Joint legal custody is presumed in the child’s best interests under § 767.41(2)(am). If the court finds by a preponderance that a party engaged in a qualifying pattern or serious incident of statutory interspousal battery or domestic abuse, § 767.41(2)(d) instead creates a rebuttable presumption against joint or sole legal custody for that party. Rebuttal requires a preponderance of evidence that the party successfully completed batterer treatment through a certified program or provider, is not abusing alcohol or any other drug, and that an award to that party is in the child’s best interests under the statutory factors. If both parties qualify, the presumption concerns the primary physical aggressor determined under (d)2–3; it does not apply if neither was the primary physical aggressor. Subdivision (d)3 governs the case where only one party has the specified domestic-abuse conviction.
Irretrievable breakdown. After a hearing or qualifying affidavit under § 767.235(1)(b), the court must find breakdown if both parties state it under oath or affirmation, or if the parties voluntarily lived apart continuously for at least 12 months immediately before commencement and one party has so stated. If that separation period is absent and only one party makes the sworn or affirmed statement, the court must consider all relevant factors. It must find breakdown if there is no reasonable prospect of reconciliation; otherwise it must continue the matter for 30 to 60 days, or as soon thereafter as the calendar permits, and may suggest or order counseling. At the adjourned hearing, either party’s sworn or affirmed statement requires a determination whether the marriage is irretrievably broken (§ 767.315(1)).
Authority
Wis. Stat. § 767.315 ; § 767.335
Grounds without a misconduct showing
Irretrievable breakdown. After a hearing or qualifying affidavit under § 767.235(1)(b), the court must find breakdown if both parties state it under oath or affirmation, or if the parties voluntarily lived apart continuously for at least 12 months immediately before commencement and one party has so stated. If that separation period is absent and only one party makes the sworn or affirmed statement, the court must consider all relevant factors. It must find breakdown if there is no reasonable prospect of reconciliation; otherwise it must continue the matter for 30 to 60 days, or as soon thereafter as the calendar permits, and may suggest or order counseling. At the adjourned hearing, either party’s sworn or affirmed statement requires a determination whether the marriage is irretrievably broken (§ 767.315(1)).
Other grounds and proof conditions
None (0)
Separation
No separation period is required when both parties state irretrievable breakdown under oath or affirmation. If they voluntarily lived apart continuously for at least 12 months immediately before commencement, one party’s sworn or affirmed statement suffices for the finding under § 767.315(1)(a), subject to the hearing or qualifying-affidavit procedure. Section 767.315 does not expressly address living under one roof.
Timing
120 days after service or filing a joint petition under § 767.335, subject to the statutory exception. 2025 Act 40 provides a qualifying affidavit disposition procedure, not a new ground for divorce.
Relief without dissolution
Yes, subject to § 767.35. Legal separation can involve the irretrievable-breakdown finding under § 767.35(1)(b)1. Section 767.315(2) also provides a distinct marital-relationship-is-broken finding when both parties so state under oath or affirmation, after a hearing or qualifying affidavit under § 767.235(1)(b).
The mover ordinarily bears the burden. Statutory presumptions favor relocation where the objector has not significantly exercised placement or the move relates to abuse.
Authority
Wis. Stat. 767.481
Court test
general best-interest factors (no relocation-specific list)
Burden classification
burden on the relocating parent
Notice classification
yes
Trigger classification
mileage threshold
Effect of silence
yes, qualified
What the court weighs
At the final hearing: (a) if the move only minimally changes or does not change the placement schedule, the court shall approve it and set transport arrangements. (b) otherwise the court applies the § 767.41(5) best-interest factors plus (i) a presumption to approve the relocating parent's plan if the objecting parent has not significantly exercised court-ordered placement and (ii) a presumption to approve if the relocation is related to child abuse, a pattern or serious incident of interspousal battery, or domestic abuse. (c) if the objecting parent files a responsive motion for a substantial placement change or a custody change, the same factors apply plus a presumption against transferring custody or residence to a parent who significantly failed to exercise placement. (e) if the relocation motion is withdrawn or denied, the court proceeds on the objecting parent's responsive motion under § 767.451. All decided in the best interest of the child. § 767.481(4)
Who carries the burden
Movant bears the burden in a contested relocation motion and any related modification motion, except where a presumption applies, in which case the objecting parent must show the plan is not in the child's best interest. § 767.481(4)(d)
Notice and safety exceptions
Yes, in two forms. (1) If both parents have court-ordered physical placement and one intends to relocate and reside with the child 100 driving miles or more from the other, that parent must file a motion for permission with a relocation plan (date, municipality and state, reason, any proposed new schedule, transportation-cost allocation), any request for a change in legal custody, a notice that the other parent must object no later than 5 days before the initial hearing, and a court objection form. (2) If the parents already live more than 100 driving miles apart, written notice at least 60 days before the move stating the date and new address. Separate duty to notify before removing the child from the residence for more than 14 consecutive days. During a pending action, relocating more than 100 driving miles without consent or a court order is barred (§ 767.117(1)(c)). § 767.481(1), (6)
Which moves trigger the rule
One parent intends to relocate and reside with the child 100 driving miles or more from the other parent, where both parents have court-ordered placement. 'Driving miles' means actual distance by road (2025 Wis. Act 81). Applies to cases commenced on or after April 5, 2018, and older cases modified on or after that date. Older cases otherwise keep the 2015 rules. § 767.481(1)(a), (7). § 767.001(1fm)
Objections and the effect of silence
Initial hearing within 30 days of the motion. The child may not be relocated pending it. Objection and any alternate proposal due no later than 5 days before the initial hearing. If the other parent was properly served and does not appear or does not object, the court approves the plan unless it finds the plan not in the child's best interest. If the parent objects, further proceedings follow (mediation referral, guardian ad litem, final hearing). Silence leads to approval subject to a best-interest check. § 767.481(2)
The modification threshold
No for a § 767.481 relocation motion. A competing modification under § 767.451 needs a substantial change of circumstances (and within two years of judgment, a showing of harmful conditions). A move may be considered on a separate modification motion (Hughes v. Hughes, 223 Wis. 2d 111, 588 N.W.2d 346 (Ct. App. 1998), decided under former §§ 767.325 and 767.327).
Other qualifications
Court permission by motion is required before moving 100 or more driving miles when both parents have placement, and the child may not move before the initial hearing. Abuse-related relocations carry a statutory presumption for the relocating parent. Military: none found in the text read.
Important qualification
The mover ordinarily bears the burden. Statutory presumptions favor relocation where the objector has not significantly exercised placement or the move relates to abuse.
Burden summary
Usually the mover. Presumptions favor the move for abuse-related relocation or substantially unexercised placement.
Notice summary
60 days if parents already live over 100 driving miles apart; separate motion route
