How Do Wisconsin Courts Decide Relocation Requests?

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What courts consider when evaluating relocation motions and disputes between parents.

Congratulations! Your company just offered you the opportunity to start a higher-paying position in a new city. After some research, you discover that moving to this city would not only increase your wage, but also provide your child with a better education and superior athletic programs. This is a once in a lifetime opportunity. There’s just one problem…you are divorced and have no idea how to go about relocating with your child.

After reading this blog on the Wisconsin Relocation Statute, you learn that your situation requires you to file a motion to relocate. However, some questions remain unanswered: What factors does the court consider when deciding a relocation request? How does the court handle oppositions to relocation requests?

In this week’s blog, we will answer these questions in depth. If you are facing a similar situation, be sure to check out our previous relocation blog. This blog will help you first determine whether or not your move actually requires you to file a motion—not all relocation cases do! 

Standards For Deciding Relocation Motions

If the proposed relocation only minimally changes or affects the current placement schedule or does not affect or change the current placement schedule, the court shall approve the proposed relocation. If necessary, the court may also set a new placement schedule and allocate the costs of and responsibility for transportation of the child between the parties.

In cases where there may be significant changes or effects, the court applies the following presumptions (under Wis. Stat. § 767.41 (5)):

1. A presumption that the court should approve the proposed relocation plan if the objecting parent has not significantly exercised court-ordered physical placement.

2. A presumption that the court should approve the relocation plan if the court determines that the parent’s relocation is related to:

What if the other parent files a motion opposing the move?

If the objecting parent files a responsive motion that seeks a substantial change in physical placement or a change in legal custody, the court shall use the following factors (under Wis. Stat. §. 767.41 (5)):

1. A presumption against transferring legal custody or the residence of the child to a parent who the court determines has significantly failed to exercise court-ordered physical placement.

2. A presumption that the court should approve the plan of the parent proposing the relocation if the court determines that the parent’s relocation is related to:

    3. The court shall decide all contested relocation motions and all related motions for modification of legal custody or physical placement in the best interest of the child.

    The Burden of Proof

    When involved in a legal dispute, you may hear the term “burden of proof.” This is defined as the legal obligation of a party to provide enough evidence to support their claim or argument. In a contested relocation motion or a related motion for modification of legal custody or physical placement, the relocating party bears the burden of proof. However, if child abuse or interspousal battery is involved, the relocating party would no longer bear the burden of proof. In those cases, the parent objecting to the relocation shall have the burden of proof in demonstrating the proposed relocation is not in the child’s best interest.

    What if the parent requesting relocation decides NOT to move after the other parent files a responsive motion?

    If the objecting parent files a responsive motion that seeks a substantial change in physical placement or legal custody, the court may consider that request even if the relocating parent withdraws, fails to pursue, or is denied their relocation. The court will then proceed on the objecting parent’s responsive motion under Wis. Stat. 767.451.

    What if both parents agree from the beginning?

    If both parents agree with the relocation, they can work together to establish a new custody and placement agreement, rather than having the court decide on the issue. In legal terms, this is called stipulation—a formal agreement made between the two parties.

    Why Do Relocation Decisions Matter For Parents and Children?

    The court prefers consistency in placement orders. If a parent wants to move with the child, the court is often concerned with where the child will attend school, whether the move is required for employment and why the parent chose to move. The court weighs whether the relocating party’s reason for moving and changing the child’s school is in their best interests.

    Often parents may cite that they wish to relocate because of family ties. In general, having the parents in close proximity to the child is of greater importance than extended family members.

    Final Thoughts

    Relocation cases are very fact specific. If either party does not closely follow the statutory procedure when requesting or objecting to a relocation, their parental and custodial rights could be jeopardized. 

    If you have any additional questions or would like to learn more about your options, we invite you to contact HKK Law Offices. Our attorneys are available to meet by phone, video conference, or in person at our offices in Sheboygan, Mequon, and Random Lake. For more educational family law and estate planning content, check out our TikTok, YouTube, Instagram, Facebook, and LinkedIn platforms. 

    Disclaimer: This article is provided for general educational purposes only and should not be considered legal advice. Reading this article does not create an attorney-client relationship. Because every situation involves unique facts and circumstances, you should consult a qualified attorney regarding your specific legal needs.

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