Changes or Modifications to Physical Placement or Parenting Time

Fixed parenting time, known in Wisconsin as physical placement, and custody orders are not always permanent fixtures of family life after divorce. Wisconsin law recognizes that the needs of children and parental circumstances can change.

This article explains when and how Wisconsin Courts will modify child placement orders, the statutory standards that govern modification motions, and practical steps for individuals considering modifying their current placement schedule orders.  

Relevant Statutes  

Understanding what can be modified and how starts with understanding the statutory framework that the Judges and Court systems will rely on. The primary statutory provisions governing revisions to legal custody and placement (parenting time) are in Chapter 767 of the Wisconsin Statutes. Notably, Wisconsin Statute 767.451 (revision of legal custody and physical placement orders) and the general custody/placement guidance and factors outlined in Wisconsin Statute 767.41.  

These sections set out the timing rules (including the two-year “cooling off” rule), the standards to be met to obtain modification, special presumptions (including equal placement scenarios), and the factors the Court must consider when deciding whether modification is in a child’s best interests.  

When looking to modify a placement schedule, remember that each parent is generally entitled to parenting time. Under Wisconsin law, a child is entitled to periods of physical placement with both parents (unless placement with a parent would endanger the child’s physical, mental, or emotional health, Wisconsin Statute 767.41(4)(b)). Additionally, the placement scheduled should maximize the amount of time a child spends with the parents, but that does not mean equal time with both parents is required or presumed.  

The Two-Year Rule

Wisconsin makes it deliberately difficult to relitigate custody and placement immediately following a final order. Wisconsin Statute 767.451(1)(a) specifies that a Court may not modify an order for legal custody or an order of physical placement within two years after entry of a final judgment determining custody or physical placement. Parties seeking to modify placement within two years should be aware of the realistic hurdles they face.

Modifications are possible within the first two years, but only by showing a higher standard that the child is being harmed by the existing arrangement. A party seeking to modify legal custody or placement must show by substantial evidence that the current order creates a physical or emotional harm to the child, and that modification is necessary to avoid that harm.  

Motions to modify should focus on clear, tangible evidence. Documented evidence of harm, such as medical/psychological evaluations, school reports showing regression, credible testimony of abuse or neglect, or expert opinions (such as from a Guardian ad Litem).  

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After Two Years: Substantial Change in Circumstance and Best Interests

After the two-year period has passed, the legal standard relaxes to the more standard “best interest of the child.” A Court may modify a legal custody or physical placement order if:

1. The modification is in the child’s best interest, and

2. There has been a substantial change in circumstances since the last order that affects custody or placement.  

There are also statutory presumptions that the court must consider when modifying placement. Under Wisconsin Statute 767.451(1)(b)(2) there are rebuttable presumptions that:

1. Continuing the current allocation of decision-making under a legal custody order is in the best interests of the child, and

2. Continuing the child’s physical placement with the parent with whom the child resides for the greater period of time is in the best interests of the children.  

When the parties already have substantially equal placement, the law presumes that continuing equal placement is in the child’s best interests (Wisconsin Statute 767.451(2)(b)).  

A party seeking to modify placement must overcome these rebuttable presumptions. Succession motions to modify placement should focus on clear, tangible evidence.

Evidence of substantial change in circumstances would include: relocation, a parent’s new work schedule that makes the current placement impractical, changes in the child’s special-needs status, substance abuse issues involving the parent, or a pattern of one parent repeatedly missing scheduled placement.

Best Interest Factors

When evaluating any modification request, the Court must apply the best interest analysis outlined in Wisconsin Statute 767.41(5). These factors include:

1. The wishes of the parents,

2. The wishes of the child(ren),

3. The cooperation and communication between the parties,

4. Whether each party can support the other parent’s relationship with the child,

5. The child’s relationship with siblings, or other persons who may impact the child,

6. The amount and quality of time that each parent has spent with the child in the past,

7. Whether a party, or a significant other of a party has had significant problems with alcohol and/or drug abuse,

8. Child’s adjustment to home, school, and community,

9. The age of the child, and the developmental and educational needs at different ages,

10. Mental or physical health of a party and any negative impact on the child’s well-being,

11. A criminal record of a party, including any history of child abuse,

12. Evidence of domestic abuse and/or assault,

13. Reports of any professionals if admitted, and

14. Any other factor that the Court determines to be relevant.  

Successful motions to modify placement will tailor the best interest factors to the specific facts of each case. Judges will look to see how the proposed schedule will better serve the best interests of the child.  

Procedure

A modification request is made by motion or petition to the underlying family court file (the Court that entered the original order). The moving party outlines their request in their moving motion and provides supporting evidence in their accompanying affidavit, outlining the factual basis and the specific relief requested. After a motion to modify is served and filed with the Court, the court will schedule a hearing in which both parties must appear to plead their case to a Judge.  

If a child’s safety is at issue, a party can seek temporary emergency orders. An example of such an order would include a request for temporary emergency placement, custody, and/or supervised placement for the party at issue. The Court can grant temporary orders until such time that a full hearing may be held.

Courts often will encourage the parties to attempt to mediate the issue of placement modification before the Judge makes a permanent order modifying placement. Many parents successfully utilize a professional mediator to settle their disputes rather than engage in lengthy and costly litigation.  

If modification is necessary because of one parent’s repeated failure to exercise placement (or repeated denial of the other parent’s placement), a Court may both modify the placement order and address any contempt of court.

Conclusion

Wisconsin balances stability and flexibility in regards to modifying placement schedules. If you are considering modifying your placement schedule or have been served with a request to modify from the other party, contact O’Flaherty Law today to schedule a consultation. Let us guide you through the process with clear advice and trusted support.