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  • September 20, 2018

    ‘Best Interests’ of the Child: Custody Litigation and Modifications in First Two Years

    May parties stipulate to a lower standard for modification of custody and placement in the initial years following a judgment? James C.W. Bock explores case law and legislative intent involving the “best interest of the child” custodial standard.

    James C.W. Bock

    In a recent case in western Wisconsin, the issue of whether or not the parties could agree to a lower standard for placement modification came before a distinguished circuit court judge.

    While one party’s attorney and the appointed guardian ad litem argued it was permissible, the issue caused the circuit court pause in accepting the parties’ stipulated divorce agreement. The court directed the parties to brief the issue.

    Necessary or Best Interest?

    Wis. Stat. section 767.451(1)(a) states:

    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.

    As the annotated statutes detail, Wisconsin appellate courts have opined on the differences in the language of section 767.451, subsection (a), versus subsection (b) ‘After two-year period’ a number of times.

    With regard to the term “necessary,” for instance, in Millikin v. Millikin,1 the Supreme Court wrote:

    James C. W. Bock James Carson Whedbee Bock, Minnesota 1998, is principal of JCWB ESQ LLC, Hudson, where he concentrates his practice on sports and family law and on criminal, civil, and appellate proceedings in state and federal courts.

    “[a]lthough we cannot define with precision the word ‘necessary’ for purposes of a change in custody determination, we note that the ‘necessary’ standard has a higher threshold than a simple showing of ‘best interest,’ but a lower threshold than ‘essential.’”2

    In a more recent case, Paternity of Stephanie R.N.,3 citing Millikin, the Supreme Court wrote:

    “‘Necessary’ embodies at least two concepts. First, the modification must operate to protect the child from the alleged harmful ‘custodial conditions.’ Second, the physical or emotional harm threatened by the ‘current custodial conditions’ must be severe enough to warrant modification.”4

    Authority to Circumvent and Legislative Intent

    The authority to circumvent the legislature’s intent with regard to “substantial modifications” within two years of the issuance of a judgment regarding custody and placement would seem to have been decided as settled law.

    In Herrell v. Herrell,5 citing Millikin, the Supreme Court wrote: “[t]he legislature imposed this greater standard (necessity) to promote stability in the child’s life and to minimize custody litigation after a divorce.”6

    The Herrell court held the circuit court erroneously applied the lower “best interest” standard, inappropriately applied as a result of the parties’ stipulation at the start of the proceedings, because the legislature explicitly prescribed a higher judicial standard to protect the child.7

    In other words, parties cannot stipulate to circumvent the legislature’s intent on public policy concerns. Further, acceptance of a stipulation is not mandatory.8

    However, in Lawrence v. Lawrence,9 the Wisconsin Court of Appeals was confronted with a situation where the parties stipulated, and such was incorporated into the judgment, to provide “the guardian ad litem and family court counselor ‘the right to break any impasse between the parties as to where (the minor child) should attend school.’”10

    The Lawrence court distinguished its decision from the Herrell court.11 The court of appeals held “the provision does not contemplate court review of the impasse-breaking decision and we conclude it does not violate applicable statutes or public policy.”12

    The Law Is Settled

    Consequently, it appears the law is settled on whether or not parties may stipulate to a lower standard for modification of custody and placement during the first two years after issuance of a judgment: they may not.

    However, a finely crafted stipulation may empower decision-making authority on disputed issues with the parties at an impasse, as such may not require judicial review – and avoid a modification of custody and/or placement within two years of a judgment, if incorporated into a judgment.


    1 115 Wis. 2d 16,339 N.W.2d 573(1983)

    2 Id., at 23.

    3 174 Wis. 2d 745,488 N.W.2d 235(1993)

    4 Id. at 761.

    5 144 Wis. 2d 479, 424 N.W.2d 403 (1988)

    6 Id., at 482.

    7 Id., at 488.

    8 See Paternity of S.A.165 Wis. 2d 530478 N.W.2d 21 (Ct. App. 1991); see also Wis. Stat. §767.461.

    9 2004 WI App. 170, 276 Wis 2d 403, 687 N.W.2d 748

    10 Id., at ¶1.

    11 Id., at ¶¶ 9-12.

    12 Id.

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    Family Law Blog is published by the Family Law Section and the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Donna Ginzl and review Author Submission Guidelines. Learn more about the Family Law Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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