What is the 2-year rule and how does it affect my custody and placement case?

You have just finished a contested hearing before the Judge and a ruling has been entered as to Custody and Placement. You are unhappy with that ruling, and unfortunately, your ability to appeal the judgment has lapsed.

Being in this situation can be frustrating, especially when you believe that you should have more parenting time with your child.  Here in Wisconsin, the ability to revise your legal custody and placement orders are protected by the 2-year rule, which is designed to allow for a cooling off period.  This prohibits parties from coming back to court to litigate issues that are usually ruled on during the conclusion of a divorce or establishment of paternity case.

As is the case with general rules, there are also exceptions.  Pursuant to 767.451(1)(a) of the Wisconsin Statutes, a motion may be brought within the 2-year time frame.  To do so, a party must provide, through “substantial” evidence, that the current conditions are physically or emotionally harmful to the child’s best interests.

A motion may also be brought pursuant to 767.451(2).  Under this statute, if the parties have equal time periods of placement, but a situation has arisen where it has now become impossible to continue with equal placement, a motion may be filed and a court may amend orders if it serves the child’s best interests. Situations where parenting orders become impossible to continue are defined by either the relocation or the incarceration of a party.

In addition, the statutes have carved out yet another exception, which can be found under 767.451(2m).  Under this statute, a court may “at any time” modify an order of physical placement if the parent has repeatedly or unreasonably failed to exercise their parenting time.  This parenting time must have been allocated from a previous order of physical placement.

When considering the 2-year rule, parties may find themselves not fully understanding when a motion may or may not be brought and for what purpose.  The following will help to summarize the rule and to further provide meaningful understanding:

• Bringing a motion to modify a custody and placement order is prohibited under Wisconsin law for 2-years from the time the final order is issued.

• If you can establish that substantial or extraordinary circumstances exist, whereby the child is affected emotionally or physically, you can file a motion within that 2-year timeframe.

• If you cannot meet this higher burden, then your case could be dismissed; or the court could stay your motion (place it on hold) until the 2-years have expired.

• Despite the 2-year rule, you may have alternatives.  However, those alternatives rely heavily on a case-by-case basis.

• You may file a motion to modify other parts of your parenting plan or final orders within the 2-year period so long as it does not substantially affect or change the current periods of placement.

• The 2-year rule begins from the final order or judgment being issued.

• The parties can always stipulate to modify their existing orders without a showing of substantial circumstances.

Trying to provide substantial evidence of a child suffering emotionally or physically can be a daunting task. At J.G. Law we encourage you to reach out to discuss your case.  We will be open with you about the strength of your case and whether or not the facts and circumstances allow for the filing of a motion.

For further questions or to schedule a free consultation on the 2-year rule, call us today at (920) 383-1116.