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.
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