Until recent legislation was passed, courts could not enter custody or placement orders based on a contingent condition which would occur in the future. Even when predictable events would occur, such as a child reaching school age, parents could not agree in advance on which school the child would attend. Instead, they had to hope they could agree upon the selection of a school shortly before the decision had to be made. If they could not, one or the other would have to file a motion to modify the existing order, causing what might have been unnecessary litigation.

Courts have consistently ruled that nothing in Wisconsin’s Family Code gives courts the authority to make custody or placement orders contingent upon an anticipated or future event. See Koeller v. Koeller, 195 Wis. 2d 660, 536 N.W.2d 216 (1995). For example, if parents of a small child divorced and they wanted to agree to a change when the child was no longer breast feeding or when a parent moved closer, that the courts would either refuse to make it into an order or refuse to enforce it at the time the change occurred. The rationale for the rule was to protect the court’s ability to assess the effect of historical and present factors upon a child’s well-being in order to determine whether the agreed upon or proposed modification of custody or placement was in their child’s best interest. In other words, the rationale was that if other factors changed too then the court needed to look at it all and determine the best interest of the children when the change happened. However, this constrained families for anticipated and real changes that were going to occur soon and in which other intervening factors were less likely. In the spring of 2021, the legislature responded to frustrations with the rule from parents and family law attorneys by making some changes to the law.

Parents can agree to modify existing custody and placement orders “upon the occurrence of a specified future event that is reasonably certain to occur within 2 years of the date of the stipulation”. A “specified future event” is an identifiable event, such as when a child will begin a new grade level in school. “Reasonably certain to occur within 2 years” limits the time period in which the modifications can occur. A court may not approve terms in an agreement based upon an “anticipated behavior modification of a party”, such as completing an anger management class, or drug or alcohol treatment or therapy, or a term of incarceration, extended supervision, parole, or probation.

Because the new statutory language focuses on the agreements of the parties, a court does not have the authority to modify a custody or placement order based upon contingent future events at the request of one parent over the objection of the other.

Requiring the specified event to occur within 2 years limits the range of future planning parents can do that can be included in their custody and placement order. For example, if one parent has a terminal illness, and wants terms for his/her parents and siblings to see the children approved by a court before he/she dies, could the “reasonably certain to occur within 2 years” requirement be satisfied if the ailing parent’s treating physician confirmed the prognosis or would the timing of the death be too uncertain?

You and the other parent can plan further into the future if a specific event is reasonably likely to occur within the next 2 years. It is likely the interpretation of the new language by courts will increasingly provide insights into the parameters of how parents can exercise their rights. The legislature may be willing to expand the scope of these provisions if the impact of the 2021 changes is positively utilized by parents.

Contact Amy Shapiro If You Have Questions About the New Legislation and Its Potential Impact for You.