Wisconsin's Custody, Placement, and Paternity Reform
Legislation
State
Bar Updates Family Law Resources
New legislation should help reduce the
custody warfare that is harmful to children by giving parents a clear
picture of the law's mandates and expectations - that both loving,
involved parents will be treated equally and will be able to play
significant roles in their children's lives.
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.
Previous Page
Wisconsin's Custody, Placement, and Paternity
Reform Legislation
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.
Christopher D. Walther, Marquette 1985, is
president and senior shareholder in the Milwaukee firm of Walther Law
Offices S.C., practicing in divorce and family law, appellate practice
and procedure, and transportation-motor carriers, trucks, and trucking
law. He currently chairs the State Bar of Wisconsin Family Law
Section. |
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).
Wisconsin
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