Status quo presumption trumps equal placement

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“The most reasonable interpretation of Wis. Stat. sec. 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.” Hon. Paul B. Higginbotham Wisconsin Court of Appeals

The Wisconsin Court of Appeals held on June 3 that the presumption in sec. 767.325(1)(b) — that continuing the current custody and placement schedule is in the best interests of a child — trumps the presumption in sec. 767.24(2)(am) that joint custody is in the best interest.

Bradley J. Palmersheim and Leanne M. Abbas are the parents of Nicholas, born in 1991. A stipulated paternity judgment was entered in 1992, awarding sole legal custody to Abbas and periods of physical placement with Palmersheim “as agreed between the parties.”

At the time of this paternity judgment, sec. 767.51(3)(1991-1992) provided, in relevant part, “Unless the court orders otherwise, … the mother shall have sole legal custody of the child.”

In 1992, Palmersheim, Abbas, and Nicholas resided in the home of Palmersheim’s parents. Palmersheim was a college student and Abbas was unemployed, receiving government assistance in the form of financial aid, food stamps and Medical Assistance. Palmersheim was able to be with his son every day and be a full-time parent.

Approximately six to eight months after the custody and placement order was issued, Abbas and Palmersheim broke up, and Abbas moved out with Nicholas.

Because of the custody and placement order, Abbas had sole legal custody and primary physical placement, and Palmersheim had periods of physical placement as agreed between the parties.

Today, Palmersheim and Abbas reside in different communities approximately 45 minutes apart, have successful careers and are in committed relationships with other persons. Nicholas is now 12 years old, well adjusted and successful in school. Palmersheim, at the time of the motion hearing in this case, had physical placement of Nicholas every other weekend from Friday until Monday mornings and overnight every Thursday. The parties alternated placement on holidays.

Palmersheim moved for modification of the original paternity judgment, seeking joint custody and shared physical placement. Both a social worker, and the guardian ad litem recommended that it be granted.

Portage County Circuit Court Judge John V. Finn denied the motion, finding that Palmersheim had failed to establish a substantial change in circumstances, and that Palmersheim failed to rebut the presumption that the current allocation of decision making under the legal custody order and the continuation of the child’s primary physical placement with Abbas are in the best interest of the child.

Palmersheim appealed, and the court of appeals affirmed in a decision by Judge Paul Higginbotham. Judge Paul G. Lundsten wrote a concurring opinion, and Judge David G. Deininger dissented.

Change in Circumstances

Higginbotham first concluded that the evidence does not support the circuit court’s finding of no substantial change in circumstances. Instead, he found, “The facts upon which the prior order was based are substantially different from the present facts and this difference is sufficient to justify modification of the previous order.”

Higginbotham reasoned, “This is particularly true with respect to the amount of time Palmersheim has with Nicholas. At the time of the original custody and placement order, Nicholas lived with both parents. Palmersheim saw Nicholas every day. At the time of the hearing in this case Palmersheim saw Nicholas only every other weekend and every Thursday night. This change is substantial and material. We conclude the circuit court erred by finding Palmersheim had not established a significant change in circumstances.”

Nevertheless, Higginbotham found the error harmless, because, despite the holding, the circuit court proceeded to analyze the evidence under sec. 767.325(1)(b)2 to determine whether Palmersheim’s proposed changes in custody and placement were in Nicholas’s best interest.

Conflicting Presumptions

Higginbotham then turned to the two rebuttable presumptions at issue, and held that the presumption of joint custody and maximum placement is trumped by the presumption of continuing the status quo.

Section 767.24(2)(am) provides, “The court shall presume that joint legal custody is in the best interest of the child,” and sec. 767.24(4)(a)2 provides, “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…”

Section 767.325(1)(b)2 establishes a rebuttable presumption that “continuing the current allocation of decision making under a legal custody order” and “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.”

Higginbotham found that, standing alone, neither statute is ambiguous, but are ambiguous in their interaction, because of sec. 767.325(5m). That statute requires that sec. 767.325 be construed “in a manner consistent with sec. 767.24.”

Higginbotham added, “This language could be construed as requiring courts to incorporate all aspects of sec. 767.24 by reference into sec. 767.325 in determining custody and placement modification motions. Another reasonable interpretation of this phrase is that courts are required to consider those aspects of sec. 767.24 plainly applicable to modification proceedings, such as sec. 767.24(5), which provides the factors courts must consider in determining custody and placement at both initial and modification proceedings. Moreover, the language of Wis. Stat. sec. 767.24(2)(am) does not support applying this section to modification proceedings. To further complicate matters, the legislature did not explicitly repeal Wis. Stat. sec. 767.325(1)(b), thereby creating the possibility that two rebuttable, but diametrically opposed, presumptions are to be applied in custody and placement modification determinations.”

Finding no legislative history indicating intent, Higginbotham concluded, “the most reasonable interpretation of Wis. Stat. sec. 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.”

Higginbotham reasoned, “Were we to conclude that the sec. 767.24(2)(am) presumption favoring joint legal custody applied to a Wis. Stat. sec. 767.325(1)(b) motion for modification of custody and physical placement, such a conclusion would, in essence, eliminate the sec. 767.325(1)(b) presumption favoring the status quo. We will not interpret a statute in a way that results in the judicial nullification of a statute.”

Higginbotham found that giving effect to the joint custody presumption would abrogate the preference for continuity in custody and placement, stating, “even if the legislature intended to eliminate the presumption of maintaining the status quo in modification actions, the legislature failed to clearly signal its intentions by not specifically repealing Wis. Stat. sec. 767.325(1)(b).”

Higginbotham added, “If a sufficient number of legislators had reached agreement that the status quo presumption should not apply when an existing custody order is for sole custody, then surely the legislature would have chosen a means less obscure than sec. 767.325(5m) to achieve that result. The most reasonable interpretation of the legislature’s failure to specifically repeal the status quo presumption contained in sec. 767.325(1) (b) is that the legislature intended for the status quo presumption to survive its sweeping changes of the law.”

Higginbotham found that giving effect to the joint custody presumption would be unworkable and would fail to provide direction to circuit courts in deciding close cases, because there would be two conflicting presumptions in play.

Accordingly, Higginbotham held that, although there was a substantial change in circumstances, the circuit court was correct in applying the presumption that continuing the status quo is in the child’s best interest, and affirmed.

The Concurrence

Judge Lundsten wrote a concurring opinion, concluding that the two statutes are not ambiguous.

Lundsten wrote, “The joint custody presumption applies to initial custody decisions. Typically, at the time of an initial custody decision, change for the children is unavoidable. At this initial stage, the legislature has provided that courts ‘shall presume that joint legal custody is in the best interest of the child.’ Wis. Stat. sec. 767.24(2)(am)…”

“Just as plainly, the legislature recognizes that children benefit from continuity. Thus, under Wis. Stat. sec. 767.325(1)(b), the modification of a custody order must be ‘in the best interest of the child’ and ‘there is a rebuttable presumption that … [c]ontinuing the current allocation of decision making under a legal custody order is in the best interest of the child.’ No ambiguity here either.”

Lundsten concluded that, notwithstanding, sec. 767.325(5m), “There is … nothing inconsistent between the joint custody presumption applied at the time of an initial custody decision and the status quo presumption applied two or more years later, the time after which the status quo presumption applies.”

The Dissent

Judge Deininger dissented, concluding, “Under the plain language of Wis. Stat. sec. 767.325(5m), which was enacted at the same time as the directives in favor of joint custody and maximization of placement time with each parent, ‘[i]n all actions to modify legal custody or physical placement orders, the court shall consider the factors under 767.24(5) and shall make its determination in a manner consistent with s. 767.24.’ Legislative history provided to us by Palmersheim supports a conclusion that the legislature intended that courts consider its preferences for joint custody and maximization of placement time with each parent whenever a court makes custody and placement decisions.”

Addressing the lead opinion’s conclusion that applying the joint custody presumption to modification proceedings would, “in essence, eliminate” the presumption favoring the status quo, Deininger noted that the effect of the lead opinion’s holding is to eliminate the joint custody presumption, despite the statute’s direction that modifications be made consistent with it.

Deininger acknowledged the advantage of simplicity that the lead opinion provides, stating, “One advantage of the lead opinion’s interpretation, of course, is its simplicity. By permitting courts to simply ignore the express legislative direct
ives in favor of joint custody and maximization of placement time with each parent expressed in Wis. Stat. sec. 767.24(2)(am) and (4)(a)2 when acting on modification requests, the lead opinion no doubt makes life a little easier for trial courts and much easier for parties seeking to maintain the status quo in sole-custody and substantially one-sided placement arrangements.”

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Nevertheless, Deininger concluded that the joint custody presumption could still be applied in a reasonable fashion, suggesting the following guidelines: “First, if an existing order provides for joint custody and a placement schedule that arguably maximizes placement time with each parent …, the party requesting changes would indeed swim upstream against a strong current of multiple legislative directives favoring the status quo. Moreover, even if the existing order provides for sole custody or a significantly one-sided placement schedule, but the order was entered at a time when the directives of the present sec. 767.24(2)(am) and (4)(a)2 were in effect, the moving party still has significant obstacles to overcome. He or she must show, as a threshold matter, that the circumstances that prompted the court to enter the original one-sided order, despite the legislative directives disfavoring it, have changed substantially.”

Deininger added, “It is only in the present circumstance that something app-roaching parity in the arguably dueling presumptions and directives occurs. … Again, the moving parent would still bear the burden of showing as a threshold matter that circumstances have changed since the initial custody and placement determinations.

But, if a parent makes the required showing …, when deciding whether it is in the best interest of a child to modify an existing order for sole custody or substantially unequal placement, a court should consider the presumption of sec. 767.24(2)(am), the directive under sec. 767.24(4)(a)2, and the continuity presumptions under sec. 767.325(1)(b)2.”

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David Ziemer can be reached by email.