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2 Year Prohibition On Modifying Custody in Wisconsin

There seems to be a lot of confusion lately over the statutory provision in Wisconsin that bars a litigant from coming back into court to litigate custody and placement, within two years from the date of their final judgment or orders. You can only petition or file a motion to modify within the two years, if you can show that the children are in imminent physical or emotional danger.

Some of the questions are, does it run from the temporary interim orders, or from the final judgment or orders? Does it repeat itself after two years? If you go into court after the two years and modify, does the two year rule apply again to those orders? Some of the confusion even lies with some family lawyers, who argue  the two year can run from subsequent orders or non-final orders.

The main purpose of the law is to allow the parties to cool down and not be able to come into court and litigate issues that are usually laid to reset when the couple get divorced or paternity is established. Many of these cases involve contested custody litigation, and the law prohibits the parties from coming back and fighting again about the children for two years, absent extraordinary circumstances and where the well being of the children may be endangered, physically or emotionally.

sec. 767.451 Revision of legal custody and physical placement orders. “Except for matters under s. 767.461 or 767.481, the following provisions are applicable to modifications of legal custody and physical placement orders:

(1) SUBSTANTIAL MODIFICATIONS. (a) Within 2 years after final judgment. Except as provided under sub. (2), a court may not modify any of the following orders before 2 years after the final judgment determining legal custody or physical placement is entered under s. 767.41, unless a party seeking the modification, upon petition, motion, or order to show cause, shows by substantial evidence that the modification is necessary because the current custodial conditions are physically or emotionally harmful to the best interest of the child:

1. An order of legal custody.

2. An order of physical placement if the modification would substantially alter the time a parent may spend with his or her child.”

In re the Paternity of Bradford, J.B. 181 Wis. 2d 304 (Court of Appeals 1993), the court stated the following:

“By enacting sec. 767.325 (1) (a) (now renumbered as sec. 767.451), the legislature has demonstrated its intent that, absent extraordinary circumstances, modification of custody and placement hearings may not be held, and orders modifying custody and placement may not be entered, during the two-year period following the entry of the original order.” (at page 311).

So, what does this mean?

1. You are barred under Wisconsin law from filing a motion to modify custody or placement within two years from the issuance of the original final orders that decide custody and placement of minor children.

2. The only exception to the prohibition, is where it can be shown that there is substantial and extraordinary circumstances that endangers the children’s well being, including physical and emotional issues.

3. If you file a motion within the two years, and cannot meet the higher burden, the court can stay (or put your motion on hold) to modify, until the two years expires.

4. The two year rule applies to custody, not just physical placement (decision making).

5. The two year rule applies to all physical placement orders, whether primary, shared or equal placement.

6. The parties can stipulate to modify custody and placement without a showing of the 2 year harm rule, but the court cannot hold a hearing to modify custody or placement within the two years, unless harm to the children is proven to the court.

7. The two year rule applies from the final judgment or orders on custody and placement, not from the initial temporary court orders and not from non final interim orders as to custody and placement.

8. The two year rule applies only following the entry of the final orders or judgment, and not from subsequent modifications post judgment of those orders. It does not renew itself every two years.

9. The court can make changes to the schedule during the two years, as long as those changes or  modifications to not substantially affect or alter the periods of placement allocated to the parents in their final orders or judgment.

If you have questions or concerns on how the 2 year truce applies in custody cases in Wisconsin, feel free to contact one of our experienced family lawyers at Karp & Iancu, S.C. today for an initial consultation.

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