How can you modify custody and physical placement orders after the divorce?
Sec. 767.451 of the Wisconsin Statutes allows a parent after the divorce to petition the court
to modify the initial custody and placement orders. During the first two years after the divorce,
there is a higher burden that must be followed to modify the initial custody and placement orders.
Sec. 767.451 (1) requires a showing that the current custodial conditions are physically or emotionally harmful to the best interest of the child. This subsection of the statute provides a two year truce period. For the court to intervene during this 2 year period, the reason for the change must be compelling.
After the two year period following the divorce, the burden is decreased. Under sec. 767.451 (1) (b), the court may modify an order of legal custody or an order of physical placement where the modification would substantially alter the time a parent may spend with his or her child if the court finds all of the following: (a) the modification is in the best interest of the child. (b) There has been a substantial change of circumstances since the entry of the last order affecting legal custody or the last order substantially affecting physical placement.
There is a rebuttable presumption that; (a) continuing the current allocation of decision making under a legal custody order is in the best interest of the child. (b) Continuing the child’s physical placement with the parent with whom the child resides for the greater period of time is in the best interest of the child.
A request to modify a custody and/or placement order after the divorce is done by petition, motion or order to show cause to the court.
The court will also routinely order mediation to try to resolve the issue of post judgment custody or placement disputes prior to proceeding to a contested hearing. If mediation is unable to resolve the dispute, the court routinely proceeds thereafter with the appointment of a Guardian ad litem to advocate for the best interest of the minor children. The Guardian ad litem will make recommendations to the court on the request to modify post judgment, the original custody and/or placement orders.
Since custody litigation can be time consuming and expensive, it is important to sit down with an experienced family lawyer in advance so the attorney can fairly and honestly assess your chances of success on a request to modify custody or placement after the divorce, along with explaining what the expense will be as to attorney’s fees and costs.
If going through a custody battle, as part of an ongoing divorce or if you have questions on how the orders can be modified after the divorce, contact one of our experienced family law attorneys today.
For more information on this article, contact Karp & Iancu.