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Looking back: The best and worst of 2022

Gregg Herman is a neutral arbitrator and mediator at JAMS located in its Milwaukee office, specializing in resolution of family law disputes. A past chair of the ABA Family Law Section, Herman is a certified family law mediator, a senior Family Law trial Specialist by NBTA and an adjunct professor at Marquette Law School. He can be reached at [email protected] or [email protected]

One of my favorite columns is to review family law cases and legislation from the prior year. It gives me yet another opportunity to express my thoughts on the good and the bad that occurred. Fortunately for me as a columnist, there was enough bad to make this column (hopefully) somewhat entertaining as “good” tends to be boring. So here goes:

My first column of 2022 was on Valadez v. Valadez, 2022 WI App 2, which reversed an order awarding the father sole legal custody and shared physical placement of the parties’ children. While finding that the father had engaged in a pattern of domestic abuse, the trial court found that he had rebutted the statutory presumption against legal custody and shared placement because he successfully completed domestic abuse treatment from a licensed professional counselor, thereby complying with Wis. Stat. § 767.41(2)(d)1.a. While the counselor was not a certified treatment provider, the trial court found that the treatment was equivalent and satisfactory.

The court of appeals reversed, finding that when courts interpret a statute they are not at liberty to “disregard the plain, clear words of the statute.” I criticized the decision, as the appellate court could have easily found that the trial court’s order was consistent with the best interests of the children and properly exercised the judge’s equitable powers to protect the children. In fact, the appellate court never even mentioned the best interest of the children. In my opinion, a case that provides no benefit but does potential harm is a bad way to start any year.

On Oct. 18, 2022, the District III Court of Appeals affirmed the trial court’s order in Biehl v. Hyde, No. 2021AP868 (not published, but citable), which modified a 9-5 placement schedule that was agreed to by the parties at the time of divorce, to equal placement. The trial court concluded that the statutory presumption to maintain the existing placement had been overcome and that equal placement was in the best interests of the child. The court stated that the largest factor was the child’s “sincere wish that she … spend … equal time with each parent.” The child was not even 8 years old. This decision bothered me, as I’m not sure why the opinion of an 8-year-old would be a consideration. As I said in my article on the case, courts should try to leave children out of the legal process if at all possible.

While there were very few family law cases in 2022, there was some new legislation. The one that will affect most cases is 2021 Wisconsin Act 259, which substantially tightens the previous vague requirement regarding the exchange of financial information in family law cases that involve modifiable support. While the intent of the law is good, I question whether it will be consistently enforced. There is a history in this field of legislation that sounds good in theory (e.g., the statute requiring parenting plans and the one to exchange medical information) but are honored in the breach. The result is confusion over which laws should be taken seriously and which, well, not so much. We’ll have to see how this one plays out.

On the other hand, I found some good in 2021 Wisconsin Act 161, or the Uniform Deployed Parents Custody and Visitation Act, which created Wis. Stat. § 324.21. The new law creates a process and standards for temporary delegation of custodial responsibilities when a parent is deployed as part of their military service. Although the new law is not perfect (we’ll see if the requirement of having a mandatory hearing within 30 days of filing is actually followed), I did like that it, glory be, requires the court to consider the best interests of the child.

Finally, in what I hope is a good development, as a result of my joining JAMS, the largest private provider of ADR services worldwide, I have made my database of Wisconsin family law cases available for free. If you have any questions or are doing any research in family law, go to www.wifamlaw.com. I’ll keep the site up to date, and I hope it helps practitioners and courts everywhere.


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