Over the last several years, the Wisconsin Legislature, in the wake of the 2018 Joint Legislative Council Study Committee on Child Placement and Support, several new legislative initiatives were introduced. The COVID-19 pandemic delayed the passage of many of these bills, but several passed in the 2020-2021 Legislative Session. Many of these statutes are procedures, codifying and streamlining practice for attorneys, litigants and the Courts, but many are also substantive law changes. This is Part I of a three-part statutory update relating to the new family law statutes.
2021 Act 36: Requiring Submission of Parenting Plans in Mediation
Wisconsin 2021 Act 36, effective May 23, 2021, requires parents with legal custody and physical placement disputes to submit parenting plans to the mediator at least 10 days prior to the initial mediation session.[i] The goal of this statutory change was to ensure both parents and the Court had a clear idea of a parent’s position prior to mediation in order to effectuate settlement more efficiently.
2021 Act 37: Establishing Required Findings; Reorganizing Best Interest Factors
Pursuant to Wisconsin 2021 Act 37, beginning December 1, 2021, if a court awards less than 25% of the placement time to a parent, the Judge must make specific factual findings as to the reason that greater periods of physical placement are not in the best interests of the child.[ii] The measure also provided for reorganization, but not substantive modification, to the best interest factors in Wis. Stat. § 767.41(5). The purpose of this statute is to reflect family court’s migration to more shared physical placement arrangements for children in divorces or paternity cases.
2021 Act 169: Creating Uniformity as to Court Commissioner Authority in Divorce and Legal Separation Cases
2021 Act 169, which was enacted on March 11, 2022, and published on March 12, 2022, addresses the authority of Court Commissioners to preside over legal separations. Wis. Stat. § 767.69 addresses the power and duties of Court Commissioners. Previously, Wis. Stat. § 767.69(1) permitted Court Commissioners to preside over divorces, but the statute was silent on legal separations. 2021 Act 169 now allows Court Commissioners to preside over any hearing to determine whether a divorce and legal separation may be granted. 2021 Act 169 took effect on March 13, 2022. This modification will help expedite the legal separations process in Wisconsin.
2021 Act 205: Providing Uniformity in ‘De Novo’ Procedures Across Wisconsin
2021 Wisconsin Act 205 addresses procedures for de novo review in family court actions, specifically creating uniform rules throughout the State for de novo review. Wis. Stat. § 767.17 previously permitted de novo review of a Court Commissioner decision, but it did not dictate specific time limits or rules relating to those de novo requests. Instead, it was left to the discretion of each individual jurisdiction. Many counties throughout the State of Wisconsin created de novo rules through their local court rules, but just as many counties did not have any rules. Likewise, the counties that implemented de novo deadlines through local court rules were inconsistent in both their timelines and rules requirements.
2021 Wisconsin Act 205 permits parties to file de novo reviews, provided a party was present at a hearing. Likewise, the revised statute excludes stipulations between parties from de novo review and specifies that a de novo request will not stay the Court Commissioner’s order unless a stay is specifically granted. The revisions also require that a de novo request be filed as follows: (1) within 20 calendar days of the oral decision of the Court Commissioner; or (2) within 20 calendar days of the mailing of a written decision or the order by the Court Commissioner if the decision or order was not given orally at the time of the hearing. The statute’s specification of calendar days requires that calendar days are counted consecutively and include both weekends and holidays. The Act also requires the Court to hold a hearing on the de novo request within 60 days from the date of the filing of the motion, except in relocation cases, in which Wis. Stat. § 767.481 procedure would dictate timelines. These new provisions became effective March 20, 2022 and provide the state family courts with uniformity in addressing de novo requests.
[i] Wis. Stat. § 767.405(8); § 767.41(1m).
[ii] Wis. Stat. § 767.225 (1) (am)