Wisconsin Child Custody Agreement

Introduction

Key Things to Know

1. 1

   At the first order, agreeing earns less in Wisconsin than parents expect. Wis. Stat. 767.34(1) allows the parties to stipulate for legal custody and physical placement, subject to the approval of the court, and 767.41(5)(am)1. then treats that stipulation as factor one of the fourteen best interest factors, alongside any proposed parenting plan or placement proposal. The court still works through all fourteen and decides for itself.

2. 2

   After an order exists, the same agreement becomes powerful. Wis. Stat. 767.461 provides that if the parties file a stipulation modifying legal custody or physical placement, the court shall incorporate the terms into a revised order unless it finds that the modification is not in the best interest of the child. Section 767.451, which carries the two year bar and the requirement of substantial evidence that the current arrangement is physically or emotionally harmful, opens with an exception for matters under 767.461 or 767.481. Agreeing therefore does not just improve your position on a modification, it moves the request out of that regime.

3. 3

   Until the judge incorporates it, a Wisconsin stipulation is not binding on either parent. Section 767.34(1) makes it subject to the approval of the court, and a party is free to withdraw from a stipulation until it is incorporated in a judgment, which can leave the agreement with nothing behind it. That is the single most practical warning for a Wisconsin reader: a signed custody agreement can be walked away from before the judge signs. Get it in front of the court rather than leaving it in a drawer.

4. 4

   The two key terms do not mean what they mean elsewhere. Legal custody, defined at Wis. Stat. 767.001(2)(a), is the right and responsibility to make major decisions concerning the child, and nothing more. Physical placement, defined at 767.001(5), is the condition under which a party has the right to have the child physically placed with that party and to make routine daily decisions during that placement, consistent with major decisions made by a person having legal custody. Major decisions is itself an open list at 767.001(2m), and 767.41(6)(am) lets a parent ask the court to specify additional ones, so name the decisions you mean.

5. 5

   A court parenting plan is only required when you are fighting. Under Wis. Stat. 767.41(1m) the duty to file a proposed parenting plan arises only where legal custody or physical placement is contested, and only after the court waives mediation under 767.405(8)(b) or the mediator notifies the court that the parties did not reach agreement, with the plan due within 60 days of that trigger unless the court orders otherwise. Miss the deadline without cause and, under the same subsection, you waive the right to object to the other party's parenting plan. Separately, 767.405(8)(d) requires each party in a contested case to submit a proposed plan containing the 767.41(1m) information to the family court services director or the assigned mediator at least 10 days before the initial mediation session.

6. 6

   There is one agreed term a Wisconsin judge may not approve. Wis. Stat. 767.41(5m), 767.451(3r) and 767.34(3)(b) permit a stipulation for an automatic future modification triggered by a specified future event that is reasonably certain to occur within two years, with future event defined at 767.34(3)(a) as a life event of a party or of the child or a change in the child's developmental or educational needs. But each of those provisions bars approval of a stipulation based on an anticipated behavior modification of a party, and 767.461 itemizes what that means: anger management courses or therapy, a batterers intervention program, drug or alcohol treatment or therapy, and terms of incarceration, extended supervision, parole or probation for a long list of offenses. A clause stepping one parent up to alternating weeks once they complete treatment is a clause the court cannot approve.

7. 7

   Wisconsin has one of the strongest domestic violence schemes among the states. Under Wis. Stat. 767.41(2)(d)1., if the court finds by a preponderance of the evidence that a party has engaged in a pattern or serious incident of interspousal battery or domestic abuse, there is a rebuttable presumption that awarding joint or sole legal custody to that party is detrimental to the child and contrary to the child's best interest, and the presumption is rebuttable only by a preponderance of evidence of completed certified batterer treatment, current non abuse of alcohol and drugs, and best interest on the ordinary factors. Section 767.41(5)(bm) then makes the child's safety and well being and the victim parent's safety the paramount concerns rather than one factor among many, and 767.41(6)(g) lists protective conditions the court shall impose on any placement it does award. A separate and lower threshold rule at 767.41(2)(b)2.c. provides that evidence of child abuse, interspousal battery or domestic abuse creates a rebuttable presumption that the parties will not be able to cooperate in future decision making, which defeats joint legal custody, so if this is your situation, talk to a lawyer before signing anything.

Wisconsin Requirements for Child Custody Agreement

• Stipulation subject to court approval under Wis. Stat. 767.34(1)

  The parties may stipulate for legal custody and physical placement, subject to the approval of the court. Until the stipulation is incorporated into a judgment it binds neither parent, and a party is free to withdraw from it, so the document should be filed rather than held.

• Stipulation as factor one under Wis. Stat. 767.41(5)(am)1.

  At the initial order the parents' wishes, as shown by any stipulation, proposed parenting plan or custody or placement proposal, are the first of fourteen best interest factors. The court considers all fourteen plus any other factor it finds relevant, so the agreement informs the decision rather than settling it.

• Incorporation of a post-order stipulation under Wis. Stat. 767.461

  Where the parties file a stipulation modifying legal custody or physical placement, the court shall incorporate its terms into a revised order unless it finds the modification is not in the best interest of the child. Section 767.451 expressly excepts these matters, so a stipulated change avoids the two year bar and the harm standard.

• Legal custody defined by Wis. Stat. 767.001(2)(a)

  Legal custody is the right and responsibility to make major decisions concerning the child, and nothing else. Allocate it as joint or sole and list the major decisions it covers, since 767.001(2m) makes that list open and 767.41(6)(am) allows a parent to ask the court to specify more.

• Physical placement defined by Wis. Stat. 767.001(5)

  Physical placement is the condition under which a party has the child physically placed with them and makes routine daily decisions during that placement, consistent with major decisions made by whoever has legal custody. The schedule belongs here, not in the custody clause.

• Parenting plan contents under Wis. Stat. 767.41(1m)(a) to (o)

  The list runs from paragraph (a) to paragraph (o), with no (g) or (n), and covers custody and placement sought, residence and work information, variable costs, child care, school, health care, religion, decision making, holidays, summer, electronic communication and equipment, dispute resolution, and safe transfer where there is evidence of battery or abuse. Late filing without cause waives the right to object to the other party's plan.

• Contested case trigger for a plan under Wis. Stat. 767.41(1m) and 767.405(8)(d)

  The court filing duty arises only where custody or placement is contested and mediation has been waived or has failed, with the plan due in 60 days. A separate duty requires each party in a contested case to submit a proposed plan to the family court services director or the mediator at least 10 days before the initial mediation session.

• Ban on behavior based stipulations under Wis. Stat. 767.461

  The court may not approve a stipulation based on an anticipated behavior modification of a party, including anger management, batterers intervention, drug or alcohol treatment, and terms of incarceration, extended supervision, parole or probation for enumerated offenses. Remove any clause that ties placement to completing a program.

• Relocation permission under Wis. Stat. 767.481

  A parent intending to relocate and reside with the child 100 miles or more from the other parent must file a motion seeking permission, with a relocation plan covering the date, the new municipality and state, the reason, a proposed placement schedule and transportation costs. Where the parents already live more than 100 miles apart, 60 days written notice replaces the motion, and 767.481(6) requires notice before any removal of more than 14 consecutive days.

• Domestic abuse presumption under Wis. Stat. 767.41(2)(d)1. and (5)(bm)

  A finding by a preponderance of the evidence of a pattern or serious incident of interspousal battery or domestic abuse creates a rebuttable presumption against awarding joint or sole legal custody to that party, rebuttable only on proof of completed certified treatment, current non abuse of alcohol and drugs, and best interest. Where such a finding is made, the child's safety and well being and the victim parent's safety become the paramount concerns.