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Under current law, in an action affecting the family, such as a divorce or a

paternity action, a court must determine the legal custody of a minor child based on

the best interest of the child. In current law, there is a presumption that joint legal

custody is in the child’s best interest. The court also must allocate periods of physical

placement between the parties. The court is required to set a placement schedule

that allows the child to have regularly occurring, meaningful periods of physical

placement with each parent and that maximizes the amount of time the child may

spend with each parent, taking into consideration geographic separation and

accommodations for different households. The court may deny periods of physical

placement with a parent only if the court finds that the physical placement would

endanger the child’s physical, mental, or emotional health. When determining

custody and periods of physical placement, the court is required, under current law,

to consider a number of factors (custody and placement factors), such as the wishes

of the child and of the parties, the interaction and interrelationship of the child with

his or her parents, the amount and quality of time that each party has spent with the

child in the past, the child’s adjustment to the home, school, and community, and the

cooperation and communication between the parties.

This bill provides that, when the court allocates periods of physical placement,

instead of maximizing the amount of time a child may spend with each parent, taking

into consideration geographic separation and accommodations for different

households, the court must presume that a placement schedule that equalizes to the

highest degree the amount of time the child may spend with each parent is in the

child’s best interest. This presumption may be rebutted if the court finds by clear and

convincing evidence, after considering the custody and placement factors, that

equalizing physical placement would not be in the child’s best interest. The bill also

makes the geographic separation of the parties an additional custody and placement

factor for the court to consider in every case when determining custody and periods

of physical placement.

Under current law, if legal custody or physical placement is contested, the court

must state in writing why its findings relating to legal custody or physical placement

are in the best interest of the child. Under the bill, if legal custody or physical

placement is contested and the court orders sole legal custody or a placement

schedule that does not equalize placement between the parties to the highest degree,

the court must state both orally and in writing the reasons for its order.

Under current law, after two years after making an initial order of legal custody

or physical placement, a court may revise legal custody or physical placement in a

manner that substantially alters the time a parent may spend with his or her child

if the court finds that the modification is in the best interest of the child and that

there has been a substantial change in circumstances since the last order was made.

There is a rebuttable presumption that continuing the current allocation of decision

making concerning the child and 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, and a change in the economic circumstances or marital status

of a party is not sufficient to meet the standard for modification. The bill changes

the rebuttable presumption that applies to modifications after two years after an

initial order of legal custody or physical placement. Under the bill, there is a

rebuttable presumption that the standard for modification is met, that is, that

modification is in the best interest of the child and that there has been a substantial

change in circumstances since the last order was made, if either of the following has

occurred: 1) a parent has modified his or her lifestyle or the location of his or her

residence to an extent that affects the amount of time the parent is able to care for

the child; or 2) a parent has successfully completed parenting classes, a drug or

alcohol abuse treatment program, or an anger management program to address a

problem that previously hindered his or her ability to care for the child. In addition,

the bill deletes the provision that makes a change in the economic circumstances or

marital status of a party insufficient to meet the standard for modification. The

effect of this change is to make a change in economic circumstances or marital status

2011 − 2012 Legislature − 3 − LRB−0611/1

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possibly, depending on the circumstances, but not automatically, sufficient to meet

the standard for modification.

767.451 (1) (b) 2. (intro.) With respect to subd. 1., there There is a rebuttable

presumption that any of the following is sufficient to meet the standards for

(1) This act first applies to actions or proceedings, including actions or

proceedings to modify a judgment or order previously granted, that are commenced

on the effective date of this subsection.