767.451 Revision of legal custody and physical placement orders. Except for matters under s. 767.461 or 767.481, the following provisions are applicable to modifications of legal custody and physical placement orders:
(1) Substantial modifications.
(a) Within 2 years after final judgment. Except as provided under sub. (2), a court may not modify any of the following orders before 2 years after the final judgment determining legal custody or physical placement is entered under s. 767.41, unless a party seeking the modification, upon petition, motion, or order to show cause, shows by 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 the order if it is in the best interest of the child.
(b) In any case in which par. (a) does not apply and in which the parties have substantially equal periods of physical placement pursuant to a court order, a court, upon petition, motion, or order to show cause of a party, may modify the order based on the 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.
(2m) Modification of periods of physical placement for failure to exercise physical placement. Notwithstanding subs. (1) and (2), upon petition, motion or order to show cause by a party, a court may modify an order of physical placement at any time with respect to periods of physical placement if it finds that a parent has repeatedly and unreasonably failed to exercise periods of physical placement awarded under an order of physical placement that allocates specific times for the exercise of periods of physical placement.
(3) Modification of other physical placement orders. Except as provided under subs. (1) and (2), upon petition, motion or order to show cause by a party, a court may modify an order of physical placement which does not substantially alter the amount of time a parent may spend with his or her child if the court finds that the modification is in the best interest of the child.
(3m) Reinstatement of former physical placement allocation and schedule. If a party is a service member, as defined in s. 767.41 (2) (e) 1., and the court modifies an order of physical placement on the basis that the service member has been or will be called to active duty in the U.S. armed forces, notwithstanding sub. (1) the court shall require in the order that the allocation of periods of physical placement and, if applicable, the physical placement schedule that were in effect before the modification are reinstated immediately upon the service member's discharge or release from active duty.
(4) Denial of physical placement. Upon petition, motion or order to show cause by a party or on its own motion, a court may deny a parent's physical placement rights at any time if it finds that the physical placement rights would endanger the child's physical, mental or emotional health.
(4m) Denial of physical placement for killing other parent.
(a) Notwithstanding subs. (1) to (4), upon petition, motion or order to show cause by a party or on its own motion, a court shall modify a physical placement order by denying a parent physical placement with a child if the parent has been convicted under s. 940.01 of the first-degree intentional homicide, or under s. 940.05 of the 2nd-degree intentional homicide, of the child's other parent, and the conviction has not been reversed, set aside or vacated.
(b) Paragraph (a) does not apply if the court determines by clear and convincing evidence that physical placement with the parent would be in the best interests of the child. The court shall consider the wishes of the child in making the determination.
(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.
(5m) Factors to consider.
(a) Subject to pars. (b) and (c), in all actions to modify legal custody or physical placement orders, the court shall consider the factors under s. 767.41 (5) (am), subject to s. 767.41 (5) (bm), and shall make its determination in a manner consistent with s. 767.41.
(b) In determining the best interest of the child under this section, in addition to the factor under s. 767.41 (5) (am) 12m., the court shall consider whether a stepparent of the child has a criminal record and whether there is evidence that a stepparent of the child has engaged in abuse, as defined in s. 813.122 (1) (a), of the child or any other child or neglected the child or any other child.
(c) In an action to modify a legal custody order, if a party is a service member, as defined in s. 767.41 (2) (e) 1., the court may not consider as a factor in making a determination whether the service member has been or may be called to active duty in the U.S. armed forces and consequently is, or in the future will be or may be, absent from the service member's home.
(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.
(6m) Parenting plan. In any action to modify a legal custody or physical placement order under sub. (1), the court may require the party seeking the modification to file with the court a parenting plan under s. 767.41 (1m) before any hearing is held.
(7) Transfer to department. The court may order custody transferred to the department only if the department agrees to accept custody. If the court orders custody transferred to the department, the order transferring custody shall include the findings and order specified in s. 767.41 (3) (am).
(8) Petition, motion, or order to show cause. A petition, motion, or order to show cause under this section shall include notification of the availability of information under s. 767.105 (2).
History: 1987 a. 355, 364; 1995 a. 27 s. 9126 (19); 1999 a. 9; 2003 a. 130; 2005 a. 101; 2005 a. 443 ss. 160 to 162; Stats. 2005 s. 767.451; 2005 a. 471 ss. 6 to 8; 2007 a. 20; 2007 a. 96 ss. 143 to 146.
NOTE: 1987 Wis. Act 355 and 2005 Wis. Act 443 contain explanatory notes.
“Necessary" implies that a change of custody itself is needed because custodial conditions are harmful in some way to the best interest of the child. Millikin v. Millikin, 115 Wis. 2d 16, 339 N.W.2d 573 (1983).
The revision of s. 767.24 [now s. 767.41] allowing joint custody in cases where both parties did not agree was not a “substantial change in circumstances" justifying a change to joint custody. Licary v. Licary, 168 Wis. 2d 686, 484 N.W.2d 371 (Ct. App. 1992).
Sub. (1) (a) prohibits a change of custody solely to correct a mother's unreasonable interference with physical placement of the child with the father. Sub. (1) (a) provides a 2-year truce period. Judicial intervention during this period must be compelling. Paternity of Stephanie R.N. 174 Wis. 2d 745, 488 N.W.2d 235 (1993).
“Necessary" embodies at least 2 concepts: 1) that the modification must operate to protect the child from alleged harmful custodial conditions; and 2) that the physical or emotional harm threatened by the current custodial conditions must be severe enough to warrant modification. Paternity of Stephanie R.N. 174 Wis. 2d 745, 488 N.W.2d 235 (1993).
This section does not limit a court's authority to hold a hearing or enter an order during the 2-year “truce period" with the order effective on the conclusion of the truce period. Paternity of Bradford J.B. 181 Wis. 2d 304, 510 N.W.2d 775 (Ct. App. 1993).
There is no authority to order a change of custody at an unknown time in the future upon the occurrence of some stated contingency. Koeller v. Koeller, 195 Wis. 2d 660, 536 N.W.2d 216 (Ct. App. 1995), 94-2834.
Sub. (1) (b) is inapplicable in guardianship litigation between a parent and a 3rd-party guardian. Howard M. v. Jean R. 196 Wis. 2d 16, 539 N.W.2d 104 (Ct. App. 1995), 94-0955.
Neither sub. (4) nor s. 767.24 (4) (b) [now s. 767.41 (4) (b)] permits a prospective order prohibiting a parent from requesting a change of physical placement in the future. Jocius v. Jocius, 218 Wis. 2d 103, 580 N.W.2d 708 (Ct. App. 1998), 96-2746.
Sections 767.325 and 767.327 [now ss. 767.451 and 767.481] do not conflict. If one party files a notification of intention to move under s. 767.327, the other parent may file a motion to modify placement under s. 767.325, and the court may consider all relevant circumstances, including, but not limited to, the move. Hughes v. Hughes, 223 Wis. 2d 111, 588 N.W.2d 346 (Ct. App. 1998), 97-3539.
The sub. (1) prohibition against modification of placement orders applies to both primary placement and physical placement. Trost v. Trost, 2000 WI App 222, 239 Wis. 2d 1, 619 N.W.2d 105, 99-1236.
When a court denies a parent physical placement, it has the authority to impose conditions for regaining placement, which may include mental health treatment, anger management, individual or family counseling, and parenting training. Conditions imposed must be necessary to protect the child from the danger of physical, emotional, or mental harm if the child is placed with the parent. State v. Alice H. 2000 WI App 228, 239 Wis. 2d 194, 619 N.W.2d 151, 99-2812.
A change in amount of placement days does not, in and of itself, establish a substantial change in circumstances. State v. Beaudoin, 2001 WI App 42, 241 Wis. 2d 350, 625 N.W.2d 619, 00-0825.
By asking the trial court for what constituted a substantial modification of placement, the movant effectively conceded that there was a substantial change in circumstances to merit placement modification under sub. (1) (b) 1. and could not maintain a contrary position on appeal. Keller v. Keller, 2002 WI App 161, 256 Wis. 2d 401, 647 N.W.2d 426, 01-2970.
A divorce judgment effecting a prospective change in physical placement, contingent on an assessment of the children's needs, is invalid. A circuit court lacks authority to order a change of physical placement that is both prospective and contingent on the occurrence of an anticipated event. Custody and placement determinations must embody a sense of contemporaneity, whether in original or modification proceedings. Culligan v. Cindric, 2003 WI App 180, 266 Wis. 2d 534, 669 N.W.2d 175, 02-2275.
An order that modifies payments for child support is not an order substantially affecting physical placement as contemplated by sub. (1) (b). Parties have a right to informally agree to change their children's physical placement schedule. That a court order modifying child support acknowledges an informal agreement does not affect physical placement for purposes of this section, and the order to be considered under this section is that which set the placement schedule that was informally modified. Culligan v. Cindric, 2003 WI App 180, 266 Wis. 2d 534, 669 N.W.2d 175, 02-2275.
Sub. (1) (b) does not violate equal protection. Continuity in custody and placement circumstances is beneficial for children, which constitutes a compelling state interest, even when the mother originally acquired custody due to the sole legal custody presumption. Abbas v. Palmersheim, 2004 WI App 126, 275 Wis. 2d 311, 685 N.W.2d 546, 02-3390.
The s. 767.24 (2) (am) [now s. 767.41 (2) (am)] presumption that joint legal custody is in the child's best interest applies only in initial legal custody determinations, not in modification determinations. The presumption that the current custody and physical placement arrangement is in the child's best interest under sub. (1) (b) continues to apply in modification cases. Abbas v. Palmersheim, 2004 WI App 126, 275 Wis. 2d 311, 685 N.W.2d 546, 02-3390.
Under s. 767.24 (6) (b) [now s. 767.41 (6) (b)] the court may give one party with joint custody sole power to make specified decisions while both parties retain equal responsibility for others. Because sub. (1) permits a court to modify legal custody and physical placement, the court may modify the terms of the parties' joint custody in a manner that results in a change in the amount of time the child spends in the home of the parent having primary physical placement. The court was authorized to award one party authority to determine school enrollment and to permit that parent's choice of a boarding school although it reduced the amount of time the child spent with the other parent. Greene v. Hahn, 2004 WI App 214, 277 Wis. 2d 473, 689 N.W.2d 657, 03-3311.
That a child grows older does not, in and of itself, create a substantial change in circumstances. However, when the age change is from infant to adolescent and is accompanied by a pattern of adjustment difficulties, educational failure, and harmful or illegal behavior, and the parties are unable to agree on a major decision affecting the child's life, a substantial change in circumstances has been shown. Greene v. Hahn, 2004 WI App 214, 277 Wis. 2d 473, 689 N.W.2d 657, 03-3311.
Absent a motion, petition, or order to show cause brought by a party, as required by sub. (1) (b) 1., the trial court lacked authority to amend or modify the custody order from joint custody to sole legal custody. Pero v. Lucas, 2006 WI App 112, 293 Wis. 2d 781, 718 N.W.2d 184, 05-1180.
Section 767.24 (4) (a) 2. [now s. 767.41] does not require a court to grant each parent equal placement if the court determines that the placement should be modified. In making modification determinations, the circuit court is to maximize the amount of time a child spends with his or her parents within an overall placement schedule, taking into account the best interests of the child, the presumption of the status quo under subs. (1) and (2), the general factors listed in s. 767.24, and the particular factors listed under s. 767.24(5) (am) when relevant to the child. With respect to the modification of legal custody and physical placement orders, maximizing the amount of time cannot be equated with the notion of equal placement. Landwehr v. Landwehr, 2006 WI 64, 291 Wis. 2d 49, 715 N.W.2d 180, 03-2555.
As in sub. (1), a court is authorized to modify an order under sub. (3) only upon petition, motion, or order to show cause by a party. The statute does not authorize a court to modify a placement order on its own motion. Stumpner v. Cutting, 2010 WI App 65, 324 Wis. 2d 820, 783 N.W.2d 874, 09-0094.