[1]     

SUPREME COURT OF WISCONSIN

[2]     

No. 84-1667

[3]     

1986.WI.28 <http://www.versuslaw.com>, 381 N.W.2d 350, 127 Wis. 2d 521

[4]     

February 11, 1986

[5]     

IN RE THE MARRIAGE OF: JAMES E. LONG, PETITIONER-RESPONDENT,
v.
KATHLEEN A. LONG, RESPONDENT-APPELLANT-PETITIONER

[6]     

Review of an order of the court of appeals. Review of a decision of the Court of Appeals.

[7]     

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.

[8]     

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.

[9]     

Shirley S. Abrahamson, J. Steinmetz, J. Minority OPINION(S)ing. Mr. Justice Louis J. Ceci joins this Dissenting opinion. Bablitch, J. Dissenting.

[10]    

The opinion of the court was delivered by: Abrahamson

[11]    

This is a review of an unpublished decision of the court of appeals filed March 7, 1985, summarily affirming an order of the circuit court for Washington county, J. Tom Merriam, circuit Judge.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

[12]    

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.

[13]    

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.

[14]    

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. . . ."

[15]    

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.

[16]    

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.

[17]    

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.

[18]    

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:

[19]    

"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.)

[20]    

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."

[21]    

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:

[22]    

"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."

[23]    

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.

[24]    

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.

[25]    

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.

[26]    

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).

[27]    

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.

[28]    

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.

[29]    

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).

[30]    

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.

[31]    

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).

[32]    

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.

[33]    

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.

[34]    

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.

[35]    

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.

[36]    

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.

[37]    

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.

[38]    

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).

[39]    

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.

[40]    

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).

[41]    

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.

[42]    

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.

[43]    

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.

[44]    

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.

[45]    

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.

[46]    

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.

[47]    

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

[48]    

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.

[49]    

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.

[50]    

STEINMETZ, J. (dissenting).

[51]    

I join the Dissent of Justice William A. Bablitch and also write separately.

[52]    

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.

[53]    

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:

[54]    

"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."

[55]    

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.

[56]    

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.

[57]    

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.

[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.

[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).

[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.

[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.

[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.

[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).

[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.

[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.

[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.

[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.

[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.

[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.

[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.

[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.

[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.

[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.

[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.

[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*

[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.

[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).

[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.

[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:

[82]    

"(a) The wishes of the child's parent or parents as to custody;

[83]    

"(am) The wishes of the child as to his or her custody;

[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;

[85]    

"(c) The child's adjustment to the home, school, religion and community;

[86]    

"(d) The mental and physical health of the parties, the minor children and other persons living in a proposed custodial household;

[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.

[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.

[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.

[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.

[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.

[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).

[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.

[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.")

[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.

[105]   

I am authorized to state that JUSTICE DONALD W. STEINMETZ and JUSTICE LOUIS J. CECI join in this Dissent.

Opinion Footnotes

[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.

[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.

[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.

[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).

[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).

[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.

[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).

[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).

[115]   

*fn7 Section 767.245(6) is part of sec. 767.245 governing visitation rights.

[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.

[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.

[118]   

1 Section 767.245(2), Stats., provides as follows:

[119]   

" 767.245 Visitation. . . .

[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."

[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.

[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

[5]     

IN RE THE MARRIAGE OF: LINDA L. ABEL (FORMERLY JOHNSON), JOINT PETITIONER-RESPONDENT,
v.
LESLIE L. JOHNSON, JOINT PETITIONER-APPELLANT

[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.

[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.

[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.

[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.

[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.

[16]    

CONCEPT OF JOINT CUSTODY

[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.

[18]    

Section 767.24(1)(b), Stats., provides for joint custody:

[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.

[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).

[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.

[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.

[47]    

By the Court. -- Orders affirmed.

Opinion Footnotes

[48]    

*fn1 This provision of the judgment provided as follows:

[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.

[50]    

*fn2 The language of the stipulation, in pertinent part, provided as follows:

[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."

[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.

[54]    

We recognize that Westrate expressly limits the reach of its opinion to a sole legal custody award.

[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.]

[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.

[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.

[59]    

*fn7 We have examined the briefs in Thompson.

[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.

[1]     

COURT OF APPEALS

[2]     

No. 95-1813

[3]     

1996.WI.0000385 <http://www.versuslaw.com>

[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

[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

[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).