Modify Custody Orders in Wisconsin

Life is pretty unpredictable and circumstances will inevitably change. It's for this very reason that the court can modify a custody order. Keep in mind that the court is unlikely to change your custody order “just because.” You'll have to make a strong case that circumstances directly affecting the child have considerably changed. 

When can Child Custody be modified in WI?

Child custody agreements, or placement, in Wisconsin should be in the best interest of the child. If significant changes affect the welfare of a child involved in a placement agreement, the courts may choose to enforce a court order or grant a modification based on either parent's request for a modification.

Two-year judgment of Wisconsin 767.451 statute

Unless there is physical or emotional harm related to the best interest of a child(ren), Wisconsin courts cannot modify child placement within the first two years after the final judgment determining legal custody or physical placement, according to statute 767.451. The primary reason why there is such a strenuous two-year cap is to allow both parents and the child(ren) the opportunity to get used to the new arrangement.

However, with substantial evidence, a court may be willing to modify the child placement order. Examples in which the two-year permanent decision may include:

  • Substantial change of circumstances since the last order of legal custody
  • Economic circumstances change
  • Marital status of either or both parties change or is not sufficient for the child's well-being
  • Repeated and intentional failure by a parent to exercise agreed-upon physical placement agreement with the other parent
  • A parent is called in for active duty in the U.S. Armed Forces and physical placement of the parent changes (Usually the physical placement of the child before the service member's discharge or release from active duty is re-implemented.)
  • Sufficient evidence proves that the child is in physical, mental, or emotional danger with his or her current physical placement
  • One parent is killed or dies of natural causes
  • One parent commits a first-degree intentional homicide, second-degree intentional homicide, harms or kills the other parent (Even if the trial is in the appeal stages, until the conviction is reversed, vacated, or set aside, the placement changes may still stand.)
  • A stepparent in which the child the child is living with has a criminal record and/or a track record of abuse or neglect.

To make a strong case, it's important to understand the types of circumstances the court considers when hearing a petition to modify an order.

What WILL NOT Work in Court
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:

  • Failure to allow visitation to the noncustodial If you are not receiving visitation rights that were agreed upon in the original custody hearing, courts can reinforce the original agreement. But the court will not change the custody agreement for this reason.
  • Change of circumstances for the noncustodial Just because your circumstances have improved, it hasn't changed the well-being of the child and the circumstances surrounding the custodial parent are unchanged.
  • Being behind in child support payments could lead to the court taking that into consideration when considering child custody modification in the other parent's favor.
  • If the custodial parent has legally moved the child to another state and hasn't violated custody agreements, the court won't factor it into your custody change case.


Start Preparing for Co-Parenting

Get your WI parenting plan worksheet here. Reviewing this form is a good way to prepare yourself mentally for the conversations you'll need to have regarding your children.

Alternate options for implementing a new child placement order

There are circumstances in which it is highly recommended to try to self-regulate child placement arrangements. For example, if a parent's work hours change, working together to sort out temporary hours may be beneficial. However, if a situation such as this leads to either parent purposely decreasing the hours of the other parent's opportunity to be with the child, filing a motion with the court requesting a modification/review for child placement may be the only option.

Scheduling changes may affect the child's ability to get to school on time or negatively affect the child's state of mind with either or both parents.

Wisconsin courts will take these kinds of factors into consideration, including within the two-year trial period. Even in a prenuptial agreement, the arrangements that parents made may be modified by a family court judge to benefit the safety and rights of the child, not the parents.

One of the primary reasons for this, in addition to the mental and physical health of the child, is the original arrangements when the prenuptial agreement was signed may not really fit current circumstances.

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