In Wisconsin the standards for changing an order for legal custody or physical placement are found in Wis. Stats. Sec. 767.451. There are four significant parts of that statute that apply to these revisions.

1. Modification within the first two years

The first section, Wis. Stats. Sec. 767.451(1), applies during the first two years after a final judgment of custody and/or placement is entered by the court. This is known as the cooling off period. The Legislature has determined that it is best for children if there is some finality in their lives regarding placement, and therefore has made it difficult for parents to return to court for a period of time after the final judgment regarding these issues. During the first two years, in order to have the court enter an order for modification, a person has to show substantial evidence that modification is necessary because the current custodial conditions are physically or emotionally harmful to the best interests of the child. It is, by design, very difficult to present evidence that meets this standard.

2. Modification after two years

The second of the four sections of the modification statute is for placement/custody orders that are more than two years old. If more than two years have passed since the final judgment, a party may seek to change the order if they can: (1) establish that there has been a substantial change of circumstances since the last order; (2) establish that the proposed modification is in the best interest of the child; and (3) defeat a presumption that the last order continues to serve the best interests of the child. This standard is obviously not as difficult to meet as the two-year rule.

Often the focus in these post-two year cases is on whether there has been a substantial change in circumstances. There are, of course, many scenarios to consider for a substantial change of circumstances. For example, a court might find a substantial change in circumstances if a parent was living a long distance from the child but has moved closer to the other parent, or if a parent was working the night shift and is able to change employment to a day shift to be more available for the child in the evening. Remarriage is specifically excluded by the statutes, and cannot be asserted to show there has been a substantial change of circumstances.

3. Modification that does not alter the amount of time with each parent

The third statutory authority for modification of physical placement involves modifications that do not substantially alter the amount of time each parent spends with the child. Wis. Stats. Sec. 767.451(3). An example might involve shifting a regular Tuesday night placement to Wednesday to accommodate employment, or some other conflict a parent has with the regular schedule.4. Modification when one parent fails to exercise placement

The final statutory authority for modification of physical placement involves a situation where one of the parents fails to take advantage of the physical placement that was initially ordered. If the court finds that a parent has “repeatedly and unreasonably failed to exercise periods of placement,” the court can modify placement without any of the other standards referred to in this article. Wis. Stats. Sec. 767.451(2m).

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It should be clear even from this cursory review of the modification statute that changing custody or placement can be an uphill battle. Thus it is particularly important that parents have competent legal counsel both when a custody order is entered, and when modification is sought. The attorneys at Wessel, Lehker & Fumelle have decades of experience with custody and placement litigation, and can help protect your interests and your children’s welfare regarding this most important of issues.