Wisconsin's Custody, Placement, and Paternity Reform Legislation

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by Christopher D. Walther

n May 1, 2000, Wisconsin's new custody, placement, and paternity reform legislation goes into effect. The new law makes significant changes to the practice of family law in both marital and paternity actions. Signed into law as part of the state budget on Oct. 28, 1999, it will apply to all actions, both new actions and post-judgment modifications, that are commenced on or after the effective date.

The State Bar's Family Law Section, a diverse group of family lawyers, family court commissioners, and family court judges, worked with state Sen. Gary George in drafting, negotiating, and lobbying the passage of this major legislation. This article summarizes the general provisions of the legislation. For additional analysis of the legislative history and intent underlying these provisions, the author has published a companion article in the April 2000 issue of the Family Law Section's Wisconsin Journal of Family Law.

Joint Legal Custody and Maximization of Placement

The changes to custody and placement law attempt to strike a delicate balance between the constitutionally protected rights of parents to raise their children without undue state interference, and the best interests of their children, who are the innocent victims of the breakup of their parents' relationship. The legislation is designed to protect and promote the rights of children to have two loving, involved parents in their lives. Since it does not focus solely upon the rights of the parents, uninvolved parents have not gained a new bargaining chip to trade for a better financial settlement.

Joint Legal Custody. Section 767.24(2)(am) of the Wisconsin Statutes creates a presumption of joint legal custody in all cases. As a practical matter, this is an insignificant change, since most parents in marital actions are already awarded joint legal custody. The drafters nonetheless believed that this was an important clarification of a parent's rights in a custody dispute with the other parent. The law now is harmonized so that parents in custody disputes with each other enjoy the same rights they already enjoyed under established law governing custody disputes with third parties. In the 1984 third party (grandparent) custody case, Barstad v. Frazier,¹ the Wisconsin Supreme Court held: "Under ordinary circumstances, a natural parent has a protected right under both state law and the United States Constitution to rear his or her children free from governmental intervention. Absent compelling reasons narrowly defined, it is not within the power of the court to displace a fit and able parent simply because in the court's view someone else could do a 'better job' of 'parenting.'" A parent's right to custody of his or her child originates from state law and the U.S. Constitution, and not from an award of custody by a court. A court now has limited authority to take away that right absent extraordinary circumstances.

The statute enumerates the circumstances under which the presumption of joint legal custody can be overcome, the most important of which is an inability to cooperate in future decision making. Evidence of child abuse, interspousal battery, or domestic abuse creates a rebuttable presumption that the parents will not be able to so cooperate. Section 767.24(2)(c) prohibits a court from rewarding a parent who unreasonably refuses to cooperate by awarding that parent sole legal custody.

Maximization of Placement. The most important change to placement law is found in section 767.24(4)(a)2, which requires courts to set a placement schedule that "maximizes" a child's time with each parent after considering the enumerated placement factors. It is important to read the requirement to maximize placement in the context of the placement factors, and not as a requirement for equal placement in all cases. For example, placement for a long haul truck driver who is home one day a week can be maximized with placement on the one day a week when that parent is home. Similarly, the statute requires courts to consider geographic separation when maximizing placement. An equal placement schedule maximizes placement for two parents who live in the same neighborhood, or in the same school district. But equal placement is a practical impossibility in cases of a substantial geographic separation.

Custody and Placement Factors. New custody and placement factors have been added to section 767.24(5) to supplement the existing custody and placement factors. All of the existing custody and placement factors in subsection (5) also have been retained.

Professionals' reports. The reports of professionals, which in the old statute was part of the preamble, now is listed as a factor in section 767.24(5)(jm). The drafters believed that such reports can be an important factor for courts to consider in some cases, particularly where there is evidence of psychopathology. But by listing it in the preamble, it tended to elevate the weight that factor was given, and helped create an industry for competing expert witness opinions.

Parents' stipulations and parenting plans. Section 767.24(5)(a) requires courts to consider any stipulation by the parents, and any parenting plan submitted by the parents. This is in recognition of the fact that in most cases, courts cannot possibly know as much about a family as do the parents, and courts cannot possibly know as well as the parents what placement schedule will work for that family. The goal is to reduce some of the governmental intervention into people's lives, and to require courts to give as much deference to the parents' wishes as is possible.

Parents' amount and quality of time with child. Section 767.24(5)(cm) requires courts to consider the amount and quality of time that each parent has spent with the child in the past. But it also recognizes that in many cases, parents make lifestyle choices, as breadwinner or homemaker, that cannot or will not be continued after the breakup of the relationship. Therefore, courts also must consider any necessary changes to the parent's custodial role, and any reasonable lifestyle changes that a parent proposes to make to spend time with the child in the future. The proposed lifestyle changes must be reasonable, circumventing a breadwinner's argument that he or she will quit a job to raise a child.

Child's age, developmental, and educational needs. Section 767.24(5)(dm) requires courts to consider the child's age, developmental, and educational needs at different ages. There is a reasonable argument that out of biological necessity, young, breast-feeding babies may need greater placement time with their mothers. In some cases, boys entering adolescence may need greater placement time with their fathers to receive that guidance and discipline. Girls entering adolescence may need greater placement time with their mothers, who have the common experience of entering female adolescence. Cases with teenagers, who are concerned about developing their independence and friendships, and who often do not want to spend time with either parent, may require that their wishes on placement be given some deference.

Child's need for predictability and stability. Section 767.24(5)(em) requires courts to consider the child's need for regularly occurring and meaningful periods of placement to provide predictability and stability. Courts must avoid the overly simplistic solution of awarding school year placement to one parent, and summer placement to the other parent. Instead, the placement with each parent needs to be regular so that the child can maintain and develop a relationship with each parent. The requirement that the placement be meaningful directs the court to set a placement schedule that allows for more time than a few hours each week for dinner. Time is a crucial component in giving both parent and child an opportunity to adjust to placement transitions and fully develop their relationship.

Parents' cooperation. Section 767.24(5)(fm), and expanded section 767.24(5)(g), work in conjunction with each other. Subsection (fm) requires courts to consider whether either parent is unreasonably refusing to cooperate or communicate with the other parent. Subsection (g) requires courts to consider whether each parent can support, encourage, and facilitate the other parent's relationship with the child, or whether either parent is likely to unreasonably interfere with that relationship. The drafters hope that courts will use these subsections to send a strong message to both parents at the beginning of the case that no matter how much anger, bitterness, or resentment they harbor toward the other parent, they cannot use their child's relationship with the other parent as a retaliatory weapon. A parent's refusal to keep a child out of the battle can and will be used against the parent. Courts must nonetheless also consider whether either parent's lack of cooperation is "unreasonable." This accommodates those cases where there is a history of violence, child abuse, chemical dependency, or other dangerous or irresponsible behavior. In those cases, there are seemingly obvious limits to what a parent can reasonably accommodate.

Temporary orders. Sections 767.23(1)(a) and (am) clarify that courts and family court commissioners are required to apply the section 767.24 custody and placement factors when making temporary orders during the pendency of an action affecting the family. Section 767.325(5m) clarifies that in all actions to modify custody or placement, courts are required to consider the section 767.24(5) factors, and to make their determination in a manner consistent with section 767.24. However, for a modification within two years of the initial order, section 767.325(1)(a) still requires that a party prove the modification is necessary because of harm to the child. Section 767.325(1)(b)1.b. still requires that a party prove a substantial change of factual circumstances before a court can modify a custody or placement order after that two-year period. The Wisconsin Court of Appeals held in the 1992 case, In re the Marriage of Licary v. Licary,² that a change in "the custody statutes are not, in and of themselves, a substantial change of circumstances." The custody, placement, and paternity reform legislation has not changed that legal principle.

The drafters were sensitive to the concerns of the victims of domestic violence and child abuse. All of the technical changes recommended by advocates who work in the domestic violence and child abuse fields were incorporated in the legislation. Moreover, the existing statutory custody and placement factors that require courts to consider evidence of violence or abuse, and the section 767.24(4)(b) prohibition of awarding placement that would endanger a child, were all preserved in their entirety. Nonetheless, advocates for the victims of violence and abuse remained concerned about the changes to custody and placement law because of the inherent uneven bargaining position in those types of relationships. The drafters ultimately concluded that meaningful reform legislation could not be drafted if it treated all of the good parents in Wisconsin as if they might abuse their former partners or their children. Our system of justice historically has relied upon an elected judiciary to properly apply statutory factors and protect victims of abuse and violence. If our elected judiciary is not doing that, the solution is to require additional judicial education, and to provide necessary resources for victim advocates.

There has been substantial debate among family lawyers over the net effect of the new placement factors and the requirement that placement with both parents be maximized. Some have expressed concern that this legislation veers too close to a presumption of equal placement. Only time will tell. However, the drafters strongly believe that with the amount of judicial discretion preserved, and the requirement that courts evaluate all of the placement factors, an expectation of equal placement in all cases would be unfounded.

Nonetheless, there is little question that this legislation will result in a fundamental change in those cases of two historically involved, loving parents, where there are no negative factors such as violence, abuse, or chemical dependency, and geographic separation is not an issue. If a court is left with nothing more than a coin flip to choose between two equally capable, competent parents, the mandate to maximize placement prohibits the court from preferring one parent over the other, and requires a placement schedule closely approximating equal placement.

Parenting Plans

The drafters were surprised when the section 767.24 (lm) requirement that parents file parenting plans proved to be controversial. Many custody litigators dislike it because it requires them to commit to positions early on in a case, removing many of the bargaining chips used in negotiating favorable settlements for their clients. Family lawyers in general view this to be a burdensome additional paperwork requirement, and suspect that courts will not enforce the requirement to timely file parenting plans any more vigorously than they enforce the requirement to timely file financial disclosure statements. The chief judges criticized it, paradoxically stating that it was overly burdensome for pro se parents, and that it was unnecessary in any event because parents already can serve out interrogatories and take depositions.

Despite the controversy, parenting plans are an important component to achieving one of the main objectives of the reform legislation: the reduction of the custody warfare that negatively impacts children. Parenting plans force parents to think about the specifics of custody and placement right at the start of the case. Parenting plans move parents off the fighting words of "sole custody," and "equal placement."

In custody disputes, parents are forced to think about and disclose their plans for medical treatment, education, and religious commitment. That reveals whether there is truly an issue of legal custody, which the statutes define as the right and responsibility to make major decisions concerning the child's medical care, choice of school, and religion. If the parents are in agreement on the major decisions, there is no reason to fight for sole custody.

In placement disputes, many parents want to be "equal" in the raising of their children. But when they are forced to disclose their specific plans of what placement schedule will be most beneficial for their children, they often discover that being equal does not mean that there should be equal placement.

By requiring that parents record their specific expectations at the time of the divorce, the parenting plans also should reduce the amount of post-judgment litigation. In many cases, parents stipulate to joint legal custody and a placement schedule, without considering the specifics of their agreement. They are then left to litigate several years later exactly what was contemplated when it is time to send the child to a new school, or when a change in a parent's work schedule or child care arrangements necessitates a new placement schedule. Additionally, since there now will be a record at the time of the original judgment, courts will be able to determine which parent has changed his or her position since the time of the judgment, and apply the appropriate legal standard to the parent now seeking a change.

Paternity Changes

The paternity code has undergone several major substantive changes. The existing code probably violated the equal protection clause of the constitution by treating children and parents differently in marital cases than in paternity cases. That now changes, as there will be one child support statute, section 767.25(1), that will apply to both marital and paternity cases. Section 767.24(1) will apply one set of custody and placement standards to both marital and paternity cases.

Several of the child support factors in paternity cases were different from the child support factors in marital cases. In harmonizing marital and paternity law, the inconsistent paternity factors were eliminated. This includes the factor formerly found in section 767.51(5)(e), "the need and capacity of the child for ... higher education." The elimination of this factor effectively overrules that portion of the 1996 Wisconsin Supreme Court decision, In re the Paternity of Tukker M.O.,³ which permitted the creation of a higher education child support trust in paternity cases.

There also is a major change in the way paternity cases will be adjudicated. The old adage that "when parents walk out of divorce court, they have a divorce judgment, and when they walk out of paternity court, they have a child support order," will no longer be true. Sections 767.51(3) and 767.62(4) now require courts to decide all issues, including custody and placement, in the final adjudication of paternity. This will help the vast majority of fathers in paternity cases, who are young, unsophisticated, and do not have the financial resources to hire lawyers to obtain custody and placement rights. This will be particularly important in light of the federal and state mandates to determine paternity by hospital acknowledgments.

Sections 767.51(4) and 767.62(4m) will limit retroactive child support awards to the date of filing the paternity action. This reverses the 1997 Wisconsin Court of Appeals case, In re the Paternity of Brad Michael L.,⁴ where 15 years of retroactive child support were awarded despite the fact the mother had denied paternity to the child's father. There will be exceptions, however. Child support can be awarded retroactive to the birth of the child if there was a delay in commencing the paternity action because of the father's threats, promises, or representations, provided the mother relied upon them and then acted promptly once the delay ceased to operate. Child support retroactive to birth also can be awarded when the father has evaded the paternity proceedings.

Finally, sections 767.51(3)(e) and 767.62 (4)(d) now require the court to consider the father's ability to pay before ordering him to contribute to pregnancy and birth expenses. This change addresses the unfairness in many cases where the father is required to pay all of the pregnancy and birth expenses, despite the fact that both the father and the mother were responsible for conceiving the child. It would violate federal law to require a mother to repay the pregnancy and birth expenses, but it will no longer be assumed that a father should be solely liable for them.

Placement Enforcement

The violation of placement orders is a significant problem in many cases. At a time when recently enacted legislation mandates strict new child support enforcement mechanisms, the inability of the legal system to similarly enforce placement orders had led to substantial resentment and disrespect for the fairness of the law on the part of many parents. Section 767.242 attempts to remedy these problems by establishing new placement enforcement mechanisms in family court.

The placement enforcement legislation permits a parent to file a petition if one or more periods of physical placement have been "intentionally and unreasonably" denied or substantially interfered with by the other parent. There was debate among the drafters whether one incident of interference should warrant a placement enforcement petition, or whether there should be a three-strike rule. It ultimately was decided that a statute that permits parents to interfere three times before there are legal consequences would undermine the respect for the placement order. In any other area of family law, such as payment of child support, maintenance, or property division, a party is not permitted to intentionally and unreasonably disregard a court order on three occasions before there are any legal consequences. Since the interference must be intentional and unreasonable, the statute does not apply to circumstances that do not merit enforcement remedies, such as placement denied because the child is sick, or because a parent shows up to exercise placement under the influence of intoxicants, or in a violent mood.

The statute is evenhanded in that it is equally applicable to those cases where a parent does not timely return a child from scheduled placement. It also permits an action under section 767.242(2)(c) when a parent intentionally fails to exercise one or more periods of placement, causing the other parent to incur a financial loss or expense.

If a petition is filed and the court finds intentional and unreasonable interference, section 767.242(5)(b)1. mandates that the court order make up time, and mandates that the court award reasonable costs and attorney fees. Section 767.242(5)(b)2.c. permits a court to enter a placement injunction. If an injunction is issued, section 767.242(6) requires that the injunction be filed with a law enforcement central repository, much like a domestic violence injunction. Law enforcement personnel now will have a means of verifying a violation of existing criminal statute section 948.31, or the criminal penalty provision in the placement enforcement statute, which is found in section 767.242(8).

Guardian Ad Litem Changes

The legislation contains several minor changes impacting guardians ad litem. Section 767.045(1)(am) gives the court discretion to not appoint a guardian ad litem on modification motions if the modification sought would not substantially alter the amount of time that a parent may spend with a child, and the court believes that the likely determination is clear, or that a party is seeking the appointment of a guardian ad litem solely for a tactical purpose or delay. Section 767.045(4m) permits a party to request a status hearing for the guardian ad litem to report on his or her activities at any time after 120 days following the appointment of the guardian ad litem. A party may request an additional status hearing 120 days thereafter. Finally, the legislation calls for the formation of a joint legislative council to study the guardian ad litem system.

Use It or Lose It

The use it or lose it provision, section 767.325(2m), permits a parent to modify a placement order if the other parent "repeatedly and unreasonably" fails to exercise placement, without requiring a custody hearing and a showing of a substantial change of circumstances. This provision addresses those cases where a parent seeks placement time to obtain a more favorable child support award, and then fails to exercise that placement time. The other parent now can file a motion to change the placement schedule to reflect reality, without requiring costly, lengthy, and harmful custody modification proceedings. Once the placement schedule is changed to reflect reality, the child support order can be changed accordingly.

Conclusion

In many ways, the custody, placement, and paternity reform legislation is reflective of cultural changes. Many mothers have entered the full-time work force, and many fathers have assumed a significant child rearing role. A substantial number of children now are born into nonmarital relationships. The family code was overdue for a change because it had not kept up with the times.

In signing this legislation, Gov. Thompson stated, "[w]e need to do more to make sure both parents are fully involved in the raising of their children, particularly fathers. Yet, we must continue to balance this goal with doing what's best for the child and providing protections for women in abusive and intimidating situations. I am confident the provisions I am signing help strike a better balance." The drafters share this confidence. It is hoped that this legislation will reduce the custody warfare that is harmful to children. Parents should have a clearer expectation that two loving, involved parents will be treated equally, and will be able to play a significant role in their children's lives.

Endnotes

¹ 118 Wis. 2d 549, 567-68, 348 N.W.2d 479 (1984).

² 168 Wis. 2d 686, 692, 484 N.W.2d 371 (Ct. App. 1992).

³ 199 Wis. 2d 186, 201, 544 N.W.2d 417 (1996).

⁴ 210 Wis. 2d 437, 564 N.W.2d 354 (Ct. App. 1997).

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