Will the court let me move out of Wisconsin with the children?

August 25, 2015 Parenting & Kids, Post-Divorce

In Wisconsin, 767.481 stats., spells out the specific rules and requirements for a parent’s request to move either out of state, or more than 150 miles from the other parent within the state. There is some level of legal controversy over whether the so called “removal statute” applies in divorce cases and paternity cases. The majority way of thinking is that the entire statute applies to a divorced couple with children and only the “notice” provisions of the “removal statute ” sec. 767.481 (1) applies in paternity cases.

Regardless of whether all of the substantive law in the removal statute applies to a paternity case, it is clear that either way, the notice provisions must be complied with. This requires the parent requesting to move the children’s residence within or outside the state, must provide 60 days advance written notice by certified mail to the other parent, with a copy of the letter to the court, detailing the proposed move, the intended specific move date, the location of the move, the beginning and ending dates of the removal and that the other parent has the right to object within 15 days of receiving the notice.

If the other parent does object within the 15 days, you are not allowed to move during the pendency of litigation until the court ultimately holds a hearing and makes a determination of whether the move should be allowed. The objecting parent also has the right to file petition or motion to modify placement. Upon receipt of the objection by the other parent, the court will order the parties to mediate the dispute and will order the appointment of a guardian ad litem to make an investigation on the proposed move. Under the statute, the burden of proof is on the parent objecting to the move or removal.

The court usually grants removal cases priority status in terms of scheduling court hearings as there is usually some urgency with the parent’s proposed move, whether it be work related or school related for the children. The court must also consider the following factors in making its’ determination: “(a) Whether the purpose of the proposed move is reasonable. (b) the nature and extent of the child’s relationship with the other parent and the disruption to that relationship which the proposed action may cause. (c) The availability of alternative arrangements to foster and continue the child’s relationship with and access to the other parent.”

I frequently get asked by persons seeking to remove a child from the state, “what are my chances?” These cases are fact sensitive, so it really depends on the individual case and the reason for the proposed move. Prior the enactment of the current custody law, under sec. 767.41, when there were “traditional” placement arrangements where children were predominantly placed with moms and dads visited every other weekend, it wasn’t that difficult to convince a court as to why the move should be allowed, since the other parent’s role was limited to a couple of overnights every other weekend. With the change in the custody law it fosters “significant and meaningful periods of placement” with both parents, it is much more difficult now to seek removal of minor children. With more parents having shared and equal placement arrangements a parent moving more than 150 miles from the other parent or moving out of state, dramatically changes the placement schedule between the parents. To convince the court that the move should be allowed, the reason for the proposed move should be compelling and not whimsical. If it is a person’s desire to “have always wanted to live on the west coast,” and you have no job, no family, and no friends where you are going, it is doubtful the court is going to allow the move. If on the other hand, the reason for the proposed move is that your new spouse has a significant job change and you have children together, and the new job means a significant more amount of money for your family, the court may allow the move and be much more sympathetic to the request. Further, the person moving away needs to have a solid alternative schedule in mind for the other parent to have placement, and a solid plan as to share in the travel and cost expenses of getting the children back and forth to Wisconsin. If you take the position that “the other parent can visit the children whenever they want as long as they come out to where I am living and pay for it,” you are probably going to lose in front of the court. If you propose to share all travel expenses and help bring the children periodically back and forth to Wisconsin, offering the majority of summer placement, winter break, spring break, Thanksgiving weekend and other long weekends when the children may not be in school, you have a greater chance of convincing the court the move should be allowed. Any litigation post judgment involving custody of minor children, including their removal from the state or more than 150 miles from the other parent is going to conjure up bitter emotions and be fought rigorously between the parties. It can be costly with attorney’s fees and costs to engage in these battles. You need to make sure that you really need to move and that you hire one of the best family lawyers you can to increase your chances of success. While no one can promise or guarantee the outcome, without solid forethought before plunging into a request to move out of state, at least you are increasing your chances that you may prevail in the courtroom, should the matter become contested.

Do you have questions on the removal statute in Wisconsin? We can help. Contact one of our experienced family law attorneys at Karp & Iancu, S.C. to find out what your rights are.

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