Child Placement Modification – Change of Circumstances

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WI Court of Appeals – District III

Case Name: Amber M. Franks v. Charles D. Smiley

Case No.: 2018AP2278

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Child Placement Modification – Change of Circumstances

Amber Michelizzi appeals an order providing Charles Smiley with shared legal custody and increased physical placement of their children. She contends that Smiley failed to demonstrate a “substantial change of circumstances” justifying the modifications, and that the ordered modifications were not in the children’s best interests.

We reject Michelizzi’s arguments and conclude a substantial change of circumstances occurred. Among other things, Smiley’s previous inability to provide a suitable environment for his children had been remedied; he had obtained new employment that provided regular work hours and a flexible schedule; one of his children had developed a very close relationship with Smiley’s stepdaughter following his marriage to his current spouse; and the children are now of an age where they are capable of expressing—and have expressed—a desire to spend more time with their father.

In holding that there has been a substantial change of circumstances, we conclude that this case is not analogous to Lofthus v. Lofthus, 2004 WI App 65, 270 Wis. 2d 515, 678 N.W.2d 393. Lofthus establishes that the combination of circumstances there—including the children’s natural aging process, the general increased availability of one of the parents, and a change in the law from the time of the original placement order—are insufficient to constitute a substantial change of circumstances. Here, there has been a much greater degree of change. We also reject Michelizzi’s argument that the circuit court improperly relied upon Smiley’s changes in marital and financial status, contrary to WIS. STAT. § 767.451(1)(b)3. (2017-18), in modifying the parties’ existing order. Finally, we deem undeveloped Michelizzi’s argument that the modifications were not in the children’s best interests. Accordingly, we affirm.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.