Over time, life events may make the provisions of an existing Family Court Order obsolete or impractical. Here are some examples of such circumstances: A child is older and developmentally ready to spend overnights with the other parent. An ex-spouse’s income has increased or diminished. A parent has moved away, or an absent one has returned. Such life changes may trigger the need to modify orders related to custody, placement, child support, tax claim, maintenance, arrears and more.
If the parties agree a modification is necessary, they may resolve their issue(s) without a court hearing by filing a written agreement called a “Stipulation.” The parties should consider hiring an attorney to draft the Stipulation to ensure all issues are properly identified and addressed. If the parties proceed without counsel, they need to exercise care and caution in the preparation of the Stipulation. The language of this document is enforceable by the Court’s contempt power.
Counsel or the parties should submit the “Stipulation” plus the relevant Order to the Family Court Commissioner (“FCC”). (Forms FA-604A and FA-604B). Once the Stipulation is approved by the FCC, its accompanying Order takes effect upon filing. Parties should make a copies of the stipulation for their own records before providing the original to the court.
Please note that if state aid has been provided to either party or their children, or if the Child Support Agency has been involved in collection activities, then the Child Support Agency must approve the request before the Court will consider it.
If only one party wishes to change the judgment or order, their counsel will file the necessary modification motion. If a party is self-represented, he or she may file a Notice of Motion and Motion to Change: Legal Custody, Physical Placement, Child Support or Maintenance. (Form FA-4170V) and then arrange to have a copy of the motion served on the other party.
Modification of Child Support or Maintenance
The requirement for most requests to modify child support or maintenance is a showing of a substantial change in circumstances. Section 767.59 of the Wisconsin Statutes provides that any of the following may constitute a substantial change in circumstances to revise a judgment or order with respect to child support:
The factors relating to the original award of maintenance are relevant to a request for modification of maintenance. Those factors are found at §767.56 of the Wisconsin Statutes. Any motion to modify or terminate maintenance should address these specific factors. See Five Major Issues in Family Court Actions section.
Modification of Custody or Physical Placement
There are two different standards of proof required to modify a custody or physical placement order. See §767.451 of the Wisconsin Statutes. Generally, it is more difficult to modify an order within the first two-years after the entry of the initial judgment or order. The primary reason for this two-year cap on litigation is to introduce a period of stability for the children and to give the entire family the opportunity to adjust to the new arrangement. After two years, the standard to modify an order of custody or physical placement is less difficult.
Within Two Years of Final Order
Within two years of the final judgment, the party seeking modification must provide substantial evidence that the current legal custody or physical placement arrangement is physically or emotionally harmful to the best interest of the child.
After Two Years
Two years after the final judgment, it must be shown that modification of legal custody or physical placement is in the best interest of the child, that there has been a substantial change in circumstances since the date of the last order, and that continuing the current custody/placement arrangement is not in the best interest of the child. Even after two years, it is presumed that the current legal custody and physical placement arrangement is in the best interest of the child.
If parties have substantially equal periods of physical placement, the Court may modify the arrangement upon motion of a party if the Court finds that circumstances make it impractical for the parties to continue to have substantially equal placement and that the modification is in the best interests of the child. A party wanting the order changed must show why it is no longer in the best interest of the child for the parties to have substantially equal placement.
Permission to Move/Relocate Children
The right of a parent to relocate with children is governed by §767.481, Stats. The requirements and applicable procedures depend upon when your case was commenced and/or modified. The proper procedure to follow is set forth in the statute. It is also important to read and follow the existing orders in your case. There may be additional requirements in your temporary order or divorce judgment. Parties should seek the advice of counsel for assistance with this request as moving/relocating children away from the other parent is a difficult process in Wisconsin unless a stipulation is reached.
A judgment or order must be obeyed until is it changed by a subsequent order. Contempt of court is the proper relief to seek when a party has intentionally and willfully failed to follow a court order. The moving party must show the other party had the ability to comply with the order, knowingly violated the order, and lacked a valid reason for the violation.
Occasionally returning a child late for placement due to bad weather or an extra curricular activity running long is not contempt. Life happens. Mistakes happen. Think carefully prior to filing your motion: Was this one-off behavior or repeated intentional conduct? An attorney can help you identify whether the other party’s actions are contemptuous or simply a mistake. Counsel or a self represented litigant seeking compliance with the court order should file an Order to Show Cause for Finding of Contempt and the accompanying Affidavit. (Forms FA-4172VA and FA-4172VB). Among other things, the court may impose a fine or jail sentence as a result of a finding of contempt.
Sometimes, there are no bad intentions but compliance with the order is impossible because life circumstances have changed. For example, a parent’s work schedule changed from first shift to second shift, making the current placement order unworkable. In such circumstances, a stipulation or motion to modify is warranted rather than a contempt action.