In 2018 the Legislative Council established a study committee to address potential changes to child support and the notion of presumed equal placement. The committee, consisting of several lawyers, a judge, a court commissioner, a domestic violence organization advocate, two public representatives, and five legislators, held five listening sessions over five months and voted to move forward 12 measures. Although many of the bills dealt with issues that were tangentially related to the original charge of the committee, the committee eventually voted to introduce 11 bills and file one petition with the Wisconsin Supreme Court (to consider a change to the provisions concerning continuing legal education (CLE) requirements for guardians ad litem (GALs)).

The legislature last made significant changes to Wisconsin’s custody and placement laws in 1999. Then, it adopted a presumption of joint legal custody, added language to the placement statute that requires courts to “maximize” time with a child and parent, added new factors to consider in establishing custody and placement orders, and introduced the requirement of parenting plans.

Summaries of the current measures, and the case for or against the actions, follow.

AB-093: Uniform Deployed Parents Custody and Visitation Act

This bill adopts the Uniform Deployed Parents Custody and Visitation Act (UDPCVA), created by the Uniform Law Commission. The bill provides a process and standard for temporary delegation of custodial responsibilities when a parent is deployed, in the military, or in other national service.

Under current law, courts do not have authority to delegate a service member’s allocation of physical placement periods to another person without the other parent’s agreement.¹ This bill preserves current provisions pertaining to the determination or revision of a legal custody or physical placement order between the parents but creates a new standard for temporary arrangements with another person during a parent’s deployment. It also outlines how to create a temporary delegation of custodial responsibilities during deployment, including 1) a temporary agreement between the parents, and 2) a temporary court order following a hearing.

Pro: The UDPCVA has been adopted by 13 states. However, the remaining states apply different substantive law and court procedures from one another when physical placement and legal custody issues arise because of a parent’s deployment or military service. Because of the mobile nature of military service, it is possible two states might be involved in these disputes. The bill conforms with the UDPCVA, helping clarify jurisdictional litigation. The bill sets forth the requirements for a parent’s stipulation during deployment and addresses expected procedures for temporary custody and placement during deployment. The bill also preserves the relationship between the child and the deployed parent’s family members when doing so is in the child’s best interest.

Con: The study committee discussed three concerns regarding this potential bill: 1) The bill provides for placement of a minor child with a nonparent relative or step-parent even though there is a fit parent. Under the current state of the law as to third-party visitation, when a fit parent exists, there are particular criteria and steps that must be met and a relatively high burden for a non-parent third party to seek visitation (not placement) of a minor child. This bill would presume that it is in the best interests of the child for a third party designated by a deploying parent to, essentially, step in and temporarily exercise the deploying parent’s placement schedule, bypassing the requirements outlined in Wis. Stat. section 767.43 (or Wis. Stat. section 54.56).

2) If the deploying parent were to return from active duty with a serious impairment or injury (such as head trauma) or were to suffer from post-traumatic stress disorder (PTSD) or another related post-deployment brain disorder, and the other parent were not made aware of this disability, the child might be at risk.

3) The bill would extend time with the placement designee to account for unusual transportation. For example, if the parents live in Madison, and the designee lives in Eau Claire, the placement of the deploying parent could be designated with the third party in Eau Claire and placement time extended by four hours on the front and back end of the placement to account for travel.

AB-094: Reducing Child Support Payments During Incarceration

The bill creates a new process and standards for considering incarceration² during an initial child support determination and for suspending a current child support obligation during an obligated parent’s incarceration. The bill would amend Wis. Stat. sections 767.511(1m)(hs) and 767.553(4)(c)2.

Currently, under federal regulations, a parent’s incarceration cannot be considered voluntary unemployment for purposes of determining or revising child support. The Wisconsin Supreme Court has stated that incarceration is a change in circumstance that is sufficient to allow a court to review a child support order, and that an incarcerated parent is not automatically entitled to a reduction in child support.³ This new legislation, by contrast, would prohibit the court from considering a parent’s incarceration as voluntary unemployment in considering the parent’s earning capacity. If certain conditions are met, a current child support obligation is automatically suspended, and no arrears accrue on the suspended current obligation while a parent who is obligated to pay child support is incarcerated.

To be eligible for a suspension of a current child support obligation during incarceration, the following conditions must apply:

• The parent is sentenced to incarceration for more than 180 days, not including time served.

• The parent does not have income or assets from which child support could be collected.

• The other parent was not the victim of the crime for which the person is incarcerated.

• The parent is not incarcerated for a crime against a child.

• The parent is not incarcerated for nonpayment of child support.

When processing the suspension, the bill requires the Department of Children and Families (DCF) or a child support agency to provide notice of the suspension to both parents.

By allowing parents to agree to changes in physical placement by certain benchmarks, the legislation may help reduce future litigation.

Pro: The overriding benefit to this bill is that it would prevent incarcerated parents from facing collateral consequences of their conviction when they are least able to address the issue. The committee was presented with testimony from Mana Garcia and Daniel Meyer, with the UW-Madison Institute for Research on Poverty, who cited a 2017 study of the Milwaukee Run Project, which found suggestive evidence of improved child support outcomes in the project when payors’ child support obligations were reduced.

The national trend has shown significant concerns upon an incarcerated payor’s release from prison and return to the community with a substantial child support arrears balance. The concerns include reducing the likelihood of the payor’s formal employment, increasing recidivism, and reducing long-term child support compliance. Federal law has been revised to prohibit states from specifying that incarceration cannot be used as a reason to modify child support. This statutory revision would provide consistency between federal child support guidelines and state law.

Con: The primary concern with this bill is in regard to its “optics.” That is, it seems to be overly generous to people who have been convicted of a serious violation of the law to the extent that the trial court has determined that the person needs to be removed from society for a relatively significant time in order to protect the public. The bill limits its applicability to offenses not involving the custodial parent, the minor child, or a conviction for nonpayment of support. However, it fails to properly recognize the fact that the person has intentionally (or recklessly) broken the law, and due to the nature of the offense, the severity of the conduct, or the offender’s prior record, was sentenced to a term of incarceration of six months or longer.

Finally, the bill might be hard to sell to constituents who think it is soft on crime or criminals. Tangentially, although there is a financial benefit for the DCF to remove inactive or uncollectible cases, such as those involving incarcerated parents, from its system, due to the current efficiencies of the DCF, the state will not realize a significant increase in federal funds when such cases are closed.

AB-095: Contingency Placement

Under current law, a court cannot enter placement or custody orders based on the future occurrence of a contingent condition, such as the child entering school, a parent being released from incarceration, or a parent completing a substance-use-disorder treatment program. This bill would limit the use of contingent orders to events that would conclude within two years of the order. The legislation still prohibits contingent changes in placement based on behavioral conditions (that is, complete batterer’s group or AODA treatment), and is limited to soon-to-be-released “nonviolent” inmates. This bill was previously introduced last session and failed to pass.

Pro: This proposal would allow parents and the court, by stipulation, to address foreseeable changes in a child’s life, such as a child’s aging or commencing school, while still balancing potential issues raised in domestic abuse cases. The legislation is particularly helpful for parents of young children who are trying to make placement agreements within the constraints of Wis. Stat. section 767.451 presumptions. By allowing parents to agree to changes in physical placement by certain benchmarks, the legislation may help reduce future litigation.

Con: In Koeller v. Koeller, the appellate court, in reversing the circuit court’s contingent placement order, noted the circuit court’s inability with such orders “to assess the effect of historical and present factors upon the child's well-being in order to determine the type of custodial arrangement that will best serve his or her interest.”⁴ Nothing in this bill will eliminate the concern raised in Koeller regarding the ability to assess the best interests of the child when the contingency occurs.

AB-096: Child Support Calculations

Currently Wis. Admin. Code chapter DCF 150 sets forth shared-placement child support guidelines as one of special circumstances.⁵ Child support orders under Wis. Admin. Code section DCF 150.03 still use the percentage standard with one parent having primary physical placement of the child or children. This proposed legislation does not change the manner of calculating child support and the applicable formulas. The bill would simply move the shared-placement formula into a new section of DCF rules and would be listed first. The legislation specifies that the designated percentage that applies in a nonshared physical placement arrangement applies only if the conditions for the shared placement do not apply. Designated percentage is defined under Wis. Admin. Code chapter DCF 150 guidelines as the applicable percentage of a parent’s monthly income or adjusted monthly income that is available for child support.

Pro: While not a substantive change per se, this legislation streamlines the Wis. Admin. Code chapter DCF 150 guidelines and reflects the frequency in which the shared physical placement formula is used.

Con: The fear from some is that the courts may presume that shared placement is the preferred placement in that it is now the recognized focal point for establishing support. By emphasizing that “shared placement,” in one form or another, is the rule, as it pertains to the calculation of child support, whereas a dollar amount based solely on the guidelines percentage is the exception, courts may unintentionally, or intentionally, presume that “shared” placement is the norm as well.

AB-097: Recognizing Cooperation of Both Parents

Under current law, a court’s physical placement schedule must order that a child have the maximum amount of physical placement with each parent. This bill would add a general statement that the court’s allocation of physical placement presumes that the involvement and cooperation of both parents is in the best interest of the child.

Pro: The inclusion of the additional language would clarify for judges and parties alike that parents’ cooperation and involvement with their children is important. During committee meetings, there was testimony regarding a trend of shared-placement arrangements in Wisconsin. While this bill does not mandate equal placement as a presumption, it does reflect the state’s move toward shared-placement schedules.

Con: The language that “any allocation of physical placement, as ordered by the court, presumes that the involvement and cooperation of both parents regarding the physical, mental, and emotional well-being of the child is in the best interest of the child” suggests to the court that parents must cooperate and that noncooperation may be held against that parent. This language is especially troublesome in situations in which domestic violence or abuse between the parties exists to the extent that cooperation would not be in the best interest of the victim of the abuse or potentially in the best interest of the child.

AB-098: Placement Factors

This bill aims to create additional statutes relating to the best interest of the child. This bill adds to the standard that applies in determining or revising a physical placement schedule that the maximum involvement and cooperation of both parents is presumed to be in a child’s best interest.

Under current law, a court must set a physical placement schedule that allows a child to have regularly occurring, meaningful periods of physical placement and that maximizes the amount of time for a child with each parent. Furthermore, this standard does not require equal placement for a child with both parents. Rather, the physical placement schedule must be determined by the court based on the best-interest factors.

The proposed rules would ensure that new GALs, who often are new lawyers, have a foundation in domestic violence-related training and dynamics before their first appointment.

Pro: During the committee process, several variations of statutory placement bills were introduced. Many of the drafts can be viewed at https://docs.legis.wisconsin.gov/misc/lc/study/2018/1785. Ultimately, the chairs of the committee suggested there would likely not be sufficient support among all the stakeholders to obtain a consensus on any one draft of legislation. This bill, however, was supported by all but one committee member. The bill, even with the additional language, preserves the current intent of Wis. Stat. section 767.41 by maintaining the child’s best interest as the determining factor in legal custody and physical placement orders.

Con: 1) The rearranging of the factors, as well as the language changes, suggests a hierarchical importance of the factors to the detriment of the factors that are listed at or near the end of the list. 2) The requirement that the court commissioner or circuit court judge enter written findings explaining the basis of the placement order if placement of at least 25 percent is not granted to one parent might suggest to judges and court commissioners that they must order at least 25 percent placement to one parent. 3) Other than rearranging the factors, and making a few changes in language, the bill does not meaningfully alter Wis. Stat. section 767.41(5), thus suggesting that a modification of the current statute is unnecessary.

AB-099: Use of Proposed Parenting Plans

Under current law, in any action affecting the family in which legal custody or physical placement is contested, the parties must each file a parenting plan with the court within 60 days of the mediation waiver or notice by the mediator of an impasse in mediation with the parties.

Under this bill, the parties are directed to participate in an initial mediation session to exchange – either electronically or in person – proposed parenting plans and to submit these proposals to the family court services office or the assigned mediator at least 10 days before the initial mediation session. Also, the plan must include specific details regarding proposed variable costs that are expected to be incurred by or on behalf of the child. The bill retains the current law’s separate requirement for the parties to each file a parenting plan with the court if no agreement was reached in mediation or if mediation was waived.

Pro: The committee heard testimony from lawyers and mediators that courts find parenting plans helpful in narrowing and identifying specific legal custody and physical placement issues, particularly when the parties are self-represented. While Wis. Stat. section 767.41(1m) currently requires the filing of a parenting plan in an annulment, divorce, legal separation, or paternity action, the general consensus among committee members and in additional testimony is that parenting plans are not used, despite the forms being widely available to lawyers and the public. This legislation would streamline the parenting plan process and would encourage litigants and judges to use the form.

Con: Although there were no true “cons” to this proposed bill, the study committee debated the need for a bill that simply restated current law as to the use of parenting plans. There was a concern that the bill might be read as requiring parents to cooperate when developing parenting plans in situations when mediation has failed, even though there might be domestic violence or similar abuse in the relationship.

AB-100: Judicial Notice of CCAP and Clerk of Court Records

This bill would create a new statute allowing a court in a family law action to take judicial notice of certain court records relating to domestic violence or child abuse, which is currently not permitted.⁶

This bill specifically states that in family law actions in which the parties have a minor child, a court may take judicial notice of records available in the Consolidated Court Automation Programs (CCAP), for certain convictions and restraining orders between the parties. The court may take judicial notice regarding the following records:

• A parent’s conviction for a crime that is subject to the statutory domestic abuse surcharge and is committed against the other parent.

• A parent’s conviction for a crime that is committed against a child of the parties.

• An injunction issued against a parent if the other parent requested the injunction, for a domestic abuse or harassment restraining order.

Pro: This bill will allow judges and court commissioners to admit CCAP records into evidence. The legislation will potentially help to reduce costs for litigants who otherwise may need to obtain certified copies of these records. Specifically, for self-represented litigants, it will allow the court to review these records when the party may not know or understand the relevance of domestic violence to legal custody and physical placement determinations.

Con: At the April 11, 2019, public hearing, representatives of End Domestic Abuse raised the following concerns regarding this proposal: 1) The absence of an actual conviction of domestic violence does not mean domestic violence is not present. 2) Even if judges or court commissioners review the record, they might think that separation will end the abuse. 3) Victims of domestic violence may have been wrongly convicted of domestic violence. 4) There is no outlined process in the proposed legislation to ensure notice applies only to specific crimes.

At the same hearing, Comm. Fremgen (a coauthor of this article) testified in support of the legislation, as both a member of the Joint Legislative Committee and on behalf of the State Bar of Wisconsin Family Law Section.

Since the testimony at the April 11, 2019, committee hearing on the bill, End Domestic Abuse Wisconsin has offered an amendment to the bill; however, the amendment would modify the language in Wis. Stat. section 767.41(12m) to include language to the effect that a court may not necessarily consider the lack of evidence of a criminal conviction or restraining order as evidence that domestic abuse does not exist.

AB-101: Eliminating Family Support

This bill would repeal Wis. Stat. section 767.225(1)(e) and thereby eliminate family support going forward. This bill provides that no new family support orders may be issued beginning on the bill’s effective date. Family support orders issued before the bill’s effective date would remain in effect. A public hearing occurred on this bill on April 11, 2019.

Pro: The passage of the 2017 Tax Cuts and Jobs Act eliminated the tax deductibility of maintenance payments in judgments ordered after Dec. 31, 2018. This legislation is, in short, a procedural change. It does not represent a substantive change in law. A public hearing occurred on this bill on April 11, 2019, before the Ways and Means Committee.

Con: Although the current tax code does not recognize a benefit for persons paying maintenance (with some minor exceptions), and, similarly, for those ordered to pay “family support” (that is, a combined maintenance and child support order), it is just as possible that a new regime in two years or further legislative study of the effect of the Tax Cuts and Jobs Act may result in changes that revert back to allowing payers of maintenance the ability to claim such payments as a tax deduction. Because of this possibility, there is no harm in leaving the family support provisions in the statute.

AB-102: Child Support Military Exclusion

The Wisconsin Administrative Code currently defines gross income for the purposes of calculating child support to include military allowances and veteran’s disability compensation benefits. This bill would amend Wis. Admin. Code chapter DCF 150 to specify that gross income includes veterans’ disability compensation benefits and military basic allowances for subsistence and housing but does not include variable housing costs.

Pro: The bill is intended to recognize the inequity in requiring service members to include in gross income for purposes of child support the variable housing cost, over and above the basic allowance for subsistence, when the service member is stationed at a base, temporarily as his or her duty requires, where there is a discernible higher cost of living. The bill does not remove from the child support equation the general allowance for subsistence and housing. According to the DCF, such a change will affect only a handful of families in Wisconsin.

Con: The exclusion of the variable housing expense for service members is an arbitrary distinction not afforded other child support payors who may have significant housing allowances or per diems from an employer that are not, as a rule, excluded from gross income. A rule change for the variable housing is not necessary since this bill will have a very limited applicability; any deviations from child support calculations for these variable housing costs can be addressed by the court on a case-by-case basis.

AB-103: Eliminating the Limitation of Reimbursement of Birth Costs by Fathers in Intact Relationships

State and federal laws currently require child support services to be provided when a child receives medical assistance benefits. An individual must assign any rights to medical support from any person to the state of Wisconsin as a condition of eligibility for receiving medical assistance benefits. In practice, individuals who receive medical assistance benefits are referred to the local child support agency. The agency then determines whether child support services will be provided to establish paternity and financial obligations, including medical support obligations.

Wisconsin law currently provides that if the mother was receiving medical assistance benefits at the time of the child’s birth, the birthing costs paid to the health maintenance organization (HMO) can be recovered by the state. The majority of the birth recovery costs are returned to the Wisconsin Medical Assistance Program, but approximately 15 percent of those funds are routed to local child support agencies as an incentive payment. In July 2018, following the quadrennial child support review, the administrative rules regarding birth recovery costs were revised. Under these revisions, recovery from a father is prohibited if the family is intact when paternity and support are established.⁷ The administrative rule changes became effective July 1, 2018.

Pro: The obvious pro to this legislation is the continued funding of the state’s medical assistance program and county child support offices. The committee heard testimony from Deb Barnes, director of the La Crosse County Child Support Agency, and Brent Vreunk, director of the Wood County Child Support Agency.

Con: Eliminating the most recent change to Wis. Admin. Code chapter DCF 150, a change that exempts fathers in intact families from reimbursing medical assistance (Badger Care), will serve only to harm families in that the family, as a whole, mother and child included, will suffer if money is removed from the household to reimburse the state for a portion of the birth costs.

Supreme Court Petition on Guardian ad Litem Continuing Legal Education

In addition to proposing legislation, the committee made a recommendation relating to the education of GALs on the issue of domestic abuse. A supreme court petition would be required to modify the existing rule requirements. Currently Wis. Stat. chapter 767 requires that to serve as a GAL, lawyers must receive six hours of CLE per each reporting period.⁸ The current supreme court rules require that three of those required hours be related to the following:

• Proceedings under Wis. Stat. chapter 767;

• Child development and the effects of conflict and divorce on children;

• Mental health issues in divorcing families;

• The dynamics and impact of family violence; and

• Sensitivity to various religious backgrounds, racial and ethnic heritages, and issues of cultural and socioeconomic diversity.

If a petition is filed, it would ask the Wisconsin Supreme Court to enter an order amending the supreme court rules to require new GALs to complete three of the first six CLE hours on the dynamics and impact of family violence and at least one hour on domestic violence-related education for any later years the lawyer intends to accept GAL appointments in family law matters.

Pro: The proposed rules would ensure that new GALs, who often are new lawyers, have had a foundation in domestic violence-related training and dynamics before their first appointment as GAL. Because this is an issue that might be either raised by a party or identified by the GAL, clarifying the GAL educational requirements for new GALs will help to address domestic violence awareness. Likewise, the requirement for ongoing education in this area for GALs ensures that all GALs, experienced or not, will continue to receive training in this area.

Con: The current rule provides sufficient descriptive language regarding the various CLE programs that a GAL must take during each reporting period to adequately include domestic violence awareness. Further, the issue is not so much that GALs need to include domestic violence awareness in their continuing legal education but that such programs be made available by the State Bar of Wisconsin or another entity that offers GAL training.

Conclusion

The Legislative Council Study Committee’s 11 legislative proposals have been filed in the Assembly, introduced, and assigned to committees, and public hearings on the family law bills have been held. The bills await legislative action.

Endnotes

¹ Lubinski v. Lubinski, 2008 WI App 151, 314 Wis. 2d 395, 761 N.W.2d 676.

² In this bill, “incarcerated” means a person is confined in a jail, prison, Huber facility, or other house of correction.

³ See Rottscheit v. Dumler, 2003 WI 62, 262 Wis. 2d 292, 664 N.W.2d 525.

⁴ Koeller v. Koeller, 195 Wis. 2d 660, 667, 536 N.W.2d 216 (Ct. App. 1995).

⁵ Wis. Admin. Code § 150.04.

⁶ State of Wisconsin v. Bonds, 2006 WI 83, 292 Wis. 2d 344, 717 N.W.2d 133.

⁷ Wis. Admin. Code § 150.05(2)(a).

⁸ SCR 35.015.