Wisconsin courts cannot modify child placement within the first two years after the final judgment determining legal custody or physical placement. However, they can change it if there is physical or emotional harm occurring in the current placement and an adjustment would be in the best interest of a child, according to Wisconsin statute 767.451.
Child custody focuses on the legal rights a parent has on decision-making.
Child placement is the physical location of where the child will reside at a given time.
To change the custody of a child, you go through the courts. But minor adjustments can be made at any time between you and the other parent if both parents agree. For example, if a parent's work hours change to be one hour later, you may just be able to push pick-up/drop-off times by one hour.
However, any major changes or if you want the minor change to be legally binding, it has to be submitted to the court for approval. If this is not done, any new changes are not enforceable by the court. Major changes will come with a whole court process, but minor changes can come easily after filing a stipulation.
One or both parents can file a motion to change custody and placement. The court will be likely to accept it if it is in the best interest of the child. [1]
With the court's emphasis on the best interest of the child, they are not in favor of major scheduling changes that negatively affect the child's state of mind. For example, if the change would harm the child's ability to get to school on time, that's not something the court will look favorably at. In order for the court to take on a case for modification, two years need to have passed since the original judgment.
If two years have not passed since the original ruling, the person filing has to show that the current orders are not in the best interest of the child. The filing party must demonstrate the current orders negatively affect the child's physical and emotional health. Otherwise, the court will not change the orders. [2]
The primary reason for the two-year cap is to give the parents and the child the opportunity to get used to the new arrangement.
After two years, the child custody and placement agreement can be modified. Under the existing statutes, the court will accept post-judgment modifications if:
Either the custodial or the non-custodial parent may file a petition in court for the modification of a child custody order. They just need to file the necessary paperwork (explained further below).
The party who files the petition has to prove it is necessary to change the order. During the hearing of the case, the party seeking modification may also try to hold the other party in contempt of court for violation of any previous court order. Any evidence presented for the modification motion can also be admitted as evidence for the contempt motion.
If you are the party who wishes to move for the modification of a child custody order, you have to make sure that your child's best interest is the focus of the legal action. It is also your duty to gather evidence to show the court that there has been a substantial change in the circumstances.
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There isn't a set definition for the above-mentioned “substantial change in circumstances.” So each judge may have a slightly different definition. This makes it really important to speak with an attorney who specializes in family law like us here at Sterling Lawyers. Family law attorneys will know the specifics of each judge and case. Here are some reasons people modify custody:
There are many ways to gather evidence to prove modification is necessary. Common evidence includes:
These forms can be downloaded by clicking this link: Modify Custody/Placement Forms.
Are you ready to move forward? Call (262) 221-8123 to schedule a strategy session with one of our attorneys.
The main obstacle that impacts the length of a modification case is how much parents disagree. Contesting the change will increase the duration significantly, but if everyone agrees, then the modification can be complete in a matter of days. Then the amount of time depends on your specific county's court system.
If both parents can agree, they may file a Stipulation and Order to Amend Judgment form without paying any fees. If one parent contests, there is a filing fee of $30 for modifying the order pro se (without an attorney). The price for an attorney depends on your specific situation, so you would need a consultation for an attorney to quote you on the price of your case.
To enforce custody orders, you may file a Motion for Contempt which will request the court to hold a hearing where the other party must justify why they didn't adhere to the original court order. If found in contempt, that parent may face penalties or be ordered to obey the order.
Before you spend the time and resources attempting to modify child custody, it's important to understand the following common examples are unlikely to change a custody order:
In Wisconsin, you can change your child’s placement either by agreement with the other parent or by filing for a post-judgment modification through the courts.
The only reason to modify child custody is for the child’s best interest. This modification can be due to any of a variety of issues that significantly impact the child’s physical, mental, or emotional health. It could be anything from the loss of a stable living place to the presence of abuse.
A custody and placement agreement can be modified without going to court if the other party agrees to it. To have the modification set in stone, the parties would need to file a Stipulation Order to Amend Judgment.
The difficulty of changing a custody and placement agreement depends on the reason for the change, the ability to show proof, and whether the other party fights the change. If the other parent is okay with the change, the case will be much easier.
One of the best things you can do to prepare is to ensure that you have records of the necessary information for your case. A good rule to follow is if you think a judge may want to know it, write it down.
If a parent is unwilling to spend time with the children, you can request to modify the order to make a schedule that works better for both of you. If you've lost money because the parent isn't fulfilling their duties, like from additional childcare expenses, you can request the court to order the other parent to reimburse you. If the behavior continues, they may be an unfit parent.
In order to appeal a ruling, you should work with your lawyer to create a legal brief. This demonstrates the reason for the appeal and sheds light on the flaws in the original ruling.
It is strongly recommended that you continue to uphold your end of the court-ordered agreement. Instead, file for a Motion for Contempt where the court can use the tools at their disposal to enforce child custody.
In order to stop child support payments, you must file a motion to modify child support payments. In other words, the obligation of paying support continues even if the child is living with you until the court changes the order. If you haven't already, you need to file to change the order to prove that your child currently is and is supposed to live with you.
References: Videos by youtube.com/c/sterlinglawyers | 1. Custody and Placement: Answering Your Legal Questions. State Bar of Wisconsin. (2013, Aug). | 2. WI Statute, 767.451 § (1)(a). Child Custody, Placement, and Visitation. | 3. WI Statute, 767.451 § (1)(b)1.b. Child Custody, Placement, and Visitation.
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