No placement of children by default

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Gregg Herman

Can placement of minor children be decided by default? Even though the Legislature said "yes," the Wisconsin Court of Appeals said "no" in a recent case. Specifically, the issue involves the failure of a parent to file a parenting plan, which by statute waives objection to the other parent's plan — essentially deciding placement by default.

In Guelig v. Guelig, No. 2005AP346 FT (Aug. 31, 2005) (recommended for publication), the District II Court of Appeals reversed and remanded the judgment rendered by Judge Richard J. Nuss, of the Fond du Lac County Circuit Court, which adopted Rebecca Guelig's parenting plan on the basis of waiver by the father, Timothy Guelig.

Rebecca had filed her parenting plan before the status conference. Timothy, then pro se, did not receive a copy of Rebecca's parenting plan, nor did he file his own parenting plan, until shortly before trial. At the status conference, after inquiring of the GAL as to whether Rebecca's plan was harmful to the children, the trial court concluded that Timothy waived his right to contest Rebecca's parenting plan and adopted it. Even after Timothy retained counsel and filed a parenting plan, the trial court refused to hear a challenge to the custody and placement provisions adopted from Rebecca's parenting plan.

Under Wis. Stat. §767.24(1m), a parenting plan must be filed "before any pretrial conference." Absent a showing of cause, a party who fails to do so "waives the right to object to other party's parenting plan." Most likely, the Legislature never thoroughly thought through the implications of this "default" rule. Read strictly, it would require a trial court to award placement based on which parent prepared the appropriate paper work, without regard as to whether such an order is consistent with the best interests of the child.

In a unanimous opinion authored by Judge Richard S. Brown, the court of appeals held that Timothy should have received a copy of Rebecca's parenting plan before the trial court acted on custody and placement. The appellate court held that Timothy did not waive his right to object to Rebecca's parenting plan, as a scheduling conference is not a pretrial conference, he had no notice that the trial court might rule on custody and placement at the scheduling conference, and he ultimately filed his parenting plan. Therefore, the appellate court found that Timothy did not violate the statute, as there was no pretrial conference.

Dicta Becomes Decision's Focal Point

The appellate court could have stopped there, which would have resulted in a very limited holding, probably not warranting publication.

However, the court went on to hold that, even if waiver is present, an overall best interest determination is still required. A waiver can be considered only as a factor in a custody and placement determination and does not eliminate the court's obligation to base these determinations on the best interests of the child.

The decision by the appellate court to add the dicta had to be a difficult one. The difference between a "pretrial" and a "status conference" is a very fine line and other than semantics, it really doesn't matter. After all, at a "pretrial," the court typically asks the lawyers to report on the "status" of the case. The true distinction is between a motion and trial dates, when witnesses and evidence need to be prepared, and all other appearances before the court.

It would have been easy for the appellate court to have ended its analysis with the semantic distinction, but this would have provided little guidance for trial courts in these issues. Due, perhaps, to the complexity of many parenting plan forms, they are frequently ignored. To award placement on the sole basis of which parent completed the form runs the risk of dividing placement due to the diligence — and sometimes the OCD nature — of one of the parents. While certainly diligence (and OCD behavior) should be factors, the main consideration in any custody/placement case has to be the best interests of children. To award placement by default may appropriately "punish" a parent who does not obey court orders, but may also harm children, who have done nothing wrong.

While dicta, the expanded holding in Guelig will serve as authority for trial courts to maintain "best interests" as the primary consideration in custody/placement cases, no matter how ill-considered the underlying legislation.

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 e-mail.