The exchange was supposed to happen at six on Friday. At five-forty the text arrives: he has a cold, this weekend is not going to work, we will make it up. The same thing happened three weeks ago. It is now the fourth missed weekend of the year, and each one has been explained by something reasonable-sounding and unverifiable.
Most parents in this position do one of two things. They let it go, because fighting about it seems worse for the child than missing a weekend. Or they retaliate — they hold the child back the following weekend, or stop a support payment, or start building a file for a custody fight. All three are mistakes, and the third is the expensive one.
Wisconsin has a statute written for exactly this problem. It is not a custody motion, it is not a contempt motion in the ordinary sense, and most people have never heard of it.
Section 767.471 is its own proceeding
Wis. Stat. § 767.471 is titled “Enforcement of physical placement orders,” and it does something the general contempt power does not: it tells the court what it must do when it finds that placement was denied.
Under § 767.471 (2), a parent who has been awarded periods of physical placement under § 767.41 may file a motion if any of three things has happened. The parent has had one or more periods of placement denied by the other parent. The parent has had one or more periods substantially interfered with. Or the parent has incurred a financial loss or expenses because the other parent intentionally failed to exercise placement under an order allocating specific times — the mirror-image problem, which we come to below.
Note who this remedy belongs to: a parent awarded placement under § 767.41. The section is written for parents holding a placement order, not for every adult with a relationship to the child. If the underlying dispute is about legal custody rather than placement — about decision-making rather than time — this is the wrong tool, and our explanation of the difference between legal custody and physical placement in Wisconsin is where to start.
The filing requirements are deliberately low
The legislature appears to have anticipated that many of these motions would be filed by people without lawyers, and it built the section accordingly.
Section 767.471 (3) (a) requires the motion to allege the moving party’s name and that the moving party has been awarded placement, the responding party’s name, and that one or more of the criteria in sub. (2) applies. That is all. Paragraph (c) then says, flatly, that a court “shall accept any legible motion for an order under this section.” The motion is filed under the principal action — the existing divorce or paternity case — rather than as a new suit, under par. (d).
Service is the one formality that matters. Under sub. (4), the moving party must serve the motion on the other parent by personal service, in the same manner as a summons under § 801.11. Mail is not enough. The responding party may then answer in writing before or at the hearing, or simply orally at the hearing.
And the clock is short. Section 767.471 (5) (a) requires the court to hold a hearing no later than 30 days after the motion has been served, unless the parties mutually agree to extend it or a guardian ad litem moves to extend and the court approves. The court may also appoint a guardian ad litem for the child before the hearing, on its own motion or a party’s.
What the court must do, and what it may do
This is the heart of the statute, and the distinction between the two lists is the reason to use it.
If, at the conclusion of the hearing, the court finds that the responding party intentionally and unreasonably denied or interfered with one or more periods of placement, then under § 767.471 (5) (b) 1. the court shall do both of the following: issue an order granting additional periods of physical placement to replace those denied or interfered with, and award the moving party a reasonable amount for the cost of maintaining the action and for attorney fees.
Make-up time and fees are not discretionary. The court of appeals has said so directly about the money: the award of a reasonable amount for the cost of maintaining an action under this section and for attorney fees is mandatory. Borreson v. Yunto, 2006 WI App 63. And the cost recoverable includes the guardian ad litem fees attributable to the moving party, so that the full cost of enforcing placement rights falls on the interfering parent rather than the aggrieved one. Bernier v. Bernier, 2006 WI App 2.
Both words in the finding do real work. The conduct must be intentional, and it must be unreasonable. A parent who genuinely could not deliver the child because the child was hospitalized has not intentionally and unreasonably denied placement. A parent who has produced four unverifiable colds in a year is in a different position, which is why the record matters more than the rhetoric.
On top of the mandatory remedies, sub. (5) (b) 2. gives the court three discretionary tools. If the underlying judgment does not set specific times for placement, the court may issue an order that does — frequently the most valuable outcome in the whole proceeding, because vague orders are what make interference deniable. The court may find the responding party in contempt under ch. 785. And the court may grant an injunction ordering strict compliance with the placement order, though in deciding whether to do so it must consider whether the alternative remedies the moving party requested would be as effective.
Where contempt actually fits
Contempt is the remedy everyone reaches for first and understands least. Two points make the rest of it comprehensible.
First, § 767.471 (3) (e) provides that a motion under the placement-enforcement section is a motion for a remedial sanction for purposes of § 785.03 (1) (a). The two tracks are not alternatives to be chosen between; the enforcement motion carries the contempt machinery with it.
Second, Wisconsin divides contempt sanctions by purpose, not by severity. Under § 785.01 (3), a remedial sanction is one imposed to terminate a continuing contempt. Under § 785.01 (2), a punitive sanction is one imposed to punish a past contempt in order to uphold the authority of the court. Contempt itself is defined by § 785.01 (1) (b) to include intentional disobedience, resistance, or obstruction of the authority, process, or order of a court — and an order need not contain the word “injunction” to be enforceable this way; an order requiring specific conduct can be enforced by contempt. Carney v. CNH Health & Welfare Plan, 2007 WI App 205.
The practical difference is who brings it. A remedial sanction is sought by the aggrieved person, by motion in the underlying case, and imposed after notice and a hearing under § 785.03 (1) (a). A punitive sanction is a different animal: under § 785.03 (1) (b) it is sought by the district attorney, the attorney general, or a court-appointed special prosecutor, by complaint, and processed under chs. 967 to 973 — the criminal procedure chapters. A private litigant does not get punitive contempt by asking for it.
The remedial menu at § 785.04 (1) is broader than most people expect: payment of a sum sufficient to compensate a party for a loss or injury suffered as a result of the contempt; imprisonment, for contempts of the § 785.01 (1) (b) type, extending only so long as the person is committing the contempt or six months, whichever is shorter; a forfeiture not to exceed $2,000 for each day the contempt continues; an order designed to ensure compliance with a prior order; and any other sanction, if the court expressly finds the listed ones would be ineffectual. Attorney fees and litigation costs are recoverable under the compensation provision. Town of Seymour v. City of Eau Claire, 112 Wis. 2d 313 (Ct. App. 1983).
Because a remedial sanction exists to end a continuing contempt, it must be purgeable — the contemnor must be able to comply and end it. The purge conditions must be within the contemnor’s power and reasonably related to the cause or nature of the contempt. Larsen v. Larsen, 159 Wis. 2d 672 (Ct. App. 1990). And where liberty is at stake, the contemnor must be given an opportunity to show that the failure to comply with the purge conditions was not willful and intentional. V.J.H. v. C.A.B., 163 Wis. 2d 833 (Ct. App. 1991).
The injunction, and the felony behind it
The injunction under § 767.471 (5) (b) 2. c. is the section’s hard edge, and it is worth understanding before requesting it.
It runs for the period the moving party requests, but not more than two years, under sub. (5) (e). On request, the court orders the sheriff to assist in executing or serving it, under sub. (6) (a), and within 24 hours of a request the clerk sends a copy to the sheriff or to the local law enforcement agency that serves as the central repository for orders in the responding party’s area, under sub. (6) (b) — where it becomes available to other agencies through a verification system under (6) (c).
And under § 767.471 (8), whoever intentionally violates an injunction issued under sub. (5) (b) 2. c. is guilty of a Class I felony, which carries under § 939.50 (3) (i) a fine not to exceed $10,000 or imprisonment not to exceed three years and six months, or both. A placement dispute that began with a missed Friday can end as a felony file. That is a reason to request the injunction in the right case and a reason not to request it reflexively.
What this proceeding cannot do
Section 767.471 (5) (d) is explicit: except for the make-up time under (5) (b) 1. a. and the order specifying times under (5) (b) 2. a., the court may not modify an order of legal custody or physical placement in an action under this section.
This surprises people, and it is the single most common strategic error in these cases. The enforcement motion is not a back door to a placement change. A parent who wants more time, or who believes the other parent’s conduct has made the current arrangement unworkable, is asking for a modification — a different motion, a different standard, and, within the first two years after the final judgment, a considerably harder one. Our article on modifying a custody or placement order in Wisconsin sets out that standard. The two motions can be brought, but they should be brought knowingly, and a judge who suspects the enforcement motion is a modification in costume will say so.
One more limit, from the case law rather than the text: a parent cannot delegate placement rights to someone else in the parent’s absence. A father could not enforce his placement by transferring it to his current spouse. Lubinski v. Lubinski, 2008 WI App 151.
The mirror image: the parent who does not show up
The statute also reaches the opposite failure, and this is the part almost nobody knows about.
Under § 767.471 (5) (c), if the court finds that the moving party incurred a financial loss or expenses because the responding party failed — intentionally and unreasonably and without adequate notice — to exercise one or more periods of placement under an order allocating specific times, the court may order the responding party to pay a sum sufficient to compensate for that loss.
The parent who declines a job shift, pays for childcare, or cancels a trip on the strength of a placement schedule that the other parent then ignores has a remedy. Note the qualifier that carries the weight: the order must allocate specific times. A schedule described as “reasonable placement as the parties agree” gives the court very little to work with here, which is another argument for having specific times in the order in the first place.
What actually works
Three things, in order of how much difference they make.
Keep a contemporaneous record, and keep it boring. A calendar noting the date, the scheduled exchange time, what was said, and what happened is worth more than any amount of argument at the hearing. Save the texts. Do not edit them, do not curate them, and do not write any of them for an audience — the tone of the messages is itself evidence, and a parent who has been baiting the other in writing will find that out in open court.
Fix the order before you enforce it. A great many enforcement problems are ambiguity problems. If the judgment says “alternating weekends” without defining the start and end times, the exchange location, or what happens when a holiday lands on a weekend, then both parents can behave badly while believing themselves compliant. The remedy at § 767.471 (5) (b) 2. a. exists precisely to convert vague orders into specific ones, and it is often the most durable thing a court can do.
Do not self-help. Withholding the child in return, or withholding support, converts a case in which one parent has a clean record of interference into a case in which the court is looking at two parents behaving badly. The mandatory remedies in sub. (5) (b) 1. depend on a finding against the other parent. Do not give the court a reason to make one against you.
A note on scope: a contempt based on interference with visitation rights granted under § 48.925 (1) — a different statute from placement awarded under § 767.41 — may not be punished by imprisonment at all, under § 785.05. Which visitation or placement order is being enforced changes the remedies available, and it is worth knowing which one you actually hold before filing.
Talk to a New Berlin family law attorney
Placement orders are worth what they can be enforced for. Wisconsin gives a parent whose time has been denied a fast, cheap, mandatory-remedy proceeding — a 30-day hearing, make-up time that the court has no discretion to withhold, and fees shifted onto the parent who caused the problem. It is a better tool than most people realize, and it is a considerably better tool than retaliating.
Carson Law Office handles family law matters for clients throughout New Berlin, Waukesha County, Milwaukee, West Allis, Wauwatosa, and the surrounding communities. If your placement time is being denied — or if you have been accused of denying it — call (262) 860-8932 or contact us here. Bring the calendar and the order; those two documents decide most of these cases.
This article provides general information about Wisconsin family law and is not legal advice. Reading it does not create an attorney-client relationship. Statutes and case law change, and the remedies available in any particular case depend on the terms of the order and the facts; for advice about your own situation, speak with a licensed Wisconsin attorney.