2017 Wisconsin Statutes & Annotations
Chapter 767. Actions affecting the family.
767.481 Moving the child's residence within or outside the state.
767.481 Moving the child's residence within or outside the state.
(1) Notice to other parent.
(a) If the court grants periods of physical placement to more than one parent, it shall order a parent with legal custody of and physical placement rights to a child to provide not less than 60 days' written notice to the other parent, with a copy to the court, of his or her intent to:
1. Establish his or her legal residence with the child at any location outside the state.
2. Establish his or her legal residence with the child at any location within this state that is at a distance of 150 miles or more from the other parent.
3. Remove the child from this state for more than 90 consecutive days.
(b) The parent shall send the notice under par. (a) by certified mail. The notice shall state the parent's proposed action, including the specific date and location of the move or specific beginning and ending dates and location of the removal, and that the other parent may object within the time specified in sub. (2) (a).
(2) Objection; prohibition; mediation.
(a) Within 15 days after receiving the notice under sub. (1), the other parent may send to the parent proposing the move or removal, with a copy to the court, a written notice of objection to the proposed action.
(b) If the parent who is proposing the move or removal receives a notice of objection under par. (a) within 20 days after sending a notice under sub. (1) (a), the parent may not move with or remove the child pending resolution of the dispute, or final order of the court under sub. (3), unless the parent obtains a temporary order to do so under s. 767.225 (1) (bm).
(c) Upon receipt of a copy of a notice of objection under par. (a), the court shall promptly refer the parents for mediation or other family court services under s. 767.405 and may appoint a guardian ad litem. Unless the parents agree to extend the time period, if mediation or family court services do not resolve the dispute within 30 days after referral, the matter shall proceed under subs. (3) to (5).
(3) Standards for modification or prohibition if move or removal contested.
(a)
1. Except as provided under par. (b), if the parent proposing the move or removal has sole legal or joint legal custody of the child and the child resides with that parent for the greater period of time, the parent objecting to the move or removal may file a petition, motion or order to show cause for modification of the legal custody or physical placement order affecting the child. The court may modify the legal custody or physical placement order if, after considering the factors under sub. (5), the court finds all of the following:
a. The modification is in the best interest of the child.
b. The move or removal will result in a substantial change of circumstances since the entry of the last order affecting legal custody or the last order substantially affecting physical placement.
2. With respect to subd. 1.:
a. There is a rebuttable presumption that continuing the current allocation of decision making under a legal custody order or 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. This presumption may be overcome by a showing that the move or removal is unreasonable and not in the best interest of the child.
b. A change in the economic circumstances or marital status of either party is not sufficient to meet the standards for modification under that subdivision.
3. Under this paragraph, the burden of proof is on the parent objecting to the move or removal.
(b)
1. If the parents have joint legal custody and substantially equal periods of physical placement with the child, either parent may file a petition, motion or order to show cause for modification of the legal custody or physical placement order. The court may modify an order of legal custody or physical placement if, after considering the factors under sub. (5), the court finds all of the following:
a. Circumstances make it impractical for the parties to continue to have substantially equal periods of physical placement.
b. The modification is in the best interest of the child.
2. Under this paragraph, the burden of proof is on the parent filing the petition, motion or order to show cause.
(c)
1. If the parent proposing the move or removal has sole legal or joint legal custody of the child and the child resides with that parent for the greater period of time or the parents have substantially equal periods of physical placement with the child, as an alternative to the petition, motion or order to show cause under par. (a) or (b), the parent objecting to the move or removal may file a petition, motion or order to show cause for an order prohibiting the move or removal. The court may prohibit the move or removal if, after considering the factors under sub. (5), the court finds that the prohibition is in the best interest of the child.
2. Under this paragraph, the burden of proof is on the parent objecting to the move or removal.
(4) Guardian ad litem; prompt hearing. After a petition, motion, or order to show cause is filed under sub. (3), the court shall appoint a guardian ad litem, unless s. 767.407 (1) (am) applies, and shall hold a hearing as soon as possible.
(5) Factors in court's determination. In making its determination under sub. (3), the court shall consider all of the following factors:
(a) Whether the purpose of the proposed action is reasonable.
(b) The nature and extent of the child's relationship with the other parent and the disruption to that relationship which the proposed action may cause.
(c) The availability of alternative arrangements to foster and continue the child's relationship with and access to the other parent.
(5m) Other factors. In making a determination under sub. (3):
(a) The court may consider the child's adjustment to the home, school, religion and community.
(b) The court may not use the availability of electronic communication as a factor in support of a modification of a physical placement order or in support of a refusal to prohibit a move.
(6) Notice required for other removals.
(a) Unless the parents agree otherwise, a parent with legal custody and physical placement rights shall notify the other parent before removing the child from his or her primary residence for a period of not less than 14 days.
(b) Notwithstanding par. (a), if notice is required under sub. (1), a parent shall comply with sub. (1).
(c) Except as provided in par. (b), subs. (1) to (5) do not apply to a notice provided under par. (a).
The trial court may not order a custodial parent to live in designated part of the state or else lose custody. Groh v. Groh, 110 Wis. 2d 117, 327 N.W.2d 655 (1983).
The sub. (5) factors are an addenda to the best interest of the child considerations under s. 767.24 [now s. 767.41] and are a reminder to the court to tailor the best interest of the child standard to problems unique to a removal situation. Kerkvliet v. Kerkvliet, 166 Wis. 2d 930, 480 N.W.2d 823 (Ct. App. 1992).
Sections 767.325 and 76.327 [now ss. 767.451 and 767.481] do not conflict. If one party files a notification of intent to move under s. 767.327 [now s. 767.481], the other parent may file a motion to modify placement under s. 767.325 [now s. 767.451], and the court may consider all relevant circumstances, including the move. Hughes v. Hughes, 223 Wis. 2d 111, 588 N.W.2d 346 (Ct. App. 1998), 97-3539.
There is no law prohibiting a parent with joint legal custody and physical placement from taking a child outside the state, including to a foreign country, for less than 90 days. When parents agree that one parent must move the court to prohibit the other from taking a particular trip with the children, the moving party has the burden of producing evidence and persuading the court that prohibiting the trip is in the children's best interests. Long v. Ardestani, 2001 WI App 46, 241 Wis. 2d 498, 624 N.W.2d 405, 00-1429.
Groh is still good law, subject to the expanded authority granted over intrastate moves of 150 or more miles. Accordingly, the circuit court in this case had no authority to prospectively order a parent not move beyond 45 miles from the marital home. By its enactment of this section, the legislature has made a judgment that moves of less than 150 miles are not subject to the best interests of the children standard. Rather than providing a court authority to prohibit geographical separation, s. 767.41 (4) (a) 2. presumes such separation exists and directs the court to consider the separation when establishing a placement schedule. Derleth v. Cordova, 2013 WI App 142, 352 Wis. 2d 51, 841 N.W.2d 552, 12-2018.
The circuit court's factual determination that the parent's homes were less than 150 miles apart, by considering a usual and direct route, was not clearly erroneous. Derleth v. Cordova, 2013 WI App 142, 352 Wis. 2d 51, 841 N.W.2d 552, 12-2018.
Based on the unique facts of this case, the court did not err in ordering that the children be re-enrolled in specific schools and that the mother return to that district so their enrollment could be accomplished while continuing their primary placement with her. Shulka v. Sikraji, 2014 WI App 113, 358 Wis. 2d 639, 856 N.W.2d 617, 13-2080.
Wisconsin's Child Removal Law. Wis. Law. June 1993.
