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After a custody order is in place, both parents have to obey the order or else they may face legal consequences. If, for example, the abuser does not return the children to you after s/he takes them for a visit, you may have to file a “petition to enforce physical placement” or an “order to show cause and affidavit for finding of contempt.” The judge can provide make-up time for the parent who lost out on his/her scheduled visitation, order the children to be returned, and order the losing party to pay the other party’s attorney fees. The judge can also hold the other parent in contempt of court for violating the court order, and the abuser could be fined, sent to jail, or anything else that the court finds appropriate.1
Withholding children from another parent in violation of a court order can also result in criminal charges.2
Note: If your custody order does not give specific placement times, you may want to ask the judge to change the order. The judge could add specific times that each parent has the child, which would make it easier for both parents to follow the order.
Certain situations might justify violating a court order — for example, to protect you or your children from immediate abuse or harm. However, before intentionally disobeying any court order, we recommend that you talk to an experienced family law attorney to think through your options and to understand the specific consequences you could face if you violate the order. Go to WI Finding a Lawyer to find legal help in your area.
1 Wis. Stat. § 767.471(5)(b)
2 Wis. Stat. § 767.471(8)
How do I change an existing order?
Whether you can request a change in a custody or physical placement may depend on how recently the order is issued, as is explained below. However, a change in the economic circumstances or marital status of either party will not be enough of a reason in any of the below situations for a judge to modify an order.1
Within two years after a final order, you can only file to modify an order of legal custody or an order of physical placement where you want to substantially change the amount of parenting time if you can show substantial evidence that the modification is necessary because the current conditions are physically or emotionally harmful to the best interest of the child.2
After two years have passed since the final order was issued, the judge can modify an order of legal custody or an order of physical placement where you want to substantially change the amount of parenting time if there is a substantial change in circumstances and if the change to the custody order would be in the child’s best interests.3
In both of the above situations, there is a “rebuttable presumption” for keeping the current decision-making arrangement and for continuing the child’s physical placement with the parent with whom the child lives for the majority of the time. This means that the judge will start off assuming that these it’s in the child’s best interests to keep things as they are and it is up to the parent who is filing for the modification to provide enough evidence to change the judge’s mind.4
The two-year time period limitations will not apply in any of the following situations:
- both parties have substantially equal periods of physical placement and circumstances make it impractical for the parties to continue this arrangement;
- a parent has repeatedly and unreasonably failed to use his/her physical placement;
- you are requesting to modify physical placement but in a way that does not substantially alter the amount of parenting time;
- physical placement rights would endanger the child’s physical, mental, or emotional health; or
- a parent has been convicted of killing the child’s other parent.5
Note: As part of an agreement to modify the order, you and the other parent can also agree to allow further modifications to legal custody or physical placement that are based on the occurrence of a specified future “life event” that is reasonably certain to occur within two years. The “life event” can be related to either party or the child or it can be a future change in the developmental or educational needs of the child.6
1 Wis. Stat. § 767.451(1)(b)(3)
2 Wis. Stat. § 767.451(1)(a)
3 Wis. Stat. § 767.451(1)(b)(1)
4 Wis. Stat. § 767.451(1)(b)(2)
5 Wis. Stat. § 767.451(2)(a), (2m), (3), (4), (4m)
6 Wis. Stat. § 767.451(3r)
Do both parents have access to the child's educational and medical records?
Both parents have a right to their children’s school, medical, and dental records. The only exception is when the judge denies a parent any visitation or physical placement with the children – then that parent would not have the right to access the child’s records.1
1 Wis. Stat. § 767.41(7)
If one parent is deployed by the military, how will that affect the custody order?
If either parent is a service member in the military, and the service member has been or will be called to active duty in the U.S. armed forces, the judge can modify an order of physical placement based on this. However, the order will state that immediately upon the service member’s discharge or release from active duty, the order will go back to how it was before the parent left for military duty.1
1 Wis. Stat. § 767.451(3m)
