LRB-4011/1
PJK:jld:ph
2009 - 2010 LEGISLATURE
February 17, 2010 - Introduced by Senator Plale, cosponsored by Representatives
Schneider, Pridemore, Van Akkeren and Gunderson. Referred to Committee
on Judiciary, Corrections, Insurance, Campaign Finance Reform, and
Housing.
SB544,1,7
1An Act to repeal 767.451 (1) (b) 3.;
to amend 767.41 (4) (a) 2., 767.41 (6) (a),
2767.451 (1) (b) 2. (intro.) and 767.451 (2) (b);
to repeal and recreate 767.451
3(1) (b) 2. a. and 767.451 (1) (b) 2. b.; and
to create 767.41 (5) (am) 5m. of the
4statutes;
relating to: equalizing physical placement to the highest degree,
5requiring the court to state the reasons for ordering sole legal custody or not
6equalizing physical placement, and standards for modifying legal custody or
7physical placement.
Analysis by the Legislative Reference Bureau
Under current law, in an action affecting the family, such as a divorce or a
paternity action, a court must determine the legal custody of a minor child based on
the best interest of the child. In current law, there is a presumption that joint legal
custody is in the child's best interest. The court also must allocate periods of physical
placement between the parties. The court is required to set a placement schedule
that allows the child to have regularly occurring, meaningful periods of physical
placement with each parent and that maximizes the amount of time the child may
spend with each parent, taking into consideration geographic separation and
accommodations for different households. The court may deny periods of physical
placement with a parent only if the court finds that the physical placement would
endanger the child's physical, mental, or emotional health. When determining
custody and periods of physical placement, the court is required, under current law,
to consider a number of factors (custody and placement factors), such as the wishes
of the child and of the parties, the interaction and interrelationship of the child with
his or her parents, the amount and quality of time that each party has spent with the
child in the past, the child's adjustment to the home, school, and community, and the
cooperation and communication between the parties.
This bill provides that, when the court allocates periods of physical placement,
instead of maximizing the amount of time a child may spend with each parent, taking
into consideration geographic separation and accommodations for different
households, the court must presume that a placement schedule that equalizes to the
highest degree the amount of time the child may spend with each parent is in the
child's best interest. This presumption is rebutted if the court finds by a
preponderance of the evidence, after considering the custody and placement factors,
that equalizing physical placement would not be in the child's best interest. The bill
also makes the geographic separation of the parties an additional custody and
placement factor for the court to consider in every case when determining custody
and periods of physical placement.
Under current law, if legal custody or physical placement is contested, the court
must state in writing why its findings relating to legal custody or physical placement
are in the best interest of the child. Under the bill, if legal custody or physical
placement is contested and the court orders sole legal custody or a placement
schedule that does not equalize placement between the parties to the highest degree,
the court must state both orally and in writing the reasons for its order.
Under current law, after two years after making an initial order of legal custody
or physical placement, a court may revise legal custody or physical placement in a
manner that substantially alters the time a parent may spend with his or her child
if the court finds that the modification is in the best interest of the child and that
there has been a substantial change in circumstances since the last order was made.
There is a rebuttable presumption that continuing the current allocation of decision
making concerning the child and continuing the child's physical placement with the
parent with whom the child resides for the greater period of time is in the best
interest of the child, and a change in the economic circumstances or marital status
of a party is not sufficient to meet the standard for modification. The bill changes
the rebuttable presumption that applies to modifications after two years after an
initial order of legal custody or physical placement. Under the bill, there is a
rebuttable presumption that the standard for modification is met, that is, that
modification is in the best interest of the child and that there has been a substantial
change in circumstances since the last order was made, if either of the following has
occurred: 1) a parent has modified his or her lifestyle or the location of his or her
residence to an extent that affects the amount of time the parent is able to care for
the child; or 2) a parent has successfully completed parenting classes, a drug or
alcohol abuse treatment program, or an anger management program to address a
problem that previously hindered his or her ability to care for the child. In addition,
the bill deletes the provision that makes a change in the economic circumstances or
marital status of a party insufficient to meet the standard for modification.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB544, s. 1
1Section
1. 767.41 (4) (a) 2. of the statutes is amended to read:
SB544,3,122
767.41
(4) (a) 2. In determining the allocation of periods of physical placement,
3the court shall
consider each case on the basis of the factors in sub. (5) (am), subject
4to sub. (5) (bm). The court shall set presume that a placement schedule that
allows
5the child to have regularly occurring, meaningful periods of physical placement with
6each parent and that maximizes equalizes to the highest degree the amount of time
7the child may spend with each parent
, taking into account geographic separation and
8accommodations for different households is in the best interest of the child. The
9presumption under this subdivision is rebutted if the court finds by a preponderance
10of the evidence, after considering all of the factors in sub. (5) (am), subject to sub. (5)
11(bm), that equalizing physical placement to the highest degree would not be in the
12child's best interest.
SB544, s. 2
13Section
2. 767.41 (5) (am) 5m. of the statutes is created to read:
SB544,3,1414
767.41
(5) (am) 5m. The geographic separation of the parties.
SB544, s. 3
15Section
3. 767.41 (6) (a) of the statutes is amended to read:
SB544,3,2016
767.41
(6) (a) If legal custody or physical placement is contested
and the court
17orders sole legal custody or a placement schedule that does not equalize physical
18placement between the parties to the highest degree, the court shall state
orally and 19in writing
why its findings relating to legal custody or physical placement are in the
20best interest of the child the reasons for its order.
SB544, s. 4
21Section
4. 767.451 (1) (b) 2. (intro.) of the statutes is amended to read:
SB544,4,3
1767.451
(1) (b) 2. (intro.)
With respect to subd. 1., there There is a rebuttable
2presumption that
any of the following is sufficient to meet the standards for
3modification under subd. 1.:
SB544, s. 5
4Section
5. 767.451 (1) (b) 2. a. of the statutes is repealed and recreated to read:
SB544,4,75
767.451
(1) (b) 2. a. A parent modifying his or her lifestyle or the location of his
6or her residence to an extent that affects the amount of time the parent is able to care
7for the child.
SB544, s. 6
8Section
6. 767.451 (1) (b) 2. b. of the statutes is repealed and recreated to read:
SB544,4,119
767.451
(1) (b) 2. b. A parent having successfully completed parenting classes,
10a drug or alcohol abuse treatment program, or an anger management program to
11address a problem that previously hindered the parent's ability to care for the child.
SB544, s. 7
12Section
7. 767.451 (1) (b) 3. of the statutes is repealed.
SB544, s. 8
13Section
8. 767.451 (2) (b) of the statutes is amended to read:
SB544,4,1914
767.451
(2) (b) In any case in which par. (a) does not apply and in which the
15parties have substantially equal periods of physical placement pursuant to a court
16order, a court, upon petition, motion, or order to show cause of a party, may modify
17the order based on the appropriate standard under sub. (1).
However, under sub. (1)
18(b) 2., there is a rebuttable presumption that having substantially equal periods of
19physical placement is in the best interest of the child.
SB544,4,2321
(1) This act first applies to actions or proceedings, including actions or
22proceedings to modify a judgment or order previously granted, that are commenced
23on the effective date of this subsection.
