Family Law Section Blog: Proposed Legislation Being Considered on the Removal Statute and Contingent Stipulations :

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  • Family Law Section Blog
    January
    09
    2018

    Proposed Legislation Being Considered on the Removal Statute and Contingent Stipulations

    Cassel Villarreal

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    The Family Law Section proposed two pieces of legislation to address practice issues in family law. Cassel Villarreal discusses the two bills, detailing the proposed changes in existing law.

    Two bills initiated by the State Bar of Wisconsin Family Law Section are currently under consideration in the state Legislature.

    Cassel McClure Villarreal com cvillarreal derrlaw Cassel McClure Villarreal, DePaul 2000, is a partner with Derr & Villarreal LLC, Beaver Dam, where she focuses her practice on family law.

    Both bills unanimously passed out of the Assembly Committee on Children & Families on Dec. 6, 2017. The next stop for consideration is the Senate Judiciary Committee at noon on Jan. 11, 2018.

    2017 Assembly Bill 551: Relocation with a Child

    The proposed bill, AB 551, is a rewrite of Wis. Stat. section 767.481 regarding moving the child’s residence within or outside the state.

    The bill addresses several issues with the current law and changes the procedures for parents who want to relocate a child's residence:


    • The current law is unclear whether it applies to paternity cases, and results can be different between counties. The proposed bill applies to any action affecting the family so that it is clear that relocation of a child’s residence applies to paternity cases.

    • AB 551 replaces the current law’s notice-based procedure with a motion-based procedure. The current law requires the moving parent to provide notice of a move, and puts the burden on the objecting parent to show that it is not in the child’s best interest to relocate.

      The proposed bill requires that the moving parent file a motion, as in any other modification proceeding, and places the burden on the moving parent to show that it is in the child’s best interest to relocate. The bill also requires that a motion to relocate a child’s residence include a relocation plan and that the initial hearing on the motion be held within 30 days of filing. If the other parent does not object or appear at the hearing, the court must approve the relocation plan submitted by the parent, unless it finds that the plan is not in the best interest of the child.

    • The proposed bill changes when the statutory provision is triggered. The new bill applies to moves from the other parent of 100 miles or more rather than 150 miles, and clarifies that if the parents already live 100 miles or more from each other, the provision does not apply.

      Current law applies to moves outside Wisconsin. The proposed bill eliminates this requirement, often burdensome for parents living on Wisconsin borders who do not move a significant distance and whose move has no practical impact on the placement schedule. In addition, jurisdictional issues are now clarified under the Uniform Child Custody Jurisdiction Act and Enforcement Act.

    • The proposed bill creates a presumption in favor of granting the motion to relocate the child if the objecting parent has not significantly exercised court-ordered physical placement or if the move is related to abuse.

    2017 Assembly Bill 586: Contingent Placement

    The second bill under consideration, AB 586, addresses the ability of parents to make stipulations that are contingent upon the occurrence of a specified future event or change in conditions. Currently, an order that changes placement over time is not enforceable.1

    There are many foreseeable changes that may necessitate changes to a placement schedule. Probably the most common foreseeable changes are a child aging (infant to toddler), a child commencing school, a parent’s change in work schedule or a parent moving closer to the child. Allowing contingent changes in a placement schedule to be enforceable is helpful for parents to accommodate a child’s development needs and to plan for the future without returning to court.

    The proposed bill still maintains court oversight in approving stipulations. The bill makes court’s approval of the stipulation discretionary, and provides that the court can reject a contingent stipulation if the court does not find it to be in the best interest of the child.

    Endnote

    1See Koeller v Koeller, 195 Wis. 2d 660, 536 N.W.2d 216 (Ct. App. 1995)





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