Presumptions Case Analysis

Listen to this article

The decision is a good candidate for further review, if for no other reason than that both the concurrence and dissent urged the Supreme Court to review it.

If accepted, it is also a good candidate for reversal, because as the dissent notes, the lead opinion, “‘in essence, eliminates’ the joint custody presumption of sec. 767.24(2)(am), the legislature’s directive in sec. 767.24(4)(a)2 to maximize placement time with each parent, and the mandate of sec. 767.325(5m) that courts are to make modification determinations ‘in a manner consistent with sec. 767.24.’”

In contrast, giving effect to the presumption of joint custody does not necessarily eliminate the presumption that the status quo be continued. Instead, it would make the presumption of the status quo doubly strong when the status quo already is that both parties have joint custody and substantial visitation.

Further, as the dissent notes, any initial custody and placement determination entered after the enactment of the joint custody presumption would be unaffected, and the status quo presumption would be the one entitled to greater deference.

In addition, the legislative history — which clearly can be considered where the statute is ambiguous — expressly states that the 1999 amendments, including subsec. (5m), apply to modifications.

The Historical and Statutory Notes to the statute provide, “1999 Act 9, sec. 9357(9yo)(a) provides in part that the treatment of subsecs. (2m), (5m) and (6m) first applies ‘to actions affecting the family, including actions to enforce or modify a judgment or order in an action affecting the family previously granted, that are commenced on the effective date [May 1, 2000] of this paragraph (emphasis added).’”

	Related Links Wisconsin Court System Related Article Status quo presumption trumps equal placement

Palmersheim filed this action for modification after May 1, 2000, and therefore, the presumption of joint custody applies.

Clearly, the legislature was aware that the then-current situation was inequitable, and intended that the amendments permit noncustodial parents to seek modification that would reflect a more modern approach to custody and placement. Reading the amendments to enshrine custody orders entered before the changes, and which no longer comport with them, is unreasonable.

The lead opinion states, “There is no dispute that the legislature, by enacting Wis. Stat. sec. 767.24(2)(am), intended to create a rebuttable presumption in favor of joint legal custody applicable in all initial custody proceedings. What is not clear is whether the legislature intended this presumption to apply in custody modification determinations.”

However, even if the statute is not perfectly clear that the joint custody presumption applies to modifications, the legislative history certainly is.

– David Ziemer

Click here for Main Story.

David Ziemer can be reached by email.