Section 767.471. Enforcement of physical placement orders.

 

(1)   Definitions. In this section:

(a) “Moving party" means the parent filing a motion under this section, regardless of whether that parent was the petitioner in the action in which periods of physical placement were awarded under s. 767.41 .

(b) “Responding party" means the parent upon whom a motion under this section is served, regardless of whether that parent was the respondent in the action in which periods of physical placement were awarded under s. 767.41 .

(2)   Who may file. A parent who has been awarded periods of physical placement under s. 767.41 may file a motion under sub. (3) if any of the following applies:

(a) The parent has had one or more periods of physical placement denied by the other parent.

(b) The parent has had one or more periods of physical placement substantially interfered with by the other parent.

(c) The parent has incurred a financial loss or expenses as a result of the other parent's intentional failure to exercise one or more periods of physical placement under an order allocating specific times for the exercise of periods of physical placement.

(3)   Motion.

(a) The motion shall allege facts sufficient to show the following:

1. The name of the moving party and that the moving party has been awarded periods of physical placement.

2. The name of the responding party.

3. That one or more of the criteria in sub. (2) apply.

(b) The motion shall request the imposition of a remedy or any combination of remedies under sub. (5) (b) and (c) . This paragraph does not prohibit a court from imposing a remedy under sub. (5) (b) or (c) if the remedy was not requested in the motion.

(c) A court shall accept any legible motion for an order under this section.

(d) The motion shall be filed under the principal action under which the periods of physical placement were awarded.

(e) A motion under this section is a motion for remedial sanction for purposes of s. 785.03 (1) (a) .

(4)   Service on responding party; response. Upon the filing of a motion under sub. (3) , the moving party shall serve a copy of the motion upon the responding party by personal service in the same manner as a summons is served under s. 801.11 . The responding party may respond to the motion either in writing before or at the hearing under sub. (5) (a) or orally at that hearing.

(5)   Hearing; remedies.

(a) The court shall hold a hearing on the motion no later than 30 days after the motion has been served, unless the time is extended by mutual agreement of the parties or upon the motion of a guardian ad litem and the approval of the court. The court may, on its own motion or the motion of any party, order that a guardian ad litem be appointed for the child prior to the hearing.

(b) If at the conclusion of the hearing the court finds that the responding party has intentionally and unreasonably denied the moving party one or more periods of physical placement or that the responding party has intentionally and unreasonably interfered with one or more of the moving party's periods of physical placement, the court:

1. Shall do all of the following:

a. Issue an order granting additional periods of physical placement to replace those denied or interfered with.

b. Award the moving party a reasonable amount for the cost of maintaining an action under this section and for attorney fees.

2. May do one or more of the following:

a. If the underlying order or judgment relating to periods of physical placement does not provide for specific times for the exercise of periods of physical placement, issue an order specifying the times for the exercise of periods of physical placement.

b. Find the responding party in contempt of court under ch. 785 .

c. Grant an injunction ordering the responding party to strictly comply with the judgment or order relating to the award of physical placement. In determining whether to issue an injunction, the court shall consider whether alternative remedies requested by the moving party would be as effective in obtaining compliance with the order or judgment relating to physical placement.

(c) If at the conclusion of the hearing the court finds that the moving party has incurred a financial loss or expenses as a result of the responding party's failure, intentionally and unreasonably and without adequate notice to the moving party, to exercise one or more periods of physical placement under an order allocating specific times for the exercise of periods of physical placement, the court may issue an order requiring the responding party to pay to the moving party a sum of money sufficient to compensate the moving party for the financial loss or expenses.

(d) Except as provided in par. (b) 1. a. and 2. a. , the court may not modify an order of legal custody or physical placement in an action under this section.

(e) An injunction issued under par. (b) 2. c. is effective according to its terms for the period of time that the moving party requests, but not more than 2 years.

(6)   Enforcement assistance.

(a) If an injunction is issued under sub. (5) (b) 2. c. , upon request by the moving party the court shall order the sheriff to assist the moving party in executing or serving the injunction.

(b) Within 24 hours after a request by the moving party, the clerk of the circuit court shall send a copy of an injunction issued under sub. (5) (b) 2. c. to the sheriff or to any other local law enforcement agency that is the central repository for orders and that has jurisdiction over the responding party's residence. If the responding party does not reside in this state, the clerk shall send a copy of the injunction to the sheriff of the county in which the circuit court is located.

(c) The sheriff or other appropriate local law enforcement agency under par. (b) shall make available to other law enforcement agencies, through a verification system, information on the existence and status of any injunction issued under sub. (5) (b) 2. c. The information need not be maintained after the injunction is no longer in effect.

(8)   Penalty. Whoever intentionally violates an injunction issued under sub. (5) (b) 2. c. is guilty of a Class I felony.

1999 a. 9 ; 2001 a. 61 , 109 ; 2005 a. 443 s. 100 ; Stats. 2005 s. 767.471.

Note

2005 Wis. Act 443 contains explanatory notes. Microsoft Windows NT 6.1.7601 Service Pack 1 A successful party in a proceeding under this section is entitled to recover the guardian ad litem fees attributable to him or her as part of the cost of maintaining an action under sub. (5) (b) 1. b, insuring that the full cost of enforcing physical placement rights falls on the interfering parent, not on the aggrieved parent. Under s. 767.045 (6) [now s. 767.407 (6)], a circuit court may allocate guardian ad litem fees between the parties when it makes a finding that a respondent has intentionally and unreasonably denied physical placement or interfered with the petitioner's periods of physical placement. When it makes one or both of those findings, the court must then award the petitioner whatever amount it has allocated to the petitioner. Bernier v. Bernier, 2006 WI App 2 , 288 Wis. 2d 743 , 709 N.W.2d 453 , 04-0625 . Microsoft Windows NT 6.1.7601 Service Pack 1 The award “of a reasonable amount for the cost of maintaining an action under this section and for attorney fees" under sub. (5) (b) is mandatory. Sub. (5) (b) does not require that documentation of attorney fees must be received into the evidentiary record of a hearing on the merits of a petition filed under that section in order for a court to make an award of attorney fees. Other cases establish that it is common practice for parties to litigate the amount of attorney fees in proceedings that follow a court's determination of the substantive issues. Borreson v. Yunto, 2006 WI App 63 , 292 Wis. 2d 231 , 713 N.W.2d 656 , 05-0190 . Microsoft Windows NT 6.1.7601 Service Pack 1 A parent cannot delegate physical placement rights to another in his or her absence. Thus a father could not seek to enforce his physical placement with his son by transferring that placement to his current spouse. Lubinski v. Lubinski, 2008 WI App 151 , 314 Wis. 2d 395 , 761 N.W.2d 676 , 07-1701 . Microsoft Windows NT 6.1.7601 Service Pack 1 Wisconsin's Custody, Placement and Paternity Reform Legislation. Walther. Wis.Law. April 2000. Microsoft Windows NT 6.1.7601 Service Pack 1