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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