Statutory Updates in Family Law, Part III
Recently, the Wisconsin Legislature adopted several new statutes related to family law. This is the third installment of those legislative changes, and the adoption of the Uniform Deployed Custody and Visitation Act is one of the more substantive additions to this series.
2021 Wisconsin Act 161, or the Uniform Deployed Custody and Visitation Act, is a piece of Uniform Law Commission Legislation (hereafter, “Code”), which is currently enacted in 14 states.[i] Effective March 13, 2022, in Wisconsin, it created a process and standards for temporary delegation of custodial responsibilities when a parent is deployed to military service.
Prior to the enactment, parents could execute a Power of Attorney for temporary delegation of parental powers for the care and custody of a child to a different adult when a parent or parents were deployed. However, Wisconsin Courts had previously held that a Court did not have the authority to delegate a servicemember’s periods of physical custody to another person without the other parent’s agreement.[ii]
The Code clarifies who qualifies as a deployed parent, as well as the meaning of deployment, the latter being defined as a servicemember who is deployed “for more than thirty days but less than eighteen months in accordance with service orders that are designated as unaccompanied, do not authorize dependent travel, or otherwise do not permit the movement of a child to a location to which the servicemember is deployed.”[iii] The Code defines service as an individual in (1) the U.S. Armed forces, including any reserve component; (2) the national guard of any state; (3) the merchant marine; (4) the commissioned corps of the U.S. Public Health Services; or (5) the commissioned corps of the National oceanic and atmospheric Administration.[iv]
The Code specifies the deployed parent must provide notice of the deployment to the other parent within seven days or as soon as reasonably possible.[v] However, the Code is silent on the definition of reasonableness. Deployed parents will very often receive informal notice of potential deployments in advance of receiving actual orders for deployment. Moving forward, an issue for Courts will ultimately be what notification from the deployed parent triggers the statutory notification deadline.
In addition to the notification requirement, the deploying and non-deploying parents are required to provide one another with a plan for fulfilling their respective shares of responsibility during the deployment.[vi] Again, the Code states that each parent “shall provide the plan as soon as reasonably possible after the deploying parent gives notification of the deployment,” but the Code fails to define reasonableness. The Code also specifies this exchange of proposed parental responsibility should be made “in a record.” The Code defines record as “information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.” Ideally, parties could utilize the statutory Proposed Parenting Plan form to meet this statutory requirement; however, the current Code is silent on the expected methodology for that record.
Subchapter 2 of the Code addresses how agreements in the case of a deployed parent should be made. Foremost, it requires the agreements to be in writing and signed by both parents, as well as any nonparent to whom custodial responsibility is granted.[vii] The agreements, among other things, should address a list of information, including identifying the destination, duration and conditions of deployment, as well as allocating physical placement, specifying the rights of any nonparent, and, interestingly, “if, under the agreement, custodial responsibility is shared by 2 or more individuals, provide a process to resolve any dispute that may arise.”[viii] The Code does specifically clarify that any agreements under this section are “temporary and do not create an independent, continuing right to physical placement, legal custody or visitation for an individual to whom custodial responsibility is given.[ix]
The Code requires an expedited hearing to be held within thirty days of filing.[x] The Court is required to consider prior written agreements between the parties for designating custodial responsibility in the event of a deployment, including an agreement under Subchapter 2, “unless the court finds that the agreement is contrary to the best interest of the child.”[xi] Best interests of a child is referenced under Wis. Stat. § 767.41(5).
The Court has the authority to grant physical placement to a nonparent, “who is an adult family member of the child or an adult who has maintained a parent-child relationship with the child,” provided the Court finds it in the best interests of the child.[xii] A nonparent’s placement time, unless agreed upon by the non-deployment parent, is limited to one of the following: (1) the same amount of legal custody or physical placement time the deployed parent was awarded under an order, except the Court may accommodate the time necessary to transport the child to the deployment parent’s time; and (2) if there is no existing order on legal custody or physical placement, then the same amount of time the deployed parent generally cared for the child prior to the deployment. Again, however, the Court may add additional time to the deployment parent’s time to account for time necessary to transport the child.[xiii] The Court’s order requirements do not create a continuing right to placement for a nonparent.[xiv] The Temporary Order terminates under one of the following 4 scenarios: (1) for a deployment six months or less, the order expires when the deployment parent returns home; (2) for a deployment in excess of six months, the order terminates 30 days after the deployment parent returns home; (3) if the deployed parent, the other parent, or the nonparent makes a request to terminate the order; and (4) the order expires on the date set forth in the parties’ agreement.[xv] The Temporary Orders under this Act, much like the agreements set forth in Subchapter 2 of the statute, requires the Court to include specific items in its orders, including identifying destination, custodial responsibility, physical placement of the child, clarifying the custodial responsibility of a third party, providing a methodology of dispute involving the third party, and allowing for liberal communication between the deployment parent and child, both when the deployment parent is one leave, as well as via electronic communications.[xvi]
The effective date of this Act applies to all deploying parents who receive notice of deployment on March 13, 2022.
[i] North Dakota, South Dakota, Nebraska, Nevada, Utah, Colorado, Minnesota, Iowa, Arkansas, Tennessee, West Virginia, South Carolina, North Carolina, and Florida.
[ii] Lubinski v. Lubinski, 2008 WI App 151, 314, Wis.2d 395, 761 N.W.2d 676.
[iii] Wis. Stat. § 324.05 (1).
[iv] Wis. Stat. § 324.02 (16).
[v] Wis. Stat. § 324.05 (1)
[vi] Wis. Stat. § 324.05(2).
[vii] Wis. Stat. § 324.21 (2).
[viii] Wis. Stat. § 324.21 (3).
[ix] Wis. Stat. § 324.22 (1).
[x] Wis. Stat. § 324.32.
[xi] Wis. Stat. § 324.34(2).
[xii] Wis. Stat. §324.35(1).
[xiii] Id. at (2)(a) and (b).
[xiv] Wis. Stat. § 324.37.
[xv] Wis. Stat. § 324.37.
[xvi] Wis. Stat. § 324.38.
