Do you ever read a statute looking for a straightforward answer – only to be left more confused?

My favorite legal exercise is when a particular statute directs you to a different statute which then directs you to yet another statute. Do you remember diagraming sentences in grade school? Perhaps I just showed my age, but I do my own version of diagramming to try and understand many of the statutes we use in family law practice.

Wis. Stat. section 767.451 is no exception. To write this article, I got out my legal pad and drew out the statutory language to make sure I really understood what a moving party needed to show and when they needed to show it in order to modify a custody and placement order.

How Long Does the Harm Standard Apply?

By the time I mapped it out, I started questioning myself as to when the harm standard applied. Wis. Stat. section 767.451(1)(a) reads:

Within 2 years after final judgment. Except as provided under sub. (2), a court may not modify any of the following orders before 2 years after the final judgment determining legal custody or physical placement is entered under s. 767.41 unless a part seeking modification … shows by substantial evidence that the modification is necessary because the current custodial conditions are physically or emotionally harmful to the best interest of the child.

The next subsection goes on to direct what a moving party needs to prove to change an order beyond the two-year period.

I remember reading this statute as a new lawyer and thinking the language was obvious: Within two years of the first custody and placement order, you must show something really bad is happening – i.e., physically or emotionally harmful – to substantially change an order.

It wasn’t until I heard other attorneys claim that this statute meant that you had to show harm any time you tried to change custody and placement within two years of any order regarding custody and placement, that my head started to spin.

I don’t think that argument is correct, and here is why.

A Short History of Section 767.451

The legislative history of this statute is extremely helpful. 1987 Wis. Act 355 drastically changed several statutes regarding custody and placement in Wisconsin.

Prior to this bill, a moving party only needed to show – by substantial evidence – that a change was necessary to the best interest of the child. This bill added heightened language as to the standard that needed to be met to change custody and placement.

The bill also added what we commonly refer to as the “two-year rule.” That new statute, Wis. Stat. section 767.32, read nearly identical to today’s current statute except that it states, “Within 2 years after initial order” and then goes on to state that a court may not modify “before 2 years after the initial order” unless the moving party shows by substantial evidence that the current custodial conditions are physically or emotionally harmful to the best interest of the child.

Section 767.32 was eventually amended and renumbered by 2005 Wis. Act. 443 section 160 as Wis. Stat. section 767.451. This bill struck “initial order” language and replaced it with “final judgment determining custody and placement.” A foot note in the bill specifically states that “[n]o substantive change in current law is intended.”

Conclusion: The Heightened Standard Only Applies in the First Two Years

So what does this all mean? In my opinion, the history is clear that the legislature intended that this heightened standard only applies within two years of the very first final order.

A review of relevant case law addressing this also makes it clear that the legislature intended to provide families with a truce period for children and parents to adjust to the new family dynamics. ¹

Ultimately, at the end of the day, the physical and emotional harm standard only applies to substantial modifications sought within two years of the initial (final) order regarding custody and placement. Those cases are far and few in between.

After that two-year period has passed, the harm standard falls away, and the moving party only needs to show that a modification is in the best interest of the children and that there has been a substantial change since the last order regarding custody and placement.

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.

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