Failure to exercise placement under Wisconsin custody laws
Under what authority can someone attempt to modify physical placement, based on the fact that one parent repeatedly and unreasonably fails to exercise their court ordered placement time with the minor children?
This is not as uncommon a problem as you might expect. If you are the primary parent and have concerns when the other parent has their visitation or placement and withhold the children, you can be found in contempt of court. If the non- custodial parent doesn’t exercise their placement, why can’t they be found in contempt for failure to follow the court orders? This can be very frustrating to the custodial parent who may be relying for work or school purposes, for the other parent to exercise their time and when they don’t call, or don’t show up and refuse to exercise their placement, it not only is an inconvenience to the custodial parent, but really is a detriment to the emotional well being of the children. If the non-custodial parent cannot be found in contempt for failing to exercise their placement, is there anything that legally can be done?
The answer lies in sec. 767.451 (2m) of the Wisconsin Statutes, that reads as follows:
(2m) MODIFICATION OF PERIODS OF PHYSICAL PLACEMENT FOR FAILURE TO EXERCISE PHYSICAL PLACEMENT. “Notwithstanding subs. (1) and (2), upon petition, motion or order to show cause by a party, a court may modify an order of physical placement at any time with respect to periods of physical placement if it finds that a parent has repeatedly and unreasonably failed to exercise periods of physical placement awarded under an order of physical placement that allocates specific times for the exercise of physical placement.”
So, what does this mean? It means that a parent who has specific periods of placement and where there is a pattern and practice of that parent not spending the time with the children, over time, that the non-custodial parent may be in danger of losing their placement schedule with the minor children.
It also means that it is an exception to the 2 year prohibition after final court orders are set on custody, that there cannot be any modification of custody or placement, unless the children are in imminent physical or emotional danger. The motion can be brought regardless if within the first two years and the burden of imminent harm cannot be met.
It also is going to come down to a proof problem in court, because while the custodial parent is going to argue that the other parent didn’t follow the schedule and exercise their placement, the non-custodial parent will argue that either they did exercise their placement and the other parent is just making things up, or that the custodial parent interfered and prevented them from having placement with the children. It comes down to a “he said-she said” type of case, which makes these matters so difficult for the court to decide who is truthful and who is not credible and whether that should serve as a basis for modifying the placement schedule.
The real victims in all of this, of course, are the children. They love and want to be with both parents and when one parent isn’t coming regularly to spend time with them, court orders notwithstanding, one can only imagine their hurt and the potential long term emotional impact that it may have on the children.