Military members and their spouses should be aware of the following Wisconsin statutes and cases that could have an affect on child custody and placement disputes:

1. Wisconsin Statutes 767.41(2)(e) and (5)(c): ” If a party is a service member, the court may not consider as a factor in determining the legal custody of a child whether the service member has been or may be called to active duty in the U.S. armed forces and consequently is, or in the future will be or may be, absent from the service member’s home.” A “service member” in this statute is defined only as a member of the National Guard or Reserves.

The purpose of this statute is to prevent a National Guardsman or Reservist from losing legal custody due to his/her past or future callup to active duty. Note that this statute does not apply to active duty servicemembers. At first glance, it may seem strange to exclude active duty. However, if a servicemember is deployed overseas, for example, and cannot provide care for a child, the court must be able to account for that reality.

2. Wisconsin Statutes 767.41(4)(a)2: “The court shall set a placement schedule that allows the child to have regularly occurring, meaningful periods of physical placement with each parent and that maximizes the amount of time the child may spend with each parent, taking into account geographic separation and accommodations for different households.”

The reasoning for this statute regarding physical placement is similar to the one above regarding custody. The Court must address the reality of a military parent who is transferred to another state or deployed, to ensure that the child is adequately cared for.

3. Wisconsin Statutes 757.451(3m): If a court modifies an order of “physical placement on the basis that the service member has been or will be called to active duty in the U.S. armed forces . . . the court shall require in the order that the allocation of periods of physical placement and, if applicable, the physical placement schedule that were in effect before the modification are reinstated immediately upon the service member’s discharge or release from active duty.”

This rule does not require that the servicemember’s placement resume the exact schedule upon release from active duty, but does require that the percentage of placement between the parents match the percentage from before the callup.

4. Wisconsin Statutes 767.43: allows for a non-parent to request “visitation” with a child. While this statute is not specifically related to servicemembers, it may permit a deployed member’s parents or significant other to obtain court-ordered visitation with the member’s child. The non-parent must demonstrate a close, parent-like relationship, and overcome a possible objection from the other parent. However, if a servicemember is deployed for a long period, this may be a means of maintaining the child’s contact with a close grandparent or stepparent in the servicemember’s absence.

The case Lubinski v. Lubinski, from the Wisconsin Court of Appeals, clearly indicated that a servicemember may not simply delegate his/her placement of the child to a stepparent when called to active duty. The Court noted that the stepparent’s correct method to spend time with the child was a request for visitation.

Attorney David Kowalski routinely handles military divorces for both servicemembers and their spouses. Contact him at 608-709-5000 with any questions.