Known generally as “Motions to Enforce,” Wis. Stat. section 767.471 provides a fast track to a hearing to enforce the physical placement order in effect in a family law action. Section 767.471 – formerly Wis. Stat. section 767.242 – was enacted as part of the Appropriations and Executive Budget Bill of 1999.

It is helpful to understand that motions to enforce are extraordinary motions. They carry with them specific procedural rules that are unique in family law, and, when filed, should get the immediate attention of the parties, their attorneys, and the court.

Reasonable or Not

If a parent who has been awarded physical placement of their child has either been denied placement or has had one or more periods of physical placement interfered with by the other parent, or has incurred a financial loss as a result of the other parent’s failure to exercise placement, that parent has the option to file a motion under section 767.471 to enforce the current placement order.¹

If filed, under Wis. Stat. section 767.471(5)(b) the movant must prove that the other parent “intentionally and unreasonably” interfered with their periods of physical placement or caused the moving party to incur a financial loss as a result of failure to exercise placement.

These elements are important. Most acts are intentional; the reasonableness of the other parent’s actions is usually the point of contention in these motions. What one court considers reasonable another might find patently unreasonable. Refusing to deliver a 3-year-old child for placement when they refuse to go, for example, is quite different from not sending a 17-year-old youth for placement when they express the same reluctance.

Reasonableness is driven by a multitude of factors that usually require detailed explanation, through testimony, to the court.

Timing Is Everything

It is important to remember that motions to enforce must be heard within 30 days of service on the other parent.

There is no provision in section 767.471 for a court to sua sponte adjourn the hearing. If your client is out of town – too bad. You’re going on vacation – sorry. Section 767.471(5) states that the only ways that the hearing can be adjourned are by mutual agreement of the parties or upon motion of the guardian ad litem, with court approval.

Assembling evidence, subpoenaing witnesses, and preparing your client for testimony in less than 30 days will tax even the most efficient practice. Any unforeseen circumstances can easily result in your client walking into a hearing for which they are unprepared, and which could ultimately lead to felony criminal charges (under section 767.471(8)) for violating an injunction issued under section 767.471(5)(b)(2)(c), which is a Class I felony and carries a fine not to exceed $10,000 or imprisonment not to exceed three and a half years, or both.

Putting the Personal Back into Personal Service

The 30 day time limit runs from the time of personal service. Section 767.471(4) could not be more clear: the moving party shall serve a copy of the motion on the responding party by personal service in the same manner as a summons is served under section 801.11.

Service through the eFiling system on the party’s attorney or by mail is not good enough. Personal service on the other parent is required for a motion to enforce.

Guardian ad Litem’s Fast Investigations

Within this limited timeframe and prior to the hearing, the court may, on its own motion or on the motion of a party, appoint a guardian ad litem for the child.

A common practice is for a court to set an initial hearing within 14 days or so of a filing of a motion to enforce, and at that hearing appoint a guardian ad litem for the child, calculate when the 30 days expires, and set another date 14 or so days down the road for a dispositive hearing on the motion.

This timing is important. Failing to hold the hearing within 30 days of service arguably deprives the court of competence to decide the motion, and will result in the motion being dismissed.

Under this timeline, the guardian ad litem will have to complete an investigation and make recommendations to the parties and the court expeditiously.

Potential Remedies

In exchange for this tight timeframe, motions brought under section 767.471 offer remedies not otherwise available under Wisconsin law.

If a court finds that a party has intentionally and unreasonably acted in violation of the relevant provisions of the placement order, a court shall issue an order granting additional periods of physical placement to replace those denied or interfered with and award the moving party reasonable attorney fees and costs.

Additionally, the court may modify the underlying order to provide a definite placement schedule if the order did not specify one, find the other parent in contempt under chapter 785, or issue a two year injunction, the violation of which can result in criminal charges as described above.

These remedies are serious and provide significant relief to the moving parent. Additionally, on a practicable level, the order to enforce should serve as a warning to the other parent that future violation of the physical placement will have serious consequences – up to imprisonment.

A Better Option?

While the remedies under section 767.471 are extensive, many times a similar result for clients can be obtained under an order to show cause for contempt, filed under chapter 785, without the additional burden of the expedited procedure of a motion to enforce.

Howard v. Howard² tells us that a finding of remedial contempt requires only that a court find that a party has willingly and intentionally and without legal justification violated an order of the court.

Providing evidence that an act was done “willingly and intentionally” is much different from proving that the same act was done “intentionally and unreasonably,” especially when dealing with issues involving children and placement.

Furthermore, Howard also stands for the proposition that once a prima facie showing has been made that the other parent has committed contemptuous behavior, the burden of proof shifts to the offending parent to provide evidence that they should not be held in contempt. Many times, this shifting burden will drive settlement and, most importantly, compliance with the underlying order.

While not having the force of a possible injunction, remedial contempt provides many of the same remedies as does a motion to enforce without the additional procedural burdens unique to section 767.471.

Speed versus Ease

There are some placement issues that arise in family cases that require swift, decisive action to resolve. The withholding of placement can certainly be one of these. Sometimes, a quick hearing within 30 days is what is required to enforce the client’s rights under the order and correct the actions of the other parent and Wis. Stat. section 767.471 provides a mechanism for this relief.

However, many situations do not require this type of speedy action. Many issues related to placement are not time sensitive. In those cases, remedial contempt filed under chapter 785 provides the party with similar relief and without the additional requirements associated with a motion to enforce.

This article was originally published on the State Bar of Wisconsin’s Family Law Section Blog. Visit the State Bar sections or the Family Law Section web pages to learn more about the benefits of section membership.

Endnotes

¹ Of course, an Order to Show Cause for Contempt under Wis. Stat. chapter 785 is another option on the table, and sometimes a straightforward contempt is a better option, as we shall soon see.

² Howard v. Howard, 269 Wis. 2d 334, 69 N.W.2d 493 (1955).