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Cases discussing aspects of custody and visitation issues
02/11/86 MARRIAGE JAMES E. LONG v.
KATHLEEN A. LONG Extensive discussion
of removal and custody and visitation.. 2
11/12/86 MARRIAGE LINDA L. ABEL
(FORMERLY JOHNSON) custody and
visitation issues discussed 13
03/08/96 Robert L. Hartzell, v.
Paulette Hartzell, Now P custody
determination, visitation, evaluations 18
05/20/92 MARRIAGE CLAIR WIEDERHOLT
v. BONNIE Some discussion of Parental
Alienation Syndrome 26
Wiederholt: guardian ad litem,
modification of custody.. 29
Stephanie: modification withing 2
year restriction.. 34
Bradford: modification of custody
within 2 year limit.. 42
Brinkman: recent discussion of
modification of custody and child support.. 46
Bascom: childs preference and custody.. 50
Licary: modification of custody
after two year, change of circumstances.. 54
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[1]
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SUPREME
COURT OF WISCONSIN
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[2]
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No.
84-1667
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[3]
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1986.WI.28
<http://www.versuslaw.com>, 381 N.W.2d 350, 127 Wis. 2d 521
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[4]
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February
11, 1986
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[5]
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IN
RE THE MARRIAGE OF: JAMES E. LONG, PETITIONER-RESPONDENT,
v.
KATHLEEN A. LONG, RESPONDENT-APPELLANT-PETITIONER
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[6]
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Review
of an order of the court of appeals. Review of a decision of the Court of
Appeals.
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[7]
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For
the respondent-appellant-petitioner there were briefs by William J. Campbell
and Law Offices of William J. Campbell, Menomonee Falls, and oral argument by
Mr. Campbell.
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[8]
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For
the petitioner-respondent there was a brief by George N. Kotsonis, William E.
Ryan and Law Offices of Chronus and Kotsonis, Milwaukee, and oral argument by
Mr. Ryan.
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[9]
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Shirley
S. Abrahamson, J. Steinmetz, J. Minority OPINION(S)ing. Mr. Justice Louis J.
Ceci joins this Dissenting opinion. Bablitch, J. Dissenting.
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[10]
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The
opinion of the court was delivered by: Abrahamson
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[11]
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This
is a review of an unpublished decision of the court of appeals filed March 7,
1985, summarily affirming an order of the circuit court for Washington
county, J. Tom Merriam, circuit Judge. The circuit court denied Kathleen
Long, the custodial parent, permission to remove the parties' two minor
children from the State of Wisconsin. Because we conclude that the circuit
court abused its discretion by erroneously interpreting sec. 767.245(6),
Stats. 1983-84, the removal statute,
we vacate the order of the circuit court. We reverse the decision of the
court of appeals and remand the case to the circuit court with directions to
enter an order granting Kathleen Long permission to remove the children from
the state and modifying the visitation
arrangement as necessary. *fn1
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[12]
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This removal case stems from the divorce of
Kathleen Long and James Long. The divorce judgment effective as of December
19, 1983, awarded Kathleen Long custody
of the parties' two minor sons and granted James Long reasonable rights of visitation. At the time of the divorce, both
parties lived in Washington county.
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[13]
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In
February 1984, Kathleen Long filed a motion seeking permission to remove the two
children from Washington county to Peoria, Illinois, and requesting
modification of the visitation
arrangement. In an affidavit to support her motion, Kathleen Long stated that
she had been laid off permanently from her Wisconsin job on January 6, 1984,
that she was unemployed, that she believed she could get a job near Peoria,
and that she would "do all in her power to see that the children
continue a good and building relationship with their father." James Long
filed a motion objecting to the removal
of the children from the state because it would decrease his visitation with the children, thereby
frustrating his ability to help raise and nurture his children. *fn2 James Long also requested
the court to transfer custody of the
children to him.
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[14]
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The
circuit court heard both motions on June 22, 1984. It denied the motion to change custody,
concluding that James Long had not met the test for a change of custody as
set out in Gould v. Gould, 116 Wis. 2d 493, 500, 342 N.W.2d 426 (1984). James
Long did not appeal the circuit court's custody
decision. In a memorandum decision dated June 28, 1984, and an order dated
July 30, 1984, the circuit court also denied Kathleen Long's motion for permission
to remove the children. The circuit court stated that the burden was on
Kathleen Long "to satisfy the Court that the children's best interests
would not be impaired by their removal
from the State under the circumstance
in this case." In deciding the case the circuit court "concluded
that the removal from the State . . .
is not in the best interest of the children and that that interest must take
priority over their mother's reasons supporting her request. . . ."
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[15]
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Kathleen
Long appealed the order, arguing that the circuit court had applied the wrong
legal standard. The court of appeals summarily affirmed the circuit court's
order, holding that the circuit court "correctly stated that Kathleen
had to demonstrate that the best interests of the children would not be
impaired by their removal from
Wisconsin." The court of appeals then concluded that the circuit court's
determination that the children's removal
was inconsistent with their best interests was a reasonable exercise of its
discretion.
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[16]
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A removal determination, like a custody determination, is committed to the
sound discretion of the circuit court. Discretionary determinations do not,
however, lie beyond meaningful appellate scrutiny. An appellate court will find
an abuse of discretion when, for example, the circuit court exercises its
discretion on the basis of an error of law. Gould v. Gould, supra, 116 Wis.
2d at 497-98.
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[17]
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The issue
in this case is whether the circuit court erred in its interpretation of sec.
767.245(6), Stats. 1983-84, the statute governing removal in this case. *fn3 Questions of statutory
interpretation are questions of law, and this court need not defer to the
circuit court's interpretation of the statute.
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[18]
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Section
767.245(6), Stats. 1983-84, requires the custodial parent to notify the
parent having visitation rights of the
custodial parent's intention to establish legal residence outside the state.
If the parent having visitation rights
objects, the circuit court may deny the custodial parent permission to remove
if it finds that the proposed removal
is against the best interests of the child. Sec. 767.245(6), Stats. 1983-84,
provides as follows:
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[19]
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"Whenever
the court grants visitation rights to
a parent, it shall order the child's custodian to provide to the parent
having visitation rights 60 days'
notice of the custodian's intention to establish legal residence outside this
state or to remove the child from this state for a period of time exceeding
90 days. Upon motion by the parent having visitation
rights and a finding by the court that it is against the best interests of the
child for the custodian to so remove the child from this state, the court may
deny permission to the custodian. Violation of a court order under this
subsection may be deemed a change of circumstances under s.767.32, allowing the
court to modify the judgment with respect to custody,
child support and visitation rights so
as to permit withholding of a portion of the support payments to defray the
added expense to the parent with visitation
rights of exercising such rights or to modify a custody
order." (Emphasis added.)
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[20]
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Without
citing any statutory authority, the circuit court concluded that the burden
of persuasion was on Kathleen Long "to satisfy the Court that the
children's best interests would not be impaired by their removal from the State under the circumstance in this case."
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[21]
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In
requiring Kathleen Long to meet this burden of persuasion, *fn4 the circuit court appears
to have applied the pre-1984 version of sec. 767.245(6). The pre-1984 version
of sec. 767.245(6) required the custodial parent to obtain either court
approval for removal or the written
permission of the parent with visitation
rights. Section 767.245(6), Stats. 1981-82, which was enacted in 1977,
provided as follows:
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[22]
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"Whenever
the court grants visitation rights to
a parent, it shall order the child's custodian to obtain written approval of
the parent having visitation rights or
permission of the court in order to establish legal residence outside this
state or to remove the child from this state for a period of time exceeding
90 days. Such court permission may be granted only after notice to the parent
having visitation rights and after
opportunity for hearing. Violation of a court order under this subsection may
be deemed a change of circumstances under s. 767.32, allowing the
court to modify the judgment with respect to custody,
child support and visitation rights so
as to permit withholding of a portion of the support payments to defray the
added expense to the parent with visitation
rights of exercising such rights or to modify a custody
order."
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[23]
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The
1984 statute differs from the earlier version in two important respects: (1)
under the 1984 statute, the objecting parent must petition the court to
obtain an order denying removal, and
(2) under the 1984 statute, upon a petition from the objecting parent the
circuit court, in order to deny permission to remove, must make a
"finding . . . that is against the best interests of the child. . .
." Under the earlier version the custodial parent had to seek the
court's permission for removal if the
non-custodial parent did not give written approval. Moreover, the earlier
version set forth no test for the circuit court's use in deciding whether to
grant permission to remove.
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[24]
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In
affirming the circuit court's test for denying permission to remove, the court
of appeals did not refer to either version of sec. 767.245(6) but relied on
Fritschler v. Fritschler, 60 Wis. 2d 283, 208 N.W.2d 336 (1973), which in
turn relied on Peterson v. Peterson, 13 Wis. 2d 26, 108 N.W.2d 126 (1961),
and Whitman v. Whitman, 28 Wis. 2d 50, 135 N.W.2d 835 (1965). This court
decided these three cases before the legislature adopted a statute
specifically governing removal.
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[25]
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In
Peterson, the custodial parent petitioned the trial court to remove the child
from the state. The trial court granted permission. In affirming the trial
court's order, this court adopted what it believed to be the test adopted by
a majority of the courts considering this issue: If the custodial parent has
good reason for moving to another state and such course of action is
consistent with the welfare of the child, the court will permit the removal. Peterson v. Peterson, supra, 13
Wis. 2d at 28.
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[26]
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In
Whitman also, the custodial parent petitioned the trial court for removal. This court affirmed the trial
court's order granting permission and justified removal
for these reasons: "the [custodial mother's] desire to move was for a
proper purpose and beneficial to her, . . . [the proposed removal] was not detrimental to the
children, and . . . under the circumstances
removal . . . would not constitute an
undue burden upon the in exercising his visitation
rights." Whitman v. Whitman, supra, 28 Wis. 2d at 59. Dissenting in
Whitman, Justice Hallows advocated a different test: A custodial parent seeking
to remove a child should have the "burden of proof . . . to show the
well-being of the children will be better served by the removal of the children. . . ." Id. at
62 (Hallows, J., Dissenting).
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[27]
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In
the Fritschler case, a custodial mother petitioned the trial court to remove
the children from the state, but this time the trial court denied the
petition. This court affirmed. Writing for the majority, Justice Hallows
interpreted the Peterson and Whitman cases as adopting the following test: Removal is permitted if it promotes or at
least is consistent with the best interests of the child. Fritschler v.
Fritschler, supra, 60 Wis. 2d at 288, 290. The court found that removal would disrupt visitation and that the best interests of
the children would be served by their remaining in Wisconsin. The trial court
and this court apparently considered the father's visitation rights as the most significant factor. Id. at
289-90. Both courts ignored the impact of the custodial mother's well-being
on the children and refused to consider alternative visitation arrangements.
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[28]
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In
Fritschler, this court concluded that the trial court had not abused its
discretion by refusing to grant the mother permission to move the children to
a state in which she might have had a more promising future. It rejected the
argument that a better life for the custodial mother would indirectly benefit
the children but nevertheless accepted the rationale of a prior case that
what was good for the custodial father's finances and career would indirectly
benefit the children. Id. at 287-89.
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[29]
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Fritschler
is not good authority for interpreting the 1984 statute. As Justices Robert
Hansen and Horace Wilkie recognized in their Dissent in Fritschler, undue
weight was given by the trial court to the professional status and income of
the lawyer-father and insufficient weight to the needs, interests, and job
opportunities of the homemaker-mother. Id. at 292-93 (Hansen, J.,
Dissenting).
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[30]
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Furthermore,
when the court decided Peterson, Whitman and Fritschler, no statute expressly
governed removal. In Peterson, this
court concluded that the same considerations which determine custody of children apply to the question of
removal. Peterson v. Peterson, supra,
13 Wis. 2d at 28. In Whitman, the court applied the statute relating to
revision of the divorce judgment to the question of removal. Whitman v. Whitman, supra, 28 Wis. 2d at 56.
Fritschler relied on these two cases rather than any statute.
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[31]
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The
custodial mother in Fritschler urged the court to hold that "a divorced
parent having custody should be able
to take the children permanently to another state if it is not against their
best interests." Fritschler v. Fritschler, supra, 60 Wis. 2d at 288.
(Emphasis added.) The Fritschler court rejected this test, the very test the
legislature subsequently adopted in the 1984 version of sec. 767.245(6).
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[32]
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We conclude
that the Fritschler, Whitman and Peterson cases are not helpful in
interpreting the 1984 statute, because the 1984 statute changed prior law. By requiring the
non-custodial parent instead of the custodial parent to seek a court order
and by imposing the "against the best interests of the child" test
rather than the tests set forth in Peterson, Whitman, and Fritschler, the
legislature has limited judicial intervention in the custodial parent's
decision to leave the state. The legislature has recognized the custodial
parent's caretaking and family decision-making responsibilities *fn5 and has made it easier
for the custodial parent to remove the children from the state. *fn6 The legislature has
apparently determined that a custodial parent should not be compelled to live
in this state to retain custody of the
child. Because removal may offer
emotional and financial advantages to the custodial parent, removal may also foster the well-being of
the child, for the interests of the child and the custodial parent, the
primary caretaker, are intricately connected.
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[33]
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This
legislative recognition of the custodial parent's responsibilities and powers
and of the connection between the child and the custodial parent does not
ignore the non-custodial parent. A child's relationship with the
non-custodial parent has an important bearing on the child's best interests.
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[34]
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The purpose
of the removal statute is to sustain a
relationship between the child and the non-custodial parent by protecting
reasonable visitation rights. *fn7 The removal statute, however, is not designed to
burden unduly the custodial parent or to impede his or her decision-making
authority as the primary caretaker. Visitation
is a flexible arrangement that the parents and the court can modify as circumstances require without undermining
the relationship of the child and the non-custodial parent. Section
767.245(2), Stats. 1983-84. Visitation
arrangements depend on circumstances,
such as the proximity of the child's residence to that of the non-custodial
parent and the needs of the child. In short, visitation
arrangements reflect a variety of approaches to encouraging a relationship
between the child and the non-custodial parent -- they do not reflect the
existence of a non-custodial parent's inviolate right to any particular
arrangement.
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[35]
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The
statutory standard for removal of the
child outside the state -- whether removal
is "against the best interests of the child" -- must be interpreted
in the context of the statutory standards for modification of visitation and change
of custody.
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[36]
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If
the circuit court grants permission to remove, the custodial or non-custodial
parent may request modification of visitation
because the existing visitation
arrangement may no longer be suitable for a parent or the child. The court
may, under the statutes, modify visitation
when modification "serves the best interest of the child." Section
767.245(2), Stats. 1983-84.
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[37]
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The
question of removal may cause the
parents and the court to face the question of a change
of custody. If the circuit court
grants permission to remove, the non-custodial parent may seek a change of custody.
If the circuit court denies permission to remove, the custodial parent may
nevertheless wish to leave the state and yet retain custody of the child. To order a change
of custody the circuit court must,
under the statutes, find that a change
of custody is "necessary to the
child's best interest." Section 767.32(2), Stats. 1983-84. This court
has said that the word "necessary" in sec. 767.32(2) implies that
the change of custody itself is needed because the custodial conditions are
harmful in some way to the best interests of the child. Millikin v. Millikin,
115 Wis. 2d 16, 23, 339 N.W.2d 573 (1983); Gould v. Gould, 116 Wis. 2d 493,
500, 342 N.W.2d 426 (1984). The removal
statute, sec. 767.245(6), provides that a violation of an order not to remove
is not per se grounds for change of custody; it is a circumstance for the circuit court to consider.
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[38]
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Furthermore,
in interpreting the statutes this court has held that the trial "court
has no power to order where a custodial parent should live within the
state" and that a non-custodial parent cannot seek a change of custody
merely because the custodial parent's move within the state has made visitation more difficult. Groh v. Groh, 110
Wis. 2d 117, 125, 128-130, 327 N.W.2d 655 (1983).
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[39]
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Analyzing
sec. 767.245(6) in the context of custody
and visitation, we interpret sec. 767.245(6)
as requiring the circuit court to recognize, in making its determination on removal, that the custodial parent has the
power and responsibility to make decisions for the family unit, that the
custodial parent's well-being affects the children's well-being, and that the
circuit court has broad latitude in fashioning and modifying visitation arrangements and has limited
latitude in changing custody. We conclude that a finding under
sec. 767.245(6), Stats. 1983-84, that an out-of-state move will be against
the child's best interests must rest on more than a determination that removal will in some way change the visitation
arrangements or change the child's
relationship with the non-custodial parent. We conclude that a finding under
sec. 767.245(6), Stats. 1983-84, that an out-of-state move will be against
the child's best interests requires a finding that removal and alternative visitation
arrangements will significantly harm or impede the child's relationship with
the non-custodial parent and that this harm to the relationship will work to
the child's detriment. If the custodial parent's primary purpose for the removal is to defeat or impede visitation, the removal is against the best interests of the child.
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[40]
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A
determination under sec. 767.245(6) that removal
is against the best interests of the child is limited to one issue: would removal with a change
in visitation significantly harm the
relationship between the child and the non-custodial parent and thus
adversely affect the child. If the non-custodial parent opposes removal in the belief that removal would adversely affect the health,
education, or welfare of the child -- aside from or in addition to the
adverse effect on the child resulting from a change
in the visitation arrangement and
significant harm to the child's relationship with the non-custodial parent --
then the non-custodial parent should seek a change
of custody on the grounds that the
custodial conditions in the other state are harmful to the best interests of
the child. Millikin v. Millikin, 115 Wis. 2d 16, 23, 339 N.W.2d 573 (1983).
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[41]
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The
circuit court in this case erred by failing to apply the test required by the
1984 statute, namely, whether removal
is against the best interests of the children. The circuit court acknowledged
that this was a close case and "concluded that the removal from the State . . . is not in the
best interest of the children and that that interest must take priority over
their mother's reasons supporting her request. . . ." The circuit court
noted that the sons had a close relationship with their father, who
frequently exercised his visitation
rights. The circuit court found that the removal
would not be psychologically damaging to the children, but that removal "would be damaging to the
normal parent-child relationship." The circuit court based its finding
solely on the disruption of the existing visitation
of the children with their father. The court did not approach the case
recognizing that the mother as custodial parent has the power and
responsibility to make decisions for that family unit, that her well-being
affected the children's well-being, and that it must consider alternative visitation arrangements. Because the circuit
court's denial of removal was based
solely on the disruption of the existing visitation
arrangement, the court's finding of damage to the normal parent-child
relationship is not equivalent to a finding that the removal is against the best interests of the children. Indeed,
as we explained above, the circuit court found that the removal would not be psychologically
damaging to the children.
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[42]
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We
are sensitive to the need for these children to maintain their relationship
with their father, but retaining the father's weekly visitation should not have been the sole factor on which the
circuit court determined the removal
to be against the children's best interests. Before denying removal the circuit court should have
considered the testimony presented about possible alternative visitation arrangements and their effect on
the children.
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[43]
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We
decline to remand this case to the circuit court to determine whether removal would be against the best interests
of the children. The parties had a full opportunity to put in their evidence relating
to removal and the best interests of
the children. The witnesses discussed alternative visiting arrangements, the
effect of the removal on the
children's relationship with their father, and the effect of the children's
relationship with their father on the children's well-being. We have read the
record, and we conclude, as a matter of law, that there is no evidence in
this record to support a finding that removal
is against the best interests of the children.
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[44]
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In
support of her motion for permission to remove the children, Kathleen Long
testified that the parties had lived in Peoria from 1977 to 1981, that she
wanted to return to Peoria because she had friends and the possibility of a
job there and because she thought it was less expensive to live in Peoria
than in Washington county. Peoria is approximately 250 miles from Washington
county.
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[45]
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Kathleen
Long called an expert witness, a psychologist. *fn8 He testified that the
move would not "necessarily have a significantly negative impact on the
children." He further testified that if the mother removed the children
from the state, the children would be able to retain a full, complete, and
loving relationship with their father. In the psychologist's opinion, the
divorce itself had created the primary hardship on the children. Although a
move would require the children to make a temporary readjustment, he believed
that the place of residence was not as significant to these children, who
were two and four years old, as the continuity of the primary child
caretaker. The psychologist testified that a father's role in the children's
developing lives is not entirely dependent upon the frequency of visitation and that, in his opinion, the removal of the Long children to Peoria would
not be harmful to the children's best interests.
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[46]
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In
opposing the removal motion, James
Long testified that the removal of the
children would make it financially impossible for him to maintain the same
kind of relationship he had when the children lived in Washington county,
namely, a relationship that had developed from weekly visitation. He also presented the testimony of a social worker
who stated that removing the children and altering the visitation from weekly visits to less
frequent, extended visits would make it difficult for the father to maintain
his parental relationship with his sons. But even the social worker testified
that the change in visitation arrangements would not be harmful
to the children.
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[47]
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The
only issue in this case is whether a change
in visitation arrangements and the
possible change in the father-child
relationship is against the best interests of the children. It is evident
from the record that there are reasonable visitation
alternatives -- namely, less frequent but more extended visits -- which will
preserve the children's relationship with their father. There is no evidence
in the record to support a finding that removal
and alternative visitation
arrangements will significantly harm or impede the relationship between the
children and their father. The circuit court found that removal would not be psychologically
damaging to the children. Accordingly, we hold that the removal is not against the best interests of
the children. *fn9
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[48]
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For
the reasons set forth, we reverse the decision of the court of appeals and
vacate the order of the circuit court. We remand the matter to the circuit
court to enter an order granting Kathleen Long permission to remove the
children from the state and modifying the visitation
arrangement as necessary.
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[49]
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By
the Court. -- The decision of the court of appeals is reversed; the order of
the circuit court is vacated; and the cause is remanded to the circuit court.
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[50]
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STEINMETZ,
J. (dissenting).
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[51]
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I join
the Dissent of Justice William A. Bablitch and also write separately.
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[52]
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The
majority's construction of sec. 767.245(6), Stats. 1983-84, results in two
standards for modifying visitation.
Modification under subsec. (6), as construed by the majority, permits
modification in the event of out-of-state moves unless alternative visitation schemes would significantly harm
the children's relationship with their father. Section 767.245(2), *fn1 however, permits
modifications of visitation only
"whenever modification would serve the best interest of the child."
The court's construction of subsec. (6) makes modifications of visitation substantially easier when the
custodial parent leaves the state than in situations governed by subsec. (2).
I believe that this distinction is irrational and unwarranted. I would
construe the statute to permit a modification of visitation, even when the custodial parent desires to leave
the state, only when a modification would serve the best interest of the
child. I believe the standards in sec. 767.245(2) and (6) are functionally
equivalent. Because the circuit court effectively applied the correct
standard and the record supports the court's exercise of discretion, I would
affirm the court's decision.
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[53]
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The
majority concludes that the circuit court erred by applying an improper test
for determining whether to permit the custodial parent to move from
Wisconsin. The circuit court required the custodial parent to "satisfy
the Court that the children's best interests would not be impaired by their removal from the state under the circumstance in this case." The
majority construes this test to be the same as that applied in Fritschler v.
Fritschler, 60 Wis. 2d 283, 288, 208 N.W.2d 336 (1973), in which this court
defined the test for permitting out-of-state moves to be:
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[54]
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"he
majority of cases on this point support the rule that if a parent who has custody of a child has good reason for living
in another state, the courts will permit the removal
providing such course of conduct is consistent with the best interests of the
child."
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[55]
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The
majority considers this test to be inapplicable because it is inconsistent
with sec. 767.245(6), Stats. 1983-84, which became effective May 18, 1984.
That statute permits relocation unless it is against the best interest of the
child. The majority does not specifically state how the two tests differ, and
I do not believe that there is any practical difference.
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[56]
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First,
the majority erroneously construes sec. 767.245(6), Stats., as imposing a
burden of persuasion on the non-custodial parent to prove that a move is
against the best interests of the children. The majority bases this Conclusion
on the fact that the non-custodial parent must bring a motion objecting to a
proposed move under subsec. (6). The court construes this as making the
non-custodial parent the party using the judicial process to advance a
position.
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[57]
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In
fact, if the non-custodial parent objects, then the custodial parent cannot
leave the state without the permission of the court. The custodial parent,
therefore, is in the position of needing judicial assistance to advance a change in the status quo. The custodial
parent is the one who is disturbing the balance of the original court order
of custody and visitation and, thus, the burden of persuasion would rest on
the custodial parent under the reasoning of the majority. This is consistent
with the allocation of the burden of proof in other modification of visitation cases under sec. 767.245(2),
Stats. I do not believe the legislature intended to allocate the burden
differently depending only upon whether the modification involved an
interstate move. Requiring the non-custodial parent to object to a move is
simply a means of giving that person a choice as to whether to require the
custodial parent to justify an out-of-state move and an accompanying
modification of visitation.
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[58]
|
The majority
also errs by construing sec. 767.245(6), Stats., as creating a test that is
substantively distinct from the Fritschler test. Under Fritschler, the
custodial parent must prove that an out-of-state move is consistent with the
best interests of the children. By contrast, the majority construes sec.
767.245(6) as permitting out-of-state moves unless there is proof that
alternative visitation schedules would
"harm" the relationship between the child and the non-custodial
parent. The majority considers this test to be different than the best
interests of the children test.
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[59]
|
I
cannot subscribe to the view that the legislature intended the phrase
"against the best interest of the child" to permit only
consideration of whether alternative visitation
schedules would be harmful to the parent-child relationship. This
interpretation of sec. 767.245(6), Stats., permits the modification of visitation without any over-all
consideration of the best interests of the children. Because sec. 767.245(2)
requires that modifications of visitation
in other contexts serve the best interests of the children, the majority's
construction of sec. 767.245(6) makes it easier to modify visitation when an out-of-state move is
involved than when an in-state modification is sought. I do not believe the
legislature intended such an irrational distinction. Instead, I believe that
the legislature, by prohibiting moves which are against the best interest of
the child, meant to permit only those moves that serve the best interest of
the child. In other words, the two standards in secs. 767.245(2) and (6) are
functional equivalents. I base this Conclusion in part on the rule of
statutory construction providing that statutes which are in pari materia
should be harmonized where possible and not interpreted to indicate a
contradictory legislative intent if that can be avoided. State v. Wachsmuth,
73 Wis. 2d 318, 325-26, 243 N.W.2d 410 (1976).
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[60]
|
The
majority recognizes an artificial distinction between the phrase
"consistent with the best interest of the child" and the phrase
"against the best interest of the child." I believe that in order
to be "consistent with the best interest of the child," a proposed
modification may not be against such best interest. The majority errs in
distinguishing the two phrases because it apparently construes
"consistent with the best interest" to mean that a positive
improvement of the child's circumstances
is required. This court, however, has never conditioned out-of-state moves on
such a showing when applying the best interest test. A careful reading of the
decisions criticized by the majority, including Fritschler, shows that the
court balanced the harm caused by disrupting an established visitation schedule against the advantages
of the proposed move.
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[61]
|
Because
I believe that the instability in a child's life caused by changing visitation
can be against the best interest of the child, consideration of the
advantages of a proposed move is essential in order for such a move ever to be
consistent with the best interest of the child. The majority prohibits
consideration of the advantages of a move because it apparently believes that
changes in visitation do not adversely affect the best interest of the
child if alternative visitation is
possible. Although I agree that changes
in visitation are not as disruptive as
changes in custody, see Bahr v. Galonski, 80 Wis. 2d 72, 80, 257 N.W.2d
869 (1977), it does not follow that changes
in visitation are without effect. Such
changes can create instability. I
believe some consideration is necessary to protect against this instability,
and the best interest test serves that purpose. Of course, it is a less
rigorous standard than used in the custody
transfer context because of the lesser disruption. See In re Marriage of
Millikin v. Millikin, 115 Wis. 2d 16, 22-23, 339 N.W.2d 573 (1983). It does
prevent visitation modification,
however, without some countervailing advantage.
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[62]
|
I am sensitive
to the legitimate need for custodial parents to relocate out of state. We
live in a society that sometimes requires mobility. However, requiring a
custodial parent to show that the best interest of a child will be as well
served after a move as before does not mean that moves will always be
prohibited. The majority fails to note that Peterson v. Peterson, 13 Wis. 2d
26, 108 N.W.2d 126 (1961) and Whitman v. Whitman, 28 Wis. 2d 50, 135 N.W.2d
835 (1965), cases relied upon in Fritschler, both permitted out-of-state
moves. The best interest test, therefore does not bar moves, but it does
require that a move be for a good reason and not be detrimental to the
children. Whitman, 28 Wis. 2d at 59. I believe that this is the least we can
ask of a custodial parent, and I believe that this is the same test
established in secs. 767.245(2) and (6), Stats.
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[63]
|
My
refusal to adopt the strained reasoning of the majority, which distinguishes
between "consistent with the best interest" and "against the
best interest," is supported by the irrationality of the distinction.
Under the court's construction, it is easier to modify visitation by moving out of state than it is
to otherwise modify visitation. The
majority offers no logical justification for this result, and indeed, I can
think of none. Because the majority's construction of sec. 767.245(6) renders
the statute irrational and arbitrary, I believe the construction raises
constitutional questions about the validity of the statute. Thus, the rule of
statutory construction that favors interpreting statutes to avoid
constitutional infirmities supports my interpretation of secs. 767.245(2) and
(6) as establishing functionally equivalent tests for visitation modifications. See State v. Popanz, 112 Wis. 2d
166, 172, 332 N.W.2d 750 (1983).
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[64]
|
I
would affirm the circuit court's decision because the court correctly applied
the best interest test and because the court did not abuse its discretion.
The court stated the test it applied to be whether the children's best
interests would be impaired. This test, construed by the majority to be
different than the "against the best interest" test, clearly
reveals the semantic gymnastics employed by the court to find an error of
law. I believe the circuit court applied a correct test. Our review of the
court's decision, therefore, is whether the court abused its discretion. I
agree with the court of appeals that the record does not establish such an
abuse of discretion.
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[65]
|
The record
does not show any advantage from the move that is not speculative at best.
The custodial parent testified that she wanted to move to Peoria because she
had friends and the possibility of a job there and because she thought it was
less expensive to live in Peoria. These reasons lack any certain benefit to
the children. The reasons might be sufficient but for the countervailing
instability caused by the need to modify visitation.
Moreover, the non-custodial parent testified that the move would make the
exercise of equivalent visitation
financially impossible. The majority ignores this fact when stating that
alternative visitation should be
adopted. The disruption in the established visitation
schedule, even if alternatives are possible, is itself harmful to the
children. The circuit court properly exercised its discretion, therefore, in
determining that the speculative justifications for the proposed move did not
outweigh the disadvantage caused by the resulting disruption and instability.
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[66]
|
The
majority exceeds the proper role of this court when it concludes that changes in visitation
have no negative effect on children. Implicit in the court's Conclusion is
the factual finding that all visitation
schedules are equivalent. Thus, the court cavalierly directs the circuit
court to simply change the visitation schedule. I do not believe there
is any factual basis in this record to support such a proposition. Experts
certainly do not agree whether frequent visitation
is equivalent to infrequent but longer visitation.
I think that such an abstract argument is fruitless and should not be
resolved by this court. The best visitation
schedule for any divorced family must be determined on a case-by-case basis
after considering, among other factors, the nature of the existing
relationship between the non-custodial parent and children. Here, the circuit
court considered the existing relationship to be important when compared to
the speculative reasons for disrupting that relationship. This is a decision
that is especially appropriate for the circuit court's discretion. Whether
this court would reach the same result in the first instance is not
dispositive. The circuit court did not abuse its discretion and its decision
should be affirmed.
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[67]
|
Although
I disagree with the majority's construction of sec. 767.245(6), Stats., I
could not join the opinion even if I accepted the court's statutory
interpretation. First, I do not believe that the amended statute is
applicable to this case because it became effective after commencement of
this proceeding. The custodial parent commenced this proceeding for
permission to move on February 15, 1984, and the statute became effective May
18, 1984. Contrary to the majority's statement that the non-custodial parent initiated
this action, the custodial parent actually commenced it. Moreover, because
the majority construes sec. 767.245(6) to effect a substantive change in the law, the statute cannot be
applied retroactively. See Gutter v. Seamandel, 103 Wis. 2d 1, 17-18, 308
N.W.2d 403 (1981). Whatever the proper construction of the statute,
therefore, it does not apply to this case. The non-custodial parent's
concession in this court that the statute does apply is not legally binding.
The majority does not find the new statute applied by legal analysis, but
rather, so holds due to the agreement of the parties. Majority opinion n. 3.
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[68]
|
I
also cannot accept the majority's resolution of this case on the merits. The
court announces a major change in the
applicable law which was never addressed by the parties or the circuit court.
Nonetheless, the court makes a factual determination that the proposed move
is not against the best interest of the children. This court cannot make
factual determinations, especially when the real issue was not tried before
the circuit court. Under the majority's reasoning, the court should remand
this case to the circuit court for a new hearing and application of the
appropriate standard. See sec. 751.06, Stats.
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[69]
|
In summary,
the majority construes sec. 767.245(6), Stats., so as to make it a virtual
nullity. The court permits out-of-state moves unless no alternative visitation is possible. This permissive
standard would not prevent any move. If all visitation
schedules are considered equal, then some minimal alternative will always be
possible. The legislature could not have intended to permit such easy
modification, especially when modification in other situations must serve the
best interest of the child.
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[70]
|
I
would construe sec. 767.245(6), Stats., to require consideration of whether a
proposed move will have an effect on visitation.
If there is no effect, then the move should be permitted. On the other hand,
if there is an effect on visitation,
then the move must be consistent with the best interest of the child. I
believe the circuit court applied this test and properly exercised its
discretion. I would affirm the decision of the court of appeals and,
therefore, also the circuit court.
|
|
[71]
|
I am
authorized to state that Mr. JUSTICE LOUIS J. CECI joins this Dissenting
opinion.
|
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[72]
|
BABLITCH,
J. (dissenting).
|
|
[73]
|
Common
experience tells us that removing a child from an environment which he or she
knows and trusts is generally disruptive, frequently devastatingly so.
Equally true is that the new environment which the child enters may be
harmful to the health, education, and welfare of the child. We also
understand that changes in the broader
environment -- changes of school, of
friends, of neighborhood, of access to grandparents, aunts, uncles and other
important adults -- often aggravate the sense of insecurity which children of
divorcing parents experience when the parents separate. Nonetheless, the
majority today holds that the only factor a court may consider as
"against the childs' best interests" in preventing a custodial
parent from removing a child to an out of state environment is the impact
which removal has on visitation between the non-custodial parent
and the child.
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[74]
|
The
majority's Conclusion is a serious step backward in this very critical area
of family law. It cannot be justified by its strained interpretation of sec.
767.245(6), Stats. It cannot be justified in light of research regarding the
needs of children and families after divorce. Further, its Conclusion will,
in numerous cases, cause harmful and absurd results. Because I conclude that
a court, in determining whether a custodial parent should be allowed to
remove a child from this state, must consider all evidence relating to the
effect such a move would have on the child's total living environment, I
respectfully Dissent.
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|
[75]
|
This
case involves interpretation of sec. 767.245(6), Stats., which states, in part,
that a court may deny a custodial parent permission to remove a child from
this state upon ". . . a finding by the court that it is against the
best interests of the child for the custodian to so remove the child from
this state. . . ." The majority interprets "against the best
interests of the child" to mean that a court should consider removal to be against the child's "best
interests" only where, under the circumstances,
alternative visitation arrangements
would significantly harm the relationship between the child and the
non-custodial parent. Majority opinion pp. 534-535. In short, the majority
holds that in removal cases the only
relevant issue is visitation; evidence
of disruption and harm to the children, other than as the removal affects visitation, is not relevant and, therefore, not to be
considered.
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[76]
|
The
majority's interpretation is grounded on a basic hypothesis: "The
purpose of the removal statute is to
sustain a relationship between the child and the non-custodial parent by
protecting reasonable visitation
rights."1* Majority opinion p. 532. Although the majority's hypothesis
may appear reasonable on its face, to accept it as correct is to be drawn
inexorably to the majority's Conclusion. I agree that if the sole purpose of
this section is to safeguard the right of the non-custodial parent to sustain
a relationship with his or her child after divorce through reasonable visitation arrangements, then the only admissible
evidence at a hearing to challenge removal
of the child must relate to the adequacy of the proposed visitation arrangement. But I don't agree
that this is the sole purpose of this section. I challenge the majority's
hypothesis and submit that it does not capture the primary purpose of the
section. From the context of the entire family code, it is apparent that the
primary purpose of the section is to protect the "best interests of the
child." When viewed from that perspective, rather than from the perspective
of the interests of parents, as the majority opinion does, the majority's
Conclusion must fall.
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[77]
|
Critical
to the interpretation of sec. 767.245(6), Stats., is to look at the family
code in its entirety. To do so makes clear that in ch. 767 the legislature
has, in regard to all questions involving children of divorcing parents,
insisted that the analytical framework be a form of "best interests of
the child" test, whether the words the legislature used are
"against" or "in" the best interest.2*
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[78]
|
In
reforming ch. 767, Stats., the legislature introduced into the family code of
this state important protection for the interests of the child in
continuation of familial and community relationships after divorce. It
mandated that courts consider the "best interests of the child" in
making both temporary and permanent custody
awards, in altering custody, in
granting and modifying visitation
rights and in property division. See secs. 767.23(1n), 767.24, 767.045,
767.32 and 767.255.
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|
[79]
|
Accordingly,
sec. 767.245, Stats., did not limit the test for permission to remove a child
from the state to the issue of whether an alternative visitation schedule would permit sufficient contact to
preserve the existing relationship between the non-custodial parent and the
child. Instead, it required the court to determine whether the removal was "against the best interests
of the child." In doing so, the legislature recognized, as this court
has previously recognized, that visitation
privileges, like custodial rights, and many other divorce related decisions,
are to promote the best interests of the child. Marotz v. Marotz, 80 Wis. 2d
477, 486, 259 N.W.2d 524 (1977).
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|
[80]
|
The majority
opinion errs by framing the issue in this case in terms of visitation arrangements only, as though the
legislature intended that somehow each decision regarding children after
divorce be compartmentalized and assessed with near mathematical precision.
By analyzing the removal issue in
terms of visitation arrangements only,
the majority looks at the issue through the wrong end of the telescope, and
thereby misses the point. Focusing on the rights of the custodial and the non-custodial
parents causes the majority to overlook very important interests of the
child.
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[81]
|
Regarding
the criteria which apply to the determination of custody, which is supplemented by the assignment of visitation rights to the non-custodial
parent in most cases, the legislature required courts to consider ". . .
all facts in the best interest of the child . . .," including these
factors:
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[82]
|
"(a)
The wishes of the child's parent or parents as to custody;
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|
[83]
|
"(am)
The wishes of the child as to his or her custody;
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|
[84]
|
"(b)
The interaction and interrelationship of the child with his or her parent or
parents, siblings, and any other person who may significantly affect the
child's best interest;
|
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[85]
|
"(c)
The child's adjustment to the home, school, religion and community;
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|
[86]
|
"(d)
The mental and physical health of the parties, the minor children and other
persons living in a proposed custodial household;
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[87]
|
"(e)
The availability of public or private child care services; and
|
|
[88]
|
"(f)
Such other factors as the court may in each individual case determine to be
relevant." Section 767.24(2), Stats.
|
|
[89]
|
Clearly
the broad inquiry into the "best interest of the child" at the
divorce of the parents mandated by sec. 767.24(2), Stats., requires the court
to do much more than assess each parent's relationship with the child. It
requires examination of the matrix of social connections which make up the
child's world at the divorce of the parents.
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[90]
|
Thus,
whether the parties stipulate to or litigate custody
issues, the final judgment in a divorce in which the parties have minor
children embodies an overall plan to promote the welfare of the children
after the divorce. The final judgment is the result of the court's review of
numerous factors, including relationships of the child with significant
people in the child's life; the psychological adjustment of the child to
home, school, religion, and community; the mental and physical health of all
the parties in the proposed household, and more. In essence, the judgment
establishes an overall post-divorce living plan for the child which is based
on important needs of the child. Because the plan is an integrated plan,
substantial revisions of one element of the plan reverberate through and
affect the entire plan. It is self-evident that removal
from the original court-approved environment will, in many cases, be a
substantial revision of that plan, requiring a review of the full range of
the interests of the child which originally shaped it.
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[91]
|
I
submit that preventing the court from considering the full range of the
interests of the child in the context of a removal
from the state defeats the legislative purpose in enacting the family code.
Reducing the "best interests of the child" standard to
consideration only of facts relevant to the visitation
between the non-custodial parent and the child eliminates consideration of
nearly all of the factors which justified the court's original order.
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[92]
|
By
making the quality of the relationship with the visiting parent and the
potential for alternative visitation
arrangements the only criteria for denial of permission to remove the child,
the majority prevents a court from considering factors that may very well
justify denial of permission to remove the child, even though they may not
justify a change in custody. Thus, a court, whose original order
was intended to protect the child's interest in contact with the family and
other psychologically significant persons, may not consider at a removal hearing the effect of a removal on sibling, step-sibling,
grandparent or other relationships, so long as the custodial parent offers an
alternative visitation schedule that
preserves the relationship between the child and the visiting parent.
Similarly, although a court previously determined that custody in one parent represented the
child's "best interests" at least in part because of proposed
arrangements for child care, schooling, religious training and the like, a
court may not consider disruptions or discontinuations of those arrangements,
or problems of the proposed new arrangements, at a removal hearing. Such an interpretation of the section permits
the custodial parent to disregard legitimate objections of the non-custodial
parent to changes in the child's
environment merely because the changes
are unrelated to the visitation schedule
and are not sufficiently harmful to justify a change
of custody. In short, the majority's
interpretation disregards situations in which a proposed arrangement
preserves the visitation pattern but
jeopardizes other interests of the child which the parties, as well as the
court, ought to protect in fulfillment of their responsibilities to the
child.
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[93]
|
Under
the best of conditions under the principle of shared parenting, divorced
parents should make important decisions which affect their children after
divorce by taking into account the best interests of the children, as well as
their own individual interests. Children's needs change, parents' needs change.
However, when parents are unable to cooperate in such decisions, including
whether a child should be removed to another state at a particular time, it
becomes the responsibility of the court to make the decision in the interests
of the child. Accordingly, when it undertakes this responsibility, the court
must have access to all the relevant information regarding the probable
impact of the removal on the interest
of the child.
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[94]
|
Why
the legislature chose to allow a court at a removal
hearing to focus on the best interests of the child and to consider this wide
range of factors is also clear from the historical development of child custody law. Historically, the majority's
emphasis would have been appropriate. Until well into the nineteenth century,
the law emphasized the rights of the parents, treating children as property
of the parents. In early times, the law considered children as the property
of the father, who therefore was presumptively the custodial parent. However,
as time changed, concepts of the
family changed, and child-rearing
became associated with the mother; then the law began to recognize a
presumptive custody with the mother.
See : Foster & Freed, Life With Father: 1978, 11 Fam. L.Q. 321 (1978);
Roth, The Tender Years Presumption in Child Custody
Disputes, 15 J. Fam. L. 423 (1976); Podell, Custody-To
Which Parent ? 56 Marq. L. Rev. 51 (1972); 1 W. Blackstone, Commentaries on
the Laws of England 453 (Lewis ed. 1897); and 70 A.L.R. 3d 262 (1976). See
also In re Marriage of Groh v. Groh, 110 Wis 2d. 117, 122-23, 327 N.W.2d 655
(1983).
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[95]
|
More recently,
the concept of shared responsibility of the parenting role has been
increasingly recognized. Most states have recognized the need to consider
child-related decisions at divorce as part of a process of establishing an
overall living plan for the children, rather than as a series of separate
decisions about custody, visitation and support. Almost two-thirds of
the states now embody the concept of a joint custody
in their statutes. See 11 Fam. L. Rep. (BNA) 3019 (May 7, 1985) and Folberg,
(ed.), Joint Custody and Shared
Parenting 159-67 (1984). This new focus on the promotion of the well-being of
the child encompasses concern for the totality of the child's post-divorce
environment, including physical and emotional well-being, relationships,
education, and necessary support. The adoption by the legislature of the new
family code, which includes sec. 767.245(6), Stats., reflects this approach.
|
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[96]
|
The
legislature, by focusing concern on the well-being of the child and the
totality of the child's post-divorce environment, has taken an important step
toward integrating insights developed by recent research on the interests of
children at divorce into the law. This research demonstrates that the
consideration of a broad range of environmental factors, as mandated
throughout ch. 767, Stats., safeguards critical needs of the child at this
time.
|
|
[97]
|
Visitation is, of course, important.
Psychological research on the adjustment of children to the divorce of their
parents demonstrates that a continuing relationship with both parents is
highly desirable; post-divorce arrangements that enable both parents to be
responsible for the children and to express their concern for the children on
a regular basis spare the children much of the pain and disorientation of a
break in what remains an important emotional relationship with each parent.
Wallerstein & Kelly, Surviving the Breakup 307, 310-11 (1980). In fact,
researchers find that ". . . the key variable affecting satisfactory
adjustment of children following divorce is the extent of continuing
involvement by both parents in child rearing." Folberg & Graham,
Joint Custody of Children Following
Divorce, 12 U.C.D. L. Rev. 523, 535 (1979). (Of course, common sense suggests
that, in some situations, depending on the age of the child at divorce as
well as the previous involvement of each parent with the child, the child's
adjustment will be more affected by factors other than "continuing
involvement.")
|
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[98]
|
However,
more than visitation is important.
Research also indicates that the adjustment of children and parents to
divorce is best understood as an adjustment over a prolonged period. During
that period the extent of environmental change
which parents and children experience is a key factor in the adjustment of
the children; in fact, some researchers have concluded that children's
divorce related difficulties, including depression, social withdrawal, and
aggression, may stem from the children's perception that they have minimal
control over such environmental changes
as a new residence. See Wexler Rethinking the Modification of Child Custody Decrees, 94 Yale L.J. 757, 785, 797
(1985). Of course, the age of the child at divorce, as well as the previous
involvement of each parent with the child, will also affect the adjustment of
a child in a particular case.
|
|
[99]
|
I
conclude from this and related research that the legislature had a very solid
foundation for emphasizing the interests of the child in a stable, supportive
familial and community environment when it reformed the family code in 1977.
In order to effectuate the legislative intent to protect this important
interest of children, sec. 767.245(6), Stats., must be interpreted so as to
preserve the range of factors considered in the award of custody, so that custodial parents and the
courts take this range of environmental factors into account when deciding
whether a child should be removed from the state.3* The majority,
unfortunately, ignores all the factors but visitation.
|
|
[100]
|
Lastly,
the majority's Conclusion can lead to very harmful and absurd results.
Consider the situation in which there has been protracted battle over custody. Both parents want custody, and the court must decide between the
two. Both parents submit plans to the court embodying, we must assume, plans
for the children should they get custody,
including available educational, health, and welfare opportunities in the
environment in which they would place the children. The court, because one or
both of the parties decline joint custody,
must choose. See sec. 767.24(1)(b), Stats. One week, one month or one year
after the decision, whatever, the custodial parent decides to leave the state
with the children. The majority says that same court, which may well have
made its final decision based primarily on the environment in which one of
the battling parents told the court he or she would place the child, can only
consider visitation with respect to
allowing that move. That simply does not make sense.
|
|
[101]
|
Or
consider the case where one party, for his or her own good reasons, chooses
not to be the custodial parent. The majority would force that non-custodial
parent into a custody fight he or she
does not want, in order to prevent a removal
that he or she perceives to be harmful to the health, education or welfare of
the children. That is because the majority concludes that if factors other
than visitation are implicated in the removal, then the non-custodial parent must
seek a change of custody rather than a prohibition against removal. Majority opinion page 535.
|
|
[102]
|
Or
consider the case where neither parent wants a custody
change, but the non-custodial parent does
not want the children removed and the custodial parent will not move if it
means giving up custody. The majority,
notwithstanding, would force this couple into a custody
fight.
|
|
[103]
|
In
sum, I conclude that sec. 767.245(6), Stats., when correctly interpreted,
allows the court to consider all evidence relating to the effect a removal from the state will have on the
total living environment of the child. If, after consideration of all
relevant evidence, the court determines that a move is "against the best
interests of the child," it may deny permission to remove the child at
that time. Only this interpretation gives effect to the unambiguous intent of
the legislature to protect the interests of children at divorce by requiring
courts to consider a broad range of factors which affect the adjustment of
the child. Recent research which indicates that children and families after
divorce need continuity as they go through the long process of adjustment to
divorce supports this interpretation. Further, this interpretation protects
post-divorce families from the needless disruption of the litigation of custody changes
in situations in which the impacts of removal
on the child are the real issue.
|
|
[104]
|
In
addition, I agree with Justice Steinmetz that the majority errs in
determining, as a matter of law, that the facts in this case permit removal even under the test it enunciates.
The testimony presented to the circuit court did not directly assess the
issue whether alternative visitation
arrangements would significantly harm the relationship between the child and
the non-custodial parent. Majority opinion pages 534-535. Testifying for the
custodial parent, a psychologist compared the harm to the children of a
post-divorce change in custody to the harm of a readjustment in
scheduling of visitations with the non-custodial parent, concluding that the
loss of a primary custodian was the more harmful alternative. A social worker
called by the non-custodial parent testified that replacing weekly visits with
less frequent but extended visits would cause a more difficult adjustment for
the parent than for the children. In short, the record indicates probable
harm to the quality of the non-custodial parent's relationship with the
children and is silent on the implications of that harm for the interests of
the children.4* On this record, the majority's finding of fact is without
support and application of its test (notwithstanding my disagreement with its
test) requires remand.
|
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[105]
|
I am
authorized to state that JUSTICE DONALD W. STEINMETZ and JUSTICE LOUIS J.
CECI join in this Dissent.
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Opinion Footnotes
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[106]
|
*fn1 Although not relevant to the appeal, it appears that the mother and
children lawfully moved to Peoria while the appeal has been pending. The
parties apparently agreed to the removal
and to alternative visitation for
James Long pending appeal. In an affidavit to the court of appeals in a
related matter, Kathleen Long's attorney provided evidence that the sons were
spending their summer, vacation periods, and two weekends per month with
their father and that the parties were sharing the transportation costs of
the children's visits by meeting half-way, in Rockford, Illinois, and by
suspending support payments during the summer visitation.
We do not know, however, if these arrangements are the present visitation arrangements.
|
|
[107]
|
*fn2 In an affidavit to support his motion, James Long stated that
Kathleen Long had interfered with his visitation
rights on several occasions. There appear to be two occasions when the
parties disagreed on visitation
rights. On one occasion there was a disagreement over who would have the
children on one of the son's birthdays. On the other occasion there was a
disagreement about the children's whereabouts when Kathleen Long and the
children became snowed in while visiting in Illinois.
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|
[108]
|
*fn3 Section 767.245(6) was amended effective May 18, 1984. Although the
amendment was not in effect when the divorce judgment was entered or when
Kathleen Long filed her motion to remove on February 15, 1984, it was in
effect when the circuit court held its hearing on June 22, 1984, and issued
its decision. James Long's brief cited the 1984 statute as the governing law,
and the parties agreed on review, and we so hold, that the 1984 amended
statute governs this case.
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|
[109]
|
*fn4 The 1984 statute does not explicitly impose a burden of persuasion
on either of the parents. The general rule is that a party using the judicial
process to advance a position carries the burden of persuading the court.
Loeb v. Board of Regents, 29 Wis. 2d 159, 164, 138 N.W.2d 227 (1965).
Accordingly, the burden of persuasion would be on the non-custodial parent as
the moving party seeking judicial intervention.
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|
[110]
|
The
Minnesota Supreme Court in interpreting its removal
statute adopted a presumption in favor of removal
and imposed the burden of persuasion on the non-custodial parent. Auge v. Auge,
334 N.W.2d 393, 399 (Minn. 1983).
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|
[111]
|
*fn5 This court has said that "ustody embraces the sum of parental
rights with respect to the rearing of a child, including its care."
Patrick v. Patrick, 17 Wis. 2d 434, 437, 117 N.W.2d 256 (1962), quoting Burge
v. City & County of San Francisco, 41 Cal. 2d 608, 617, 262 P.2d 6, 12
(1953). A child looks to the custodial parent for guidance, discipline, the
necessities of life and parental comfort in a stable, settled atmosphere. The
custodial parent provides the day-to-day routine of the child, the quality of
life, and the general style of life. The non-custodial parent and child do
not live together as a single family unit. Westrate v. Westrate, 124 Wis. 2d
244, 248, 369 N.W.2d 165 (Ct. App. 1985).
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|
[112]
|
The
statutes provide that an "award of legal custody
of a child" confers on the legal custodian "the right and duty to
protect, train and discipline the child, and to provide food, shelter, legal
services, education and ordinary medical and dental care, subject to . . .
any existing parental rights and responsibilities and the provisions of any
court order." Sections 767.24(1)(d), 48.02(12), Stats. 1983-84.
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|
[113]
|
Limiting
judicial intervention in post-divorce family decision making is supported by
a growing body of social science findings. See, e.g., Wexler, Rethinking the
Modification of Child Custody Decrees,
94 Yale L.J. 757, 760, 784-803 (1985).
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|
[114]
|
*fn6 In the past, one of the reasons courts were reluctant to permit
out-of-state removal was the fear of
losing jurisdiction. Auge v. Auge, 334 N.W.2d 393, 399 (Minn. 1983). All fifty
states and the District of Columbia, however, have provided jurisdictional
protection of child custody decrees by
adopting the Uniform Child Custody
Jurisdiction Act. Unif. Child Custody
Jurisdiction Act, 9 U.L.A. 22-23 (Supp. 1985). See, e.g., Ch. 822, Stats.
1983-84. Federal law provides additional jurisdictional protection under the
Parental Kidnaping Prevention Act of 1980, 28 U.S.C. § 1738 A (1982). For a
Discussion of these acts, see Note, Residence Restrictions on Custodial
Parents: Implications for the Right to Travel, 12 Rutgers L.J. 341, 353-57
(1981).
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[115]
|
*fn7 Section 767.245(6) is part of sec. 767.245 governing visitation rights.
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[116]
|
*fn8 The parties agreed to retain and share the expenses of one expert
witness. They did not agree, however, to rely on the expert's testimony.
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[117]
|
*fn9 Kathleen Long asserts that the test used by the circuit court in
this case violated her constitutional right to travel. In view of our holding
in this case we need not consider this issue.
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[118]
|
1
Section 767.245(2), Stats., provides as follows:
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[119]
|
"
767.245 Visitation. . . .
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[120]
|
"(2)
The court may modify an order granting or denying visitation rights whenever modification would serve the best
interest of the child; but the court shall not terminate a parent's visitation rights unless it finds that the visitation would endanger the child's
physical, mental or emotional health."
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[121]
|
1*
The only authority cited for this claimed purpose is in footnote 7 of the
majority's opinion, which states, in its entirety: "Sec. 767.245(6) is
part of sec. 767.245 governing visitation
rights." Majority opinion n.7. This conclusory statement is hardly a
solid foundation upon which to rest a wide sweeping assertion about
legislative purpose.
|
|
[122]
|
2*
The majority seems to argue that because the legislature used the words
"against the best interests" in the removal
statute rather than the words "in the best interests," the
legislature was evincing its intent to limit judicial intervention in the
custodial parent's decision to remove the children much more severely than in
other post-divorce decisions involving children. There is no support for such
an argument in the legislative history of the bill, nor in the words of the
statute. I agree with the Conclusion of my colleague, Justice Steinmetz, that
"against the best interests" is, for the most part,
indistinguishable from "in the best interests," in that one is
merely the opposite side of the coin from the other.
|
|
[123]
|
3*
The majority argues that the ". . . legislature has recognized the
custodial parent's caretaking and family decision-making responsibilities . .
." and has therefore chosen to make removal
easier. Majority opinion pp. 531, 532. The majority does not cite legislative
history to establish this interpretation of the legislative intent behind the
removal statute. Instead, it refers to
social science research, implying that this research supports making removal by the custodial parent easier. The
majority quotes Wexler, cited above, in part: "Limiting judicial
intervention in post-divorce family decision making is supported by a growing
body of social science findings." Majority opinion n. 5. The Wexler
article, however, does not support the majority's argument that restraints on
removal are undesirable. To the extent
that Wexler discusses the need of children for stability in post-divorce
arrangements, his article supports my interpretation of sec. 767.245(6),
Stats, as a necessary protection for such stability.
|
|
[124]
|
".
. . a growing body of social science findings . . . dispute important
assumptions routinely made by the courts. These findings strongly suggest
that divorce is a process, not a fixed event, and that the custodial parent
and child require a period of time to adapt to the new post-divorce
situation. Research indicates that courts generally do not appropriately
evaluate the various factors that affect the child's adjustment during this
process." Wexler at 760.
|
|
[125]
|
Further,
I submit that for the majority to characterize the unilateral decision of one
parent to remove the child from the state as "family
decision-making" is inappropriate. "Family decisions" result
from thoughtful consideration of the impact of proposed changes on the whole family, whether or not
a divorce has occurred.
|
|
[126]
|
4*
Research indicates that both parents and children experience an abrupt
discontinuity in their relationship when they originally adapt to the
confines of the "visitation"
relationship. Wallerstein & Kelly at 123. The non-custodial parent finds
that the new relationship is very fragile and that legal restrictions on the
visits exacerbate the difficulties of adjustment; children are dissatisfied
with the limits of a visiting relationship, feeling that they see too little
of the non-custodial parent. Id. at 315, 142. Because expert testimony in
this case suggested that a negative impact on the non-custodial parent's
adjustment to a restricted visitation
schedule was likely, I cannot conclude, as does the majority, that no
evidence supports a finding that a change
in the visitation arrangement ".
. . would significantly harm or impede the relationship between the children
and their father . . . ." P. 536. Instead, the evidence suggests that
the new schedule would create a new disequilibrium in that relationship to
which both the parent and the children must adjust.
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[1]
|
COURT
OF APPEALS OF WISCONSIN
|
|
[2]
|
No.
85-2381
|
|
[3]
|
1986.WI.318
<http://www.versuslaw.com>, 400 N.W.2d 22, 135 Wis. 2d 219
|
|
[4]
|
November
12, 1986
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|
[5]
|
IN
RE THE MARRIAGE OF: LINDA L. ABEL (FORMERLY JOHNSON), JOINT
PETITIONER-RESPONDENT,
v.
LESLIE L. JOHNSON, JOINT PETITIONER-APPELLANT
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|
[6]
|
Appeal
from orders of the circuit court for Walworth county: Dennis J. Flynn, Judge.
|
|
[7]
|
For
the joint petitioner-appellant the cause was submitted on the briefs of Clark
Dempsey of Whitewater.
|
|
[8]
|
For
the joint petitioner-respondent the cause was submitted on the brief of Sandra
A. Edhlund of The Family Law Center, Cooper & Edhlund, S.c. of Milwaukee.
|
|
[9]
|
Scott,
C.j., Brown, P.j., and Nettesheim, J.
|
|
[10]
|
The
opinion of the court was delivered by: Nettesheim
|
|
[11]
|
Leslie
L. Johnson (Leslie) appeals the post-judgment orders of the family court
modifying a divorce judgment to award child support to his former wife, Linda
L. Abel (Linda) and refusing to vacate a previous order transferring physical
custody of the parties' minor child,
Robert, from Leslie to Linda. The principal issue on appeal is whether that
portion of sec. 767.32(2), Stats., governing modification of custody orders, commonly referred to as the
" Millikin standard" (Millikin v. Millikin, 115 Wis. 2d 16, 339 N.W.2d
573 (1983)), applies to transfers of physical placement under a joint custody award. We conclude the Millikin
standard does not apply to such custody
transfers. We also conclude that the trial court's award of support was not
an abuse of discretion. Therefore, we affirm.
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[12]
|
The
essential and controlling facts on this appeal are straightforward and
undisputed. A judgment of divorce terminating the Johnsons' marriage was
entered on December 17, 1982. Pursuant to a stipulation between the parties,
the divorce judgment awarded joint custody
of the minor children to both Leslie and Linda. Pursuant to this stipulation,
the judgment also awarded physical custody
of the parties' two minor children to Leslie with visitation rights to Linda. *fn1 The judgment required no
support payments by either party.
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|
[13]
|
Nearly
three years later, Leslie and Linda entered into a written stipulation
amending the judgment of divorce transferring the physical custody of Robert from Leslie to Linda. The
stipulation retained physical custody
of the other child with Leslie. The stipulation also reconfirmed the joint custody arrangement between the parties. *fn2 Judge Robert Read signed
the order resulting from this stipulation. This order was entered without any
formal proceedings or judicial determination that the change in Robert's physical custody
was in his best interests or necessary to his best interests.
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|
[14]
|
By
motion dated June 7, 1985, Linda sought an order modifying the divorce
judgment to provide child support from Leslie. Leslie responded by seeking an
order vacating the January 3, 1985 order transferring Robert's physical custody to Linda. Leslie contended that the
transfer of Robert's physical custody
was premised upon an "understanding," not embodied in the parties'
stipulation transferring physical custody,
that Linda would not seek support. Leslie also sought vacation of the order
transferring Robert's physical custody
on the grounds that the Millikin standard forbidding a custody modification absent
"substantial evidence supporting a change
of custody" showing "such removal as necessary to the child's best
interest," Millikin, 115 Wis. 2d at 23, 339 N.W.2d at 576 (quoting sec.
767.32(2), Stats.), had not been met.
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[15]
|
The
family court, Judge Dennis Flynn presiding, determined inter alia that the
stipulated transfer of Robert's physical custody
could not be legally conditioned upon the parent assuming custody forfeiting a right to support; that
Leslie had failed to meet the burden established under either the "best
interests of the child" standard or the higher Millikin standard with
respect to the transfer of Robert's physical custody;
and that Leslie was estopped from seeking to undo his previous stipulation
pursuant to Rintelman v. Rintelman, 118 Wis. 2d 587, 348 N.W.2d 498 (1984).
Accordingly, Judge Flynn upheld the January 3, 1985 order of Judge Read
transferring Robert's physical custody
to Linda and awarded support to Linda. Leslie appeals both the support order
and the order denying vacation of the January 3, 1985 order transferring
Robert's physical custody.
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[16]
|
CONCEPT
OF JOINT CUSTODY
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|
[17]
|
The
principal issue presented in this case is whether the Millikin standard
applies to a transfer of physical placement *fn3 of a child under an
existing joint custody arrangement.
This question requires us to construe the joint custody
statute and, specifically, the impact of physical placement considerations
upon such custody. Before engaging in
this statutory construction, however, some general observations concerning
the concept of joint custody are
appropriate.
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|
[18]
|
Section
767.24(1)(b), Stats., provides for joint custody:
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|
[19]
|
The
court may give the care and custody of
such children to the parties jointly if the parties so agree and if the court
finds that a joint custody arrangement
would be in the best interests of the child or children. Joint custody under this paragraph means that both
parties have equal rights and responsibilities to the minor child and neither
party's rights are superior.
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[20]
|
The
concept of joint custody was first
introduced to Wisconsin law in the Divorce Reform Act, ch. 105, Laws of 1977.
The legislative purpose, in part, was enunciated as follows: "It is the
intent of the legislature to recognize children's needs for close contact
with both parents, to encourage joint parental responsibility for the welfare
of minor children and to promote expanded visitation."
Id. at sec. 1(2).
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[21]
|
A
sole legal custody award requires the
family court to select one party over the other as the legal custodian. This
determination, of necessity, vests the custodial party with superior rights
and responsibilities to the minor child. Neither of these events or
consequences occurs when a joint custody
award is made. Rather, the parties by their stipulation represent to the
court that, despite the breakdown of the marital relationship, they remain
mutually committed to the welfare of their child. Therefore, the parties ask
the approval of the court to exercise their privileges and responsibilities
to the child without the necessity of ongoing judicial involvement. In
effect, the parties seek to continue the relationship they had with the child
prior to the divorce. See Grove, Wisconsin's Joint Custody Statute: Does it Pass Constitutional Muster?, 9
Milwaukee Law. 2 (No. 4, 1986). The court is not obligated to accept the
joint custody proposal of the parties.
Rather, the court must independently satisfy itself that the joint custody proposal serves the best interests
of the child.
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[22]
|
SECTION
767.24(1)(b), STATS., THE JOINT CUSTODY
STATUTE
|
|
[23]
|
With
these observations concerning joint custody
in mind, we now turn to the construction of sec. 767.24(1)(b), Stats., the
joint custody statute, in light of physical
placement considerations. Statutory construction presents a question of law.
Sprague v. Sprague, 132 Wis. 2d 68, 71, 389 N.W.2d 823, 824 (Ct. App. 1986).
When reviewing questions of law, this court owes no deference to the
Conclusion of the trial court. Id. Ordinarily, we interpret a statute on the
basis of the plain meaning of the words. State v. Filipzcak, 132 Wis. 2d 208,
211, 390 N.W.2d 110, 111-12 (Ct. App. 1986). If the meaning of a statute is
ambiguous, however, we will examine the scope, history, context, subject
matter and object of the statute in order to implement the intent of the
legislature. Id. A statute is ambiguous if reasonably well-informed
individuals could construe the statute in two different ways. Id.
|
|
[24]
|
A
child obviously must be physically located with either party (or a third
party) at any given point in time. Yet, the joint custody statute is totally silent on the subject of physical
placement. Therefore, we conclude that the statute is ambiguous as to whether
judicial recognition of physical placement as a separate legal concept is
required in a joint custody setting.
We conclude it is not.
|
|
[25]
|
In
Westrate v. Westrate, 124 Wis. 2d 244, 247, 369 N.W.2d 165, 167 (Ct. App.
1985), a sole custody case, the court
construed sec. 767.24(1)(d), Stats., as not permitting an inferential
separation of physical custody from
legal custody. In fact, Westrate
pointedly notes that physical custody
is not even recognized by the Family Code. Id. *fn4 See also State v.
Britzke, 110 Wis. 2d 728, 732, 329 N.W.2d 207, 210 (1983).
|
|
[26]
|
The
same holds true here. Section 767.24(1)(b), Stats., the joint custody statute, does not recognize physical
custody. Therefore, as in Westrate, we
hold that physical placement, as an independent legal concept, cannot be
inferentially separated from joint legal custody.
|
|
[27]
|
One
commentator has noted the statute's failure to address physical custody or placement and has similarly
opined as to its legal consequence.
|
|
[28]
|
While
the legislature's purpose -- to recognize children's need for close contact
with both parents, to encourage joint parental responsibility and to promote
expanded visitation -- is clear
enough, Wisconsin's specific definition of joint custody fails to distinguish between joint legal custody and joint physical custody. Comparing this legislative intent
with the specific definition in the statute, it appears that the legislature
is combining the two concepts. [Emphasis added.]
|
|
[29]
|
Kapner,
Joint Custody and Shared Parental
Responsibility: An Examination of Approaches in Wisconsin and in Florida, 66
Marq. L. Rev. 673, 675 (1983).
|
|
[30]
|
Therefore,
if the family court is satisfied that the joint custody
proposal of the parties serves the child's best interest, both parties
receive the legal custody of the child
with all responsibilities and privileges incidental thereto. In such a case,
the court defers to the parties in matters relating to important decision
making regarding the child -- including physical placement. Included in the
bundle of legal rights conveyed by an award of joint custody is the physical placement of the child with both
parties. See Westrate, 124 Wis. 2d at 247, 369 N.W.2d at 167. The parties are
then free to physically locate the child as they deem necessary and
appropriate.
|
|
[31]
|
Although,
as here, divorced parties may choose to further detail their joint custody stipulations with physical placement
provisions, *fn5 we conclude that this is not essential to a valid joint custody stipulation and resultant order or
judgment. If the parties are in agreement as to a joint custody arrangement, and if the family
court, after full consideration as to the proposal's wisdom, concludes that
such arrangement is in the best interest of the child, further official
stipulation and judicial approval is not essential to the validity of those
subsequent decisions collectively made by the parties regarding their rights
and responsibilities to the minor child.
|
|
[32]
|
Leslie
argues, however, that sec. 767.32(2), Stats., the child custody modification statute, applies in a
joint custody setting when physical
placement of a child is transferred pursuant to agreement between the
parties. Section 767.32(2), governing custody
modifications, provides, in part:
|
|
[33]
|
Any
modification of a custody order which
removes a child from the care of a parent having custody of the child shall be based on a finding that such removal is necessary to the child's best
interest as shown by substantial evidence supporting a change in custody
under s. 767.24(2).
|
|
[34]
|
Again
we are presented with a matter of statutory construction -- presenting a
question of law. Sprague, 132 Wis. 2d at 71, 389 N.W.2d at 824. The statute
does not expressly state whether the reference to "custody" means sole custody or joint custody. Reasonably well-informed individuals could differ as
to whether the statute means one, the other, or both. Therefore, we conclude
the statute is ambiguous.
|
|
[35]
|
The
evil sought to be addressed by this statutory test is "to discourage
repetitious litigation of a custody
issue and to protect the children by preventing their being made pawns in a
contest between the parents." Millikin, 115 Wis. 2d at 21, 339 N.W.2d at
575 (quoting Delchambre v. Delchambre, 86 Wis. 2d 538, 540, 273 N.W.2d 301, 303
(1979)). Such evil does not exist in a joint custody
case because the family court has not made a prior determination granting one
party superior custodial rights over the other. As noted earlier, we view a
joint custody award as a continuation
of the legal relationship existing between the parties and their child prior
to the divorce. The purpose sought to be served by this statutory test is to
make custody changes harder to obtain. Id. at 22-23, 339 N.W.2d at 576.
Again, because the family court does not make such a preferential selection
when it awards joint custody, we do
not see the Millikin purpose served by application of this statutory test.
|
|
[36]
|
The
legislature's adoption of the "necessary to the child's best
interest" test in custody modification
cases resulted from the presumption that it was in the best interest of the
child to remain in the existing custodial arrangement. Corcoran v. Corcoran,
109 Wis. 2d 36, 40-41, 324 N.W.2d 901, 903-04 (Ct. App. 1982). We question
whether this presumption can or should apply when the parties to a joint custody award no longer find themselves in
agreement regarding important decisions concerning their child. Such
disagreement removes the necessary and essential philosophical and legal
underpinning for the vitality of a continuing joint custody arrangement. It is in such a setting that the family
court is, for the first time, called upon to make a preferential choice of
one parent over the other by awarding sole legal custody. Therefore, we conclude a "removal" under the modification statute
cannot occur in a joint custody case.
Rather, what occurs is an initial award of sole legal custody. When making such a determination, the existing
physical placement of the child is an important and relevant consideration.
See sec. 767.24(2)(c) and (f), Stats.
|
|
[37]
|
In
addition, the statute speaks of removal
from a parent -- not parents. We are aware of the general rule of statutory construction
that singular terms in a statute include the plural form of the term. Sec.
990.001(1), Stats. However, this rule of statutory construction does not
apply when it would lead to a result inconsistent with the statutory intent.
White v. General Casualty Co., 118 Wis. 2d 433, 439, 348 N.W.2d 614, 617 (Ct.
App. 1984). Such a result would follow from a pluralistic reading of this
singular statute.
|
|
[38]
|
In
this case, Linda and Leslie are battling over the physical placement of
Robert: Linda contending that the custody
modification order should stand; Leslie arguing that it should be vacated and
physical custody of Robert returned to
him. To retain a joint custody award
in the face of such fundamental disagreement as to the important question of
a child's physical placement is, in our judgment, pure folly. The parties now
find themselves asserting adverse claims for a superior right to Robert --
namely his physical placement. This competition is antithetical to the
concept of joint custody.
|
|
[39]
|
The
problem here lies in the fact that neither party has sought a termination of
the joint custody award. But the
vitality of the joint custody
arrangement must be measured by the parties' actions -- not their words. When
faced with such a development, the family court should not hesitate to sua
sponte raise the issue as to whether the joint custody
award should be continued. Upon remittitur of the record in this case, the
family court should feel free in its discretion and pursuant to its authority
to raise this issue with the parties. The parties also should reflect upon
the wisdom of retaining the joint custody
arrangement in light of the fundamental disagreement which now exists as to
Robert's physical placement.
|
|
[40]
|
We have
considered the effect of Thompson v. Thompson, 129 Wis. 2d 348, 384 N.W.2d
713 (Ct. App. 1986), on this question. In Thompson, a Minnesota paternity
judgment awarded joint custody to the
natural parents. In the Wisconsin divorce action, the stepfather asserted
custodial claims to the child as against the natural father. *fn6 While the Wisconsin
family court eventually awarded legal custody
to the natural mother and wife, the pleadings cast the custody battle between the natural father
and the stepfather. The parties to the divorce action did not even
participate in the appeal. Rather, the issues on appeal were raised as
between the natural father and the guardian ad litem with the guardian ad
litem defending his espousal of the cause of the stepfather. *fn7 The court of appeals held
that the Millikin standard should have been applied by the Wisconsin divorce
court when modifying the Minnesota joint custody
award.
|
|
[41]
|
Facially,
Thompson appears to disagree with our Conclusion. Id. at 354-55, 384 Wis. 2d
at 716-17. However, a close analysis of Thompson reveals that it is, in fact,
in accord with our Conclusions in this case. When the Minnesota paternity
court made its joint custody award to
the natural parents, it obviously was elevating their rights to the child
over all other persons -- including the stepfather who eventually sought to
undo the joint custody award. Thus,
when the stepfather sought to defeat the natural father's custodial rights,
the Thompson court properly applied the higher Millikin standard.
|
|
[42]
|
Such
is not the case here. The physical placement dispute in this case exists
between the parties to the joint custody
stipulation -- not between one or both of them and a third party as in
Thompson. As such, because of its curious and unusual juxtaposition of
parties, Thompson is properly held to its unique facts.
|
|
[43]
|
Because
the parties were free to change
Robert's physical placement without the necessity of judicial approval, the
order of Judge Read approving such placement change
was unnecessary. Therefore, Judge Flynn's ruling upholding such change was proper. *fn8
|
|
[44]
|
SUPPORT
|
|
[45]
|
As to
the support issue, Judge Flynn concluded that Judge Read's January 3, 1985
order transferring Robert's physical custody
could not serve as a basis for measuring whether a change of circumstances
presently existed entitling Linda to support. In effect, Judge Flynn held
that a change of circumstances must be measured from the last
judicial pronouncement regarding support, i.e., the judgment. We agree.
|
|
[46]
|
The
original judgment expressly denied support to either party. The subsequent
stipulation and order transferring Robert's physical placement was silent as
to support. It is unclear from the record whether the parties and the family
court approached the support issue as an initial determination or a
modification. However, under either approach, we find no abuse of discretion.
See Ondrasek v. Ondrasek, 126 Wis. 2d 469, 481, 377 N.W.2d 190, 195 (Ct. App.
1985). The change in Robert's
placement from Leslie to Linda is a clear and obvious change in circumstances
from those existing at the time of the judgment. The change in physical placement obviously impacted upon the financial
needs and abilities of both parties. The family court's analysis of the
evidence well supports its discretionary determination to award support and
to utilize the statutory guidelines in fixing the support award.
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[47]
|
By
the Court. -- Orders affirmed.
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Opinion Footnotes
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[48]
|
*fn1 This provision of the judgment provided as follows:
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[49]
|
The
parties jointly are given the care and custody
of the minor children. (The court finds and both parties agree that a joint custody arrangement would be in the best
interests of the children.) Physical custody
of the minor children shall be with Leslie L. Johnson and visitation shall be with Linda L. Johnson at
any & all reasonable times upon reasonable notice to Leslie L. Johnson.
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[50]
|
*fn2 The language of the stipulation, in pertinent part, provided as
follows:
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[51]
|
"Both
parties are fit and proper persons to have custody
of the minor children of the parties, namely, Robert L. Johnson and Carrie A.
Johnson. However, until further order of the Court, it is in the present best
interests of the minor children that the joint petitioners, Leslie L. Johnson
and Linda L. Abel, f/n/a Linda L. Johnson, shall have the joint care and custody of the minor children of the
parties. Physical custody of Carrie A.
Johnson shall be with joint petitioner, Leslie L. Johnson, and visitation shall be with joint petitioner,
Linda L. Abel, f/n/a Linda L. Johnson at any and all reasonable times upon
reasonable notice to joint petitioner, Leslie L. Johnson. Physical custody of Robert L. Johnson shall be with
joint petitioner, Linda L. Abel, f/n/a Linda L. Johnson, and visitation shall be with joint petitioner,
Leslie L. Johnson at any and all reasonable times upon reasonable notice to
joint petitioner, Linda L. Abel, f/n/a Linda L. Johnson."
|
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[52]
|
*fn3 We use the term "physical placement" instead of
"physical custody" to avoid
the implications that "custody"
might convey to legal minds as creating something of greater right or
stature. As this decision reveals, however, we see the terms as synonymous.
|
|
[53]
|
*fn4 Westrate v. Westrate, 124 Wis. 2d 244, 369 N.W.2d 165 (Ct. App. 1985),
does not expressly state whether the sole custody
statute is ambiguous or unambiguous. However, by construing the legislation,
the court implies that the statute is ambiguous.
|
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[54]
|
We
recognize that Westrate expressly limits the reach of its opinion to a sole
legal custody award.
|
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[55]
|
Because
sec. 767.24, Stats., requires legal and physical custody to be vested in the same party when the parties do not
consent to joint custody, and because
the trial court effectively divided physical custody
between both parents, we reverse the judgment. [Emphasis added.]
|
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[56]
|
Id.
at 246, 369 N.W.2d at 167. We view this language as not dispositive of the
question here because Westrate did not concern a joint custody award.
|
|
[57]
|
*fn5 Such documentation may be necessary in light of support
considerations.
|
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[58]
|
*fn6 The question of the stepfather's standing to assert the custodial
claim was not raised on appeal and thus not addressed by the decision.
|
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[59]
|
*fn7 We have examined the briefs in Thompson.
|
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[60]
|
*fn8 We appreciate that the use of joint custody
sometimes avoids contested custody
litigation in the family court. However, we do not see joint custody properly used as a camouflage for a
contested custody case nor as an
"escape route" to avoid litigation. While the temptation might be
strong to approve such procedure in the interest of judicial economy, we do
not believe that such "perverted" use of joint custody should be condoned expressly or
impliedly by this court.
|
19861112
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[1]
|
COURT OF APPEALS
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|
[2]
|
No. 95-1813
|
|
[3]
|
1996.WI.0000385
<http://www.versuslaw.com>
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[4]
|
March 7, 1996
|
|
[5]
|
IN RE THE MARRIAGE OF:
|
|
[6]
|
ROBERT L. HARTZELL,
PETITIONER-RESPONDENT
v.
PAULETTE HARTZELL, NOW PAULETTE LUKE, RESPONDENT-APPELLANT.
|
|
[7]
|
Before Gartzke, P.J., Sundby and
Vergeront, JJ.
|
|
[8]
|
DECISION
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|
[9]
|
DATED AND RELEASED
|
|
[10]
|
NOTICE
|
|
[11]
|
A party may file with the Supreme
Court a petition to review an adverse decision by the Court of Appeals. See
section 808.10 and Rule 809.62(1), Stats. This opinion is subject to further
editing. If published, the official version will appear in the bound volume
of the Official Reports.
|
|
[12]
|
STATE OF WISCONSIN
|
|
[13]
|
IN COURT OF APPEALS
|
|
[14]
|
DISTRICT IV
|
|
[15]
|
APPEAL from an order of the
circuit court for Rock County: PATRICK J. RUDE, Judge. Affirmed in part; reversed
in part and cause remanded with directions.
|
|
[16]
|
VERGERONT, J.
|
|
[17]
|
Paulette Luke appeals from an
order transferring primary physical placement of her two minor children, Amanda
and Joshua, to their father, Robert Hartzell, and granting joint legal custody. Luke contends that the trial court
erred by: (1) failing to state in writing why its finding relating to
physical placement and legal custody
is in the best interests of the children as required by Section(s)
767.24(6)(a), Stats.; *fn1 (2) failing to apply the factors set forth in
Section(s) 767.24(5); *fn2 (3) relying on erroneously admitted police,
sheriff and human services agency reports; (4) refusing to admit the reports
of a psychologist and a social worker retained by her; and (5) denying her
request for contribution toward her attorney fees and requiring that she pay
fifty percent of the guardian ad litem fees.
|
|
[18]
|
We conclude that the record
supports the trial court's determination that there was a substantial change
of circumstances since the last order affecting the children's custody and physical placement. However, the
trial court erroneously exercised its discretion in failing to order a legal custody and physical placement investigation
and, as a result, there was insufficient evidence from which to determine
whether it was in the children's best interests to modify the prior order.
The trial court also erroneously exercised its discretion when it admitted
the entire contents of all the police, sheriff and human services agency
reports. We therefore reverse and remand for further proceedings. We affirm
the ruling on attorney fees but reverse and remand on the issue of guardian
ad litem fees. We do not decide the issue regarding the psychologist and
social worker reports.
|
|
[19]
|
BACKGROUND
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|
[20]
|
Luke and Hartzell were divorced
on February 17, 1986. The judgment of divorce entered by the Rock County Circuit
Court provided that Luke have the care, custody
and control of the parties' two children, Amanda, born November 25, 1982, and
Joshua, born August 4, 1984. The judgment also provided that Hartzell have visitation every other weekend, certain
holidays, and at other reasonable times on reasonable notice. *fn3 On August
30, 1994, Hartzell moved the court to grant him primary physical placement of
the children and joint legal custody.
His affidavit asserted that Luke was presently on probation and was engaged
in a lifestyle that was detrimental to the best interests of the children.
Hartzell requested that the Rock County Department of Social Services perform
a custody investigation and that a
guardian ad litem be appointed. At the time of the motion, Luke lived with
her children in Reedsburg in Sauk County, and Hartzell lived in Rock County.
|
|
[21]
|
The minutes from a hearing held
on September 19, 1994, state that the court ordered that a guardian ad litem
be appointed and that a custody/placement
investigation *fn4 be conducted by the Departments of Human Services of Rock
and Sauk Counties. The trial court entered a written order appointing a
guardian ad litem, but did not enter a written order for a custody/placement investigation. The court
explained in later correspondence to the parties that it was not ordering a custody/placement investigation because it
had left this up to the guardian ad litem, and the guardian ad litem had
advised the court that a custody/placement
investigation was not necessary.
|
|
[22]
|
Before trial, the guardian ad
litem submitted a report relating the results of an investigation she had
conducted. She interviewed Luke, Hartzell, Hartzell's live-in friend Lynn,
and the two children. She also reviewed records from the Janesville Police
Department, the Reedsburg Police Department, the Rock County Sheriff's
Department, the Sauk County Sheriff's Department, and the Sauk County and
Taylor County Departments of Human Services. She concluded that there had
been a substantial change of circumstances since the last order of custody and placement and that it would be
in the best interests of the children for their father to have primary
physical placement and the parents to have joint legal custody.
|
|
[23]
|
At the trial, Hartzell, Lynn and
Hartzell's mother testified. Luke did not testify. Luke's witnesses were her
mother, Robert Hart (Luke's live-in friend), Luke's sister, Jeffrey Semenas,
a certified independent clinical social worker, and Dr. Robert Barahal, a
licensed psychologist. Semenas and Dr. Barahal were retained by Luke.
|
|
[24]
|
The trial court excluded the
reports prepared by Semenas and Dr. Barahal. The court, over Luke's
objection, admitted reports from the Taylor County Department of Human
Services, the Sauk County Sheriff's Department, the Sauk County Department of
Human Services, the Reedsburg Police Department and the Rock County Sheriff's
Department.
|
|
[25]
|
The trial court determined that
there had been a substantial change in circumstances since the entry of the
last order regarding the children's custody
and placement; the evidence overcame the rebuttable presumption that it was
in the children's best interests to have their custody
and placement remain as set forth in the last order; and it was in the
children's best interests for their parents to have joint legal custody and their father to have primary
physical placement, with specified periods of placement on alternate weekends
and certain holidays with their mother.
|
|
[26]
|
When we denied Luke's request for
relief pending appeal, we stated that we would expedite the briefing schedule
and take the case under immediate submission upon completion of the briefs.
Through inadvertence, we did not take the case under immediate submission
upon completion of the briefs. We regret this, because we recognize the
importance of a prompt resolution of disputes concerning the placement of
children.
|
|
[27]
|
SUBSTANTIAL CHANGE IN
CIRCUMSTANCES
|
|
[28]
|
More than two years having passed
since the divorce order was entered, the trial court had discretion to grant
Hartzell's motion if primary physical placement with him and joint legal custody were in the best interests of the
children and there was a substantial change of circumstances affecting
placement and custody since the
divorce. Section 767.325(1)(b)1, Stats. The presumption is that it is in the
best interests of the children to continue physical placement with the parent
with whom they reside the greater part of the time and to continue the
current allocation of decision-making under the current custody order. Section 767.325(1)(b)2.
Whether to modify custody and
placement is within the trial court's discretion. In re Stephanie R. N., 174
Wis.2d 745, 765-66, 498 N.W.2d 235, 241 (1993). We review a discretionary
decision to determine if the court examined the facts of record, applied the
proper legal standard and, using a rational process, reached a reasonable
conclusion. See id. at 766, 498 N.W.2d at 242.
|
|
[29]
|
We first consider whether there
was a substantial change of circumstances since the divorce affecting custody and placement. This determination
involves a comparison of the facts at the time of the prior order to the
present facts. Licary v. Licary, 168 Wis.2d 686, 692, 484 N.W.2d 371, 374
(Ct. App. 1992). It requires that the facts on which the prior order was
based differ from the present facts and that the difference is enough to
justify the court's considering whether to modify the order. Id. The
"before" and "after" circumstances, and whether a change
has occurred, are facts which we review under the clearly erroneous standard.
Harris v. Harris, 141 Wis.2d 569, 574, 415 N.W.2d 586, 588-89 (Ct. App. 1987).
Whether a change is substantial is a legal standard. We defer to the trial
court's conclusion that a change in circumstances is substantial, but we are
not bound. Id. at 574-75, 415 N.W.2d at 589.
|
|
[30]
|
The trial court found that there
was a substantial change in circumstances but did not set forth the facts
upon which it relied. We may review the record to determine if there are
facts that support this determination. See Delchambre v. Delchambre, 86
Wis.2d 538, 541, 273 N.W.2d 301, 303 (1979). We conclude that there are.
|
|
[31]
|
Hartzell testified that he lived
with his wife, Lynn, his son from his second marriage, and Lynn's two
children. There was evidence that Luke was on probation since March 1994 for a
drug-related offense. Since her divorce from Hartzell, Luke had had one
marriage and relationships with a number of other men who lived with her and
the children; and the men were either involved with drugs, drank excessively,
or abused Luke. People "hanging around" Luke's house had used
drugs. Luke now lives with a man who has been steadily employed, is not
involved with drugs, does not abuse alcohol and is not abusive to Luke.
Semenas testified that Luke's home is more stable than it has ever been and that
Luke is seeing a therapist and her children have attended sessions with her.
|
|
[32]
|
This evidence is sufficient to
support a finding that circumstances have changed since February 17, 1986. We
conclude that these changes are substantial. They are significant enough to
the lives of the children to warrant a court's consideration of whether it is
in the best interests of the children to modify the prior order. The evidence
that Luke's home life had recently stabilized, while relevant to the best interests
determination, does not alter our conclusion. The changes in the households
and the significant relationships of each parent, and Luke's probation for a
drug-related offense, justify the court's consideration of modification of
the prior order.
|
|
[33]
|
CUSTODY/PLACEMENT
INVESTIGATION AND BEST INTERESTS
|
|
[34]
|
We next address the trial court's
decision not to order a custody/placement
investigation because that decision affects most of Luke's remaining
arguments. Section 767.11(14)(a), Stats., provides that whenever a child's
legal custody or physical placement is
contested and mediation has not resulted in agreement, the court may order a
person or entity designated by the county to investigate the conditions of
the child's home, each party's performance of parental duties and
responsibilities relating to the child, and any other matter relevant to the
best interest of the child. The person or entity investigating the parties is
to submit the results of the investigation to the court, which is to make the
results available to both parties. Section 767.11(14)(b). "The report
shall be a part of the record in the action unless the court orders
otherwise." Id.
|
|
[35]
|
A trial court need not order an
investigation in every custody and
physical placement dispute. The term "may" means that it is within
the trial court's discretion to do so. See Dennis v. Bayfield County Cir.
Ct., 161 Wis.2d 644, 652, 468 N.W.2d 736, 739 (Ct. App. 1991). When a
decision is discretionary, the court must undertake a reasonable inquiry and
examination of the facts as the basis for its decision. Hedtcke v. Sentry
Ins. Co., 109 Wis.2d 461, 471, 326 N.W.2d 727, 732 (1982). We will affirm the
trial court's decision if the record shows that discretion was, in fact,
exercised and a reasonable basis exists for the trial court's decision. Id.
Failure to exercise discretion is an erroneous exercise of discretion. Id. at
471-72, 326 N.W.2d at 732.
|
|
[36]
|
The trial court delegated to the
guardian ad litem the decision of whether a custody/placement
investigation was necessary. *fn5 While the court may consider the
recommendation of the guardian ad litem in making this decision, the court
must exercise its own discretion in making the final decision. The trial court
here did not do that. Its only explanation for not ordering a home study was
that the guardian ad litem decided it was not necessary. This does not
constitute an exercise of discretion by the trial court.
|
|
[37]
|
When a trial court fails to exercise
its discretion, we may remand to permit the trial court to do so. Hartung v.
Hartung, 102 Wis.2d 58, 69, 306 N.W.2d 16, 22 (1981). In this case, we think
the better course is to examine the record to determine whether the record
supports a decision that the custody/placement
investigation was unnecessary. We conclude that the record does not support
that decision. We also conclude that the failure to order a custody/placement investigation resulted in
insufficient evidence from which to make a determination of the best
interests of the children.
|
|
[38]
|
The evidence supports findings
that Hartzell's household provided a more stable, disciplined environment and
more strongly demonstrated a work ethic than did Luke's household. There was also
evidence that some of Luke's conduct and associations had not been in the
children's best interests, although, as we discuss below, some of this
evidence was improperly admitted. While the conduct, lifestyle and values of
each parent are relevant to a determination of the children's best interests,
the relationship of the children to each parent and siblings and others with
whom they live at each home is also a factor in determining the best
interests of the children, as is the children's adjustment to the home,
school, religion and community. Section 767.24(5)(c) and (d), Stats. In the
case of a change in primary physical placement, the attachment to the parent
and others with whom the children are presently residing and to that school
and community, and the effect of the change on the children, are significant
concerns.
|
|
[39]
|
Apparently, both the trial court
and the guardian ad litem considered that the guardian ad litem could
adequately gather all the relevant information and evaluate it in order to
reach a recommendation. However, the role of the guardian ad litem is not
that of a fact-finder. Hollister v. Hollister, 173 Wis.2d 413, 419, 496
N.W.2d 642, 645 (Ct. App. 1992). A guardian ad litem's report should not
contain factual information that is not part of the record. Id. at 420, 496
N.W.2d at 645. The position and observations of the guardian ad litem are not
evidence. In re Stephanie R. N., 174 Wis.2d at 774, 498 N.W.2d at 245. Thus,
the guardian ad litem's observations and conclusions in her report about the
children's ability to adjust to living with their father, their relationships
with their father's wife and the three children in their father's home, and
their father's relationship with his wife, are not evidence that the court
can rely on in determining the children's best interests. *fn6
|
|
[40]
|
The gap in the evidence resulting
from the absence of a custody/placement
investigation is illustrated by an examination of the testimony of Semenas
and Dr. Barahal. The trial court said their testimony was incomplete because
neither had interviewed or examined Hartzell or his family and friends. That
is precisely one of the values of a court-ordered custody/placement investigation -- it is based on interviews
and information concerning both parties so that a meaningful comparison may
be made. In the absence of a custody
investigation, because Luke chose to retain experts and Hartzell did not,
there was evidence about Luke's psychological health, her relationship with
her children, the children's attachment to her, and no corresponding
information concerning Hartzell.
|
|
[41]
|
In light of Dr. Barahal's
testimony, the absence of such evidence regarding Hartzell is particularly
troubling. Dr. Barahal testified that Amanda and Joshua were strongly
attached to Luke's two younger children and that being in a different home
without those two children would be emotionally traumatic for them; that the
children are more strongly attached to their mother than to Hartzell; that
there are significant conflicts in the children's feelings about the other
people in their father's home, namely their stepmother and step-siblings;
that Luke does not suffer from significant characterological problems in
spite of many aspects of her history; and that, taking as true all the
negative information about Luke in the guardian ad litem's report, it would
be highly traumatic for the children to move from their mother's home to
their father's home. Dr. Barahal stated these opinions to a reasonable degree
of scientific certainty.
|
|
[42]
|
Dr. Barahal also testified that
because he had not met Hartzell, he could not say whether the move was
nevertheless in the children's best interests; or whether the father was so much
a better parent that the children would benefit in the long run. He believed
moving the children to Hartzell's home was taking "a real chance of
screwing these kids up badly." He could not say whether that risk was
worth taking because he did not know Hartzell; but he urged caution in making
a major change in the children's lives. He found nothing in his examination
indicating that the children had been psychologically harmed by living with
their mother.
|
|
[43]
|
The trial court found:
|
|
[44]
|
I have also considered the fact
that any change of primary placement can be upsetting and unsettling to the
children. Nevertheless, I find that these children should be able to adapt to
a change of primary placement without too much difficulty based on the
evidence in this case.
|
|
[45]
|
However, no evidence supports
this finding. The guardian ad litem's observations and conclusions are not
evidence. Nor is evidence that the trauma to the children of leaving their
mother's home is, nevertheless, in their best interests because of the
benefits to them of being in their father's home. The evidence of Hartzell's
lifestyle and values is significant, but there is little or no evidence
concerning his relationship with his children and his parenting abilities,
and little evidence on the children's relationship with others in their
father's household.
|
|
[46]
|
There is also little evidence of
the children's adjustment to their school and community. The trial court excluded
Semenas' report and did not permit him to testify concerning conversations
with the children's teacher and their therapist. Dr. Barahal testified that
Joshua had developmental difficulties and, possibly, seizures but his report,
which discusses this in more detail, was excluded. *fn7 These are all issues
that a court-ordered custody/placement
investigation could have addressed.
|
|
[47]
|
We conclude that we must reverse
the trial court's order granting joint legal custody
and primary physical placement with Hartzell, and remand with directions to
order a custody/placement
investigation and such further proceedings as appropriate. The trial court
should also consider whether a court-ordered psychological evaluation of the
parties or the children is necessary. In view of the importance to the
children and parents of resolving this issue promptly, we direct the court on
remand to proceed expeditiously so that the primary placement of the children
is decided, at the latest, before school begins in the fall of 1996.
|
|
[48]
|
Because the issue of the proper
time for determining the children's best interests on remand may arise, we
address that now. We cannot put the parties and the children back in the
position they were in when this dispute was tried on April 6, 1995. The
children have presumably been residing with their father since about June 6,
1995. The custody/placement
investigation and any new testimony the court hears should assess the
children and parties as they are at the time of the proceedings on remand,
not as they were at the trial in April 1995. We conclude that the standard
for modifying custody and physical
placement under Section(s) 767.325(1)(b), Stats., must, under these
circumstances, be altered somewhat.
|
|
[49]
|
Section 767.325(1)(b), Stats.,
shows the legislature's intent to minimize disruption to the child's life by
discouraging repeated litigation of custody
and placement orders. It does this in two ways: (1) there must be a
substantial change in circumstances since the entry of the last order, and
(2) there is a rebuttable presumption in favor of continuing the current
allocation of decision-making and continuing the child's physical placement
with the parent with whom the child resides the greater part of the time.
|
|
[50]
|
However, Section(s)
767.325(1)(b), Stats., contemplates the typical situation where the child's
primary placement is with the non-moving party, consistent with the terms of
the order sought to be modified. This does not fit the facts before us. Here
the children reside with the moving party pursuant to an order that we have
reversed.
|
|
[51]
|
Considering the purpose of
Section(s) 767.325(1)(b), Stats., it makes no sense to apply a rebuttable
presumption that it is in these children's best interests to
"continue" to reside primarily with Luke, since they are not doing
so now. On the other hand, we are not willing to invest the arrangements
under the order we reverse with that presumption. Therefore, on remand the
court should not apply a presumption in favor of either party.
|
|
[52]
|
The reasoning that supports this
modification of the standard on remand also supports our conclusion that the
children should remain primarily placed with their father until the court
determines their primary physical placement after remand, unless the court
determines that another interim arrangement is in the children's best
interests. The goal here is to minimize the disruption to the children's
lives while the proceedings on remand take place.
|
|
[53]
|
EVIDENTIARY ISSUES
|
|
[54]
|
Because the admissibility of the
police, sheriff and social services reports is an issue that may arise on
remand, we address that now. Luke contends that the police, sheriff and
social services reports were improperly admitted. She acknowledges that the
hearsay exception for public records applies, Section(s) 908.03(8), Stats.,
but she contends that the exception renders admissible only the parts which
the maker of the report could testify to if present in court. We agree. If
the report contains an additional level of hearsay, the report must be
examined to determine whether an exception applies to that level of hearsay.
Mitchell v. State, 84 Wis.2d 325, 330, 267 N.W.2d 349, 352 (1978). If it does
not, that portion of the report must be excluded. Boyer v. State, 91 Wis.2d
647, 661, 284 N.W.2d 30, 35 (1979).
|
|
[55]
|
While the decision to admit or
exclude evidence is discretionary, it must be made in accordance with the
proper legal standards. State v. Weber, 174 Wis.2d 98, 106, 496 N.W.2d 762,
766 (Ct. App. 1993). The trial court admitted all the reports offered by
Hartzell, over Luke's objection, without analysis of each report. The trial
court relied on certain reports. The court refers in its findings to "police
calls" and to other incidents related in the reports. But the court did
not state what reports, or what portions of the reports, it relied on. *fn8
Certain portions of certain reports are admissible and therefore could
properly be relied on by the trial court, but we decline to rule on the
admissibility of the contents of each report, because the trial court has not
yet done so and the matter is being remanded on other grounds. On remand, the
trial court should consider the admissibility of each report offered by
Hartzell and rule on Luke's objections to the contents of each.
|
|
[56]
|
Luke also argues that the trial
court erroneously denied admission of Semenas' and Dr. Barahal's reports.
Resolution of this issue is related to whether Semenas and Dr. Barahal are
experts in the areas in which they offered testimony. Whether a witness
qualifies as an expert is a matter within the trial court's discretion, State
v. Robinson, 146 Wis.2d 315, 332, 431 N.W.2d 165, 171 (1988), as is the
question whether to admit an expert's opinion pursuant to Section(s) 907.02,
Stats. State v. Blair, 164 Wis.2d 64, 74-75, 473 N.W.2d 566, 571 (Ct. App.
1991). An expert witness may at trial read into evidence any report that the
witness prepared, except matter in the report that would not be admissible if
the expert testified orally. Section 907.07, Stats.
|
|
[57]
|
We do not know whether Semenas or
Dr. Barahal will testify on remand, since there will be a court-ordered custody/placement investigation and there may
be a court-ordered psychological evaluation. If either one or both do
testify, that testimony will address circumstances at the time of the remand.
Because of the death of the judge who has presided over this case, a new
judge will hear the case on remand. The successor judge will not be bound by
his or her predecessor's rulings on the admissibility of expert opinion
testimony or reports. See Starke v. Village of Pewaukee, 85 Wis.2d 272, 283,
270 N.W.2d 219, 224 (1978) (successor judge may modify or reverse rulings of
predecessor if it does not require a weighing of testimony given before the
predecessor and so long as predecessor would have been empowered to make the
modifications). For these reasons we do not decide the issues relating to the
admissibility of Semenas' and Dr. Barahal's reports.
|
|
[58]
|
ATTORNEY FEES, COSTS AND GUARDIAN
AD LITEM FEES
|
|
[59]
|
The trial court denied Luke's
motion for a contribution toward her attorney fees and costs on the ground
that the custody dispute was precipitated
by Luke's unilateral decision to deny Hartzell visitation
at the appropriate times and places. The court also determined that the
guardian ad litem fees should be divided equally. Luke contends that the
trial court erred because she does not have the ability to pay these fees and
costs and Hartzell does.
|
|
[60]
|
Section 767.262(1)(a), Stats.,
provides that a court may, after considering the financial resources of both
parties, order either party to pay a reasonable amount for the costs to the
other party, including attorney fees, of maintaining or responding to an
action affecting the family. This statute means that a court may not order
contribution without considering the financial resources of the parties. This
statute does not mean that a court must order contribution if one party has
greater income; rather, a court may do so.
|
|
[61]
|
The trial court declined to order
contribution because it found that Luke's denial of Hartzell's visitation rights precipitated Hartzell's motion
to change custody and physical
placement. It is reasonable to infer from the evidence that this is one
factor prompting the motion. Hartzell testified concerning Luke's failure to
permit the children to see him at the scheduled times on various occasions
before he filed the motion. Luke did not testify. It was reasonable for the
court, in deciding whether to award a contribution, to take into account
Luke's conduct in denying Hartzell's visitation
rights.
|
|
[62]
|
However, we are unable to determine
why the court ordered an equal division of guardian ad litem fees. Under
Section(s) 767.045(6), Stats., the court has the discretion to apportion the
fees between the parties and to order that the county pay part or all if
either party is unable to pay. Because of the reference to "unable to
pay," we read this statute to require that the court consider each
party's ability to pay in deciding how the guardian ad litem fees are to be
paid. On remand, the court should direct the manner of payment of guardian ad
litem fees after considering each party's ability to pay.
|
|
[63]
|
SUMMARY
|
|
[64]
|
On remand, the court shall order
a custody/placement investigation and
consider whether to order a psychological evaluation of the parties or the children.
After the investigation is completed, the court shall conduct a hearing to
determine whether primary placement with Hartzell and joint custody is in the best interests of the
children. The court shall rule, consistent with this opinion, on the admissibility
of each police, sheriff and human services agency report, or portion thereof,
that is offered by Hartzell and objected to by Luke. The court shall
determine the manner of payment of the guardian ad litem fees after
consideration of the parties' financial circumstances.
|
|
[65]
|
By the Court. - Order affirmed in
part; reversed in part and cause remanded with directions.
|
|
[66]
|
Not recommended for publication
in the official reports.
|
|
[67]
|
SUNDBY, J. (concurring in part;
dissenting in part).
|
|
[68]
|
I agree that we must reverse the
order awarding the parties joint legal custody
and transferring primary physical placement of Amanda and Joshua from their mother
to their father, Robert. The order amended a 1986 judgment. I do not agree,
however, that we can, or should, allow Robert to retain the fruits of the
trial court's error by leaving the children with him. When we reverse a trial
court order changing physical placement, the judgment or previous order
controls.
|
|
[69]
|
Amanda is approximately thirteen
and one-half and Joshua will be twelve in August. By the time the
investigations which should have been done are done after remand and the
trial court decides Robert's motion, and the trial court's decision is
appealed, and review by the supreme court is sought, with the possibility of
a further reversal, these children may no longer be minors. We will have a
repeat of the tragedy in In re Paternity of S.R.N., 167 Wis.2d 315, 481
N.W.2d 672 (Ct. App. 1992), aff'd, 174 Wis.2d 745, 498 N.W.2d 235 (1993),
where a twenty-month old child was wrongfully taken from her mother by court
order and given to her father. By the time this wrong was righted, the child
had been with the father approximately five-and-one-half years and a new
trial court concluded that continuing the custody
and physical placement arrangement was now in the best interest of the child.
|
|
[70]
|
I fault the legislature and the
courts equally for allowing these tragedies to occur. I urge the legislature
to enact emergency legislation providing that a child shall not be removed
from his or her home until an order having such effect has become final after
all judicial remedies are exhausted, except where a child is being physically
or sexually abused. I also urge the legislature to provide that any order
having such effect shall be immediately appealable and shall be heard
forthwith by the court of appeals. It is time that the courts and the
legislature put a stop to allowing "the courts ... to be battlefields
where wounded parents turn their children as weapons against one
another." S.R.N., 167 Wis.2d at 343, 481 N.W.2d at 684.
|
|
[71]
|
I have no sympathy at all for the
father in this case. He loved Amanda and Joshua so much that he refused to
pay court-ordered child support and was twice ordered to show cause why he
should not be found in contempt for
failing to pay such support; regarding the second order to show cause, he was
found in contempt of court. Moreover,
as of August 11, 1992, he was $9,683.69 in arrears in child support. I
question the sincerity of his effort to now obtain primary care and placement
of the children. It is likely that he is motivated primarily by his disinclination
to pay child support.
|
|
[72]
|
Robert relies on Paulette's
chaotic lifestyle. However, he did not present any evidence that the mother's
lifestyle had any adverse affect upon the children. That is necessary. See S.R.N.,
167 Wis.2d at 338-39, 481 N.W.2d at 682. The mother, however, presented
reports by a licensed psychologist and the Sauk County Human Services social
worker that the children "much preferred" to live with their mother
and resented their father and his efforts to interfere
with their relationship with their mother. Amanda told the psychologist that
she would like to "make all this court stuff stop and just live with my
mother." In a hypothetical life boat, Joshua told the doctor that he
would include his father only if there "was a lot more room." The
children blame their father for most of the fighting between him and their
mother.
|
|
[73]
|
The psychologist concluded that a
change of physical placement would be traumatic for the children.
|
|
[74]
|
The father had the burden to show
that a change of physical placement and legal custody
was in the best interest of the children. He made almost no effort to carry
that burden.
|
|
[75]
|
Under Section(s) 767.325(1)(b)2, Stats.,
the father was faced with a rebuttable presumption that continuing the
children's physical placement with their mother was in their best interest.
He did not overcome that presumption. We propose to give him a second chance.
I have always thought that if a litigant had a burden to carry and failed to
carry it, he or she had had their day in court and that was the end of the
matter. Further, because of the trial court error caused by the father's
failure to make his case, we now propose to abolish the rebuttable
presumption because the children have been placed with him wrongfully since
the court entered the order which we now review.
|
|
[76]
|
I urge the supreme court to give
this case its immediate attention and prevent, if it is not already too late,
the trauma to the children caused because Robert has used them in his bitter
contest with his former wife. We take away children's stability in their
homes and get tough with them when they find outlets for their anger in
delinquent acts.
|
|
[77]
|
For these reasons, I dissent.
|
|
|
|
|
|
Opinion Footnotes
|
|
|
|
|
[78]
|
*fn1 Section 767.24(6)(a),
Stats., provides:
|
|
[79]
|
If legal custody or physical placement is contested, the court shall state
in writing why its findings relating to legal custody
or physical placement are in the best interest of the child.
|
|
[80]
|
*fn2 Section 767.24(5), Stats.,
provides:
|
|
[81]
|
In determining legal custody and periods of physical placement, the
court shall consider all facts relevant to the best interest of the child....
The court shall consider reports of appropriate professionals if admitted
into evidence when legal custody or
physical placement is contested. The court shall consider the following
factors in making its determination:
|
|
[82]
|
(a) The wishes of the child's
parent or parents.
|
|
[83]
|
(b) The wishes of the child,
which may be communicated by the child or through the child's guardian ad litem
or other appropriate professional.
|
|
[84]
|
(c) The interaction and
interrelationship of the child with his or her parent or parents, siblings,
and any other person who may significantly affect the child's best interest.
|
|
[85]
|
(d) The child's adjustment to the
home, school, religion and community.
|
|
[86]
|
(e) The mental and physical
health of the parties, the minor children and other persons living in a
proposed custodial household.
|
|
[87]
|
(f) The availability of public or
private child care services.
|
|
[88]
|
(g) Whether one party is likely
to unreasonably interfere with the
child's continuing relationship with the other party.
|
|
[89]
|
(h) Whether there is evidence
that a party engaged in abuse of the child, as defined in s. 48.981(1)(a) and
(b) or 813.122(1)(a).
|
|
[90]
|
(i) Whether there is evidence of
inter-spousal battery as described under s. 940.19 or domestic abuse as
defined in s. 813.12(1)(a).
|
|
[91]
|
(j) Whether either party has or had
a significant problem with alcohol or drug abuse.
|
|
[92]
|
(k) Such other factors as the
court may in each individual case determine to be relevant.
|
|
[93]
|
*fn3 Under statutory amendments
since the entry of the 1986 order, the definition of custody has changed. The terms "joint legal custody" and "legal custody" are now defined in Section(s)
767.001(1) and (2), Stats. The term "physical placement" is now
used instead of "visitation."
"Physical placement" is defined in Section(s) 767.001(5). Using
current terminology, the 1986 order granted Luke sole legal custody and primary physical placement. The
term "custody" in this
opinion refers to legal custody as
defined in 767.001(2). The term "placement" refers to physical
placement as defined in Section(s) 767.001(5).
|
|
[94]
|
*fn4 The parties and the court
often use the term "home study" to refer to an investigation under
Section(s) 767.11(14)(a), Stats. That statute provides in pertinent part:
|
|
[95]
|
A county or 2 or more contiguous counties
shall provide legal custody and
physical placement study services. The county or counties may elect to
provide these services by any of the means set forth in sub. (3) with respect
to mediation. Regardless of whether a county so elects, whenever legal custody or physical placement of a minor
child is contested and mediation under this section is not used or does not
result in agreement between the parties, or at any other time the court
considers it appropriate, the court may order a person or entity designated
by the county to investigate the following matters relating to the parties:
|
|
[96]
|
1. The conditions of the child's
home.
|
|
[97]
|
2. Each party's performance of
parental duties and responsibilities relating to the child.
|
|
[98]
|
3. Any other matter relevant to
the best interest of the child.
|
|
[99]
|
We use the term "custody/placement investigation" in
this opinion to refer to an investigation as described in Section(s)
767.11(14)(a), Stats.
|
|
[100]
|
*fn5 The record does not indicate
at what point, after the September 19, 1994 hearing, the court decided to
leave the question of a custody/placement
investigation up to the guardian ad litem. Nor does the record indicate how
counsel were first informed of the trial court's decision to do this.
However, after the guardian ad litem's report was filed on December 7, 1994,
Luke's new counsel requested a court-ordered investigation under Section(s)
767.11(14), Stats. When the trial court denied the request, stating that it had
left this decision up to the guardian ad litem and she had determined it was
unnecessary, Luke moved for reconsideration of the denial. In the motion for
reconsideration, Luke pointed out that there was little information in the
guardian ad litem's report about Hartzell and that it was in the best
interests of the children that the court have evidence of the suitability of
both homes. We do not find a ruling by the court on this motion.
|
|
[101]
|
*fn6 We do not intend to fault
the quality of this guardian ad litem's work or her conscientiousness in
acting as an advocate for the children. We intend, rather, to clarify the
role of the guardian ad litem, recognizing that the role is not always
well-defined. See Hollister v. Hollister, 173 Wis.2d 413, 418, 496 N.W.2d
642, 644 (Ct. App. 1992).
|
|
[102]
|
*fn7 We discuss the admissibility
of these reports later in the opinion.
|
|
[103]
|
*fn8 The trial court stated that
it was incorporating all the facts in Hartzell's brief as its findings, and the
factual allegations in the guardian ad litem's reports. Those documents
discuss various reports. This makes it even more difficult to determine
whether the court relied on admissible portions of the reports. A trial court
does not properly exercise its discretion when it adopts the position and
findings of a party without stating the factors it relied on in deciding to
do so. See Trieschmann v. Trieschmann, 178 Wis.2d 538, 544, 504 N.W.2d 433,
435 (Ct. App. 1993).
|
19960307
[1] COURT OF APPEALS OF WISCONSIN
[2] No. 91-2355
[3] 1992.WI.266
<http://www.versuslaw.com>, 485 N.W.2d 442, 169 Wis. 2d 524
[4] May 20, 1992
[5] IN RE THE MARRIAGE OF: CLAIR WIEDERHOLT,
PETITIONER-APPELLANT,
v.
BONNIE
FISCHER, RESPONDENT-RESPONDENT
[6] Appeal from an order of the circuit
court for Manitowoc county: Fred H. Hazlewood, Judge.
[7] Petition to review denied.
[8] On behalf of petitioner-appellant, the
cause was submitted on the briefs of Clair Wiederholt, pro se.
[9] On behalf of respondent-respondent, the
cause was submitted on the brief of James Wedemeyer of Dewane, Dewane, Kummer
& Lambert of Manitowoc.
[10] A brief was submitted by guardian ad
litem Robert J. Zeman of Muchin, Muchin & Bruce, S.c. of Manitowoc.
[11] Brown, Anderson and Snyder, JJ.
[12] The opinion of the court was delivered
by: Anderson
[13] ANDERSON, J. Clair Wiederholt and Bonnie
Fischer are divorced and have three children. Clair appeals from an order
denying his motion to transfer primary physical placement of the three children
to him. He also appeals the portion of the order that altered the temporary
placement portion of the divorce judgment and required that he contribute to
Bonnie's attorney's fees. Because we conclude that the trial court did not
abuse its discretion, we affirm.
[14] At the time of the filing of the divorce
in 1985, Natasha was ten; Carissa was seven; and Ruscena was six. Primary
physical placement of the three children was intensely disputed during the
pendency of the divorce action. Some time after the filing of the divorce
action, Bonnie and the three children moved from Waunakee, Wisconsin to
Manitowoc, Wisconsin. A temporary order gave Bonnie primary physical placement.
During this time, the girls were reluctant to go with Clair for temporary
placement and would run away and climb trees when he came to pick them up.
[15] Clair and Bonnie were divorced in
February 1987 by Dane County Circuit Court Judge Mark A. Frankel. The court found
both parents fit to have the care, custody and control of the children. The
court gave Bonnie primary placement of the three children and Clair received
reasonable rights of temporary placement.
[16] The temporary placement guidelines in the
divorce judgment were specified in detail and were based on the recommendation
of the guardian ad litem and the psychologists. After the divorce, both Clair
and Bonnie filed numerous motions with the trial court alleging that the other
was in contempt for failing to follow the divorce judgment and subsequent
orders. The motions and affidavits detailed specific actions allegedly taken by
each party toward the children and claimed that such actions were detrimental
to the children. The motions dealt with accusations involving what the parties
told the children, whether photographs could be taken of the children, problems
with the pick-up and drop-off time and locations, problems with telephone
contact, and issues over the children's clothes and toys. Their disputes
eventually were transferred to Manitowoc county because the children resided in
Manitowoc county.
[17] In July 1990,
Clair moved the court to transfer the primary placement of the three children
to him. The basis for Clair's motion was that the children suffered from
"Parental Alienation Syndrome," the condition was caused by Bonnie,
and the only cure was to transfer primary placement of the children to him.
[18] A three-day trial was held before circuit
court Judge Fred H. Hazlewood. The court found that the three children were
alienated from their father and that the alienation was attributable to both
parents. The court denied Clair's motion to change primary placement because it
was not in the children's best interests. The court also found that due to the
history of the case, a rigid temporary placement schedule was in the children's
best interests and altered the temporary placement schedule. The court also
declined to order counseling for the parties or the children. Clair appeals.
[19] The main issues in this case concern the
trial court's physical placement decisions. A court has wide discretion in
making physical placement determinations. See Bohms v. Bohms, 144 Wis. 2d 490,
496, 424 N.W.2d 408, 410 (1988). The exercise of discretion will not be upset
unless it represents a clear abuse of discretion or unless the court misapplied
the law. Id.
[20] The trial court's exercise of discretion
in revising physical placement after two years from the initial physical
placement order is controlled by sec. 767.325(1)(b), Stats. The court may make
a modification if it finds that (1) the modification is in the child's best
interest and (2) there has been a substantial change in circumstances since the
entry of the last order substantially affecting physical placement. Id. There
is a rebuttable presumption that continuing the child's physical placement with
the parent with whom the child resides for the greater period of time is in the
child's best interest. Section 767.325(1)(b)2b.
[21] What is in the child's best interest is a
mixed question of law and fact, with the determination of such matters as
psychological factors being a question of fact. Pamperin v. Pamperin, 112 Wis.
2d 70, 75, 331 N.W.2d 648, 651 (Ct. App. 1983). Findings of fact will not be
set aside unless clearly erroneous. Section 805.17(2), Stats. Questions of law
ordinarily are reviewed independently. Wassenaar v. Panos, 111 Wis. 2d 518,
525, 331 N.W.2d 357, 361 (1983). In cases where the trial court's legal Conclusion
is so intertwined with the factual findings, as here, this court will give
weight to the trial court's decision. Id.
[22] The first issue is whether the trial
court abused its discretion when it refused to transfer primary placement to Clair.
Clair argues that because the trial court found the children were alienated
from him, the court erred in concluding that it would not be in the children's
best interests to transfer primary placement to him to cure the syndrome. *fn1
Clair's expert, Dr. Gerald Wellens, concluded that both Carissa and Ruscena
"severely" suffered from the syndrome and have "one of the worst
cases I've ever seen in doing this kind of work." *fn2 Wellens stated that
he was "positive" that Bonnie was the cause of the syndrome. Wellens
opined that the only remedy was to place the children with Clair.
[23] The trial court acknowledged that Wellens
was a respected psychologist and the court respected his opinions. However, the
court rejected Wellens' recommended cure of placing the children with Clair.
The court pointed out that Wellens admitted that transferring primary placement
involved uncertain risks. The court acknowledged that the long-range negative
effects of the alienation will exist, but the high degree that Wellens
described is speculative. Such a transfer may jeopardize the children's
progress in school and relationships with friends. *fn3 Wellens' testimony
itself indicated that the cure is controversial and that there is limited
research data to support the success of transferring the children to the
"hated" parent. The court concluded that the evidence was not strong
that the alienation would be cured by placing the children with Clair.
[24] The trial Judge interviewed the children
and found that they do not like their father and do not want to live with him.
One child told the Judge that her feelings came from her own observations.
Because the children are "adamantly" opposed to living with Clair,
the court stated that the potential risk of harm to the children outweighed the
questionable benefits of transferring placement. The court concluded that the
cure proposed by Clair presented too high of a risk of harm. *fn4
[25] Based on the weighing of all the evidence,
the court found that the cure proposed by Clair was not better than the current
primary placement with Bonnie. The court found that the psychological impact on
the children is risky and uncertain. These findings are not clearly erroneous.
These findings more than adequately support the court's Conclusion that the
best interests of the children would not be served by a transfer of placement.
Therefore, the court did not abuse its discretion. *fn5
[26] Clair repeatedly stresses that the cure advocated
by Wellens was uncontradicted and that the court erred by not accepting it. The
weight of the testimony is peculiarly within the province of the trial court
acting as the trier of fact. Kleinstick v. Daleiden, 71 Wis. 2d 432, 442, 238
N.W.2d 714, 719-20 (1976). A court is not obliged to adopt uncontradicted
testimony if there is other evidence in the case that renders it unreasonable.
See Peterson v. Peterson, 126 Wis. 2d 264, 266, 376 N.W.2d 88, 89 (Ct. App.
1985). As summarized above, Wellens' testimony itself provides for a basis to
reject the cure in this case. Wellens' testimony indicated that the cure was
controversial, there is limited research data, and there are uncertain risks.
Furthermore, the testimony of both parents and the children was other evidence
that the cure advocated by Wellens would not be successful and was
unreasonable. Therefore, we cannot find error in the court's refusal to accept
Wellens' opinion.
[27] The second issue is whether the trial
court abused its discretion when it revised temporary placement. *fn6 Clair
argues that there was no basis for the revision.
[28] Our review of the record indicates that
the parties' past behavior is a substantial basis for the trial court's
revision. The revision was necessitated by the parties' demonstrated inability
to work under the temporary placement schedule. The new order requires bus
transportation of the children to and from Waunakee through Milwaukee. This is
a reasonable response to the parties' inability to work out details concerning
pick-up and drop-off times and locations. Because the bus was to be used for
transportation, a revision of the time when placement began and ended was
required. This cut into the time Clair could spend with the children. Finding that
the children need to "unwind from school" on Friday before traveling
to their father's home is reasonable. *fn7 Fashioning a placement schedule to
account for the children getting older and becoming more involved with school
activities and friends also is reasonable.
[29] Because the parties have demonstrated a
refusal or an inability to work within the original placement guidelines, a
rigid schedule was required. Clair fails to recognize that because of the past
behavior of both parties, they both gave up the flexibility of the schedule,
necessitating a rigid schedule with the accompanying inconveniences. It was not
an abuse of discretion for the court to conclude that any harm to the children
from less time with Clair is outweighed by the stability of a rigid placement
schedule. The parties' past behavior provides a substantial basis for revising
the temporary placement order. We cannot disagree with the court that the
revised schedule is in the children's best interests.
[30] Clair also argues that the trial court
erred in failing to order counseling for the children and the parents. We do
not find an abuse of discretion. The children and the parents have gone through
extensive counseling. Although there was minimal progress, the court reasonably
could have concluded that more counseling would be nonproductive.
[31] The third issue is whether the trial
court abused its discretion in awarding Bonnie $1500 toward her attorney's
fees. Awarding attorney's fees is within the discretion of the trial court and
will not be altered on appeal unless that discretion is abused. Kastelic v.
Kastelic, 119 Wis. 2d 280, 290, 350 N.W.2d 714, 719 (Ct. App. 1984). The trial
court must make findings of need, ability to pay, and the reasonableness of the
fees. Id. The court considered all the relevant factors and we conclude that
the findings are not clearly erroneous. Section 805.17(2), Stats.
[32] We briefly address another of Clair's
arguments. He argues that the guardian ad litem fundamentally misunderstood his
duties to the children. We agree. The guardian ad litem described his duties as
representing and advocating the children's wishes. In the appellate brief, he
stated that the children are his "clients." However, sec. 767.045(4),
Stats., clearly states that the guardian ad litem shall be an advocate for the
best interests of a minor child and that the guardian ad litem shall not be
bound by the wishes of the minor child. This means that the guardian ad litem
does not represent a child per se. Rather the guardian ad litem's statutory
duty is to represent the concept of the child's best interest. In advocating
for this concept, the guardian ad litem acts in the "same manner as an
attorney for a party to the action." Id. Advocating this concept may
require advocating something contrary to the child's wishes. By concentrating
on the child's wishes, the guardian ad litem may miss his or her obligation --
to fully examine and advocate the child's best interest. To fulfill the
statutory obligation, the guardian ad litem must see himself or herself as
representing the concept of the child's best interest. In this case, because
the children's wishes were ultimately consistent with the children's best
interests, the guardian ad litem's misconception does not require further
proceedings.
[33] By the Court. -- Order affirmed.
--------------------------------------------------------------------------------
Opinion Footnotes
--------------------------------------------------------------------------------
[34] *fn1 According to Clair's expert witness,
"Parental Alienation Syndrome" can be one of four types: (1) one
parent actively brainwashing or manipulating the feelings of a child concerning
the other parent, (2) one parent unconsciously rewarding a child for turning
his or her affections away from the other parent, (3) a child alienating
himself or herself on the basis of fear of loss of love, and (4) a child
alienating himself or herself because of certain situational factors.
[35] *fn2 Only the two younger girls were
evaluated by the expert.
[36] *fn3 Clair argues that the court ignored
Clair's willingness to move close to the children and based its decision on the
assumption that the children would have to move to Waunakee. The court did not
mention in its oral or written decision Clair's willingness to move. However,
because Clair's testimony revealed that he had done very little to look for new
jobs in the Manitowoc area, the court could have properly discounted Clair's
testimony that he was willing to move.
[37] *fn4 In his brief, Clair cites case law
which states that personal preference of a child is not a controlling
consideration on the issue of custody. See, e.g., Haugen v. Haugen, 82 Wis. 2d
411, 417, 262 N.W.2d 769, 772 (1978). A review of the court's decision shows
that the children's wishes to stay with Bonnie did not control the court.
Furthermore, even though the children's stated wishes were consistent with the
syndrome, the weight of their testimony and their credibility are matters
peculiarly within the province of the trial court acting as the trier of fact
because of the court's superior opportunity to observe the demeanor of the children
and to gauge the persuasiveness of their testimony. See Kleinstick v. Daleiden,
71 Wis. 2d 432, 442, 238 N.W.2d 714, 719-20 (1976).
[38] *fn5 In reaching its decision, the trial
court examined both Clair's and Bonnie's personalities and roles in the ongoing
dispute. The court pointed out that both were blameworthy for the children's
alienation. The court expressed equal disapproval for each party's actions
toward each other and of their ongoing tactics to place the children in the
middle of their anger toward one another. There are no winners in this case and
the children stand to lose the most. We stress this point so that the trial
court's and this court's decisions are not seen as rewarding one parent over
the other. Both courts' concern is with the best interests of the children
under the circumstances and cannot be interpreted to endorse one parent's
behavior over the other's.
[39] *fn6 Clair claims that the trial court
denied him period of placement with Natasha within the meaning of sec.
767.325(4), Stats. The court did not deny Clair placement with Natasha at all.
The court stated that Natasha could participate in placement if she wished. The
court reasoned that Natasha was a teenager and "teenagers go where they
want to go."
[40] *fn7 Clair complains about the trial
court's statements about "winding down" and that "teenagers go
where they want to go." Factfinders are not expected to lay aside matters
of common knowledge or their own observation and experience of the affairs of
life. See De Keuster v. Green Bay & W. R.R. Co., 264 Wis. 476, 479, 59
N.W.2d 452, 454 (1953). Factfinders are to apply them to the evidence or facts
at hand to the end that their action may be intelligent and their Conclusions
correct. Id. The trial Judge's reference to his experiences was not error.
19920520
In
re the Marriage of Clair WIEDERHOLT, Petitioner-Appellant,
[FN<<dagger>>]
FN<<dagger>> Petition for review
denied.
v.
Bonnie
FISCHER, Respondent-Respondent.
No.
91-2355.
Court
of Appeals of Wisconsin.
Submitted
on Briefs April 28, 1992.
Opinion
Released May 20, 1992.
Opinion
Filed May 20, 1992.
Father's
motion to transfer primary physical placement of parties' three children to him
was denied by the Circuit Court, Manitowoc County, Fred H. Hazlewood, J., and
father appealed. The Court of Appeals, Anderson, J., held that: (1) court was
not required to accept expert's opinion that only remedy was to place children
with father, and (2) award of attorney fees to mother was proper.
Affirmed.
Wiederholt
v. Fischer
[1]
KeyCite this headnote
211
INFANTS
211II
Custody and Protection
211k19
Proceedings Affecting Custody
211k19.3
Determination of Right to Custody
211k19.3(2)
k. Discretion of court.
Wis.App.,1992.
In
child custody matters, court has wide discretion in making physical placement
determinations.
Wiederholt
v. Fischer
[2]
KeyCite this headnote
211
INFANTS
211II
Custody and Protection
211k19
Proceedings Affecting Custody
211k19.3
Determination of Right to Custody
211k19.3(7)
k. Review of discretion and fact questions.
Wis.App.,1992.
Trial
court's exercise of discretion in making physical placement determinations in
child custody matters will not be upset unless it represents clear abuse of
discretion or unless court misapplied law.
Wiederholt
v. Fischer
[3]
KeyCite this headnote
211
INFANTS
211II
Custody and Protection
211k19
Proceedings Affecting Custody
211k19.3
Determination of Right to Custody
211k19.3(7)
k. Review of discretion and fact questions.
Wis.App.,1992.
With
respect to child custody determination, what is in child's best interest is
mixed question of law and fact, with determination of such matters as
psychological factors being question of fact.
Wiederholt
v. Fischer
[4]
KeyCite this headnote
211
INFANTS
211II
Custody and Protection
211k19
Proceedings Affecting Custody
211k19.3
Determination of Right to Custody
211k19.3(6)
k. Review in general.
Wis.App.,1992.
In child
custody case, questions of law ordinarily are reviewed independently.
Wiederholt
v. Fischer
[5]
KeyCite this headnote
211
INFANTS
211II
Custody and Protection
211k19
Proceedings Affecting Custody
211k19.3
Determination of Right to Custody
211k19.3(4)
k. Award or order; visitation.
Wis.App.,1992.
In
child custody cases in which trial court's legal conclusion is intertwined with
factual findings, Court of Appeals will give weight to trial court's decision.
Wiederholt
v. Fischer
[6]
KeyCite this headnote
211
INFANTS
211II
Custody and Protection
211k19
Proceedings Affecting Custody
211k19.3
Determination of Right to Custody
211k19.3(7)
k. Review of discretion and fact questions.
Wis.App.,1992.
Weight
of testimony in child custody matter is peculiarly within province of trial
court acting as trier of fact.
Wiederholt
v. Fischer
[7]
KeyCite this headnote
211
INFANTS
211II
Custody and Protection
211k19
Proceedings Affecting Custody
211k19.3
Determination of Right to Custody
211k19.3(3)
k. Evidence and hearing.
Wis.App.,1992.
In
child custody matter, court is not obliged to adopt uncontradicted testimony if
there is other evidence in case that renders it unreasonable.
Wiederholt
v. Fischer
[8]
KeyCite this headnote
157
EVIDENCE
157XII
Opinion Evidence
157XII(F)
Effect of Opinion Evidence
157k569
Testimony of Experts
157k571
Nature of Subject
157k571(1)
k. In general.
Wis.App.,1992.
With
respect to husband's motion to transfer primary physical placement of parties'
children to him in which husband's expert testified that children suffered from
"Parental Alienation Syndrome," court was not required to accept
expert's opinion that only remedy was to place children with father; expert's
testimony indicated that cure was controversial, that there was limited
research data, and that there were uncertain risks, and testimony of both
parents and children was other evidence that cure advocated by expert would not
be successful and was unreasonable. W.S.A. 767.325(1)(b).
Wiederholt
v. Fischer
[9]
KeyCite this headnote
134
DIVORCE
134VI
Custody and Support of Children
134k303
Modification of Order, Judgment, or Decree as to Custody
134k303(2)
k. Grounds.
Wis.App.,1992.
In
light of father's and mother's demonstrated inability to work under temporary
child placement schedule, court was justified in revising temporary placement
to require rigid schedule with accompanying inconveniences.
Wiederholt
v. Fischer
[10]
KeyCite this headnote
134
DIVORCE
134VI
Custody and Support of Children
134k303
Modification of Order, Judgment, or Decree as to Custody
134k303(8)
k. Hearing, determination, and order.
Wis.App.,1992.
In
proceedings on father's motion to transfer primary physical placement of
parties' three children to him, court properly refused to order counseling for
children and parents; children and parents had gone through extensive
counseling, and, although there was minimal progress, court reasonably could
have concluded that more counseling would have been nonproductive.
Wiederholt
v. Fischer
[11]
KeyCite this headnote
211
INFANTS
211II
Custody and Protection
211k19
Proceedings Affecting Custody
211k19.3
Determination of Right to Custody
211k19.3(4)
k. Award or order; visitation.
Wis.App.,1992.
Awarding
attorney fees in child custody matter is within discretion of trial court and
will not be altered on appeal unless that discretion is abused.
Wiederholt
v. Fischer
[12]
KeyCite this headnote
211
INFANTS
211VII
Actions
211k76
Guardian Ad Litem or Next Friend
211k85
k. Duties and liabilities.
Wis.App.,1992.
In
child custody matter, guardian ad litem does not represent child per se;
rather, guardian ad litem's statutory duty is to represent concept of child's
best interest. W.S.A. 767.045(4).
Wiederholt
v. Fischer
[13]
KeyCite this headnote
134
DIVORCE
134IV
Proceedings
134IV(H)
Incidental Proceedings
134k85
k. Discovery.
Wis.App.,1992.
Advocating
concept of child's best interest in child custody proceeding may require guardian
ad litem to advocate something contrary to child's wishes. W.S.A. 767.045(4).
**443
(Cite
as: 169 Wis.2d 524, 485 N.W.2d 442, **443)
*528
(Cite
as: 169 Wis.2d 524, *528, 485 N.W.2d 442, **443)
On
behalf of petitioner-appellant, the cause was submitted on the briefs of Clair
Wiederholt, pro se.
On
behalf of respondent-respondent, the cause was submitted on the brief of James
Wedemeyer of Dewane, Dewane, Kummer & Lambert of Manitowoc.
A
brief was submitted by guardian ad litem Robert J. Zeman of Muchin, Muchin
& Bruce, S.C. of Manitowoc.
Before
BROWN, ANDERSON and SNYDER, JJ.
ANDERSON,
Judge.
Clair
Wiederholt and Bonnie Fischer are divorced and have three children. Clair
appeals from an order denying his motion to transfer primary physical placement
of the three children to him. He also appeals the portion of the order that
altered the temporary placement portion of the divorce judgment and required
that he contribute to Bonnie's attorney's fees. Because we conclude that the
trial court did not abuse its discretion, we affirm.
At
the time of the filing of the divorce in 1985, Natasha was ten; Carissa was
seven; and Ruscena was six. Primary physical placement of the three children
was intensely disputed during the pendency of the divorce action. Some time
after the filing of the divorce action, Bonnie and the three children moved
from *529
(Cite
as: 169 Wis.2d 524, *529, 485 N.W.2d 442, **443)
Waunakee,
Wisconsin to Manitowoc, Wisconsin. A temporary order gave Bonnie primary
physical placement. During this time, the girls were reluctant to go with Clair
for temporary placement and would run away and climb trees when he came to pick
them up.
Clair
and Bonnie were divorced in February 1987 by Dane County Circuit Court Judge
Mark A. Frankel. The court found both parents fit to have the care, custody and
control of the children. The court gave Bonnie primary placement of the three
children and Clair received reasonable rights of temporary placement.
The
temporary placement guidelines in the divorce judgment were specified in detail
and were based on the recommendation of the guardian ad litem and the
psychologists. After the divorce, both Clair and Bonnie filed numerous motions
with the trial court alleging that the other was in contempt for failing to follow
the divorce judgment and subsequent orders. The motions and affidavits detailed
specific actions allegedly taken by each party toward the children and claimed
that such actions were detrimental to the children. The motions dealt with
accusations involving what the parties told the children, whether photographs
could be taken of the children, problems with the pick-up and drop- off time
and locations, problems with telephone contact, and issues over the children's
clothes and toys. Their disputes eventually were transferred to Manitowoc
county because the children resided in Manitowoc county.
In
July 1990, Clair moved the court to transfer the primary placement of the three
children to him. The basis for Clair's motion was that the children suffered
from "Parental Alienation Syndrome," the condition was caused by
Bonnie, and the only cure was to transfer primary placement of the children to
him.
*530
(Cite
as: 169 Wis.2d 524, *530, 485 N.W.2d 442, **443)
A
three-day trial was held before circuit court Judge Fred H. Hazlewood. The
court found that the three children were alienated from their father and that
the alienation was attributable to both parents. The court denied Clair's
motion to change **444
(Cite
as: 169 Wis.2d 524, *530, 485 N.W.2d 442, **444)
primary
placement because it was not in the children's best interests. The court also
found that due to the history of the case, a rigid temporary placement schedule
was in the children's best interests and altered the temporary placement
schedule. The court also declined to order counseling for the parties or the
children. Clair appeals.
[1][2]
The main issues in this case concern the trial court's physical placement
decisions. A court has wide discretion in making physical placement
determinations. See Bohms v. Bohms, 144 Wis.2d 490, 496, 424 N.W.2d 408, 410
(1988). The exercise of discretion will not be upset unless it represents a
clear abuse of discretion or unless the court misapplied the law. Id.
The
trial court's exercise of discretion in revising physical placement after two
years from the initial physical placement order is controlled by sec.
767.325(1)(b), Stats. The court may make a modification if it finds that (1)
the modification is in the child's best interest and (2) there has been a substantial
change in circumstances since the entry of the last order substantially
affecting physical placement. Id. There is a rebuttable presumption that
continuing the child's physical placement with the parent with whom the child
resides for the greater period of time is in the child's best interest. Section
767.325(1)(b) 2 b.
[3][4][5]
What is in the child's best interest is a mixed question of law and fact, with
the determination of such *531
(Cite
as: 169 Wis.2d 524, *531, 485 N.W.2d 442, **444)
matters
as psychological factors being a question of fact. Pamperin v. Pamperin, 112
Wis.2d 70, 75, 331 N.W.2d 648, 651 (Ct.App.1983). Findings of fact will not be
set aside unless clearly erroneous. Section 805.17(2), Stats. Questions of law
ordinarily are reviewed independently. Wassenaar v. Panos, 111 Wis.2d 518, 525,
331 N.W.2d 357, 361 (1983). In cases where the trial court's legal conclusion
is so intertwined with the factual findings, as here, this court will give
weight to the trial court's decision. Id.
The
first issue is whether the trial court abused its discretion when it refused to
transfer primary placement to Clair. Clair argues that because the trial court
found the children were alienated from him, the court erred in concluding that
it would not be in the children's best interests to transfer primary placement
to him to cure the syndrome. [FN1] Clair's expert, Dr. Gerald Wellens,
concluded that both Carissa and Ruscena "severely" suffer from the
syndrome and have "one of the worst cases I've ever seen in doing this
kind of work." [FN2] Wellens stated that he was "positive" that
Bonnie was the cause of the syndrome. Wellens opined that the only remedy was
to place the children with Clair.
FN1. According to Clair's expert witness,
"Parental Alienation Syndrome" can be one of four types: (1) one
parent actively brainwashing or manipulating the feelings of a child concerning
the other parent, (2) one parent unconsciously rewarding a child for turning
his or her affections away from the other parent, (3) a child alienating
himself or herself on the basis of fear of loss of love, and (4) a child
alienating himself or herself because of certain situational factors.
FN2. Only the two younger girls were
evaluated by the expert.
The
trial court acknowledged that Wellens was a respected psychologist and the
court respected his opinions. However, the court rejected Wellens' recommended
*532
(Cite
as: 169 Wis.2d 524, *532, 485 N.W.2d 442, **444)
cure
of placing the children with Clair. The court pointed out that Wellens admitted
that transferring primary placement involved uncertain risks. The court
acknowledged that the long-range negative effects of the alienation will exist,
but the high degree that Wellens described is speculative. Such a transfer may jeopardize
the children's progress in school and relationships with friends. [FN3]
Wellens' testimony itself indicated that the cure is controversial and that
there is limited research data to **445
(Cite
as: 169 Wis.2d 524, *532, 485 N.W.2d 442, **445)
support
the success of transferring the children to the "hated" parent. The
court concluded that the evidence was not strong that the alienation would be
cured by placing the children with Clair.
FN3. Clair argues that the court ignored
Clair's willingness to move close to the children and based its decision on the
assumption that the children would have to move to Waunakee. The court did not
mention in its oral or written decision Clair's willingness to move. However,
because Clair's testimony revealed that he had done very little to look for new
jobs in the Manitowoc area, the court could have properly discounted Clair's
testimony that he was willing to move.
The
trial judge interviewed the children and found that they do not like their
father and do not want to live with him. One child told the judge that her
feelings came from her own observations. Because the children are
"adamantly" opposed to living with Clair, the court stated that the
potential risk of harm to the children outweighed the questionable benefits of
transferring placement. The court concluded that the cure proposed by Clair
presented too high of a risk of harm. [FN4]
FN4. In his brief, Clair cites case law which
states that personal preference of a child is not a controlling consideration
on the issue of custody. See, e.g., Haugen v. Haugen, 82 Wis.2d 411, 417, 262
N.W.2d 769, 772 (1978). A review of the court's decision shows that the
children's wishes to stay with Bonnie did not control the court. Furthermore,
even though the children's stated wishes were consistent with the syndrome, the
weight of their testimony and their credibility are matters peculiarly within
the province of the trial court acting as the trier of fact because of the
court's superior opportunity to observe the demeanor of the children and to
gauge the persuasiveness of their testimony. See Kleinstick v. Daleiden, 71
Wis.2d 432, 442, 238 N.W.2d 714, 719-20 (1976).
*533
(Cite
as: 169 Wis.2d 524, *533, 485 N.W.2d 442, **445)
Based
on the weighing of all the evidence, the court found that the cure proposed by
Clair was not better than the current primary placement with Bonnie. The court
found that the psychological impact on the children is risky and uncertain.
These findings are not clearly erroneous. These findings more than adequately
support the court's conclusion that the best interests of the children would
not be served by a transfer of placement. Therefore, the court did not abuse
its discretion. [FN5]
FN5. In reaching its decision, the trial
court examined both Clair's and Bonnie's personalities and roles in the ongoing
dispute. The court pointed out that both were blameworthy for the children's
alienation. The court expressed equal disapproval for each party's actions
toward each other and of their ongoing tactics to place the children in the
middle of their anger toward one another. There are no winners in this case and
the children stand to lose the most. We stress this point so that the trial
court's and this court's decisions are not seen as rewarding one parent over
the other. Both courts' concern is with the best interests of the children
under the circumstances and cannot be interpreted to endorse one parent's
behavior over the other's.
[6][7][8]
Clair repeatedly stresses that the cure advocated by Wellens was uncontradicted
and that the court erred by not accepting it. The weight of the testimony is
peculiarly within the province of the trial court acting as the trier of fact.
Kleinstick v. Daleiden, 71 Wis.2d 432, 442, 238 N.W.2d 714, 719-20 (1976). A
court is not obliged to *534
(Cite
as: 169 Wis.2d 524, *534, 485 N.W.2d 442, **445)
adopt
uncontradicted testimony if there is other evidence in the case that renders it
unreasonable. See Peterson v. Peterson, 126 Wis.2d 264, 266, 376 N.W.2d 88, 89
(Ct.App.1985). As summarized above, Wellens' testimony itself provides for a
basis to reject the cure in this case. Wellens' testimony indicated that the
cure was controversial, there is limited research data, and there are uncertain
risks. Furthermore, the testimony of both parents and the children was other
evidence that the cure advocated by Wellens would not be successful and was
unreasonable. Therefore, we cannot find error in the court's refusal to accept
Wellens' opinion.
[9]
The second issue is whether the trial court abused its discretion when it
revised temporary placement. [FN6] Clair argues that there was no basis for the
revision.
FN6. Clair claims that the trial court denied
him period of placement with Natasha within the meaning of sec. 767.325(4),
Stats. The court did not deny Clair placement with Natasha at all. The court
stated that Natasha could participate in placement if she wished. The court
reasoned that Natasha was a teenager and "teenagers go where they want to
go."
Our
review of the record indicates that the parties' past behavior is a substantial
basis for the trial court's revision. The revision was necessitated by the
parties' demonstrated inability to work under the temporary placement schedule.
The new order requires bus transportation of the children to and from Waunakee
through Milwaukee. This is a reasonable response to the parties' inability to
work out details concerning pick-up and drop-off times and **446
(Cite
as: 169 Wis.2d 524, *534, 485 N.W.2d 442, **446)
locations.
Because the bus was to be used for transportation, a revision of the time when
placement began and ended was required. This cut into the time Clair could
spend with the children. Finding that the children need to "unwind from
school" on Friday *535
(Cite
as: 169 Wis.2d 524, *535 , 485 N.W.2d 442, **446)
before
traveling to their father's home is reasonable. [FN7] Fashioning a placement
schedule to account for the children getting older and becoming more involved
with school activities and friends also is reasonable.
FN7. Clair complains about the trial court's
statements about "winding down" and that "teenagers go where
they want to go." Factfinders are not expected to lay aside matters of
common knowledge or their own observation and experience of the affairs of
life. See DeKeuster v. Green Bay & W. R.R. Co., 264 Wis. 476, 479, 59
N.W.2d 452, 454 (1953). Factfinders are to apply them to the evidence or facts
at hand to the end that their action may be intelligent and their conclusions
correct. Id. The trial judge's reference to his experiences was not error.
Because
the parties have demonstrated a refusal or an inability to work within the
original placement guidelines, a rigid schedule was required. Clair
(Cite
as: 169 Wis.2d 524, *535, 485 N.W.2d 442, **446)
fails
to recognize that because of the past behavior of both parties, they both gave
up the flexibility of the schedule, necessitating a rigid schedule with the
accompanying inconveniences. It was not an abuse of discretion for the court to
conclude that any harm to the children from less time with Clair is outweighed
by the stability of a rigid placement schedule. The parties' past behavior
provides a substantial basis for revising the temporary placement order. We
cannot disagree with the court that the revised schedule is in the children's
best interests.
[10]
Clair also argues that the trial court erred in failing to order counseling for
the children and the parents. We do not find an abuse of discretion. The
children and the parents have gone through extensive counseling. Although there
was minimal progress, the court reasonably could have concluded that more
counseling would be nonproductive.
*536
(Cite
as: 169 Wis.2d 524, *536, 485 N.W.2d 442, **446)
[11]
The third issue is whether the trial court abused its discretion in awarding
Bonnie $1500 toward her attorney's fees. Awarding attorney's fees is within the
discretion of the trial court and will not be altered on appeal unless that
discretion is abused. Kastelic v. Kastelic, 119 Wis.2d 280, 290, 350 N.W.2d
714, 719 (Ct.App.1984). The trial court must make findings of need, ability to
pay, and the reasonableness of the fees. Id. The court considered all the
relevant factors and we conclude that the findings are not clearly erroneous.
Section 805.17(2), Stats.
[12][13]
We briefly address another of Clair's arguments. He argues that the guardian ad
litem fundamentally misunderstood his duties to the children. We agree. The
guardian ad litem described his duties as representing and advocating the
children's wishes. In the appellate brief, he stated that the children are his
"clients." However, sec. 767.045(4), Stats., clearly states that the
guardian ad litem shall be an advocate for the best interests of a minor child
and that the guardian ad litem shall not be bound by the wishes of the minor
child. This means that the guardian ad litem does not represent a child per se.
Rather the guardian ad litem's statutory duty is to represent the concept of
the child's best interest. In advocating for this concept, the guardian ad
litem acts in the "same manner as an attorney for a party to the
action." Id. Advocating this concept may require advocating something
contrary to the child's wishes. By concentrating on the child's wishes, the
guardian ad litem may miss his or her obligation--to fully examine and advocate
the child's best interest. To fulfill the statutory obligation, the guardian ad
litem must see himself or herself as representing the concept of the child's
best *537
(Cite
as: 169 Wis.2d 524, *537, 485 N.W.2d 442, **446)
interest.
In this case, because the children's wishes were ultimately consistent with the
children's best interests, the guardian ad litem's misconception does not
require further proceedings.
Order
affirmed.
In
re the Paternity of STEPHANIE R.N.: Andrew J.N., Petitioner-Respondent-
Petitioner,
[FN<<dagger>>]
FN<<dagger>> Motion for
Reconsideration Denied June 8, 1993.
v.
WENDY
L.D., Respondent-Appellant.
No.
90-1604.
Supreme
Court of Wisconsin.
Oral
Argument: Jan. 6, 1993.
Opinion
Decided April 20, 1993.
Modification
of child custody order was sought. The Circuit Court, Rock County, John H.
Lussow, J., transferred custody to father, and mother appealed. The Court of
Appeals, Sundby, J., 167 Wis.2d 315, 481 N.W.2d 672, reversed, and appeal was
taken. The Supreme Court, Steinmetz, J., held that trial court's transfer of
custody within two years following entry of court's initial custody order was
erroneous exercise of discretion, as no showing was made that modification of
custody order was necessary, notwithstanding mother's unreasonable interference
with father's visitation.
Affirmed.
Wilcox,
J., filed dissenting opinion in which Ceci and Bablitch, JJ., joined.
Stephanie
R.N. v. Wendy L.D.
[1]
KeyCite this headnote
211
INFANTS
211II
Custody and Protection
211k19
Proceedings Affecting Custody
211k19.3
Determination of Right to Custody
211k19.3(5)
k. Change of custody.
Wis.,1993.
"Substantial
evidence," for purposes of statute prohibiting modification of custody
order before two years after initial order is entered unless substantial
evidence is shown that modification is necessary, refers to evidence which is
considerable in amount, value or worth. W.S.A. 767.325(1)(a).
See
publication Words and Phrases for other judicial constructions and definitions.
Stephanie
R.N. v. Wendy L.D.
[2]
KeyCite this headnote
211
INFANTS
211II
Custody and Protection
211k19
Proceedings Affecting Custody
211k19.3
Determination of Right to Custody
211k19.3(5)
k. Change of custody.
Wis.,1993.
"Necessary,"
for purposes of statute prohibiting modification of custody order before two
years after initial order is entered unless modification is necessary, embodies
concepts that modification must operate to protect child from alleged harmful
"custodial conditions," and that physical or emotional harm
threatened by "current custodial conditions" must be severe enough to
warrant modification. W.S.A. 767.325(1)(a).
See
publication Words and Phrases for other judicial constructions and definitions.
Stephanie
R.N. v. Wendy L.D.
[3]
KeyCite this headnote
211
INFANTS
211II
Custody and Protection
211k19
Proceedings Affecting Custody
211k19.3
Determination of Right to Custody
211k19.3(5)
k. Change of custody.
Wis.,1993.
Statute
providing that court may not modify custody order before two years after
initial order is entered unless certain conditions are met, applies to both
permanent and temporary modification orders. W.S.A. 767.325(1)(a).
Stephanie
R.N. v. Wendy L.D.
[4]
KeyCite this headnote
211
INFANTS
211II
Custody and Protection
211k19
Proceedings Affecting Custody
211k19.3
Determination of Right to Custody
211k19.3(5)
k. Change of custody.
Wis.,1993.
Decision
to modify custody and placement within two years following entry of court's
initial order is within trial court's discretion and will not be disturbed
unless trial court erroneously exercises that discretion. W.S.A. 767.325(1)(a).
Stephanie
R.N. v. Wendy L.D.
[4]
KeyCite this headnote
211
INFANTS
211II
Custody and Protection
211k19
Proceedings Affecting Custody
211k19.3
Determination of Right to Custody
211k19.3(7)
k. Review of discretion and fact questions.
Wis.,1993.
Decision
to modify custody and placement within two years following entry of court's
initial order is within trial court's discretion and will not be disturbed
unless trial court erroneously exercises that discretion. W.S.A. 767.325(1)(a).
Stephanie
R.N. v. Wendy L.D.
[5]
KeyCite this headnote
211
INFANTS
211II
Custody and Protection
211k19
Proceedings Affecting Custody
211k19.3
Determination of Right to Custody
211k19.3(7)
k. Review of discretion and fact questions.
Wis.,1993.
Supreme
Court will not reverse trial court's decision to modify custody and placement
within two years following entry of court's initial order unless there is no
reasonable basis for trial court's exercise of discretion. W.S.A.
767.325(1)(a).
Stephanie
R.N. v. Wendy L.D.
[6]
KeyCite this headnote
211
INFANTS
211II
Custody and Protection
211k19
Proceedings Affecting Custody
211k19.3
Determination of Right to Custody
211k19.3(7)
k. Review of discretion and fact questions.
Wis.,1993.
Although
trial court's exercise of discretion in deciding to modify custody and
placement within two years following entry of court's initial order
demonstrated consideration of improper factors and mistaken view of law,
Supreme Court will not reverse if facts of record applied to proper legal
standard support trial court's conclusion. W.S.A. 767.325(1)(a).
Stephanie
R.N. v. Wendy L.D.
[7]
KeyCite this headnote
285
PARENT AND CHILD
285k2
Custody and Control of Child
285k2(4)
Proceedings to Determine Right
285k2(18)
k. Effect of determination; modification.
Wis.,1993.
Trial
court's transfer of custody within two years following entry of court's initial
custody order was erroneous exercise of discretion; no showing was made that
modification of custody order was necessary due to current custodial
conditions, notwithstanding custodial parent's unreasonable interference with
noncustodial parent's visitation. W.S.A. 767.325(1)(a).
Stephanie
R.N. v. Wendy L.D.
[8]
KeyCite this headnote
285
PARENT AND CHILD
285k2
Custody and Control of Child
285k2(4)
Proceedings to Determine Right
285k2(18)
k. Effect of determination; modification.
Wis.,1993.
In
proceeding to substantially modify legal custody or physical placement within
two years following entry of court's initial order, trial court's conclusion of
law that custodial parent's mental condition was emotionally harmful to best
interests of child was erroneous; trial court is not qualified to determine
custodial parent's mental health and whether it is emotionally harmful to best
interests of child, and custodial parent's failure to undergo court-ordered
psychiatric testing is not reasonable grounds for trial court, as layman, to
conclude that mother was mentally unbalanced. W.S.A. 767.325(1)(a).
**236
(Cite
as: 174 Wis.2d 745, 498 N.W.2d 235, **236)
*754
(Cite
as: 174 Wis.2d 745, *754, 498 N.W.2d 235, **236)
For
the petitioner-respondent-petitioner there was a brief by George K. Steil, Jr.,
Margery M. Tibbetts and Brennan, Steil, Basting & MacDougall, S.C., Janesville
and oral argument by George K. Steil, Jr. and Guardian ad Litem Tod O. Daniel,
Janesville.
For
the respondent-appellant there was a brief by James T. Conway, Janesville and
oral argument by pro-se Wendy L. Dyson, Madison.
STEINMETZ,
Justice.
This
is a review of a published decision of the court of appeals, In re Paternity of
S.R.N., 167 Wis.2d 315, 481 N.W.2d 672 (Ct.App.1992), reversing a judgment of
the Rock county circuit court, Judge John H. Lussow. There is only one issue
presented in this case: whether **237
(Cite
as: 174 Wis.2d 745, *754, 498 N.W.2d 235, **237)
sec.
767.325(1)(a), Stats., [FN1] permits |