Custody

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)