) Notice in judgment. A judgment which determines the legal custody or physical placement rights of any person to a minor child shall include notification of the contents of s. 948.31.

(9) Applicability. Notwithstanding 1987 Wisconsin Act 355, section 73, as affected by 1987 Wisconsin Act 364, the parties may agree to the adjudication of a custody or physical placement order under this section in an action affecting the family that is pending on May 3, 1988.

COMMENTS--1987 ACT 355

1993 Main Volume

This bill is the product of the legislative council's special committee on custody arrangements.

The special committee was directed, under the terms of 1983 Assembly Joint Resolution 106, to study, among other things: (1) existing laws relating to child custody determinations in actions affecting the family and the limitations of those laws; (2) ways to encourage shared-parenting options, including imposing joint custody without the agreement of both parties; and (3) ways to provide support services to families involved in custody matters to ensure that the best interest of the child continues to be served after a child's parents become divorced or separated.

FINDINGS:

In its study, the special committee on custody arrangements concluded that the current laws and practices relating to child custody determinations in divorce and other actions affecting the family:

1. Do not adequately stress the importance of the best interest of the child and the significance to the child, in most cases, of a continuing, meaningful relationship with both parents.

2. Often increase the anger and polarization of divorcing or separating parents by emphasizing the adversarial nature of custody determinations, instead of providing the parents with the information and dispute resolution mechanisms necessary to plan for the future care of their children.

3. Encourage the use of joint child custody as a bargaining chip by permitting one parent to veto joint custody, despite the willingness of both parents to maintain an active role in raising their children and despite the apparent ability of the parents to cooperate in the future decision making required by an award of joint custody.

4. Provide for an extremely high standard for postjudgment changes in custody by requiring that the current custodial conditions of the child be harmful to the child's best interest before a change may be ordered.

5. Fail to recognize the importance to the child of continuing contact with stepparents and persons with whom the child has lived in a relationship similar to a parent-child relationship.

The committee determined that the current child custody laws should be revised, as set out below.

PROVISIONS OF THE BILL:

Definitions

For purposes of child custody determinations under ch. 767, the bill creates definitions of "legal custody", "sole legal custody", "joint legal custody" and "physical placement". Of particular note are the definitions of "legal custody" (the right and responsibility of a person to make major decisions concerning the child) and "physical placement" (the right to have a child physically placed with a party and the right and responsibility to make routine daily decisions regarding the child's care during that placement).

Joint Legal Custody

Current law permits a court to order joint custody only if the parties agree to joint custody and if it is in the best interest of the child. Under the bill, the court is permitted to order joint legal custody if doing so is in the child's best interest and either of the following applies:

1. Both parties agree to joint legal custody.

2. The parties do not agree to joint legal custody, but one party requests joint legal custody and the court specifically finds that: (a) both parties are capable of performing parental duties and responsibilities and wish to have an active role in raising the child; (b) there are no existing conditions which would interfere with the exercise of joint legal custody; and (c) the parties will be able to cooperate in the future decision making required by an award of joint legal custody.

The bill permits the court to give sole power to one of the joint legal custodians to make certain major decisions concerning the child.

Periods of Physical Placement

The bill replaces the current concepts of "sole physical custody" (i.e., the physical custody rights of a parent awarded sole custody of a child) and parental "visitation rights" with a requirement that the court, in child custody actions, allocate periods of physical placement between the parents if it is in the best interest of the child. Whenever it orders sole or joint legal custody to parents, the court is required to allocate periods of physical placement between the parents unless it finds that such allocation is not in the best interest of the child. In making the allocation, the court is permitted to designate a primary physical placement for the child. However, the court may not provide for the child's primary placement to be with a parent who is not given either sole or joint legal custody.

Mediation

The bill creates comprehensive provisions for mediation in actions affecting the family. The principal elements are:

1. Definition of "mediation". For purposes of ch. 767, the bill defines "mediation" as 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. A "mediator" is defined as a person with special skills and training in dispute resolution.

2. Director of counseling services. In all counties, the circuit judges for the county (or counties, if a cooperative agreement is entered into), with the approval of the chief judge of each judicial administrative district involved, must appoint a director of family court counseling services. The director, who must be a qualified mediator, has the general administrative responsibilities for the provision of these services, including hiring staff or contracting with public or private entities to provide the services, assigning cases and managing funds.

3. Availability of mediation in all counties. The bill requires counties to either (a) establish a family court counseling office to provide mediation or (b) contract with one or more public or private entities in the county or a contiguous county to provide mediation. If the family court counseling office option is selected, (a) 2 or more contiguous counties may enter into a cooperative agreement for a single office to provide mediation in the cooperating counties and (b) the county (or counties, if a cooperative agreement is entered into) may direct that the office also provide legal custody or physical placement studies.

5. When referral to mediation required or permitted. The bill requires the court or the family court commissioner, in all actions affecting the family where it appears that legal custody or physical placement is contested, to refer the parties to mediation. The parties are required to attend an initial session with the mediator.

The bill requires the family court commissioner, upon request, to refer persons to mediation or other appropriate counseling services when the parties wish to have joint legal custody, but need assistance in resolving problems relating to joint legal custody or physical placement, or both. The family court commissioner may, upon request, refer to the director for assistance any person with physical placement rights, any child of a person with these rights, any person with visitation rights or any person with physical custody of a child who is having problems relating to these matters.

6. Mediation procedure. Under the mediation procedure specified in the bill:

a. Unless the parties receive services from a private mediator at their own expense, the director of family court counseling services must assign a mediator to the case. If a private mediator is used, the parties must sign and file with the director and the court or family court commissioner a written notice to that effect.

b. Issues of property division, maintenance and child support may not be considered in mediation provided by or contracted for by the county, unless these issues are directly related to the legal custody or physical placement issues being considered and the parties agree to consider them.

c. If agreement is reached in mediation, a written agreement must be submitted to the court as a stipulation for inclusion in a court order. The court may accept or reject it. If agreement is not reached in mediation, the parties or the mediator must notify the court of that fact and a guardian ad litem must be promptly appointed to represent the interests of the minor child. The court or the family court commissioner may then refer the matter for a legal custody or physical placement study, if appropriate.

7. Confidentiality; privilege. The bill creates a confidentiality requirement for any materials made, used or received by a mediator during the course of mediation. These materials are not a public record under the public records law and, with certain exceptions, are not subject to discovery or admissible in any action or proceeding.

The bill also creates a "mediator-mediation parties" privilege under the evidence code permitting mediation parties to refuse to disclose and to prevent any other person from disclosing a confidential communication made in the mediation. The privilege may be claimed by either mediation party or by the mediator, but only on behalf of the mediation parties. The bill specifies certain circumstances in which there is no "mediator-mediation parties" privilege (e.g., where both mediation parties consent to waive the privilege).

9. Funding of mediation and study services. Under the bill, mediation services and legal custody or physical placement study services are funded by the following:

a. An increase in the filing fee in actions affecting the family.

b. An increase of $25 in the fee for a postjudgment motion to modify a legal custody or physical placement order.

d. Alternative "user fee" structures available to a county to fund mediation services and studies. Under the first alternative, the county must collect a single flat fee of $100 for mediation and $300 for studies, no matter how many services are provided. The county must determine when and how these fees are to be collected and must reduce the fees or provide the services without payment of the fees if the parties are unable to pay.

Under the 2nd alternative, the county must establish a reasonable "sliding scale" fee schedule which is based on the parties' ability to pay and which takes into account the fees the county also collects under other provisions in this bill. The fees must be based on the services actually provided. The county must provide the services even if the parties are unable to pay the fees.

Modification of Child Custody Order

Current law requires the party seeking the modification to show, by substantial evidence, that a change in custody is necessary to the best interest of the child.

The bill creates new standards for modifying a child custody order.

Moving a Child Inside or Outside the State

The bill revises current law relating to removal of a child from the state by a custodial parent. Under current law, a custodial parent must give 60 days' notice to a parent with visitation rights of the custodian's intention to establish legal residence outside the state or to remove the child from the state for more than 90 days. Upon motion by the parent with visitation rights and a finding by the court that the move is against the best interest of the child, the court may deny permission to the custodian to remove the child. Under the bill, which applies only if both parents reside in the state, if the court grants periods of physical placement to more than one parent it must order that a parent with legal custody and physical placement rights must provide the other parent and the court with 60 days' written notice before doing any of the following:

1. Establishing legal residence outside the state.

2. Removing the child from the state for a period of more than 90 days.

3. Establishing his or her legal residence within this state at a distance of 200 miles or more from the other parent.

Within 15 days after receipt of the notice, the other parent may object, in writing, to the change. The court or family court commissioner must then promptly refer the parents for mediation or other family court counseling services and may appoint a guardian ad litem. If the parents are unable to resolve the dispute, the court must appoint a guardian ad litem, if necessary, and hold a hearing on the matter as soon as possible. The court may then grant or deny permission for the change after considering certain statutorily specified factors (e.g., the nature and extent of the relationship of the child with the other parent).

Visitation Rights of Nonparents

The bill extends the current law permitting the court, upon petition, to grant visitation rights to a grandparent or great-grandparent to: (1) a stepparent; and (2) any person who has maintained a relationship with a child similar to a parent-child relationship. The bill also permits the court to award visitation rights to any person upon the request of a parent.

Other Changes

The bill also:

1. Creates additional factors which the court is required to consider in making a child custody determination, including whether there is evidence that a party engaged in child abuse, whether there is evidence of spousal battery which affects the best interest of the child and whether either parent has or had a significant problem with alcohol or drug abuse.

2. Creates a new provision permitting a parent who does not have legal custody of a minor child to, with certain exceptions, have access to medical, dental, school and juvenile court records pertaining to the child.

3. Repeals the current mandatory counseling provision requiring the family court commissioner, before an action can be brought to trial, to certify to the court that one of the parties has participated in counseling.

4. Requires the family court commissioner, upon the filing of an action, to: (a) inform the parties of available community resources and family court counseling services; and (b) provide to a party, upon request, written information relating to the procedures involved in the party's action or proceeding, any services available to assist the parties and the pertinent statutory provisions.

Effective Date

Although the general effective date for the bill is the day after publication, the mediation provisions in the bill are permissive for approximately the first year after the effective date. Counties which have or which develop mediation programs which comply with the requirements in the bill may implement the bill's provisions relating to mediation during this period. All other mediation-related provisions (e.g., fee changes, provisions on mediation confidentiality and privilege, custody and placement studies) would also become effective in that county as of the effective date of county implementation. All counties are required to implement the mediation provisions commencing with the first day of the 13th month beginning after publication of the bill.

[The Note is accurate as stated, but fails to reflect changes made in the course of legislative consideration.]

[Section 27 of the Act] Repeals s. 767.24(1)(b), relating to the court's authority to order joint custody. See new s. 767.24(2).

[Section 28 of the Act] Restates current s. 767.24(1)(c), relating to transfer of legal custody of a child to a 3rd party, but adds a requirement that if custody is transferred to a 3rd party the court, in its order, must notify the parents of any grounds for termination of parental rights which may be applicable.

[Section 29 of the Act] Repeals s. 767.24(1)(d), defining the rights and responsibilities of a person awarded legal custody of a child. The rights and responsibilities of legal custodians are defined in s. 767.001(1), (2) and (6) created by this bill.

[Section 30 of the Act] Renumbers current s. 767.24(2) (intro.) and amends the provision to prohibit the court, in making its legal custody and physical placement determination, from preferring one party over the other on the basis of race, as well as sex (which is prohibited by current law). In Palmore v. Sidoti, 104 S.Ct. 1879 (1984), the U.S. supreme court held that child custody determinations may not be made on the basis of race.

Current s. 767.24(2)(am) is renumbered s. 767.24(5) and amended to permit the wishes of the minor child as to his or her legal custody or physical placement to be communicated by the child, the child's guardian ad litem or another appropriate professional. Some trial courts have interpreted the current law to require the child to communicate his or her wishes to the court.

Under current s. 767.24(1)(b), the court may order joint custody only if the parties agree and the court finds that joint custody would be in the best interest of the child.

Section 767.24(2), created [by § 32 of the Act] above, permits the court to order joint legal custody if it finds that doing so is in the best interest of the child and if either of the following applies:

1. Both parties agree to joint legal custody.

2. The parties do not agree to joint legal custody, but one party requests it and the court makes specific findings relating to the suitability of the parties for joint legal custody.

[Section 33 of the Act] Requires notice in a judgment of s. 946.71 (interference with custody of a child), as well as s. 946.715 (interference by parent with parental rights of other parent), notice of which is required by current law.

Subsection (4) replaces the current concepts of "sole physical custody" (i.e., the physical custody rights of a parent awarded sole custody of a child) and parental "visitation rights" with a requirement that the court, in child custody actions, allocate periods of physical placement between the parents if it is in the best interest of the child.

Subsection (4)(a) and (b) requires the court, whenever it orders sole or joint legal custody to parents, to allocate periods of physical placement between the parents unless the court finds, after a hearing, that such allocation is not in the best interest of the child. The court, in making the allocation, is permitted to designate a primary physical placement for the child. However, the court may not provide for the child's primary placement to be with a parent who is not given either sole or joint legal custody. The bill specifies that a minor child is entitled to periods of physical placement with both parents consistent with the child's best interest.

Subsection (4)(c) specifies that, as under current visitation law [s. 767.245(3) ], periods of physical placement may not be denied for failure to meet, or granted for meeting, financial obligations to the child or the former spouse.

Subsection (4)(d) revises current s. 767.245(6), relating to removal of a child from the state by a custodial parent. Under current law, a custodial parent must give 60 days' notice to a parent with visitation rights of the custodial parent's intention to establish legal residence outside the state or to remove the child from the state for more than 90 days. Upon motion by the parent with visitation rights and a finding by the court that the move is against the best interest of the child, the court may deny permission to the custodial parent to remove the child. In Groh v. Groh, 110 Wis.2d 117 (1983), the Wisconsin supreme court held that, under current law, a trial court has no power to dictate where the custodial parent may reside within the state.

Under sub. (4)(d), which applies only if both parents reside in the state, if the court grants periods of physical placement to more than one parent it must order a parent with legal custody and physical placement rights to provide the other parent and the court with 60 days' written notice before doing any of the following:

1. Establishing legal residence outside the state.

2. Removing the child from the state for a period of more than 90 days.

3. Establishing his or her residence within this state at a distance of 200 miles or more from the other parent.

The notice must be sent by certified mail and must specify that the other parent may object to the move within the statutorily specified time period.

Within 15 days after receipt of the notice, the other parent may object, in writing, to the change. A copy of the objection must be filed with the court. The court or family court commissioner must then promptly refer the parents for mediation or other family court counseling services and may appoint a guardian ad litem to represent the interest of the child. If the parents are unable to resolve the dispute, the court must appoint a guardian ad litem, if necessary, and hold a hearing on the matter as soon as possible. The court may then grant or deny permission for the change after considering:

1. Any reason for the proposed change.

2. The nature and extent of the relationship of the child with the other parent, and the disruption to that relationship which the proposed action may cause.

3. The availability of alternative arrangements to continue the child's relationship with and access to the other parent.

Subsection (5)(g) to (j) creates the following additional factors which the court is required to consider in making its legal custody or physical placement determination:

1. Whether one parent is likely to unreasonably limit the frequent and continuing contact of the child with the other parent. This is the so- called "friendly parent" or "most generous parent" provision.

2. Whether there is evidence that a party engaged in "child abuse", which, as defined in s. 48.981, means: (a) physical injury inflicted on a child by other than accidental means; (b) sexual intercourse or sexual contact under the sexual assault law; (c) sexual exploitation of a child under s. 940.203; (d) permitting or requiring a child to violate s. 944.30, relating to prostitution; or (e) emotional damage as defined in s. 48.981(1)(cm). A child abuse conviction is not necessary.

3. Whether there is evidence of interspousal battery. The various forms of battery are described in s. 940.19. A battery conviction is not necessary.

4. Whether either parent has or had a significant problem with alcohol or drug abuse.

Subsection (6) contains new material relating to the court's final legal custody and physical placement order.

Subsection (6)(a) specifically requires the court, if legal custody or physical placement is contested, to state why its findings relating to custody or placement, or both, are in the best interest of the child.

Subsection (6)(b) gives the court flexibility in ordering joint legal custody. The court is permitted to give sole power to one of the joint legal custodians to make specific decisions concerning the child.

Subsection (6)(c) permits the court, in an order of joint legal custody, to specify one parent as the "primary caretaker" of the child and one home as the "primary home" of the child for the purpose of determining eligibility for aid to families with dependent children or for any other purpose the court considers appropriate.

Subsection (6)(d) and (e) are 2 new provisions directed at the problem of child kidnapping. Paragraph (d) prohibits a party with joint legal custody from taking any action which is inconsistent with the physical placement order applicable to the party unless the action is expressly authorized by the court. Paragraph (e) requires the court to make its orders of physical placement sufficiently specific as to each party's rights to physical control of the child to permit a party deprived of that control to seek relief under laws relating to interference with custody or parental rights [e.g., the uniform child custody jurisdiction act in ch. 822, stats., or the federal parental kidnapping act].

Subsection (7)(a) is a new provision permitting a parent who does not have legal custody of a minor child to have parental access to medical, dental, school and juvenile court records and information pertaining to the child. However, the court may order that access be denied to the parent (e.g., where the parent has a history of child or spousal abuse).

53. ---- Change in circumstances, change of custody

Though determination of custody or fitness is never irrevocable, once a full inquiry has been made into the circumstances, court ought not consider them again until there is such a substantial or material change in the circumstances of the parents or the child as would require or justify in the interest of the child a modification of the previous determination. Freye v. Freye (1972) 201 N.W.2d 504, 56 Wis.2d 193; King v. King (1964) 131 N.W.2d 357, 25 Wis.2d 550.

Generally, a substantial change of circumstances must be established in order to warrant a change in custody of children of divorced parties. Graichen v. Graichen (1963) 121 N.W.2d 737, 20 Wis.2d 200; State ex rel. Hannon v. Eisler (1955) 71 N.W.2d 376, 270 Wis. 469.

Although a determination of custody or of fitness is not final, once a full inquiry has been made into issue of custody, court ought not again consider it until there is such a substantial material change in circumstances of parents or of child as would require or justify in interest of child a modification of previous determination. Delchambre v. Delchambre (1979) 273 N.W.2d 301, 86 Wis.2d 538.

Where inquiry underlying original custody award to mother included a report and recommendation of a guardian ad litem, a custody report by a social worker, and a hearing before judge at which both mother and father testified, custody award to mother without supervision was based upon a full inquiry into child's best interest, and thus trial court, in ruling on father's subsequent motion to change custody, should have applied the substantial change of circumstances test, rather than transferring custody to father because mother's misconduct "had persisted." Delchambre v. Delchambre (1979) 273 N.W.2d 301, 86 Wis.2d 538.

Though custody of child will not be changed on rehearing of essentially the same facts, where original award of custody was based on stipulation, without full-scale inquiry into the best interest of the child, it is error to apply the "change of circumstances" test rather than examining all relevant considerations bearing on custody anew. Freye v. Freye (1972) 201 N.W.2d 504, 56 Wis.2d 193.

Change of circumstances rule should not be so restrictively applied as to defeat primary objective of serving child's welfare. Chandler v. Chandler (1964) 131 N.W.2d 336, 25 Wis.2d 587.

Remarriage of divorced father was substantial change in circumstances authorizing change in custody of child from the mother to the father. Greenlee v. Greenlee (1964) 127 N.W.2d 737, 23 Wis.2d 669.

Fact that father remarried, together with other circumstances in regard to the homes being maintained by father and mother, was sufficient to constitute necessary change of circumstances to grant a change of custody of minor daughter from mother to father. Graichen v. Graichen (1963) 121 N.W.2d 737, 20 Wis.2d 200.

Where judgment of divorce granted custody of two minor children to the mother and at time divorce decree was granted father was employed full time and did not have living accommodations for the children but had since remarried and established a home of his own, record established that the welfare of the children and the change of circumstances warranted the trial court in modifying its judgment by transferring custody of the children to the father. Brown v. Brown (1960) 101 N.W.2d 48, 9 Wis.2d 322.

Should circumstances affecting interested parties or welfare of child be materially changed in future, at any time, court will be empowered, upon proper application, to determine whether change of custody should be directed. Pollock v. Pollock (1956) 77 N.W.2d 485, 273 Wis. 233.

54. ---- Fitness of parent, change of custody

Mother's improved conduct for one year since divorce judgment in which she had been found unfit to have custody of child, did not entitle mother to have custody transferred to her. Kurz v. Kurz (1974) 215 N.W.2d 555, 62 Wis.2d 677.

Emotional disturbance of a parent adversely affecting a child is ground for a custody change. Pfeifer v. Pfeifer (1974) 215 N.W.2d 419, 62 Wis.2d 417.

The refusal to admit, in divorced husband's proceeding for change of child custody, a letter which had been written to husband prior to divorce and which expressed writer's love but did not indicate improper association was not abuse of discretion. Bliffert v. Bliffert (1961) 111 N.W.2d 188, 14 Wis.2d 316.

Where court finds that parent is unfit to have custody of child, it implicitly follows that changing of such custody from such parent is for child's welfare. Hamachek v. Hamachek (1955) 70 N.W.2d 595, 270 Wis. 194. court to order a change in the custody of the child whenever the welfare of the child would be promoted thereby, did not require that a court in ordering a change in custody of the child of divorced parents from the mother make a specific finding that the mother be unfit to have custody. Dodge v. Dodge (1955) 67 N.W.2d 878, 268 Wis. 441.

In proceeding on application by mother for order transferring custody of children to her from father who had obtained custody in divorce proceedings, wherein it was contended that father's conduct had been such as to require that children be taken from him, evidence sustained conclusion adverse to mother and the denial of her application. Lewis v. Lewis (1954) 63 N.W.2d 405, 266 Wis. 448.

Court's refusal to change custody of son to father after divorce was error under evidence indicating mother lived in adultery and drank excessively in son's presence. Obenberger v. Obenberger (1930) 228 N.W. 492, 200 Wis. 318.

55. ---- Burden of proof, change of custody

Under the Divorce Reform Act, transfer of custody from custodial parent must be based on substantial evidence. Groh v. Groh (1983) 327 N.W.2d 655, 110 Wis.2d 117.

In full scale custody hearings, all parties seeking custody of minor children have an equal burden of proving that best interests of child will be promoted by granting custody to them, but in redetermination hearings, party seeking a change of custody must demonstrate not only fitness to care for child, but a material change in custody arrangements which theretofore had existed. Marotz v. Marotz (1977) 259 N.W.2d 524, 80 Wis.2d 477.

No additional burden of proof shifted to mother so as to jeopardize her position by refusal to vacate order transferring custody of child from mother to father, since burden of mother at full scale hearing which was yet to be held would be no different from what her burden would have been had full scale hearing been held when child's custody was transferred. Marotz v. Marotz (1977) 259 N.W.2d 524, 80 Wis.2d 477.

While the record of a temporary hearing may be relevant at trial of divorce action wherein custody of minor children is at issue, and may be considered in trial court's discretion if relevant, it is not controlling and trial court should consider custody question de novo, and neither party has the burden of proving a material change in circumstances to warrant an award of custody different than that ordered as a result of a temporary hearing. Kuesel v. Kuesel (1976) 247 N.W.2d 72, 74 Wis.2d 636.

Divorced parent seeking change of custody award in divorce judgment must show that he or she is fit and proper person to have custody and able to adequately care for child and that best interests of child will be served by a proposed change or modification of custody award. Kurz v. Kurz (1974) 215 N.W.2d 555, 62 Wis.2d 677.

One seeking revision of a divorce judgment provision as to custody must establish the welfare of child involved will be promoted by change or modification sought. Kurz v. Kurz (1974) 215 N.W.2d 555, 62 Wis.2d 677.

Where custody of child had been granted to paternal grandparents in divorce judgment, mother who later sought transfer of custody to her had the burden of establishing that future well-being of child would be furthered by change of custody. Kurz v. Kurz (1974) 215 N.W.2d 555, 62 Wis.2d 677.

Where finding by trial court at time of divorce decree that mother was fit to have custody was based on stipulation of the parties and there was no full- scale inquiry into the best interests of the children until hearing on order to show cause why husband should not be granted custody, wife had equal burden of showing that it was in the best interests of daughter to remain in her custody, and husband had no burden of showing change since entry of the divorce judgment. Freye v. Freye (1972) 201 N.W.2d 504, 56 Wis.2d 193.

Where temporary order in divorce action placed custody of children with father, and default judgment in divorce action granted legal custody to father and mother had not been declared unfit to have custody, mother at hearing on her petition to obtain custody of children did not have burden of proving change of conditions since entry of default judgment. Gochenaur v. Gochenaur (1969) 172 N.W.2d 6, 45 Wis.2d 8.

It is incumbent upon parent seeking transfer of custody not merely to establish his fitness, but also to prove that best interests of child would be served by transfer of custody. Dees v. Dees (1969) 164 N.W.2d 282, 41 Wis.2d 435.

Consideration could be given to fact that no evidence was adduced to show that placement of child of divorced parents at home of paternal grandmother was working against his welfare when divorced mother sought to regain custody. Belisle v. Belisle (1965) 134 N.W.2d 491, 27 Wis.2d 317.

56. ---- Weight and sufficiency of evidence, change of custody

Evidence did not support transfer of sole custody of minor children from wife. Poeschel v. Poeschel (App. 1983) 341 N.W.2d 407, 115 Wis.2d