Modify Child Custody & Placement in Wisconsin

Wisconsin courts cannot modify child placement within the first two years after the final judgment determining legal custody or physical placement unless 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 statute 767.451.

What Do These Terms Mean?

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.

When Can Child Custody Be Modified in Wisconsin?

Changing the custody of the child will go through the courts. But for minor, agreeable adjustments can be made at any time between you and the other parent. 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 one hour later.

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. One or both parents can make a motion to change custody and placement and the court will be likely to accept it if it is in the best interest of the child.[1]

The court emphasized the best interest of the child, so they will not be 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 though, two years need to have passed since the original judgment.

Within 2 Years of the Final Judgement

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 and 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 why there is such a hard two-year cap is to give both parents and the child(ren) the opportunity to get used to the new arrangement.

2 Years After the Final Judgment

After two years, the child custody and placement agreement can be modified. Under the existing statutes, the court will accept post-judgment modifications if:

  1. The modification would be in the best interest of the child.
  2. There has been a “substantial change of circumstances.”[3]

Either the custodial or the non-custodial parent may file a petition in court for the modification of a particular child custody order, they just need to file the necessary paperwork.

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 ask the court to declare the other parent in contempt of court for violation of any previous court order. Any evidence presented for the modification motion can then 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 is a substantial change in the circumstances surrounding the case.

What Are Reasons to Modify Child Custody?

There isn't a set definition for the above-mentioned “substantial change in circumstances,” and each judge can have a slightly different definition, so it is a good idea to speak with an attorney who specializes in family law like us here at Sterling Law Offices. Here are some examples of reasons people modify custody:

  • The child's needs have changed
  • Economic circumstances changed
  • Marital status of either party changes
  • One parent is killed or dies of natural causes
  • One parent is moving a significant distance away
  • A parent is called for active duty in the U.S. Armed Forces.
  • One parent is not following the previous custody and placement order
  • The child lives a step-parent with has a criminal record and/or history of child abuse or neglect.
  • Evidence proves that the child is in physical, mental, or emotional danger in their current placement

Evidence That Meets Requirements

There are many ways to gather evidence in order to modify custody and placement orders. Common evidence includes:

  • Written documentation of conflicts with custody.
  • Documentation of actual time vs time scheduled to be with the child.
  • Report of a parent's change in work schedule or new address for new employment.
  • Statements from authority figures. These may be academic professionals, experts, or caregivers.
  • Screenshots of texts, emails, or other electronic communications.

What Forms Do I Need to Modify Child Custody?

  • FA-4170 – Notice of Motion and Motion to Change Notice of Change – Post Divorce
  • FA-4171 – Order to Show Cause (OTSC) and Affidavit- Order to Show Cause
  • FA-4175 – Decision & Order on Motion or OTSC Decision and Order on Motion or OTSC
  • FA-604 – Stipulation Order to Amend Judgment for Support/Maintenance/Placement (Use this form if both parties are in agreement.)

These forms can be downloaded by clicking this link: Modify Custody/Placement Forms.

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How Long Does It Take to Modify Child Custody Orders?

The main obstacle that impacts the length to modify child custody orders is whether the other parent contests the change. 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.

How Much Does It Cost to Modify a Custody Order?

If both parents can agree, they may file with no fee a Stipulation and Order to Amend Judgment form. 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 greatly on your specific situation, so you would need a consultation for an attorney to quote you on the price of your case.

What Can I Do if the Other Party Is Not Following Court Orders?

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 the lack of adhering to the original court order. If found in contempt, that parent may face penalties or order the parent to obey the 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 parent – 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 parent – 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 – This is not grounds to change on its own, but it will be taken into consideration when considering child custody modification in the other parent's favor.
  • The legal move by the custodial parent – 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.

Frequently Asked Questions

How do I change my child’s placement in Wisconsin?

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.

What are the reasons to modify child custody?

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 impacts the child’s physical, mental, or emotional health–Anything from the loss of a stable living place to the presence of abuse.

Can I modify my custody agreement without going to court?

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 Judgement.

How easy is it to change a custody agreement?

The difficulty of changing a custody and placement agreement depends on the reason for the change, the ability to show proof, and whether or not the other party contests the change. If the other parent is okay with the change, the case will be much easier.

What are some tips for changing child custody?

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.

What if the other parent refuses to spend time with the children?

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 child care expenses, you can request the court to order the other parent to reimburse you.

How do you appeal a child custody ruling?

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 will shed light on the flaws in the original ruling.

Can I stop paying child support if the other parent isn’t following the court-ordered custody agreement?

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 support.

Can I stop paying child support if my child lives with me?

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 not already done so, you will also want to file to change the order to prove that your child is and is supposed to live with you.

References: Videos by | 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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