Moving With a Child After Divorce
If you have minor children, there are limits on where you can move after a divorce; those same limits apply during the divorce process. Wisconsin Statute 767.481 deals with moving a child’s residence within or outside the state of Wisconsin.
The law in Wisconsin for relocation of minor children was re-created and updated in 2018 by the 2017 Wis. Act 203. Although the statute number stayed the same, the effects of the statute changed. The current statute applies to cases originally started or newly modified placement or custody order issued on or after April 5, 2018.
What Happens If A Parent Wants To Move or Relocate?
Wis. Stat. § 767.481 provides a specific distance requirement of 100 miles before parties have to follow certain procedures.
If the parents already lives more than 100 miles apart, the parent intending to move or relocate the minor child(ren) is not required to file a motion. However, they must provide the other parent with written notice of their intent to relocate at least 60 days before relocation. The notice must be in writing and include the date the parent intends to relocate and the parent’s new address.
If the parents currently live within 100 miles of each other, Wis. Stat. § 767.481 provides specific procedural guidelines and deadlines that must be followed.
Relocation is a material change that warrants reconsideration of what is in the best interest of the child. However, relocation does not automatically constitute a change of custody.
Moving a Child More Than 100 Miles Away
You are required under Wisconsin law to file a motion seeking the court’s permission to relocate if a parent plans to relocate and reside with the child 100 miles or more from the other parent. Wis. Stat. § 767.481 requires that if (a) periods of physical placement are granted to both parent and (b) one parent intends to relocate and reside with a child 100 miles or more from the other parent, then the parent who intends to relocate must file a motion with the court seeking permission to relocate.
The statute outlines what the motion must include, specifically:
- The date of relocation
- Where the parent plans to relocate, specifically the municipality and state
- The reason for relocation
- A proposed new placement schedule, including placement during the school year, summers, and holidays, and
The statute also requires:
- If applicable, a request for change in legal custody
- Notice to the other parent that any objection must be filed and served no later than 5 days before the initial hearing
- An attached Objection to Relocation form. This is for the other parent to use if they object to the relocation.
The moving party—the parent intending to relocate and who filed the motion—must serve a written copy of the motion by mail to the other parent. The other party may object within the statutory time frame of at least 5 days before the initial hearing.
After the motion is filed, the court is required to schedule an initial hearing within 30 days. The court must provide both parents with the date of the initial hearing.
Can the Non-Custodial Parent Object to the Proposed Move?
Yes, the other parent can object to the relocation.
The first step is the written aspect. The court provides a specific form to complete—Objection to Relocation form (Form FA-4179V). It can be found on the Wisconsin court forms page or a PDF version is available for download here. The objection must include the basis for the objection and their proposals for a new placement schedule, transportation responsibilities, and costs (the same guidelines as the filed relocation plan) if the court grants the motion. This party should write this objection in the perspective of if the court does allow the other parent to relocate with the child(ren). The objecting party must then serve and file this form with the court at least 5 business days before the initial hearing. During this time, the parent intending to relocate may not move with or relocate the child(ren) pending the initial hearing.
The second step is to appear at the initial hearing and object to the relocation plan. If the objecting parent does not appear at the hearing (assuming they were properly served), the court will accept the placement plan. It is also important to note that the objecting party must object at the initial hearing. If the objecting party does appear at the hearing but does not object to the proposed relocation plan, then the court will also accept the motion. Of course, the court always considers the best interest of the child when making decisions.
What If the Other Parent Objects to Child Relocation?
When an objection is filed, and the objecting party appears and orally objects at the hearing, the court is required to (1) set for a further hearing within 60 days; (2) refers the parties to mediation; and (3) appoints a guardian ad litem for the child.
Can the child(ren) be moved while all of this is happening?
The quick answer is no, the child cannot be relocated during this time, or during the pendency of this action. However, the court may issue a temporary order to allow the parent proposing the relocation if the court finds the relocation is in the child’s best interest. Note that this is a temporary order and does not mean that permanent relocation has been granted.
If a court commissioner decides, orders, or rules on the relocation pending the final hearing, either party may seek a de novo review hearing. This requires a party to file a motion requesting a de novo hearing within 10 days after the court commissioner orally issued the determination, order, or ruling. A judge then must hold the de novo hearing within 30 days after the motion.
What Does the Court Consider When Deciding Relocation?
The court considers the following matters in making a decision:
- The court applies the best interest of the child standard, which is outlined in Wis. Stat. § 767.41(5).
- Whether the proposed relocation only minimally changes or affects the current placement schedule. For example, if the objecting parent only has the minor child two weeks during the summer and one weekend a month and other parent moves 105 miles away, this will minimally impact the children.
- Whether the objecting parent has exercised their court-ordered physical placement or not.
- Whether the parent’s location is related to abuse; a pattern or serious incident of interspousal battery; or a patter or serious incident of domestic abuse.
What If the Parents Agree to the Relocation?
The parents can agree always agree to one parent relocating the child(ren) more than 100 miles away from the other parent. If that occurs, the parties can file a stipulation with the court that specifies that neither parent objects to the planned relocation and outlines agreed upon modifications to legal custody or periods of physical placement, including responsibility and costs for transportation of the child(ren) between the parties under the new placement schedule. The court will then incorporate this information into an order for relocation or revise the order of legal custody or physical placement.
|Procedure||Action & Time|
|Intention to move|
|If > 100 miles||Written notice to other parent at least 60 days before relocation.
– Include date of intended move and new address.
|Objection||(1) File and (2) serve written objection at least 5 business days before initial hearing. (3) Appear at initial hearing and object to motion.|
|Initial Hearing||Court sets date within 30 days after motion filed|
|De Novo Review||Motion for De Novo must be filed within 10 days after court commissioner’s oral determination, order, or ruling|