By Gregg Herman
It is time for Wisconsin to reconsider the law regarding contingent placement orders.
The May edition of the Wisconsin Journal of Family Law features point/counterpoint articles on the topic by two very thoughtful family law judicial officers: Brown County Judge Tom Walsh and Milwaukee County Assistant Family Court Commissioner Bill Honrath.
I have discussed the subject of their disagreement previously. In fact, I included the prohibition of such articles among the “silliest” rules of law in this field.
Two appellate cases tackle this issue.
In Koeller v. Koeller, 195 Wis. 2d 660, 536 N.W.2d 216 (Ct. App. 1995), the Court of Appeals held that a court cannot order a future change in custody premised on circumstances that might occur in the future. Later, in Culligan v. Cindric, 2003 WI App 180, 266 Wis. 2d 534, 669 N.W.2d 175, the Court of Appeals held that a court cannot order a change of placement that is prospective and contingent on the occurrence of some anticipated event.
Honrath thinks these cases were decided correctly. He wrote, “Allowing contingent orders is based upon the unstated presumption that trial courts cannot be trusted to do the right thing when asked to modify placement when the particular event or condition occurs.”
Honrath also wrote that he finds children are sufficiently protected by the statutory requirements of a substantial change in circumstances to modify placement and the requirement that courts only modify placement if they find it would be in the child’s best interests.
Walsh countered by noting that it is “the rare occasion when families are best served by litigating their placement disputes in a court of law.”
He then differentiates between “hard date” contingent orders, such as where the contingency is a date certain, and a “soft date” order where the contingency is one of conduct or a condition, such as completing a parenting class.
For the former, Walsh asked, “If two parents who are otherwise competent parents agree that their two-year-old should be primarily placed with the mother until the child enters kindergarten, why would this order be any more troubling than an order that said the same two-year-old should continue to reside with the mother until age 18 or until the court changes the order?” In both instances, the court could change the order if a substantial change in circumstance occurs before the contingency occurs, if the best interests of the child so warrant.
Walsh believes that “soft date” orders are different, however. He said those orders are too difficult to structure to be authorized, especially given the lack of monitoring resources in family courts.
As much as I respect Honrath, he misses the point. The courts may, and in fact do, a terrific job of promoting the best interests of the children. But, he fails to consider the collateral damage caused by the process of litigation.
Quite simply, children are harmed by parents fighting. If you don’t believe me, just ask a child. Every child for whom I have served as a guardian ad litem who was old enough to express a preference didn’t ask for more support or for a wise judge. Every single one wanted their parents to stop fighting.
Courts in this state have consistently failed to recognize this harm. For example, a series of cases refuse to allow parents to agree to not modify child support, even where there is no state aid and no one is going to starve. These cases give no consideration to the harm they are doing to children.
Similarly, where two parents, who know their situation better than any judge or court commissioner, whose knowledge is not circumscribed by arcane rules of evidence, agree to set a “default” position for the future to minimize the likelihood of litigation, our legal system should encourage rather than prohibit such agreements. In fact, our legal system should promote all agreements between parents where there is no overriding state interest, such as a need to repay public support.
As Walsh put it, “It is good public policy to establish a system that encourages parties and their children to stay out of court.”
To which I add, “Amen.”