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Bill encourages resolution of placement disputes

Gregg Herman

Settling placement issues in a divorce case can be difficult enough, but two Wisconsin Court of Appeals cases have had the unfortunate effect of making settlement more difficult. Now, legislation has been introduced to reverse the effects of those decisions.

It cannot be questioned that settling placement issues is in the best interests of children. Litigation is, per se, harmful to children. In addition to the parents fighting, dollars that could be used to benefit the children are diverted to attorneys or simply lost by a parent having to be in court rather than at work. Future litigation in the form of placement modification hearings are as harmful to children as the initial orders.

As a result, where a contingency affecting a child is reasonably foreseeable, typically lawyers will plan for it during the course of settlement. A typical example involves preschool children and negotiating the placement schedule after a child starts school full time, rather than requiring the parties to return to court and renegotiate the schedule. If the contingency does not occur, or if circumstances change before it occurs to make it no longer appropriate, the parties can return to court to modify it. A default setting not only can be conducive to the initial settlement, but also can often avoid future litigation when the contingent event occurs.

Unfortunately, in Koeller v. Koeller, 195 Wis. 2d 660, 536 N.W.2d 216 (Ct. App. 1995) and in Culligan v. Cindric, 2003 WI App 180, 266 Wis. 2d 534, 669 N.W.2d 175, the Court of Appeals held that such agreements are invalid. In both cases, the court held that trial courts lack the statutory authority to order a change of placement that is prospective and contingent on the occurrence of some anticipated event.

Now, legislation has been introduced to create a new statutory subsection to Wis. Stat. §767.24 to reverse the effects of Koeller and Culligan. The language of this new subsection would specifically exempt it from treatment under Wis. Stat. §767.325, the placement modification statute. Under the terms of 2005 AB311, in making placement orders, a court could take into account events that are likely to occur in the future or temporary current conditions and could provide for future modifications of a placement order, contingent on the occurrence of a specified change in these conditions. Neither of the two placement modification standards would apply for such modifications.

The proposal is not perfect. For example, it should expressly allow judicial review if the anticipated event does not occur or if circumstances change before the modification goes into effect. Consideration needs to be given as to whether the two-year "harm" standard begins at the time of the initial order or at the time of modification.

Still, the concept is an important one. The "best interests of children" is a dynamic, not a static concept. What might work for an infant may very well not work for a teenager. Not infrequently, a parent has been absent from a child's life, either voluntarily or involuntarily. Especially for younger children, a reintroduction period is critical. Allowing a trial court to fashion an order that takes these dynamics into account makes a great deal of sense.

The law should encourage resolution of all disputes, but particularly those with children. 2005 AB311 is designed to such an end. While some tweaking might be advisable, the ultimate concept deserves serious consideration by the Wisconsin Legislature.

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 or sending an e-mail to

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