Supreme Court will review conflicting custody elements

Listen to this article

Gregg Herman

On June 1, the Wisconsin Supreme Court granted the petition for review of the unpublished Court of Appeals District IV opinion in Landwehr v. Landwehr, No. 2003AP2555 (Wis. Ct. App. Jan. 27, 2005) (per curiam) (unpublished). This is the first family law case on the court's September 2005 term docket.

The issue as identified by the clerk of the Supreme Court is:

"What is the proper standard of review when determining a motion to modify legal custody in light of Wis. Stat. § 767.24(4)(a)(2), which requires a court to set a placement schedule that maximizes the amount of time a child may spend with each parent, and Wis. Stat. 767.352(1)(b)2 (sic) [N.B.: 767.325(1)(b)2 is the proper statute], which presumes that the current allocation of legal custody is in the best interest of a child?"

Interestingly, this issue was not addressed in the Court of Appeals decision. However, last term this issue was before the court in Abbas v. Palmersheim, 2004 WI App 126, 275 Wis. 2d 311, 685 N.W.2d 546.

In that case, the Court of Appeals held that the presumption under Wis. Stat. § 767.24(2)(am) that joint legal custody is in the child's best interest applies only to initial legal custody determinations, not to modification proceedings. Instead, the presumption favoring the status quo under Wis. Stat. §767.325(1)(b) applies to modification proceedings. The high court granted review, but the review was voluntarily dismissed. As a result, the Supreme Court has still not decided the issue.

The issue arises from the 1999 change in Wisconsin custody and placement laws. The statutory changes began as an effort by fathers' rights groups to mandate equal placement of children. The eventual legislation represented compromises, which encouraged, but did not mandate, equal-time sharing. Included in the new law was Wis. Stat. §767.24(4)(a)(2), which provides as follows:

"In determining the allocation of periods of physical placement, the court shall consider each case on the basis of the factors in sub. (5). The court shall set a placement schedule that allows the child to have regularly occurring, meaningful periods of physical placement with each parent and that maximizes the amount of time the child may spend with each parent, taking into account geographic separation and accommodations for different households."

However, when the legislature adopted the revisions to Wisconsin's custody and placement law, it did not modify the standards for modifying changes in placement after the divorce. In that regard, Wis. Stat. §767.325(1)(b)2 provides the following standard two years after an initial custody or placement order:

"….[T]here is a rebuttable presumption that:

"a. Continuing the current allocation of decision making under a legal custody order is in the best interest of the child.

"b. Continuing the child's physical placement with the parent with whom the child resides for the greater period of time is in the best interest of the child."

The issue, then, is which statutory provision applies in a postjudgment proceeding more than two years after the initial orders? Should the court maximize the amount of time the child may spend with each parent or presume that continuing the same allocation of placement is in the best interests of the child?

As previously noted, the intermediate appellate court in Landwehr never resolved this issue. Rather, the court noted that Wis. Stat. §767.24(4)(a)(2) does not require equal placement and never even discussed the two statutes, much less distinguished them.

In Abbas v. Palmersheim, the Court of Appeals held that the postjudgment statute controls. The court wrote:

"[T]he most reasonable interpretation of Wis. Stat. § 767.24(2)(am) is that the presumption that joint legal custody is in the child's best interest applies only in initial legal custody determinations, not in modification determinations. Were we to conclude that the § 767.24(2)(am) presumption favoring joint legal custody applied to a Wis. Stat. § 767.325(1)(b) motion for modification of custody and physical placement, such a conclusion would, in essence, eliminate the § 767.325(1)(b) presumption favoring the status quo."

In my article critiquing this decision ("Status Quo Statute Bumps Heads With Statute Pushing Joint Custody," Wisconsin Law Journal, July 21, 2004), I agreed with the result, while questioning the court's reasoning. While it is highly doubtful that the Legislature ever thought about the conflict between the two statutory provisions, the result succeeds in promoting the best interests of children. There is a substantial difference between an initial award of custody and future modifications. In general, the less disruption for children, the better. As difficult as the initial divorce is for children, continued fighting over them is even worse. By favoring continuity, the postjudgment statute discourages disruptions to their lives.

Wisconsin law protects the best interests of children over the best interests of their parents. So while the majority decision in Abbas engages in a theoretical exercise to find a metaphysical "legislative intent," the end result protects the best interests of children. Whether the Supreme Court in Landwehr engages in a similar search for non-existent legislative intent or concentrates on best interests, the holding in Abbas should control here as well.

Gregg Herman is a shareholder with Loeb & Herman S.C. in Milwaukee, which practices exclusively family law. FamLawUpdate, a free e-mail service of Loeb & Herman, is available by going to www.loebherman.com or by sending an email.