(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 570.

Evidence supported trial court's findings as to welfare of children and supported order overruling mother's motion for a change of custody, but substantially increasing her rights of visitation. Koslowsky v. Koslowsky (1969) 163 N.W.2d 632, 41 Wis.2d 275.

Findings that best interests of children of divorced parents were served by having their custody remain in the father, that father was well qualified and capable of making a satisfactory home for children and had been doing so since date of divorce and that mother was emotionally immature were at least reasonable inferences which trial court might draw from evidence. King v. King (1964) 131 N.W.2d 357, 25 Wis.2d 550.

Finding that best interests of minor daughter, been in 1948, would be promoted by changing her custody from divorced mother, who according to doctor had not been understanding of psychological development of girl, to paternal grandparents was not against the great weight and clear preponderance of the evidence. Seelandt v. Seelandt (1964) 128 N.W.2d 66, 24 Wis.2d 73.

Finding that best interests and general welfare of child about to start first year of school would be promoted by change of her care and custody from divorced mother, who had been awarded custody of child but had actually had to leave custody with her parents, to the father, who had remarried and had net income of $750 per month, was not against the great weight and clear preponderance of the evidence. Greenlee v. Greenlee (1964) 127 N.W.2d 737, 23 Wis.2d 669.

57. ---- Res judicata, change of custody

Even in those cases where change of custody is sought after divorce judgment, the doctrine of res judicata is not to be applied to custody matters with the same strictness as to others. Kuesel v. Kuesel (1976) 247 N.W.2d 72, 74 Wis.2d 636.

58. Interference with custody

By helping mother and stepfather to conceal child from the father who had custody of the child, the maternal grandparents became joint tortfeasors with the mother and stepfather in commission of tort of unlawful intentional interference with custody of parent entitled to that custody. Lloyd v. Loeffler, C.A.7 (Wis.)1982, 694 F.2d 489.

Elements of crime created by § 946.71, prohibiting interference with legal custody of child include enticing or taking away child from person having legal custody under order or judgment. State v. Britzke (App. 1982) 324 N.W.2d 289, 108 Wis.2d 675, affirmed 329 N.W.2d 207, 110 Wis.2d 728.

To meet burden of proving intent in prosecution for interfering with legal custody of child, state has only to prove knowledge of court order, not knowledge of its effect. State v. Britzke (App. 1982) 324 N.W.2d 289, 108 Wis.2d 675, affirmed 329 N.W.2d 207, 110 Wis.2d 728.

Even if maternal grandmother had only physical custody of daughter's children under custody order, such custody was "legal custody" for purposes of § 946.71, prohibiting interference with legal custody of child. State v. Britzke (App. 1982) 324 N.W.2d 289, 108 Wis.2d 675, affirmed 329 N.W.2d 207, 110 Wis.2d 728.

59. Procedure, generally

Generally, trial courts involved in domestic matters are held to procedures governing other judicial proceedings. Haugen v. Haugen (1978) 262 N.W.2d 769, 82 Wis.2d 411.

Custody proceedings were properly commenced in county in which children resided. Bahr v. Galonski (1977) 257 N.W.2d 869, 80 Wis.2d 72.

Where a full hearing was not held in original divorce proceeding regarding welfare of children apparently because of reliance on stipulation of parties that the father should have custody, on petition to change custody the interests of children required a full hearing and relevant and important facts which might previously have been brought to attention of court by the parties were properly considered. King v. King (1964) 131 N.W.2d 357, 25 Wis.2d 550.

60. Mediation

Where trial court did not exercise discretion in ordering mediation in divorce action but referred to mediation as "a standing procedure," and where record contained no facts and circumstances supporting a finding of necessity for mediation, trial court abused its discretion in ordering mediation of custody and visitation disputes. Biel v. Biel (App. 1983) 336 N.W.2d 404, 114 Wis.2d 191.

Trial court's mediation order, which required husband and wife to do no more than attempt to voluntarily resolve their custody and visitation disputes with the assistance of a social worker, was a proper exercise of court's authority. Biel v. Biel (App. 1983) 336 N.W.2d 404, 114 Wis.2d 191.

61. Arbitration

Custody and visitation determinations must be made by trial court in divorce action and cannot be delegated to any other person, and thus trial court, in ordering arbitration of custody and visitation by social worker, delegated its nondelegable duties. Biel v. Biel (App. 1983) 336 N.W.2d 404, 114 Wis.2d 191.

62. Findings of fact

In awarding custody pursuant to divorce, court must make ultimate findings of fact with regard to fitness of parent to have custody and with regard to best interests of child in relationship to evidence which is presented at trial. Riemer v. Riemer (App. 1978) 270 N.W.2d 93, 85 Wis.2d 375.

In awarding child custody in divorce action, court must at least make ultimate factual findings with regard to fitness of parent to have custody and with regard to best interests of child in relation to evidence adduced. Haugen v. Haugen (1978) 262 N.W.2d 769, 82 Wis.2d 411.

63. Weight and sufficiency of evidence, generally

In child custody matter, court is not obliged to adopt uncontradicted testimony if there is other evidence in case that renders it unreasonable. Wiederholt v. Fischer (App. 1992) 485 N.W.2d 442, 169 Wis.2d 524, review denied 491 N.W.2d 767.

Weight of testimony in child custody matter is peculiarly within province of trial court acting as trier of fact. Wiederholt v. Fischer (App. 1992) 485 N.W.2d 442, 169 Wis.2d 524, review denied 491 N.W.2d 767.

64. Witnesses

While wife, at custody hearing in divorce proceeding, produced testimony that husband had been seen kissing his first cousin in a machine shed at farm, and while the husband and cousin denied that such had occurred, the trial court did not abuse its discretion in denying wife's motion for a continuance to secure the testimony of another to corroborate her testimony, since the testimony of such additional witness would have been cumulative on the issue and would have only added to a record that already contained much inconsistent and conflicting testimony. Allen v. Allen (1977) 254 N.W.2d 244, 78 Wis.2d 263.

Trial court, in case involving custody of four year old boy child, was not bound by opinions of clergymen and a police officer, as expert witnesses, that a boy had more need for father, in determining whether to award mother or father custody of child. Pollock v. Pollock (1956) 77 N.W.2d 485, 273 Wis. 233.

65. Res judicata, generally

Doctrine of res judicata is not to be applied in custody matters with the same strictness as to others, and it is logical that interest of child and of public in child's welfare should not be concluded by failure of parents to bring relevant and important facts to attention of court. Wendland v. Wendland (1965) 138 N.W.2d 185, 29 Wis.2d 145.

Even when there has been a finding of fitness of parties for custody of children doctrine of res judicata is not applied to custody matters with strictness, because rights of children and of the public in the children's welfare should not be concluded by nonaction of others. King v. King (1964) 131 N.W.2d 357, 25 Wis.2d 550.

The res judicata doctrine should not be strictly applied in child custody case. Miller v. Miller (1962) 113 N.W.2d 403, 15 Wis.2d 583.

The doctrine of res judicata is not complete barrier in child custody matters if circumstances exist which prompt trial judge, in his discretion, to go behind previous determination; such reexamination should be had only under special conditions. Miller v. Miller (1962) 113 N.W.2d 403, 15 Wis.2d 583.

Rule of res judicata although recognized by court in child custody matters did not apply when fitness of parent had not been determined. Bliffert v. Bliffert (1961) 111 N.W.2d 188, 14 Wis.2d 316.

A judgment in divorce action which adjudicated that wife was a fit and proper person to have custody of child was "res judicata", and, on hearing of motion to change custody of the child, the trial court was limited to consideration of conduct of wife after the hearing on a prior motion of the husband to vacate the judgment, and any fact that the wife might have concealed from the trial court upon the prior hearings. Elies v. Elies (1941) 300 N.W. 493, 239 Wis. 60.

WEST'S WISCONSIN STATUTES ANNOTATED

MARRIAGE AND FAMILY

CHAPTER 767. ACTIONS AFFECTING THE FAMILY

Current through 1997 Act 338, published 7/3/1998

948.31. Interference with custody by parent or others

(1)(a) In this subsection, "legal custodian of a child" means:

1. A parent or other person having legal custody of the child under an order or judgment in an action for divorce, legal separation, annulment, child custody, paternity, guardianship or habeas corpus.

2. The department of health and family services or the department of corrections or any person, county department under s. 46.215, 46.22 or 46.23 or licensed child welfare agency, if custody or supervision of the child has been transferred under ch. 48 or 938 to that department, person or agency.

(b) Except as provided under chs. 48 and 938, whoever intentionally causes a child to leave, takes a child away or withholds a child for more than 12 hours beyond the court-approved period of physical placement or visitation period from a legal custodian with intent to deprive the custodian of his or her custody rights without the consent of the custodian is guilty of a Class C felony. This paragraph is not applicable if the court has entered an order authorizing the person to so take or withhold the child. The fact that joint legal custody has been awarded to both parents by a court does not preclude a court from finding that one parent has committed a violation of this paragraph.

(2) Whoever causes a child to leave, takes a child away or withholds a child for more than 12 hours from the child's parents or , in the case of a nonmarital child whose parents do not subsequently intermarry under s. 767.60, from the child's mother or, if he has been granted legal custody, the child's father, without the consent of the parents , the mother or the father with legal custody, is guilty of a Class E felony. This subsection is not applicable if legal custody has been granted by court order to the person taking or withholding the child.

(3) Any parent, or any person acting pursuant to directions from the parent, who does any of the following is guilty of a Class C felony:

(a) Intentionally conceals a child from the child's other parent.

(b) After being served with process in an action affecting the family but prior to the issuance of a temporary or final order determining child custody rights, takes the child or causes the child to leave with intent to deprive the other parent of physical custody as defined in s. 822.02(9).

(c) After issuance of a temporary or final order specifying joint legal custody rights and periods of physical placement, takes a child from or causes a child to leave the other parent in violation of the order or withholds a child for more than 12 hours beyond the court-approved period of physical placement or visitation period.

(4)(a) It is an affirmative defense to prosecution for violation of this section if the action:

1. Is taken by a parent or by a person authorized by a parent to protect his or her child in a situation in which the parent or authorized person reasonably believes that there is a threat of physical harm or sexual assault to the child;

2. Is taken by a parent fleeing in a situation in which the parent reasonably believes that there is a threat of physical harm or sexual assault to himself or herself;

3. Is consented to by the other parent or any other person or agency having legal custody of the child; or

4. Is otherwise authorized by law.

(b) A defendant who raises an affirmative defense has the burden of proving the defense by a preponderance of the evidence.

(5) The venue of an action under this section is prescribed in s. 971.19(8).

(6) In addition to any other penalties provided for violation of this section, a court may order a violator to pay restitution, regardless of whether the violator is placed on probation under s. 973.09, to provide reimbursement for any reasonable expenses incurred by any person or any governmental entity in locating and returning the child. Any such amounts paid by the violator shall be paid to the person or governmental entity which incurred the expense on a prorated basis. Upon the application of any interested party, the court shall hold an evidentiary hearing to determine the amount of reasonable expenses.

Annotations to this statute

1. Validity

This section, which prohibited one parent from intentionally concealing child from other parent unless such concealment was undertaken in order to protect child from "imminent physical harm," was not unconstitutionally vague. State v. McCoy (1988) 421 N.W.2d 107, 143 Wis.2d 274.

Phrase "imminent physical harm" in subsec. (2)(a) of this section does not render statute unconstitutionally vague; statute sufficiently alerts a person of ordinary intelligence that if a child is in close danger of bodily injury, a parent may conceal that child from the other parent in order to protect the child from that danger. State v. McCoy (App. 1987) 407 N.W.2d 319, 139 Wis.2d 291, review granted 416 N.W.2d 65, 140 Wis.2d 872, affirmed 421 N.W.2d 107, 143 Wis.2d 274.

Provision of this section proscribing taking child under age of 14 from its mother, in case of child born out of wedlock and not subsequently legitimated, did not deny equal protection and due process of law to father of such child by assuming that child was legally within custody of its mother and not its father, in that this section constitutes state's recognition of its duty to protect rights of children to live in safe and stable environment. State v. Hill (App. 1979) 283 N.W.2d 451, 91 Wis.2d 446.

ANNOTATIONS (Notes of Decisions Index )

2. In general

Unlawful interference by any person, acting pursuant to directions from child's other parent, with parental rights of the custodial parent violates this section. Lloyd v. Loeffler, D.C.Wis.1981, 518 F.Supp. 720.

St.1917, § 4587b, punishing one for enticing child from person or place to which it had been committed, did not refer to child living with its parents, but to delinquent or neglected child committed by magistrate or court. State v. Meyers (1918) 167 N.W. 255, 167 Wis. 278.

3. Legal custody

In this section, which as amended provides in part that any person who takes child under 18 away from parent or other person having "legal custody" under order or judgment in action for custody with intent to take child out of state to deprive custodian of custody without consent of custodian or court which awarded custody is guilty of Class E felony, term "legal custody" means "legal custody" as term is defined in children's code (§ 48.02), and order granting temporary custody of children to mother of defendant was order granting "legal custody." State v. Britzke (1983) 329 N.W.2d 207, 110 Wis.2d 728.

Even if maternal grandmother had only physical custody of daughter's children under custody order, such custody was "legal custody" for purposes of this section, prohibiting interference with legal custody of child. State v. Britzke (App. 1982) 324 N.W.2d 289, 108 Wis.2d 675, affirmed 329 N.W.2d 207, 110 Wis.2d 728.

Custody under any order of court constitutes "legal custody" within meaning of this section, prohibiting interference with legal custody of child. State v. Britzke (App. 1982) 324 N.W.2d 289, 108 Wis.2d 675, affirmed 329 N.W.2d 207, 110 Wis.2d 728.

4. Imminent physical harm

Term "imminent," as used in this section referred to impending injury and not to projected injury of continuing nature. State v. McCoy (1988) 421 N.W.2d 107, 143 Wis.2d 274.

Child is in "imminent physical harm" when he or she is faced with danger likely to occur any moment or which is threateningly or menacingly near at hand; "physical harm" means bodily harm, that is: physical pain, or injury, illness or impairment of physical condition. State v. McCoy (App. 1987) 407 N.W.2d 319, 139 Wis.2d 291, review granted 416 N.W.2d 65, 140 Wis.2d 872, affirmed 421 N.W.2d 107, 143 Wis.2d 274.

5. Physical harm

Term "physical harm," as used in this section referred to bodily harm and not to injuries of emotional nature. State v. McCoy (1988) 421 N.W.2d 107, 143 Wis.2d 274.

6. Elements of crime

Elements of crime created by this section, prohibiting interference with legal custody of child, include enticing or taking away child from person having legal custody under order or judgment. State v. Britzke (App. 1982) 324 N.W.2d 289, 108 Wis.2d 675, affirmed 329 N.W.2d 207, 110 Wis.2d 728.

7. Burden of proof

Parent must have "reasonable" and not just "subjective" belief that concealment of child is necessary in order to protect child from imminent physical harm before such concealment will be excepted from reach of this section. State v. McCoy (1988) 421 N.W.2d 107, 143 Wis.2d 274.

To meet burden of proving intent in prosecution for interfering with legal custody of child, state has only to prove knowledge of court order not knowledge of its effect. State v. Britzke (App. 1982) 324 N.W.2d 289, 108 Wis.2d 675, affirmed 329 N.W.2d 207, 110 Wis.2d 728.

8. Civil liability

9. Instructions

Jury charge which allegedly equated words "immediate" and "imminent," when it defined criminal offense of concealment of child as concealment which was undertaken other than in reasonable belief that "immediate" intervention was necessary to protect child from "imminent" physical harm, was not improper; word "imminent" was fully and separately defined for jury and used throughout remainder of instruction. State v. McCoy (1988) 421 N.W.2d 107, 143 Wis.2d 274.

Instruction that parent has privilege to intentionally conceal a minor child from other parent if he reasonably believes that his immediate intervention is necessary to protect child from imminent physical harm was erroneous because of use of terms "immediate" and "necessary," but error was harmless because State argued there was no need for defendant's intervention, and immediacy of intervention and necessity for concealment were not issues that were raised and litigated; thus, there was no reasonable possibility that inclusion of terms misled jury and contributed to conviction. State v. McCoy (App. 1987) 407 N.W.2d 319, 139 Wis.2d 291, review granted 416 N.W.2d 65, 140 Wis.2d 872, affirmed 421 N.W.2d 107, 143 Wis.2d 274.

W. S. A. 948.31

767.325. Revision of legal custody and physical placement orders

Except for matters under s. 767.327 or 767.329, the following provisions are applicable to modifications of legal custody and physical placement orders:

(1) Substantial modifications. (a) Within 2 years after initial order. Except as provided under sub. (2), a court may not modify any of the following orders before 2 years after the initial order is entered under s. 767.24, unless a party seeking the modification, upon petition, motion, or order to show cause shows by substantial evidence that the modification is necessary because the current custodial conditions are physically or emotionally harmful to the best interest of the child:

1. An order of legal custody.

2. 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.

2. 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.

3. A change in the economic circumstances or marital status of either party is not sufficient to meet the standards for modification under subd. 1.

(2) Modification of substantially equal physical placement 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 such an 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 such an order based on the appropriate 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.

(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.

(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 physical, mental or emotional health.

(5) Reasons for modification. If either party opposes modification or termination of a legal custody or physical placement order under this section the court shall state, in writing, its reasons for the modification or termination.

(6) Notice. No court may enter an order for modification under this section until notice of the petition, motion or order to show cause requesting modification has been given to the child's parents, if they can be found, and to any relative or agency having custody of the child.

(7) Transfer to department. The court may order custody transferred to the department of health and family services only if that department agrees to accept custody.

(8) Petition, motion or order to show cause. A petition, motion or order to show cause under this section shall include notification of the availability of information under s. 767.081(2).

(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 modification of a legal 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

Changes the standard for modifying a child custody order.

Current s. 767.32(2) 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. In Millikin v. Millikin, 115 Wis.2d 16, 23-24 (1983), the Wisconsin supreme court interpreted the term "necessary" to mean that "the current custodial conditions are harmful in some way to the best interest of the child" (emphasis added).

This bill establishes separate standards for each of the following:

1. Modifying an order of legal custody (e.g., transferring legal custody from one sole legal custodian to another or changing sole legal custody to joint legal custody) or an order of physical placement, but only to the extent that the physical placement order applies to the child's primary placement;

2. Modifying an order of joint legal custody to an order of sole legal custody; and

3. Modifying an order of physical placement which does not apply to the child's primary placement.

Subsection (1) specifies that:

1. There is a rebuttable presumption that continuing the child's current primary placement is in the best interest of the child.

2. A change in economic circumstances is not sufficient to modify a legal custody or primary physical placement order.

3. If the court ordered sole legal custody in its original custody determination under s. 767.24, the court is not permitted to modify that order for 2 years after the date of the order, unless a party shows that physical or emotional harm to the child will result if a modification is not permitted.

Subsection (3) specifies that any part of a physical placement order which does not relate to primary placement may be modified if modification is in the best interest of the child.

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

1. In general

Where order in divorce case was a final resolution of the parties' custody and placement dispute, applicable statute when wife sought revision was statute governing revision of custody and placement awards, not statute governing custody and physical placement provisions in a judgment or order entered in an action affecting marriage. Keller v. Keller (App. 1997) 571 N.W.2d 182, 214 Wis.2d 32.

Custody modification after two-year period cannot be ordered unless trial court finds that the modification is in the best interests of the child and a substantial change in circumstances exists. Licary v. Licary (App. 1992) 484 N.W.2d 371, 168 Wis.2d 686, review denied 490 N.W.2d 21.

Where vacation of order terminating joint custody award and awarding sole custody to father was required by error in applying incorrect legal standard to termination, but in interim legislature had enacted comprehensive statute governing creation, modification and termination of joint custody, on remand circuit court would be ordered to consider petition in accordance with new comprehensive statute. Herrell v. Herrell (1988) 424 N.W.2d 403, 144 Wis.2d 479, reconsideration denied 434 N.W.2d 786.

Order relating to custody of child was in fact order modifying divorce judgment as to custody of child. Smith v. Smith (1932) 245 N.W. 644, 209 Wis. 605.

2. Necessity--In general

Change of custody within two years of original decree was proper only if necessary; trial court erred in considering best interest of child and in focusing on conditions as they existed after child was removed from custodial parent's care. In re Paternity of S.R.N. (App. 1992) 481 N.W.2d 672, 167 Wis.2d 315, review granted 485 N.W.2d 412, affirmed 498 N.W.2d 235, 174 Wis.2d 745, reconsideration denied 505 N.W.2d 142.

Circuit court erroneously applied lower "best interest of child" standard, as opposed to "necessary to child's best interest" standard, on basis of stipulation incorporated into divorce judgment which provided that "when children become of school age, custody will be-re-evaluated in order to best meet children's needs at that time;" legislature's intent in enacting "necessary to child's best interest" standard would have been defeated if parents were allowed to determine that lesser showing is adequate grounds for modification. Herrell v. Herrell (1988) 424 N.W.2d 403, 144 Wis.2d 479, reconsideration denied 434 N.W.2d 786.

Standard requiring that trial court, in changing custody, find that removal of child is necessary to best interest of child as shown by substantial evidence is only applicable to those situations where parent who has sole custody also has been providing "care" on a day-to-day basis. Tieberg v. Ehlke (App. 1987) 404 N.W.2d 84, 137 Wis.2d 228.

Trial court, in changing custody from father to mother, was not required to find that change of custody was "necessary" to child's best interest where father was not providing "full care" on a day-to-day basis, but, rather, child was residing with mother. Tieberg v. Ehlke (App. 1987) 404 N.W.2d 84, 137 Wis.2d 228.

Circuit court cannot order transfer of custody because noncustodial parent would provide better general living conditions and more traditional life- style. Gould v. Gould (1984) 342 N.W.2d 426, 116 Wis.2d 493.

It would not be sufficient for circuit court to conclude that change of custody is justified by better social or academic environment in noncustodial parent's home. Gould v. Gould (1984) 342 N.W.2d 426, 116 Wis.2d 493.

3. ---- Misconduct, necessity

Belief that custodial parent's extramarital relationship might be harmful in future is not sufficient to constitute finding that change of custody is necessary now. Gould v. Gould (1984) 342 N.W.2d 426, 116 Wis.2d 493.

Where circuit court in transfer of custody determination relies on extramarital relationship of custodial parent or on immorality it infers from that relationship, it must state connection between relationship or immorality and some harm to child. Gould v. Gould (1984) 342 N.W.2d 426, 116 Wis.2d 493.

4. Change of circumstances

The 1988 amendments to the custody statutes are not, in and of themselves, a substantial change of circumstances, for purposes of modifications of custody. Licary v. Licary (App. 1992) 484 N.W.2d 371, 168 Wis.2d 686, review denied 490 N.W.2d 21.

The term "substantial change of circumstances," for purposes of modification of custody order after two years has passed since initial order, requires that facts on which prior order was based differ from present facts, and that the difference is enough to justify court's considering whether to modify the order. Licary v. Licary (App. 1992) 484 N.W.2d 371, 168 Wis.2d 686, review denied 490 N.W.2d 21.

In child custody case, trial court's order, which granted father's motion to change custody of parties' child from mother to himself, could not be affirmed, where facts presented at hearing on motion were substantially same set of facts presented at divorce proceeding at which mother, after a full inquiry into child's best interests, was granted custody without supervision, and no evidence was produced showing that mother's conduct had adverse effect on child or that child's best interests would be promoted by a change of custody. Delchambre v. Delchambre (1979) 273 N.W.2d 301, 86 Wis.2d 538.

In order to show a change of circumstances which would justify a custody change based on the best interests of the child, facts must be produced to prove that the child's welfare would be promoted by the change, and burden is on the party seeking custody to prove that the best interests of the child would be promoted by a change of custody. Goembel v. Goembel (1973) 208 N.W.2d 416, 60 Wis.2d 130.

Transfer of custody of child from mother to father constituted an abuse of discretion where there was no substantial and material change of circumstances with regard to the fitness of the mother or the welfare of the child which would justify such a transfer. Goembel v. Goembel (1973) 208 N.W.2d 416, 60 Wis.2d 130.

5. Conditions

A conditional custody award which purports to make a transfer of custody automatic upon violation of condition is contrary to both public policy and statute, requiring that any modification of custody order be based upon best interests of children. Schwantes v. Schwantes (App. 1984) 360 N.W.2d 69, 121 Wis.2d 607.

5.5. Contingent orders

Statutes prescribing circumstances that warranted change of custody of child do not confer incidental power to trial court to make custody award that is both prospective and contingent. Koeller v. Koeller (App. 1995) 536 N.W.2d 216, 195 Wis.2d 660.

Trial court did not have power to issue order to change custody of child from mother who suffered from terminal illness to mother's sister in event that mother became incapacitated or died, since order was prospective and contingent, rather than based upon conditions in existence at time of issuance of order. Koeller v. Koeller (App. 1995) 536 N.W.2d 216, 195 Wis.2d 660.

6. Economic circumstances

Economic well-being of children of divorced parents is best achieved by court's making appropriate child support and maintenance awards and by focusing judicial resources on enforcement of awards, and not by considering financial ability as criterion for custody. Gould v. Gould (1984) 342 N.W.2d 426, 116 Wis.2d 493.

Fact that father seeking change of custody was more affluent than custodial parent did not justify change of custody. Gould v. Gould (1984) 342 N.W.2d 426, 116 Wis.2d 493.

6.5. Residence change

Application of statute governing modification of custody orders, rather than statute governing custodial parent's proposed out-of-state move with parties' child was warranted, even though former wife had first filed notice of intent to move and former husband responded with motion to modify physical custody by awarding him primary physical placement; once former husband filed his motion to modify placement, trial court could consider all relevant circumstances, including but not limited to move, in deciding whether to modify physical placement and custody. Hughes v. Hughes (App. 1998) 588 N.W.2d 346, 223 Wis.2d 111.

7. Misconduct, generally

Evidence of mother's immoral misconduct during absence of father in military service and her neglect of minor child and proof of good care received by child in father's custody warranted denial of mother's motion for modification of divorce judgment obtained by father so as to change custody of child from father to mother. Wall v. Wall (1948) 31 N.W.2d 527, 252 Wis. 339.

Refusal of trial court to enter order changing custody of 12 to 14 year old boy from mother to father after divorce was error under evidence that mother frequently drank intoxicating liquors to excess in boy's presence with other people, and harbored in her home a married man under circumstances indicating existence of adulterous relations. Obenberger v. Obenberger (1930) 228 N.W. 492, 200 Wis. 318.

8. Interference with relationship

During two-year adjustment period following custody order, interference by custodial parent with child's continuing relationship with noncustodial parent which does not make removal from care of custodial parent necessary must be corrected through mediation or, in extreme case, through sanctions. In re Paternity of S.R.N. (App. 1992) 481 N.W.2d 672, 167 Wis.2d 315, review granted 485 N.W.2d 412, affirmed 498 N.W.2d 235, 174 Wis.2d 745, reconsideration denied 505 N.W.2d 142.

Motion to substantially modify legal custody or physical placement within two years following entry of court's initial order could not be supported by evidence of custodial parent's unreasonable interference with noncustodial parent's visitation, absent showing by moving party that modification was necessary because such interference was physically or emotionally harmful to best interests of child. In re Paternity of S.R.N. (App. 1992) 481 N.W.2d 672, 167 Wis.2d 315, review granted 485 N.W.2d 412, affirmed 498 N.W.2d 235, 174 Wis.2d 745, reconsideration denied 505 N.W.2d 142.

9. Parental alienation syndrome

With respect to husband's motion to transfer primary physical placement of parties' children to him in which husband's expert testified that children suffered from "Parental Alienation Syndrome," court was not required to accept expert's opinion that only remedy was to place children with father; expert's testimony indicated that cure was controversial, that there was limited research data, and that there were uncertain risks, and testimony of both parents and children was other evidence that cure advocated by expert would not be successful and was unreasonable. Wiederholt v. Fischer (App. 1992) 485 N.W.2d 442, 169 Wis.2d 524, review denied 491 N.W.2d 767.

10. Religion

Court is not required to consider family's religion or to favor one parent over another in custody determination on basis of parent's attitudes toward religion or parent's religious affiliation. Gould v. Gould (1984) 342 N.W.2d 426, 116 Wis.2d 493.

Circuit court abused its discretion in basing its determination to transfer custody to father on its belief that religious affiliation furnished by father would be better for child than lack of religious environment in mother's home. Gould v. Gould (1984) 342 N.W.2d 426, 116 Wis.2d 493.

11. Temporary custody changes

Statute governing custody changes within two years of original decree applies to temporary changes of custody pending full custody hearings. In re Paternity of S.R.N. (App. 1992) 481 N.W.2d 672, 167 Wis.2d 315, review granted 485 N.W.2d 412, affirmed 498 N.W.2d 235, 174 Wis.2d 745, reconsideration denied 505 N.W.2d 142.

12. Schedule changes

In light of father's and mother's demonstrated inability to work under temporary child placement schedule, court was justified in revising temporary placement to require rigid schedule with accompanying inconveniences. Wiederholt v. Fischer (App. 1992) 485 N.W.2d 442, 169 Wis.2d 524, review denied 491 N.W.2d 767.

13. Counseling

In proceedings on father's motion to transfer primary physical placement of parties' three children to him, court properly refused to order counseling for children and parents; children and parents had gone through extensive counseling, and, although there was minimal progress, court reasonably could have concluded that more counseling would have been nonproductive. Wiederholt v. Fischer (App. 1992) 485 N.W.2d 442, 169 Wis.2d 524, review denied 491 N.W.2d 767.

14. Paternity

Statute governing modification orders entered within two years of circuit court's initial order determining legal custody and physical placement applies to motions, petitions or orders to show cause to modify paternity judgments. In re Paternity of S.R.N. (App. 1992) 481 N.W.2d 672, 167 Wis.2d 315, review granted 485 N.W.2d 412, affirmed 498 N.W.2d 235, 174 Wis.2d 745, reconsideration denied 505 N.W.2d 142.

15. Presumptions and burden of proof

Modification of custody statute is not consistent with presumption favoring joint legal custody, in that it favors continuing status quo regardless of whether initial order created joint legal custody. Licary v. Licary (App. 1992) 484 N.W.2d 371, 168 Wis.2d 686, review denied 490 N.W.2d 21.

The burden of establishing that conditions subsequent to custody judgment have been so materially changed as to require modification of custody decree is upon parent asserting existence of such change. Pollock v. Pollock (1956) 77 N.W.2d 485, 273 Wis. 233.

16. Sufficiency of evidence

Change of custody within two years of initial decree was not warranted absent substantial evidence supporting finding that child had suffered any emotional harm while in custodial parent's care. In re Paternity of S.R.N. (App. 1992) 481 N.W.2d 672, 167 Wis.2d 315, review granted 485 N.W.2d 412, affirmed 498 N.W.2d 235, 174 Wis.2d 745, reconsideration denied 505 N.W.2d 142.

Finding that change of child custody was "necessary," as required for custody modification within two years of original decree, was not supported by speculative evidence that emotional harm to child "could" or "might" result from current custodial conditions. In re Paternity of S.R.N. (App. 1992) 481 N.W.2d 672, 167 Wis.2d 315, review granted 485 N.W.2d 412, affirmed 498 N.W.2d 235, 174 Wis.2d 745, reconsideration denied 505 N.W.2d 142.

17. Waiver

Custodial parent's acquiescence in transfer of custody based upon presumption that trial court could validly condition continued custody upon custodial parent's termination of relationship could not be viewed either as voluntary or intentional, and did not constitute a "waiver" of right to attack transfer of custody on appeal. Schwantes v. Schwantes (App. 1984) 360 N.W.2d 69, 121 Wis.2d 607.

18. Review

Although trial court's exercise of discretion in deciding to modify custody and placement within two years following entry of court's initial order demonstrated consideration of improper factors and mistaken view of law, Supreme Court will not reverse if facts of record applied to proper legal standard support trial court's conclusion. Stephanie R.N. v. Wendy L.D. (1993) 498 N.W.2d 235, 174 Wis.2d 745, reconsideration denied 505 N.W.2d 142.

Although court reviewing change of custody order must accept circuit court's findings of fact if they are not clearly erroneous, whether facts make change of legal custody and physical placement "necessary" is legal conclusion reviewed de novo. In re Paternity of S.R.N. (App. 1992) 481 N.W.2d 672, 167 Wis.2d 315, review granted 485 N.W.2d 412, affirmed 498 N.W.2d 235, 174 Wis.2d 745, reconsideration denied 505 N.W.2d 142.

19. Modification within two years of initial order

Judicial intervention in custodial and physical placement arrangement during two-year "truce period" following entry of original custody order could not be allowed where father's reasons for requested modification did not include allegation that current arrangement was physically or emotionally harmful to child, but merely asserted that mother refused to allow placement of child with father in excess of judicially ordered times. In re Bradford J.B. (App. 1993) 510 N.W.2d 775, 181 Wis.2d 304.

Trial court lacked authority to entertain custody modification petition and to enter order substantially modifying physical placement of child, even though order was not to be effective until after two years from date of initial custody order, where father brought petition only seven months after original order and made no allegations that custodial conditions were physically or emotionally harmful to child. In re Bradford J.B. (App. 1993) 510 N.W.2d 775, 181 Wis.2d 304.

Prohibition against modification of custodial arrangements for two years from date of original custody order does not prohibit courts from holding modification hearing during the two-year "truce period" if court in its discretion deems it necessary to do so to reasonably accommodate petition for modification to be effective at end of two years. In re Bradford J.B. (App. 1993) 510 N.W.2d 775, 181 Wis.2d 304.

Statute providing that court may not modify custodial arrangement for two years after initial custody order limits effective date of any modification of custodial arrangement, but does not limit court's authority to hold hearing or enter order on petitions that assert grounds for modification within two-year "truce period." In re Bradford J.B. (App. 1993) 510 N.W.2d 775, 181 Wis.2d 304.

Court has discretion to conduct custody modification hearing and issue order, which will be effective after expiration of two-year "truce period" that follows entry of original custody order, during the "truce period"; in exercising discretion, court should consider, inter alia, length of time remaining until expiration of "truce period," nature and extent of modifications being sought, number of witnesses, nature of testimony, and expense and inconvenience to litigants. In re Bradford J.B. (App. 1993) 510 N.W.2d 775, 181 Wis.2d 304.

In proceeding to substantially modify legal custody or physical placement within two years following entry of court's initial order, trial court's conclusion of law that custodial parent's mental condition was emotionally harmful to best interests of child was erroneous; trial court is not qualified to determine custodial parent's mental health and whether it is emotionally harmful to best interests of child, and custodial parent's failure to undergo court-ordered psychiatric testing is not reasonable grounds for trial court, as layman, to conclude that mother was mentally unbalanced. Stephanie R.N. v. Wendy L.D. (1993) 498 N.W.2d 235, 174 Wis.2d 745, reconsideration denied 505 N.W.2d 142.

Trial court's transfer of custody within two years following entry of court's initial custody order was erroneous exercise of discretion; no showing was made that modification of custody order was necessary due to current custodial conditions, notwithstanding custodial parent's unreasonable interference with noncustodial parent's visitation. Stephanie R.N. v. Wendy L.D. (1993) 498 N.W.2d 235, 174 Wis.2d 745, reconsideration denied 505 N.W.2d 142.

Supreme Court will not reverse trial court's decision to modify custody and placement within two years following entry of court's initial order unless there is no reasonable basis for trial court's exercise of discretion. Stephanie R.N. v. Wendy L.D. (1993) 498 N.W.2d 235, 174 Wis.2d 745, reconsideration denied 505 N.W.2d 142.

Decision to modify custody and placement within two years following entry of court's initial order is within trial court's discretion and will not be disturbed unless trial court erroneously exercises that discretion. Stephanie R.N. v. Wendy L.D. (1993) 498 N.W.2d 235, 174 Wis.2d 745, reconsideration denied 505 N.W.2d 142.

Statute providing that court may not modify custody order before two years after initial order is entered unless certain conditions are met, applies to both permanent and temporary modification orders. Stephanie R.N. v. Wendy L.D. (1993) 498 N.W.2d 235, 174 Wis.2d 745, reconsideration denied 505 N.W.2d 142.

"Necessary," for purposes of statute prohibiting modification of custody order before two years after initial order is entered unless modification is necessary, embodies concepts that modification must operate to protect child from alleged harmful "custodial conditions," and that physical or emotional harm threatened by "current custodial conditions" must be severe enough to warrant modification. Stephanie R.N. v. Wendy L.D. (1993) 498 N.W.2d 235, 174 Wis.2d 745, reconsideration denied 505 N.W.2d 142.

"Substantial evidence," for purposes of statute prohibiting modification of custody order before two years after initial order is entered unless substantial evidence is shown that modification is necessary, refers to evidence which is considerable in amount, value or worth. Stephanie R.N. v. Wendy L.D. (1993) 498 N.W.2d 235, 174 Wis.2d 745, reconsideration denied 505 N.W.2d 142.

21. Violation of joint custody arrangements

Divorced mother's violation of joint custody agreement by refusing to permit father to visit children, whom she had removed to Colorado, did not automatically warrant modification of primary placement of children with mother, as custodial interference did not have negative effect on children that could be remedied by placing them with father and children desired to remain with mother. Nelsen v. Candee (App. 1996) 556 N.W.2d 784, 205 Wis.2d 632.

767.025. Filing procedures and orders for enforcement or modification of judgments or orders in actions affecting the family

The following filing procedures shall apply to all enforcement or modification petitions, motions or orders to show cause filed for actions affecting the family under s. 767.02(1)(i):

(1) Except as provided in sub. (2), if a petition, motion or order to show cause requesting enforcement or modification of a judgment or order in an action affecting the family which was granted by a court of this state is filed in a county other than the county in which the judgment was rendered, 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 summons to the clerk of the court in which the judgment was rendered. If a question arises as to which court should exercise 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 this petition, motion or order to show cause to the clerk of the court in which the original judgment or order was rendered.

(2)(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:

1. 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.

2. The court in the county which rendered the original judgment 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 judgment 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.

(3) Except as provided in s. 769.316(3), if an enforcement or modification petition, motion or order to show cause is filed in a county other than the county in which the original judgment or order was rendered under sub. (2)(a), the clerk of court or support collection designee, whichever is appropriate, from the county that rendered the original judgment or order shall send a copy of any payment records associated with the original judgment or order of child support, family support or maintenance to the clerk of court in the county in which the petition, motion or order to show cause is filed.

Repeal

<Text of subsec. (4) eff. until date published by department of workforce

development or Oct. 1, 1999 (whichever is earlier). See 1997 legislation

notes.>

(4) If a petition, motion or order to show cause for enforcement or modification of a child support, family support or maintenance order 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 modifying the original judgment or order shall specify the clerk of circuit court or support collection designee to whom payments of support or maintenance are payable and the clerk of circuit court or support collection designee to whom payments of arrearages in support or maintenance, if any, are payable.

<Text of subsec. (4) eff. upon date published by department of workforce

development or Oct. 1, 1999 (whichever is earlier). See 1997 legislation

notes.>

(4) If a petition, motion or order to show cause for enforcement or modification 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 modifying 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.

767.045. 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:

1. The court has reason for special concern as to the welfare of a minor child.

2. The legal custody or physical placement of the child is contested.

(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 person 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 or family court commissioner appoint a guardian ad litem to bring an action or motion on behalf of a minor who is a nonmarital child whose paternity has not been acknowledged under s. 767.62 (1) or a substantially similar law of another state or adjudicated for the purpose of determining the paternity of the child, and the court or family court commissioner shall appoint a guardian ad litem, if any of the following applies:

1. Aid is provided under s. 46.261, 48.57 (3m) or (3n), 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 limitations from commencing an action under s. 767.45 on behalf of the child.

2. 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. 767.45 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.

(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. 767.11(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 attorney admitted to practice in this state. No person who is an interested 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 advocate for the best interests of a minor child as to paternity, legal custody, 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 consider the factors under s. 767.24(5) and custody studies under s. 767.11(14). The guardian ad litem shall review and comment to the court on any mediation agreement and stipulation made under s. 767.11(12). 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. 767.24(5)(b). The guardian ad litem has none of the rights or duties of a general guardian.

(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 neither. 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 reappoint 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 compensated 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 compensation 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 necessary to assist the guardian ad litem in performing his or her functions 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 parties responsible for the reimbursement. The court may enforce its orders under this subsection by means of its contempt power.

Annotations to this section

1. Appointment--In general

Guardian ad litem appointed for children in divorce action may call, examine and cross-examine witnesses just as attorneys for parents do, and, insofar as it remains in the nature of ad advocate's closing argument, his closing arguments need not be recorded since opinion of guardian ad litem is not an expert's opinion but rather an advocate's opinion; therefore, although it is better procedure to record any in-chambers consultation of guardian ad litem, it is not reversible error where such record is not made. Haugen v. Haugen (1978) 262 N.W.2d 769, 82 Wis.2d 411.

In determining whether appointment of guardian ad litem for children is necessary, court must look to the nature of the interests affected rather than their magnitude. Bahr v. Galonski (1977) 257 N.W.2d 869, 80 Wis.2d 72.

2. ---- Discretion of court, appointment

Court in divorce proceeding did not abuse its discretion in not appointing a guardian ad litem for the five minor children of the parties, where the court was not alerted to the nature and extent of the dispute as to custody by the pleadings or before trial. Pfeifer v. Pfeifer (1974) 215 N.W.2d 419, 62 Wis.2d 417.

3. ---- Sua sponte appointment

It is reversible error for trial court to fail sua sponte to appoint guardian ad litem before deciding contested custody issues, even if neither party has requested appointment of guardian ad litem. Biel v. Biel (App. 1983) 336 N.W.2d 404, 114 Wis.2d 191.

Trial court commits reversible error when it fails sua sponte to appoint guardian ad litem for minor children in custody proceeding. Bahr v. Bahr (1976) 240 N.W.2d 162, 72 Wis.2d 145.

Where only matter at issue in proceeding on husband's order to show cause why custody of minor children should be transferred from wife was future welfare of minor children, court abused its discretion in failing to sua sponte appoint guardian ad litem for children. de Montigny v. de Montigny (1975) 233 N.W.2d 463, 70 Wis.2d 131.

4. ---- Best interests of child, appointment

Statute which provided that if after initial custody order is entered, parties agreed to modification and filed stipulation with court, court "shall incorporate terms of stipulation," did not prohibit trial court from examining stipulation for best interests of child, did not prevent Family Court Commissioner from intervening in action and did not prevent trial court from appointing guardian ad litem. In re Paternity of S.A. II (App. 1991) 478 N.W.2d 21, 165 Wis.2d 530.

Where it appeared that both parties to contested child custody proceeding might not fully present factors which would best preserve children's present and future well-being, appointment of guardian ad litem to represent children at hearing would be appropriate. Gochenaur v. Gochenaur (1969) 172 N.W.2d 6, 45 Wis.2d 8.

Practice of appointing guardian ad litem to represent interests of child should be employed in contested custody hearings where it is apparent that dispute is centered on desire of parents rather than best interests of child. Dees v. Dees (1969) 164 N.W.2d 282, 41 Wis.2d 435.

Attorney should have been appointed to serve as guardian ad litem for child so that he could have aided trial court in fully considering whether welfare of child might not be best served by his remaining in foster home with minister and his wife where he had spent two formative years rather than by transferring custody to mother. Dees v. Dees (1969) 164 N.W.2d 282, 41 Wis.2d 435.

One of affirmative steps that can be taken by trial courts in custody matters is the appointment of a guardian ad litem to represent the interests of the child or children who are subjects, not objects, of the court inquiry. Dees v. Dees (1969) 164 N.W.2d 282, 41 Wis.2d 435.

Appointment of guardian ad litem to represent interests of children who are subject of custody fight in divorce proceeding is a step which trial court should take only in an extraordinary situation where trial court believes that what may be in best interests of children may not be brought out by the two contesting parties. Wendland v. Wendland (1965) 138 N.W.2d 185, 29 Wis.2d 145.

Where there have been instances of immoral conduct on part of one or both parties in divorce proceeding and court is concerned over effect of such misconduct on minor children, court, in its capacity as a family court, may well take the additional affirmative step to appoint a guardian ad litem to protect welfare of children. Wendland v. Wendland (1965) 138 N.W.2d 185, 29 Wis.2d 145.

5. ---- Special concerns, appointment

Appointment of a guardian ad litem to represent the interests of minor children in custody matters has long been judicially advocated and now, such appointment is required by this section whenever the court has reason for special concern as to the future welfare of the minor children. Allen v. Allen (1977) 254 N.W.2d 244, 78 Wis.2d 263.

In the event matter at issue only peripherally affects future welfare of children, it is within discretion of trial judge to determine whether concern is "special" so as to require appointment of a guardian ad litem. de Montigny v. de Montigny (1975) 233 N.W.2d 463, 70 Wis.2d 131.

An order to show cause why custody of minor children should not be changed raises a question of "special concern" for future of minor children, requiring appointment of guardian ad litem for children. de Montigny v. de Montigny (1975) 233 N.W.2d 463, 70 Wis.2d 131.

6. ---- Change in custody, appointment

A trial judge faced with a decision to continue a present custody or terminate it in favor of an alternate custody unless petition for alteration of custody is on its face frivolous is required to appoint a guardian ad litem for children. de Montigny v. de Montigny (1975) 233 N.W.2d 463, 70 Wis.2d 131.

7. ---- Modification of visitation rights, appointment

Fact that guardian ad litem had been appointed in earlier custody proceedings and that the guardian had submitted a report did not meet requirement that guardian ad litem be appointed when mother sought change in visitation rights. Bahr v. Galonski (1977) 257 N.W.2d 869, 80 Wis.2d 72.

Court should have appointed guardian ad litem for children when presented with request to modify visitation rights of mother even though neither party requested that guardian ad litem be appointed. Bahr v. Galonski (1977) 257 N.W.2d 869, 80 Wis.2d 72.

Failure of court to appoint guardian ad litem for minor children with respect to divorced husband's motion for transfer of custody from wife to himself required that the order be vacated even though neither party had sought appointment of guardian ad litem. Bahr v. Bahr (1976) 240 N.W.2d 162, 72 Wis.2d 145.

8. ---- Qualifications, appointment

In child custody case involving a dispute between surviving father and maternal grandparents, the trial court should have appointed an attorney to serve as guardian ad litem for the children involved. Mawhinney v. Mawhinney (1975) 225 N.W.2d 501, 66 Wis.2d 679.

9. Powers, duties and responsibilities--In general

Guardian ad litem, who was appointed by Dane County Circuit Court pursuant to statute pertaining to actions affecting family in maternal birth grandparents' action for custody and visitation, could act outside Dane County action to satisfy her obligations, not as party or interested person, but as advocate for best interests of minor child as to legal custody, physical placement, and support; therefore, Dane County guardian ad litem should have been served with summons and petition in Waupaca County Circuit Court proceeding for termination of parental rights and adoptive placement, should have been allowed to advocate for child in Waupaca County proceedings, even though guardian ad litem had been appointed in those proceedings, and was entitled to have order for termination of parental rights and placement for adoption vacated in order to be allowed to appear in termination proceedings to represent child's best interests. In Interest of Brandon S.S. (1993) 507 N.W.2d 94, 179 Wis.2d 114, reconsideration denied 513 N.W.2d 409.

It is duty of guardian ad litem to continue his representation beyond trial level if appeal is taken and to represent interests of his wards during such appeal. Riemer v. Riemer (App. 1978) 270 N.W.2d 93, 85 Wis.2d 375.

A guardian ad litem possesses all the rights, powers and obligations normally accorded to a legal advocate in a trial setting and such rights do not terminate at the trial level but continued on appeal where their proper performance requires the guardian to communicate his position by letter, filing of a brief, or by personal appearance if deemed necessary. Marotz v. Marotz (1977) 259 N.W.2d 524, 80 Wis.2d 477.

A guardian ad litem appointed to represent children is more than a nominal representative appointed to counsel and consult with trial judge but has all the duties and responsibilities of counsel who represents a party to litigation. de Montigny v. de Montigny (1975) 233 N.W.2d 463, 70 Wis.2d 131.

Guardian ad litem appointed to represent minor children in proceeding affecting marriage is children's attorney and must perform his duties in accordance with adopted standards of professional responsibility; nominal representation that fails to assure that children are treated as parties to action is insufficient and constitutes breach of professional responsibility. de Montigny v. de Montigny (1975) 233 N.W.2d 463, 70 Wis.2d 131.

A guardian ad litem appointed to represent children is more than a nominal representative appointed to counsel and consult with trial judge but has all the rights and powers of counsel who represents a party to litigation. de Montigny v. de Montigny (1975) 233 N.W.2d 463, 70 Wis.2d 131.

10. ---- Advocating interests of child, powers, duties and responsibilities

In termination of parental rights proceeding, guardian ad litem advocates for best interests of child, participating as lawyer in both fact-finding and dispositional stages. In Interest of Brandon S.S. (1993) 507 N.W.2d 94, 179 Wis.2d 114, reconsideration denied 513 N.W.2d 409.

Advocating concept of child's best interest in child custody proceeding may require guardian ad litem to advocate something contrary to child's wishes. Wiederholt v. Fischer (App. 1992) 485 N.W.2d 442, 169 Wis.2d 524, review denied 491 N.W.2d 767.

In child custody matter, guardian ad litem does not represent child per se; rather, guardian ad litem's statutory duty is to represent concept of child's best interest. Wiederholt v. Fischer (App. 1992) 485 N.W.2d 442, 169 Wis.2d 524, review denied 491 N.W.2d 767.

Guardian ad litem appointed for minor children is advocate and legal representative to protect interests of minor children whom he represents and must advance best interests of such children; in this matter, he possesses all of the obligations that any other trial counsel has. Riemer v. Riemer (App. 1978) 270 N.W.2d 93, 85 Wis.2d 375.

Guardian ad litem for children is more than a nominal representative; he is an advocate, the attorney for the children. Bahr v. Galonski (1977) 257 N.W.2d 869, 80 Wis.2d 72.

Appointment of a guardian ad litem to represent the interests of minor children in custody matters serves a twofold purpose: he acts as an advocate and legal representative to protect and advance the best interests of the children; and he also acts as a representative appointed to counsel and consult with the trial judge concerning the custody issue. Allen v. Allen (1977) 254 N.W.2d 244, 78 Wis.2d 263.

Only purpose of guardian ad litem appointed to represent children in action affecting marriage is to determine which available alternatives is in best interests of children. de Montigny v. de Montigny (1975) 233 N.W.2d 463, 70 Wis.2d 131.

Where home environment has been broken by marital discord resulting in contested proceedings affecting children, there may be no felicitous and completely satisfactory disposition; under such circumstances, guardian ad litem appointed for minor children may advocate that the least detrimental alternative is to leave well enough alone or urge that custody be given to one of contending parties or advocate a placement of child with neither of parties if circumstances dictate. de Montigny v. de Montigny (1975) 233 N.W.2d 463, 70 Wis.2d 131.

11. ---- Reports, powers, duties and responsibilities

Trial court's failure to require guardian ad litem's written report to be introduced during the custody hearing following grant of divorce was not error, where the report had been fully disclosed to both parties, where they were given an opportunity to examine and respond to the report and to challenge the contents thereof, and where the guardian ad litem, in accordance with the trial court's dictates, did not include nor base his custody recommendation on any new factual information not already a part of the record. Allen v. Allen (1977) 254 N.W.2d 244, 78 Wis.2d 263.

12. Fees

Where both parties to divorce have ability to pay, both should be required to contribute to cost of having guardian ad litem appointed to represent minor children, with percentage to be paid by each to be left to discretion of trial court. Lacey v. Lacey (1970) 173 N.W.2d 142, 45 Wis.2d 378.

Husband and wife would each be required to pay one half of fee of guardian ad litem appointed to represent minor child in divorce proceedings, though allocation of payment of such fee would ordinarily be left to discretion of trial court, where case was one of first impression and both parties had clear ability to pay all or any portion of the fee. Lacey v. Lacey (1970) 173 N.W.2d 142, 45 Wis.2d 378.

13. Conflict of interests

Where younger minor child, who was born after commencement of divorce proceedings and before trial, was represented at divorce proceeding together with older acknowledged child of the parties by single guardian ad litem and where that guardian ad litem was put into position of representing divergent interests and did not follow through on his original requests for blood tests and discovery as to paternity of second child, second child not having been represented at time of trial by guardian ad litem without conflict of interest, finding of lack of paternity was not res judicata as to such child. Riemer v. Riemer (App. 1978) 270 N.W.2d 93, 85 Wis.2d 375.

Where two minor children were involved in divorce action, where one was admittedly child of parties, but where other child was born after commencement of divorce proceeding and before trial and parties testified that child was conceived by wife with man other than husband, two children had patently different interests, as it was interest of older to be found child of the parties so that his support and inheritance from parties would be firmly established, but these interests conflicted with interests of younger child, and thus two guardians ad litem should have been appointed by trial court since a guardian ad litem appointed to represent one of the children could not represent both. Riemer v. Riemer (App. 1978) 270 N.W.2d 93, 85 Wis.2d 375.

14. Cross examination

Mother was not entitled to cross-examine guardian ad litem appointed to represent children in custody dispute; plain language of guardian ad litem statute showed that guardian was first and foremost an advocate for the children's best interest, and therefore could not be called as witness in custody proceeding or be cross-examined. Hollister v. Hollister (App. 1992) 496 N.W.2d 642, 173 Wis.2d 413.

15. Immunity

Guardian ad litem has absolute quasi-judicial immunity for negligent performance of duties in divorce proceedings involving custody disputes. Berndt by Peterson v. Molepske (App. 1997) 565 N.W.2d 549, 211 Wis.2d 572, review granted 569 N.W.2d 589, 212 Wis.2d 687, affirmed 580 N.W.2d 289, 219 Wis.2d 418.

Guardian ad litem had absolute quasi-judicial immunity for his allegedly negligent inaction in representing infants' interests in divorce proceedings involving custody dispute, for purposes of infants' claim that guardian was liable for injuries they sustained when sexually assaulted by their father after father was awarded primary physical custody. Berndt by Peterson v. Molepske (App. 1997) 565 N.W.2d 549, 211 Wis.2d 572, review granted 569 N.W.2d 589, 212 Wis.2d 687, affirmed 580 N.W.2d 289, 219 Wis.2d 418.