Modifying a Physical Placement Order
Often times people want to change the original court order which details their children's placement times with each parent. This article describes what the court will consider when changing a physical placement order in Wisconsin.
A party will need to bring a proposed order for modification of physical placement by a petition, motion or order to show cause. Wis. Stat. sec. 767.451 If a modification will not substantially alter the amount of time a parent may spend with the child, the court will determine whether the modification is in the best interest of the child. If a modification will substantially alter the amount of time a parent may spend with the child, the court will determine whether a modification is justified by either of the following: 1. if the proposed modification is within two years of the final judgment: the court must find by substantial evidence that the modification is necessary because the current conditions are physically or emotionally harmful to the best interest of the child. Wis. Stat. sec 767.451(1)(a). 2. if the proposed modification is after two years of the final judgment: the court must find that there has been a substantial change of circumstances since the entry of the order affecting physical placement and following that determination the court must determine whether the modification would be in the best interest of the child. Wis. Stat. sec. (1)(b). What is a "substantial change of circumstances?" This is shown when the facts on which the prior order were based differ from the present facts and the difference is enough to justify a court's consideration to modify the order. Keller v. Keller, 2002 WI App 161, P6, 256 Wis. 2d 401. The court will compare the circumstances before, at the time of and after the last order with the present facts and whether when compared these facts constitute a need for modification. In all actions to modify physical placement order the court will consider the following factors: The wishes of the parents. The wishes of the child (can be expressed through the GAL). The relationships of the child with the parents, siblings and any other significant persons. The amount and quality of time that each parent has spent with the child in the past, any necessary changes to either parents' custodial roles and any reasonable life-style changes a parent proposes to make to be able to spend more time with the child. The child's adjustment to home, community, school and religion. The age of the child and any developmental or educational needs at different ages. The mental and physical health of the parties and the child, or other person living in proposed custodial placement, that may affect child's well-being. The need for physical placement that will provide predictability and stability to the child. The availability of child care services. The cooperation and communication between the parties. The parties' ability to support the other party's relationship with the child. Whether there is any evidence of abuse of the child be either party or the following people: A significant other of either party. A person who lived, lives or will live in the household where the child may be placed. Whether there is evidence of domestic violence. Whether either party has a substance or alcohol problem. Any reports admitted into evidence by appropriate professionals. Any other factors the court may determine as relevant. Wis. Stat. sec. 767.451(5m)(a), 767.41(5)(am)1-16.
Authored by Attorney Laura A. Stack