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Cases discussing aspects of custody and visitation issues
02/11/86 MARRIAGE JAMES E. LONG v.
KATHLEEN A. LONG Extensive discussion
of removal and custody and visitation.. 2
11/12/86 MARRIAGE LINDA L. ABEL
(FORMERLY JOHNSON) custody and
visitation issues discussed 13
03/08/96 Robert L. Hartzell, v.
Paulette Hartzell, Now P custody
determination, visitation, evaluations 18
05/20/92 MARRIAGE CLAIR WIEDERHOLT
v. BONNIE Some discussion of Parental
Alienation Syndrome 26
Wiederholt: guardian ad litem,
modification of custody.. 29
Stephanie: modification withing 2
year restriction.. 34
Bradford: modification of custody
within 2 year limit.. 42
Brinkman: recent discussion of
modification of custody and child support.. 46
Bascom: childs preference and custody.. 50
Licary: modification of custody
after two year, change of circumstances.. 54
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[1]
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SUPREME
COURT OF WISCONSIN
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[2]
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No.
84-1667
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[3]
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1986.WI.28
<http://www.versuslaw.com>, 381 N.W.2d 350, 127 Wis. 2d 521
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[4]
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February
11, 1986
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[5]
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IN
RE THE MARRIAGE OF: JAMES E. LONG, PETITIONER-RESPONDENT,
v.
KATHLEEN A. LONG, RESPONDENT-APPELLANT-PETITIONER
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[6]
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Review
of an order of the court of appeals. Review of a decision of the Court of
Appeals.
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[7]
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For
the respondent-appellant-petitioner there were briefs by William J. Campbell
and Law Offices of William J. Campbell, Menomonee Falls, and oral argument by
Mr. Campbell.
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[8]
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For
the petitioner-respondent there was a brief by George N. Kotsonis, William E.
Ryan and Law Offices of Chronus and Kotsonis, Milwaukee, and oral argument by
Mr. Ryan.
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[9]
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Shirley
S. Abrahamson, J. Steinmetz, J. Minority OPINION(S)ing. Mr. Justice Louis J.
Ceci joins this Dissenting opinion. Bablitch, J. Dissenting.
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[10]
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The
opinion of the court was delivered by: Abrahamson
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[11]
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This
is a review of an unpublished decision of the court of appeals filed March 7,
1985, summarily affirming an order of the circuit court for Washington
county, J. Tom Merriam, circuit Judge. The circuit court denied Kathleen
Long, the custodial parent, permission to remove the parties' two minor
children from the State of Wisconsin. Because we conclude that the circuit
court abused its discretion by erroneously interpreting sec. 767.245(6),
Stats. 1983-84, the removal statute,
we vacate the order of the circuit court. We reverse the decision of the
court of appeals and remand the case to the circuit court with directions to
enter an order granting Kathleen Long permission to remove the children from
the state and modifying the visitation
arrangement as necessary. *fn1
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[12]
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This removal case stems from the divorce of
Kathleen Long and James Long. The divorce judgment effective as of December
19, 1983, awarded Kathleen Long custody
of the parties' two minor sons and granted James Long reasonable rights of visitation. At the time of the divorce, both
parties lived in Washington county.
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[13]
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In
February 1984, Kathleen Long filed a motion seeking permission to remove the two
children from Washington county to Peoria, Illinois, and requesting
modification of the visitation
arrangement. In an affidavit to support her motion, Kathleen Long stated that
she had been laid off permanently from her Wisconsin job on January 6, 1984,
that she was unemployed, that she believed she could get a job near Peoria,
and that she would "do all in her power to see that the children
continue a good and building relationship with their father." James Long
filed a motion objecting to the removal
of the children from the state because it would decrease his visitation with the children, thereby
frustrating his ability to help raise and nurture his children. *fn2 James Long also requested
the court to transfer custody of the
children to him.
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[14]
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The
circuit court heard both motions on June 22, 1984. It denied the motion to change custody,
concluding that James Long had not met the test for a change of custody as
set out in Gould v. Gould, 116 Wis. 2d 493, 500, 342 N.W.2d 426 (1984). James
Long did not appeal the circuit court's custody
decision. In a memorandum decision dated June 28, 1984, and an order dated
July 30, 1984, the circuit court also denied Kathleen Long's motion for permission
to remove the children. The circuit court stated that the burden was on
Kathleen Long "to satisfy the Court that the children's best interests
would not be impaired by their removal
from the State under the circumstance
in this case." In deciding the case the circuit court "concluded
that the removal from the State . . .
is not in the best interest of the children and that that interest must take
priority over their mother's reasons supporting her request. . . ."
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[15]
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Kathleen
Long appealed the order, arguing that the circuit court had applied the wrong
legal standard. The court of appeals summarily affirmed the circuit court's
order, holding that the circuit court "correctly stated that Kathleen
had to demonstrate that the best interests of the children would not be
impaired by their removal from
Wisconsin." The court of appeals then concluded that the circuit court's
determination that the children's removal
was inconsistent with their best interests was a reasonable exercise of its
discretion.
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[16]
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A removal determination, like a custody determination, is committed to the
sound discretion of the circuit court. Discretionary determinations do not,
however, lie beyond meaningful appellate scrutiny. An appellate court will find
an abuse of discretion when, for example, the circuit court exercises its
discretion on the basis of an error of law. Gould v. Gould, supra, 116 Wis.
2d at 497-98.
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[17]
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The issue
in this case is whether the circuit court erred in its interpretation of sec.
767.245(6), Stats. 1983-84, the statute governing removal in this case. *fn3 Questions of statutory
interpretation are questions of law, and this court need not defer to the
circuit court's interpretation of the statute.
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[18]
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Section
767.245(6), Stats. 1983-84, requires the custodial parent to notify the
parent having visitation rights of the
custodial parent's intention to establish legal residence outside the state.
If the parent having visitation rights
objects, the circuit court may deny the custodial parent permission to remove
if it finds that the proposed removal
is against the best interests of the child. Sec. 767.245(6), Stats. 1983-84,
provides as follows:
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[19]
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"Whenever
the court grants visitation rights to
a parent, it shall order the child's custodian to provide to the parent
having visitation rights 60 days'
notice of the custodian's intention to establish legal residence outside this
state or to remove the child from this state for a period of time exceeding
90 days. Upon motion by the parent having visitation
rights and a finding by the court that it is against the best interests of the
child for the custodian to so remove the child from this state, the court may
deny permission to the custodian. Violation of a court order under this
subsection may be deemed a change of circumstances under s.767.32, allowing the
court to modify the judgment with respect to custody,
child support and visitation rights so
as to permit withholding of a portion of the support payments to defray the
added expense to the parent with visitation
rights of exercising such rights or to modify a custody
order." (Emphasis added.)
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[20]
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Without
citing any statutory authority, the circuit court concluded that the burden
of persuasion was on Kathleen Long "to satisfy the Court that the
children's best interests would not be impaired by their removal from the State under the circumstance in this case."
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[21]
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In
requiring Kathleen Long to meet this burden of persuasion, *fn4 the circuit court appears
to have applied the pre-1984 version of sec. 767.245(6). The pre-1984 version
of sec. 767.245(6) required the custodial parent to obtain either court
approval for removal or the written
permission of the parent with visitation
rights. Section 767.245(6), Stats. 1981-82, which was enacted in 1977,
provided as follows:
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[22]
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"Whenever
the court grants visitation rights to
a parent, it shall order the child's custodian to obtain written approval of
the parent having visitation rights or
permission of the court in order to establish legal residence outside this
state or to remove the child from this state for a period of time exceeding
90 days. Such court permission may be granted only after notice to the parent
having visitation rights and after
opportunity for hearing. Violation of a court order under this subsection may
be deemed a change of circumstances under s. 767.32, allowing the
court to modify the judgment with respect to custody,
child support and visitation rights so
as to permit withholding of a portion of the support payments to defray the
added expense to the parent with visitation
rights of exercising such rights or to modify a custody
order."
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[23]
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The
1984 statute differs from the earlier version in two important respects: (1)
under the 1984 statute, the objecting parent must petition the court to
obtain an order denying removal, and
(2) under the 1984 statute, upon a petition from the objecting parent the
circuit court, in order to deny permission to remove, must make a
"finding . . . that is against the best interests of the child. . .
." Under the earlier version the custodial parent had to seek the
court's permission for removal if the
non-custodial parent did not give written approval. Moreover, the earlier
version set forth no test for the circuit court's use in deciding whether to
grant permission to remove.
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[24]
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In
affirming the circuit court's test for denying permission to remove, the court
of appeals did not refer to either version of sec. 767.245(6) but relied on
Fritschler v. Fritschler, 60 Wis. 2d 283, 208 N.W.2d 336 (1973), which in
turn relied on Peterson v. Peterson, 13 Wis. 2d 26, 108 N.W.2d 126 (1961),
and Whitman v. Whitman, 28 Wis. 2d 50, 135 N.W.2d 835 (1965). This court
decided these three cases before the legislature adopted a statute
specifically governing removal.
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[25]
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In
Peterson, the custodial parent petitioned the trial court to remove the child
from the state. The trial court granted permission. In affirming the trial
court's order, this court adopted what it believed to be the test adopted by
a majority of the courts considering this issue: If the custodial parent has
good reason for moving to another state and such course of action is
consistent with the welfare of the child, the court will permit the removal. Peterson v. Peterson, supra, 13
Wis. 2d at 28.
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[26]
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In
Whitman also, the custodial parent petitioned the trial court for removal. This court affirmed the trial
court's order granting permission and justified removal
for these reasons: "the [custodial mother's] desire to move was for a
proper purpose and beneficial to her, . . . [the proposed removal] was not detrimental to the
children, and . . . under the circumstances
removal . . . would not constitute an
undue burden upon the in exercising his visitation
rights." Whitman v. Whitman, supra, 28 Wis. 2d at 59. Dissenting in
Whitman, Justice Hallows advocated a different test: A custodial parent seeking
to remove a child should have the "burden of proof . . . to show the
well-being of the children will be better served by the removal of the children. . . ." Id. at
62 (Hallows, J., Dissenting).
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[27]
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In
the Fritschler case, a custodial mother petitioned the trial court to remove
the children from the state, but this time the trial court denied the
petition. This court affirmed. Writing for the majority, Justice Hallows
interpreted the Peterson and Whitman cases as adopting the following test: Removal is permitted if it promotes or at
least is consistent with the best interests of the child. Fritschler v.
Fritschler, supra, 60 Wis. 2d at 288, 290. The court found that removal would disrupt visitation and that the best interests of
the children would be served by their remaining in Wisconsin. The trial court
and this court apparently considered the father's visitation rights as the most significant factor. Id. at
289-90. Both courts ignored the impact of the custodial mother's well-being
on the children and refused to consider alternative visitation arrangements.
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[28]
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In
Fritschler, this court concluded that the trial court had not abused its
discretion by refusing to grant the mother permission to move the children to
a state in which she might have had a more promising future. It rejected the
argument that a better life for the custodial mother would indirectly benefit
the children but nevertheless accepted the rationale of a prior case that
what was good for the custodial father's finances and career would indirectly
benefit the children. Id. at 287-89.
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[29]
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Fritschler
is not good authority for interpreting the 1984 statute. As Justices Robert
Hansen and Horace Wilkie recognized in their Dissent in Fritschler, undue
weight was given by the trial court to the professional status and income of
the lawyer-father and insufficient weight to the needs, interests, and job
opportunities of the homemaker-mother. Id. at 292-93 (Hansen, J.,
Dissenting).
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[30]
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Furthermore,
when the court decided Peterson, Whitman and Fritschler, no statute expressly
governed removal. In Peterson, this
court concluded that the same considerations which determine custody of children apply to the question of
removal. Peterson v. Peterson, supra,
13 Wis. 2d at 28. In Whitman, the court applied the statute relating to
revision of the divorce judgment to the question of removal. Whitman v. Whitman, supra, 28 Wis. 2d at 56.
Fritschler relied on these two cases rather than any statute.
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[31]
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The
custodial mother in Fritschler urged the court to hold that "a divorced
parent having custody should be able
to take the children permanently to another state if it is not against their
best interests." Fritschler v. Fritschler, supra, 60 Wis. 2d at 288.
(Emphasis added.) The Fritschler court rejected this test, the very test the
legislature subsequently adopted in the 1984 version of sec. 767.245(6).
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[32]
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We conclude
that the Fritschler, Whitman and Peterson cases are not helpful in
interpreting the 1984 statute, because the 1984 statute changed prior law. By requiring the
non-custodial parent instead of the custodial parent to seek a court order
and by imposing the "against the best interests of the child" test
rather than the tests set forth in Peterson, Whitman, and Fritschler, the
legislature has limited judicial intervention in the custodial parent's
decision to leave the state. The legislature has recognized the custodial
parent's caretaking and family decision-making responsibilities *fn5 and has made it easier
for the custodial parent to remove the children from the state. *fn6 The legislature has
apparently determined that a custodial parent should not be compelled to live
in this state to retain custody of the
child. Because removal may offer
emotional and financial advantages to the custodial parent, removal may also foster the well-being of
the child, for the interests of the child and the custodial parent, the
primary caretaker, are intricately connected.
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[33]
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This
legislative recognition of the custodial parent's responsibilities and powers
and of the connection between the child and the custodial parent does not
ignore the non-custodial parent. A child's relationship with the
non-custodial parent has an important bearing on the child's best interests.
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[34]
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The purpose
of the removal statute is to sustain a
relationship between the child and the non-custodial parent by protecting
reasonable visitation rights. *fn7 The removal statute, however, is not designed to
burden unduly the custodial parent or to impede his or her decision-making
authority as the primary caretaker. Visitation
is a flexible arrangement that the parents and the court can modify as circumstances require without undermining
the relationship of the child and the non-custodial parent. Section
767.245(2), Stats. 1983-84. Visitation
arrangements depend on circumstances,
such as the proximity of the child's residence to that of the non-custodial
parent and the needs of the child. In short, visitation
arrangements reflect a variety of approaches to encouraging a relationship
between the child and the non-custodial parent -- they do not reflect the
existence of a non-custodial parent's inviolate right to any particular
arrangement.
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[35]
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The
statutory standard for removal of the
child outside the state -- whether removal
is "against the best interests of the child" -- must be interpreted
in the context of the statutory standards for modification of visitation and change
of custody.
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[36]
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If
the circuit court grants permission to remove, the custodial or non-custodial
parent may request modification of visitation
because the existing visitation
arrangement may no longer be suitable for a parent or the child. The court
may, under the statutes, modify visitation
when modification "serves the best interest of the child." Section
767.245(2), Stats. 1983-84.
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[37]
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The
question of removal may cause the
parents and the court to face the question of a change
of custody. If the circuit court
grants permission to remove, the non-custodial parent may seek a change of custody.
If the circuit court denies permission to remove, the custodial parent may
nevertheless wish to leave the state and yet retain custody of the child. To order a change
of custody the circuit court must,
under the statutes, find that a change
of custody is "necessary to the
child's best interest." Section 767.32(2), Stats. 1983-84. This court
has said that the word "necessary" in sec. 767.32(2) implies that
the change of custody itself is needed because the custodial conditions are
harmful in some way to the best interests of the child. Millikin v. Millikin,
115 Wis. 2d 16, 23, 339 N.W.2d 573 (1983); Gould v. Gould, 116 Wis. 2d 493,
500, 342 N.W.2d 426 (1984). The removal
statute, sec. 767.245(6), provides that a violation of an order not to remove
is not per se grounds for change of custody; it is a circumstance for the circuit court to consider.
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[38]
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Furthermore,
in interpreting the statutes this court has held that the trial "court
has no power to order where a custodial parent should live within the
state" and that a non-custodial parent cannot seek a change of custody
merely because the custodial parent's move within the state has made visitation more difficult. Groh v. Groh, 110
Wis. 2d 117, 125, 128-130, 327 N.W.2d 655 (1983).
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[39]
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Analyzing
sec. 767.245(6) in the context of custody
and visitation, we interpret sec. 767.245(6)
as requiring the circuit court to recognize, in making its determination on removal, that the custodial parent has the
power and responsibility to make decisions for the family unit, that the
custodial parent's well-being affects the children's well-being, and that the
circuit court has broad latitude in fashioning and modifying visitation arrangements and has limited
latitude in changing custody. We conclude that a finding under
sec. 767.245(6), Stats. 1983-84, that an out-of-state move will be against
the child's best interests must rest on more than a determination that removal will in some way change the visitation
arrangements or change the child's
relationship with the non-custodial parent. We conclude that a finding under
sec. 767.245(6), Stats. 1983-84, that an out-of-state move will be against
the child's best interests requires a finding that removal and alternative visitation
arrangements will significantly harm or impede the child's relationship with
the non-custodial parent and that this harm to the relationship will work to
the child's detriment. If the custodial parent's primary purpose for the removal is to defeat or impede visitation, the removal is against the best interests of the child.
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[40]
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A
determination under sec. 767.245(6) that removal
is against the best interests of the child is limited to one issue: would removal with a change
in visitation significantly harm the
relationship between the child and the non-custodial parent and thus
adversely affect the child. If the non-custodial parent opposes removal in the belief that removal would adversely affect the health,
education, or welfare of the child -- aside from or in addition to the
adverse effect on the child resulting from a change
in the visitation arrangement and
significant harm to the child's relationship with the non-custodial parent --
then the non-custodial parent should seek a change
of custody on the grounds that the
custodial conditions in the other state are harmful to the best interests of
the child. Millikin v. Millikin, 115 Wis. 2d 16, 23, 339 N.W.2d 573 (1983).
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[41]
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The
circuit court in this case erred by failing to apply the test required by the
1984 statute, namely, whether removal
is against the best interests of the children. The circuit court acknowledged
that this was a close case and "concluded that the removal from the State . . . is not in the
best interest of the children and that that interest must take priority over
their mother's reasons supporting her request. . . ." The circuit court
noted that the sons had a close relationship with their father, who
frequently exercised his visitation
rights. The circuit court found that the removal
would not be psychologically damaging to the children, but that removal "would be damaging to the
normal parent-child relationship." The circuit court based its finding
solely on the disruption of the existing visitation
of the children with their father. The court did not approach the case
recognizing that the mother as custodial parent has the power and
responsibility to make decisions for that family unit, that her well-being
affected the children's well-being, and that it must consider alternative visitation arrangements. Because the circuit
court's denial of removal was based
solely on the disruption of the existing visitation
arrangement, the court's finding of damage to the normal parent-child
relationship is not equivalent to a finding that the removal is against the best interests of the children. Indeed,
as we explained above, the circuit court found that the removal would not be psychologically
damaging to the children.
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[42]
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We
are sensitive to the need for these children to maintain their relationship
with their father, but retaining the father's weekly visitation should not have been the sole factor on which the
circuit court determined the removal
to be against the children's best interests. Before denying removal the circuit court should have
considered the testimony presented about possible alternative visitation arrangements and their effect on
the children.
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[43]
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We
decline to remand this case to the circuit court to determine whether removal would be against the best interests
of the children. The parties had a full opportunity to put in their evidence relating
to removal and the best interests of
the children. The witnesses discussed alternative visiting arrangements, the
effect of the removal on the
children's relationship with their father, and the effect of the children's
relationship with their father on the children's well-being. We have read the
record, and we conclude, as a matter of law, that there is no evidence in
this record to support a finding that removal
is against the best interests of the children.
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[44]
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In
support of her motion for permission to remove the children, Kathleen Long
testified that the parties had lived in Peoria from 1977 to 1981, that she
wanted to return to Peoria because she had friends and the possibility of a
job there and because she thought it was less expensive to live in Peoria
than in Washington county. Peoria is approximately 250 miles from Washington
county.
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[45]
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Kathleen
Long called an expert witness, a psychologist. *fn8 | |