Note: This is a brief overview of proposed changes to current law on physical placement and child support. For a comprehensive discussion, see Tiffany Highstrom's article in the forthcoming June 2019 issue of the Wisconsin Journal of Family Law.
The Joint Legislative Council is a nonpartisan group charged with conducting studies on issues or problems identified by the Legislature and then making recommendations on proposed legislation.
The council appoints subcommittees to conduct these studies. The subcommittees include members of the Legislature and citizens having special knowledge of the particular subject matter. The council reviews the legislation recommended by the subcommittee and, if approved by a majority of the council, sponsors the proposed legislation.
In 2018, the Legislative Council Study Committee on Child Placement and Support met to review the current law on physical placement and child support.
On March 11, 2019, the council sponsored a package of bills proposed by the Study Committee. The bills make several revisions to the current laws on child support and placement of minor children.
AB-094: Child Support Obligations for Incarcerated Parents
Under current law, courts have wide discretion to determine the child support obligation for an incarcerated parent. This bill would not consider incarceration as voluntary unemployment when calculating child support obligations. An existing child support obligation will be suspended if a parent is incarcerated for a significant amount of time, as long as the incarceration is unrelated to an applicable family law issue.
This proposal aligns with a national trend which recognizes the issues payors face when confronted with large arrearages, including less formal employment and a reduction in long term child support compliance.
This change would provide relief to incarcerated parents so they are not confronted with an insurmountable child support liability when released. However, the financial responsibility of the child is then wholly placed on the primary parent, who is already assuming full physical and emotional responsibility for the children during the other parent’s incarceration.
AB-101: Elimination of Family Support
Current law allows a single payment, called family support, which combines the component parts of child support and maintenance. Family support payments are generally treated for federal and state tax purposes as maintenance payments, such that the payment is deductible to the payor and taxable to the payee. The Tax Cuts and Jobs Act of 2017 eliminated the deduction for maintenance payments. This legislation eliminates the family support option, as such an order is no longer advantageous for tax savings.
AB-102: Military Benefits in Determining Gross Income for Child Support
AB-102 provides guidance on the type of military benefits to be counted as income for the purposes of calculating child support. The bill specifies that gross income still includes veterans’ disability and basic military allowances for subsistence and housing, but excludes military allowances for variable housing costs.
AB-096: Department of Children and Families Administrative Rules Regarding Calculation of Child Support Obligations
Under this proposal, while the manner of calculating child support will remain unchanged, the shared placement calculation will be listed as the default calculation rather than among the calculations for “special circumstances.” This is an administrative change to recognize the importance of shared placement.
AB-103: Limitation of Recovery of Birthing Costs
Under current law, effective July 1, 2018, fathers in intact families are exempt from reimbursing medical assistance (such as BadgerCare) for pregnancy and birth costs. This new legislation would require fathers, regardless of whether or not they are part of an intact family, to contribute to these birth and pregnancy costs.
AB-093: Adoption of Uniform Deployed Parents Custody and Visitation Act
Under existing law, courts have no authority to award placement to a third party (such as a stepparent or grandparent) when one parent is a deployed service member. This legislation allows courts to award temporary placement to a third party during a deployment, either through an agreement between the parents or as ordered by the court following a hearing. This proposal allows courts to consider maintaining important third-party relationships for a child when one parent is deployed.
AB-099: Parenting Plans in Relation to Mediation
When there is a dispute on custody and placement of the minor children, parties must attend at least one mediation session (unless waived by the court). This bill requires each party to submit a parenting plan to the mediator at least 10 days before a scheduled mediation.
Preemptive sharing of information assists the mediator in assessing what issues are in dispute and should help facilitate resolution of contested cases. If mediation is unsuccessful or waived, the parties must file a parenting plan with the court within 60 days. Finally, the bill revises what the parenting plan must address.
AB-095: Modification of Legal Custody or Physical Placement Order Contingent on a Future Event
Under current law, an original judgment on custody and placement cannot be modified unless the court finds that the custody and placement arrangements are causing physical or emotional harm to the child.
Case law states that the court must make decisions on the current circumstances and may not order a modification of placement upon a contingent event in the future. This has created difficulty for family law practitioners when there may be reasons to change placement over a period of time, such as for very young children.
This bill allows an agreement between the parents to potentially modify future custody or placement. Such an agreement must be filed as a stipulation alongside an initial custody and placement order, and be contingent upon events or needs of the parents or child that are reasonably certain to occur within two years (and not on anticipated behavior modifications). For example, a placement schedule could be modified upon a child entering first grade.
AB-100: Judicial Notice of CCAP Records Related to Domestic Violence or Child Abuse
This bill would allow judges to take judicial notice of convictions and injunctions related to domestic abuse, if available in the electronic consolidated court automation program (CCAP). The proposal makes it easier for litigants (especially those who are pro se) to present to the court evidence of other related cases relevant to their family case.
AB-097: Statement of Participation of Both Parents in Physical Placement
The current statute requires the court to maximize the amount of time with each parent when awarding a placement schedule. This bill proposes to add a general statement that any court’s allocation of physical placement presumes that the involvement and cooperation of both parents is in the best interest of the child.
AB-098: Amendments to Physical Placement Factors
Pursuant to Wis. Stat. section 767.41(5), courts must consider 16 factors when making determinations about custody and placement of minor children. This bill reorganizes the statutory factors and removes two of the current factors. The court would also be required to prepare a written best-interest explanation any time the court grants less than 25% placement to one parent.
Supreme Court Rule 35.015(1) Requirements for Guardians ad Litem
In a chapter 767 (family court) proceeding, a prospective guardian ad litem (GAL) must receive six hours of continuing legal education credits approved as GAL credits from the Board of Bar Examiners in each reporting period.
Currently, three of those six credits can be related to a wide variety of family law related issues and court procedures. This bill adds a requirement that new family court GALs must receive three CLE hours related to the dynamics and impact of family violence education. The petition could also require ongoing domestic violence training for experienced GALs. This would clarify the specific number of hours that a GAL must obtain on the issue of domestic violence.
Though not yet adopted as law, the proposed bills would make major changes to the child support and placement statutes. All of the bills are now introduced in the Assembly and assigned to various committees. The bills could be posted at any time during the legislative session and will likely be scheduled for public hearings in May 2019.
Family Law practitioners should stay informed on the proposed changes and whether the bills are passed during the next legislative session.
Family Law Section News
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This article was originally published on the State Bar of Wisconsin’s Family Law Section Blog. Visit the State Bar sections or the Family Law Section web pages to learn more about the benefits of section membership.