*1 Paternity Stephanie In re the R. N.: Andrew J. N., Petitioner-Respondent-Petitioner,†
v. Wendy D., L. Respondent-Appellant.
Supreme Court argument January April No. 90-1604. Oral 1993. Decided 20, 1993. (Also reported 235.) in 498 N.W.2d Motion for reconsideration denied. †
753 there was a petitioner-respondent-petitioner For Steil, Jr., Tibbetts and Margery M. George K. by brief S.C., Brennan, Steil, Basting MacDougall, Janesville & Steil, Jr. Guardian George K. and by argument and oral Daniel, Tod 0. Janesville. ad Litem by a brief respondent-appellant there was For the by pro- Conway, argument and oral James T. Janesville Wendy Dyson, L. Madison. se
STEINMETZ, published review of a J. This is a Paternity In re appeals, court of decision of the (Ct. S.R.N., App. 672 Wis. 2d 481 N.W.2d 167 1992), County circuit judgment of the Rock reversing court, only H. one issue John Lussow. There Judge 767.325(1)(a), presented this case: whether substantially modify Stats.,1 a trial court permits physical years legal within an intial two 1 767.325(1) (a), Stats., provides as follows: Section legal custody physical place- Revision of 767.325 767.329, Except s. or ment orders. for matters under 767.327 applicable legal custody following provisions are to modifications of physical placement orders: modifications, (1) (a) years 2 Substantial Within after initial (2), may modify any Except provided order. as under sub. a court not years following of the orders before after the initial order is entered 767.24, modification, party seeking upon peti- under s. unless a tion, motion, evidence or order to show cause shows substantial necessary that the modification is because the current custodial con- physically to the best interest of ditions are or harmful the child: legal custody. 1. An order of *9 (the parent custodial to the granted award placement 1988, 9, following mother) under the August on child's circumstances: unreasonably and contin-
(1) parent The custodial parent's visita- the noncustodial uously interfered with rights. tion a social
(2) psychologist and opinion In the of a the noncus- worker, custody and to placement granting interest. in the child's best parent would be todial trial (3) hearing, modification Pending the place- primary temporary granting order court issued a The order parent. noncustodial child to the ment of the custodial to the weekend visitation granted alternate visits, these weekend returning from parent. After "acting out exhibited two-year-old child approximately behaviors." upon leav- testimony presented that
(4) There was care, develop- the child was parent's ing the custodial skills, "social respect to her verbal mentally behind with skills, fine development, gross motor emotional" motor skills. 767.325(l)(a), Stats., does not conclude that sec.
We cus- legal an initial modification of permit substantial circum- under these placement award tody physical is affirmed. appeals The court of stances. 4,1987, Wendy July R. was born on
Stephanie N. 1988, J. N. Andrew ("Wendy"). April On L. D. in Rock father Stephanie's ("Andrew") adjudicated H. court, John Lussow. Judge county circuit motion, the 9,1988, Wendy's pursuant August On Wendy legal sole granting oral order issued an trial court placement physical would if the modification 2. An order of may parent spend child. substantially with his or her alter the time Stephanie. physical placement2 primary holiday visi- weekend and granted alternate Andrew was *10 issued on to this effect was A written order tation.3 6, December 1988. 21, 1988, motion Andrew filed a December
On Wendy contempt in of the to find requesting the court A rights. hear- denying for his visitation August 9 order 6, hearing, January 4 and 1989. At the held on ing was refused to Wendy unjustifiably that alleged Andrew for four consecutive allow his court-ordered visitation Eve, weekends,4 during full week his Christmas and a that she college. Wendy claimed semester break from child visitation because the denied Andrew's justifiably Wendy had no ill. court concluded that The trial in Wendy found con- rational basis for these denials and measure, tempt 9 order. As a remedial the August of the to com- court awarded additional visitation to the father addition, Wendy's past In the court pensate for denials. Attorney guard- O. Daniel as the child's appointed Tod judge signed stemming ian ad litem. The a written order 16, February proceedings pro from nunc tunc on these 1989. 2, 1989, February guardian ad litem filed
On Wendy in requesting another motion that be held con- 2 "Legal custody" legal custody" and "sole are defined in sec. 767.001(2) (6), Stats., "custody" 1991-92. The term as used custody." opinion "legal in this refers to 767.001(5), Stats., "Physical placement" in is defined "placement" opinion 1991-92. The term as used this refers to "physical placement." opinion 3 The term as used in this refers to short "visitation" i.e.,
periods physical placement, holidays. weekends and 7-9,1988, question are as weekends follows: October 21-23,1988, 4-6,1988, 18-20, October November and November 1988. January comply with the trial court's
tempt for failure requested also that 6,1989, order. The motion visitation placement of Ste- temporary physical granted Andrew be custody hearing. full pending a phanie 16, 1989, was held on this February hearing On that alleged ad litem motion, guardian time the at which court- refused to allow Andrew's Wendy unjustifiably January for the weekends ordered visitation 10,1989. Wendy that she denied February again claimed sick. the child was those weekends because visitation on defense, guardian ad litem testi- Wendy's To rebut him there was doctor assured that Stephanie's fied that addition, In denying for visitation. no medical reason medical records Stephanie's submitted guardian ad litem records, pediatrician In child' those into evidence. 19, 1989, January Stephanie was through indicated that *11 health, intellectually. By and physically in excellent 17, 1989, granted the February the trial court of order motion, awarded Andrew was litem's and guardian ad custody Stephanie. of temporary Stephanie to Andrew transfer
Wendy refused to 20, 1989, February temporary order. On to the pursuant Wendy's residence forcibly sheriff entered county a Rock 1989, the trial On Stephanie. March and retrieved comply refusing to Wendy contempt for found court later ordered The trial court temporary order. the with the final relevant testing persons all of psychological custody. of determination 10, 1989, mother's reconsidera- at the October
On trial court stated: hearing, the tion motion parties to be interviewed I the have ordered they to make recom- counseling and are the service court, have a then we would to the and mendations that, would determine hearing and the court on in the respectively what's parties and fitness of the child, best interests custody party award to one of other, schedule, up or the and set a visitation and added.) (Emphasis that's it. 13, 1989, 19, 1990,
On December 12 and and March custody hearing the final was held. The trial court con- place- cluded that modification the initial and granted legal ment order was warranted. The court custody sole primary physical placement to the father. Wendy periods physical placement only if was allowed they supervised by department were of social services. making decision,
When this the trial court consid- Wendy's First, ered several factors.5 the court considered unreasonable interference with Andrew's visitation rights. explained Wendy above, As denied Andrew his during Eve, court-ordered visitation on Christmas break, Andrew's semester and on several weekends. The Wendy record indicates that when denied Andrew his only visitation, weekend she refused to let Andrew take Stephanie Wendy out of the house. invited Andrew into spend Stephanie. her house to time with On some of Wendy's weekends, these Andrew entered home to check Stephanie, stay appreciable on he but did not for an amount of time. Wendy
Second, the trial court considered experts, psychologist Andrew's mental health. Two guardian worker,6 a social testified for ad litem. explained below, As more detail the trial court conducted custody hearing the final under a mistaken view of the law. As a *12 result, modify custody place the court based its decision to and clearly ment Only on factors which were irrelevant. the factors reasonably that could legal he considered relevant to the correct standard are discussed here. 6 psychologist, Schlaefer, Dr. Richard James interviewed Wendy prepared report. worker, a written The social Anita
758 Stephanie's in best it would be that They concluded that They reasoned reside with Andrew. interest to functional, people, were stable fiancee Andrew and his person. dysfunctional, unstable Wendy was a but that Stephanie to become could cause Wendy's dysfunction insecure, unstable. It could also cause frightened, hitting other behavior such as display antisocial child to tantrums, acting in children, general throwing Stepha- Moreover, dysfunction could slow unruly. said development. nie's fact that Ste-
Third, court considered the the trial leaving her upon behind developmentally phanie was guardian for the Hanson testified care. Kristine mother's provider day-care Stephanie's ad litem. Hanson temporarily Stephanie was February, when from care, that through August of to Andrew's transferred entering day care upon that year. Hanson indicated same respect with developmentally behind Stephanie was (i.e., development skills, emotional social her verbal (i.e., tantrums, etc.), skills gross motor crying, excessive (i.e., terrains), motor skills and fine on different walking hands). her with grasping determinations, make these qualified
Hanson was in education from degree a B.S. she holds because state of Wis- Minnesota, certified University years five and has provider, care consin as a child care field. experience the child Stepha- evidence that court heard Finally, the trial Wendy. visits with her weekend unruly after nie became tempo- February for provided were These visits the Mon- that on Hanson testified rary order. Kristine from week- Stephanie returned Tuesday after day and became mother, behavior Stephanie's her ends with testimony Wendy. Kropf based her Kropf, did not interview findings. solely Dr. Schlaefer's on *13 She would attack other children
extremely aggressive. biting, kicking, punching, until provocation, without Her behavior would physically she was restrained. Friday next two weeks until on the improve over the mother, cooperative Stephanie visited her before she After visitation with to have around. and "wonderful" mother, cycle again. would start over her this behavioral that Ste- frequent became so and severe These incidents day-care phanie be dismissed from Hanson's had to program. guardian sought ad litem modification
Because years of the initial placement within two order, 767.325(l)(a), Stats., controlling. is That sec- tion states as follows: may modify legal ... court not order of cus- [A] [an years 2
tody physical placement] or after the before 767.24, party initial order is entered under s. unless a modification, upon motion, seeking petition, or order to show cause shows substantial evidence necessary that the modification is because the cur- physically rent custodial conditions are or emotion- ally harmful . . . to the best interest of the child added.) (Emphasis 767.325(l)(a), Stats.,
Section
contains
four ele-
(1)
evidence, (2)
ments:
substantial
that
the modifica-
(3)
necessary,
tion is
because the current custodial con-
ditions, (4)
physically
are
or
harmful to the
best interest of the child. "Substantial evidence" refers
"
amount,
evidence which
'considerable
value or
"
Corcoran,
36, 43,
v.
worth.' Corcoran
109 Wis. 2d
(Ct.
1982).
App.
N.W.2d 901
"Necessary"
First,
concepts.
embodies at least two
operate
protect
must
modification
the child from
*14
Second,
alleged
the
harmful "custodial conditions."
the
physical
by
or emotional harm threatened
the "current
enough
custodial conditions" must be severe
to warrant
Marriage
Millikin,
See In re
modification.
Millikin v.
of
16, 23,
(1983).
115 Wis. 2d
To
the final
or emotional
interest,"
party
harm to the
best
moving
child's
the
must
show that
the "current custodial conditions"
threaten
physical
gener-
emotional or
harm to the child. There is
ally
prove
actually
no
that the child
suffered
need
has
expresses
opinion
appeals'
This court
no
on the court of
assertion that"
'current custodial conditions' has the same mean
"
environment,'
409(a)
ing
'present
as
in sec.
of the Uniform
S.R.N.,
Marriage and Divorce Act.
harm.
required
is not
conditions,
parent
a concerned
tary
seeking a modi-
becomes sick before
until the child
wait
mind, however,
that
kept
must be
fication.
It
intertwined with
harm element is
emotional
physical or
severity
of harm
"necessary"
element.
must
"current custodial conditions"
threatened
"necessary."
enough so that modification
high
be
appeals' statement
disagree with the court of
We
"
existed and events
of conditions which
that
[e]vidence
its "cur-
child is removed from
which occurred" after a
to the issue of
are irrelevant
rent custodial conditions"
harmful.
conditions were
the said custodial
whether
relevant
S.R.N.,
Such evidence is
Any a order which removes a modification of parent custody having child from the care of a of the finding child shall be based on a that such removal is necessary to the child's best interest as shown supporting change custody substantial evidence 767.24(2) 767.24(5)]. s. under sec. [now 767.32(2) expressly required The of sec. language 767.24(5) trial court to consider the sec. factors. The sec. legislature requirement deleted this when it enacted 767.325(l)(a), its intent to eliminate revealing law, a trial requirement. Accordingly, under the current 767.24(5) factors when may court consider 767.325(1)(a) only if a sec. modification motion deciding "necessary" standard. said factors are relevant to the 767.325, addition, In examination of sec. close Stats., legislative discourage reveals a intent to modifica- physical placement tion of awards within of sec. years two of their initial issue. The standard 767.325(l)(a), applies years for two after an initial which order, of sec. higher is much than the standard standard, 767.325(1) (b), a best interests which general initial order has applies to modifications made after the years. been force for two general legislature's omission of a best interest *16 Stats., 767.325(l)(a), from sec. evinces its
standard court's initial determina- intent that after the circuit legal custody physical placement, there tion of and finality during two-year period of which shall be a may legal custody physical placement not be sub- and modified, necessary stantially because custo- unless
763
physically or
harmful
are
dial conditions
child's
interest.
to the
best
S.R.N.,
We 767.325(l)(a), Stats., history of sec. legislative "the 767.32(2), Stats., shows the that predecessor, its sec. or 'truce' provide to a 'time-out' legislature intended par and the period years during which the child of two family S.R.N., to new 167 adjust can the situation." ents period of final two-year 332-33.8 Wis. 2d at "[I]n [this] ity stability, courts are not to be battlefields the parents weapons turn their children as where wounded against judicial The reasons interven one another. for arrangement during custodial tion the established two-year truce be Id. at 343. compelling." must modify custody conclude the decision to
We that 767.325(l)(a), Stats., is placement under sec. within court's It will not be disturbed unless the trial discretion. erroneously trial court exercises that discretion. years conclusion follows over 50 of Wisconsin Our custody precedent. Prior modification of child 247.24(2), governed by sec. 247.25 and sec. orders was 247.24(2) Stats., in relevant part 1975. Section stated as follows: any pro- be welfare of such child will
Whenever
thereby,
judgment
granting
moted
the court
such
always
power
change
have
the care and
shall
child,
any
by giving
either
it to
such
tak-
ing
parent,
agency . . ..
it from such
relative or
history
legislative
full and
For a
detailed recitation of the
767.325(1)(a), Stats.,
S.R.N.,
appeals opinion,
see the court of
Section 247.25 stated in part relevant as follows: may
The court from time to petition time ..on parties upon either of the family notice to the commissioner, court judgment revise and alter such care, concerning custody, maintenance and edu- any children, cation of of the judg- make a new concerning ment the same as the circumstances of parents and the benefit of the children shall require.
When reviewing
statutes,
modifications under these
appellate courts applied the erroneous exercise of discre-
See,
tion standard of
e.g.,
review.
Acheson,
Acheson v.
610, 613,
235 Wis.
(1940);
In 247.24(2), Stats., sec. 247.25 and sec. were repealed 767.32(2), quoted above, and sec. was created to take their place. 15,1977, 38, 40, Act of October secs. ch. 105, 560, (codified 247.32(2) 1977 Wis. Laws 570 at sec. (1977) 767.32(2) renumbered to sec. the Act of 19, July 32, 46, 50). 1979 sec. 50 ch. 1979 Wis. Laws Although the standard for modification under 767.32(2) was more burdensome and more structured 247.24(2), than it was under sec. 247.25 and sec. see Millikin, 115 Wis. 2d at the erroneous exercise of See, e.g., In was retained. of review standard
discretion 117, 128, Groh, 2d 110 Wis. Marriage Groh v. re Gould, Marriage Gould v. re (1983); In *18 655 N.W.2d (1984); Milli 497-98, 426 342 N.W.2d Wis. 2d 116 kin, at 35. 115 Wis. 2d 767.32(2) Stats., 767.325(l)(a), replaced sec.
Section in sec. for modification the standard Although in 1988. under sec. than it was 767.325(1) (a) is more structured in stated the rationale 767.32(2), conclude that we is in a much The trial court applicable. Hamachek is still or not "modifica- whether position to determine better condi- the current custodial necessary because tion is to the best harmful or physically tions are 767.325(l)(a), Stats. Section of the child." interest only to deter- discretionary decision "We review the facts examined trial court whether the mine and, standard, using a record, proper legal applied a State reasonable conclusion." reached a process, rational (Ct. 130, 145, 584 Hamm, 430 N.W.2d Wis. 2d v. 146 is no reverse unless there 1988). court will not App. This exercise of discre- the trial court's basis for reasonable Groh, at 128. 110 Wis. 2d tion. in case reveals that record this
A review of the 767.325(l)(a), Stats., incorrectly.9 applied sec. trial court above, that sec. found, interpretation contrary to our It all of the factors 767.325(1)(a) required it to consider result, erroneously 767.24(5). the court As a sec. listed child standard" interest of the on the "best focused "necessary modify" 767.24(5) rather than 767.325(l)(a). before the court The issue in sec. standard 9 findings in based on statements This conclusion is appeals recites some of these The court of record. trial court S.R.N., findings. Wis. 2d at 336-38. statements custody when was transferred from the mother to the parent father was not which would be the better care- taker. That had been decided the trial court when originally given addition, to the mother. In modify custody placement the court's conclusion to was based on several factors which were relevant to the "best interest standard" but not relevant to the "neces- sary standard."
Although the trial court's exercise of discretion
improper
demonstrates consideration of
factors and a
law,
mistaken view of the
we will not
if
reverse
facts of
applied
proper legal
support
record
to the
standard
trial
Johnson,
court's conclusion. State v.
118 Wis. 2d
(Ct.
1984) (considera
App.
472, 480-81,
The trial court's transfer of was clearly guardian an erroneous exercise of discretion. The produced suggesting ad litem no evidence that modifica- custody placement tion of and with the mother was "necessary." (his guardian proof fact, In the ad litem's discussion with the child's doctor and the child's medical records) thriving, physically indicates that the child was intellectually, in her mother's care. custody place- 6,
In its initial December present order, ment the trial "[i]t court found: was in the best interest [the child] that the [mother] shall have legal custody sole of the minor child." No substantial changed presented evidence of circumstances was at the temporary custody placement hearing or final which contrary except conclusion, would warrant a for the physical placement of the interference with mother's This was irrelevant with the father. evidence child guardian that said the ad litem failed to show because emotionally physically harmful to was or interference the child. permanent
The trial transfer of court's no There are an erroneous exercise discretion. also provide basis for the a reasonable facts of record which modification was trial court to conclude that "necessary." father's visita-
The mother's interference with the rights, itself, is not to relevant tion 767.325(l)(a), Stats., would standard. This fact have guardian if ad had shown that relevant litem been emotionally physically or harmful the interference was guardian child; however, the ad litem failed to to showing. a make such parent
Certainly, denying right visit a a child to may However, harmful that child. this be rights proof that were does not make visitation fact "necessary modify" standard. denied relevant to the degree and to denial of visitation affects Whether what particular well-being is not of a child com- the emotional knowledge. example, long must visitation mon For how before or emotional harm be denied it causes threatens enough? Is one weekend Are two weekends to a child? age enough? How does a child's affect this determina- one-year-old, tion? Does denial of visitation affect *20 five-year-old, ten-year-old, less than a etc.? more or relationship does the between the child and the How parents case, In affect this determination? this when the only father, to the mother denied visitation she refused child house. The to let the father take the out of the spend the father into her home to time mother invited refused to visit the child with the child. The father completely Thus, mother's home. the mother did not the child from the father. How does this affect isolate harm determination? the emotional point Moreover, the harm at what does or threat harm denial of visitation make modification caused 767.325(l)(a), "necessary?" explained above, As the sec. requires "necessity," suggests Stats., which standard "Necessity" need for modification. also some immediate requires showing in the more than a that modification is best interests. The fact that denial of visitation child's may cause emotional harm to a child does not indicate "necessary." when modification becomes concerning mental The evidence health of the mother and father is also not relevant to the sec. 767.325(l)(a), Stats., standard. This is so because the experts, Kropf, applied inap- Dr. and Anita an Schlaefer plicable conducting evaluations: the standard when their standard" rather than the "best interests of the child "necessary modify" opinion expert's standard. The Wendy's dysfunction emotional harm "could" cause that although Stephanie, interests relevant to the best speculative standard, to assist the trial court is much too "necessary." determining whether modification testimony concerning Stephanie's retarded development evidence. The mother was is relevant temporary primary from until the child's caretaker birth development, which was The child's lack of transfer. suggests transfer, that the mother's noticed after that inadequate. care was although relevant,
However, has evidence is it this probative The connection between little value. *21 development is the child's retarded care and
mother's that some direct evidence indicated circumstantial. No developmental mother caused the of the act or omission lag.
Moreover, could have developmental lag the child's The child from her mother. by separation been caused forcibly taken from her mother's home recently been had " from established attachment by police. [Separation distress, empirically linked to acute been figures [has] disorders, retar- developmental and intellectual conduct dation, social rela- inability meaningful to form and the Wexler, Rethinking the tionships." Joan G. Modifica- Decrees, Custody Child 94 Yale L.J. tion of (1985). Stephanie's regressive testimony concerning her mother is visitations with
behavior after weekend above, custo- As stated "current not relevant evidence. food, shelter, and care that include the dial conditions" place- under the initial the child received temporarily transferred Stephanie Once ment order. father, of the "current custodial conditions" to her regressive The child's longer no existed. initial order type Stepha- of care equally probative is behavior order, as, temporary under the as well receiving nie was receiving the initial order. of the care she was under Moreover, above, unruly the child's as discussed by separation from the behavior could have been caused otherwise, directly testimony, expert or mother. No omissions behavior to acts or linked the child's mother. 767.325(1)(a), Stats., requires moving
Section modification substantial evidence that party produce above, "con- substantial means "necessary." As stated siderable amount." The fact that the child was devel- opmentally leaving mother, behind after the care of her by itself, does not constitute substantial evidence. *22 Accordingly, there was no reasonable basis for the trial custody. court's modification of aspects
Three other of this case deserve discussion. First, our proof conclusion that of visitation interfer- ence, itself, by is 767.325(l)(a), not relevant to the sec. Stats., standard, does not leave trial courts without a reasonable in remedy cases parent where a continuously unjustifiably and refuses to allow court-ordered visita- legislature tion. The expressly provided has at least two such remedies. remedy
The first 767.11, is mediation. Section Stats., requires every county in the state of Wisconsin to up set system a mediation disputes to address over legal physical placement. section, and Under this trial judges required are parties to refer to mediation services in an action under sec. 767.325 physical place- where 767.11(5), ment is contested. Section Stats. Section requires 767.11 also system the mediation provide legal custody physical placement studies. Section 767.11(14)(a), Stats. These investigation studies involve home," into the "conditions of the party's child's "each performance duties," parental "[a]ny of other matter relevant to the best interest of the Id. child." The results of these studies part become of the court record. Section 767.11(14)(b), Stats.
Why the trial in court failed to order mediation this earlier, 767.11, Although case is unclear. enacted sec. Stats., mandatory did not become until June 1989. 767.11(15), Section Perhaps county Stats. Rock not had yet implemented event, a In system. any mediation this now, statute, in all Wisconsin
remedy is available counties. under sec. remedy
The second is modification However, 767.325(l)(a) 767.325(l)(a), Stats. only moving proper makes a party when the available provided physical placement studies for showing. this moving party will with burden. sec. 767.11 assist this deserves dis- aspect The second case which of the trial written conclu- cussion concerns one court's Specifically, the court concluded that sions of law. trial harmful Wendy's mental condition child. court based this interests of the The trial best Wendy's undergo on failure to court- conclusion psychiatric "contemptuous her ordered examination and and out court." actions reactions *23 The trial court's conclusion of law is erroneous for First, expert trial an in three reasons. the court is not qualified determine the mental health. It is not to qualified mental and is not to determine mother's health whether the mother's mental health is to the interests of child. harmful best the Second, undergo the failure the mother's to court- testing grounds is not reasonable for psychiatric ordered court, layman, as to that the mother the trial a conclude mentally unbalanced. The trial court ordered the was pur- health For undergo testing. mother to mental this pose, The agency. agency she was referred to a local psychological mother submit to tests: a asked the to two performed by psychi- a and a psychologist examination by performed psychiatrist. The atric examination psychological mother to the exam. exam submitted performed presented and the results at the was were respect psychiatric to the hearing. modification With exam, sign the to psychiatrist the asked mother some release type pertaining of form to results the of the This form is the exam. not record. She refused to sign refusal, psychiatrist this form. Because this of the perform to exam. refused the facts, these the
Given mother's failure to undergo psychiatric the exam does not indicate that she was mentally A unbalanced. person reasonable would cer- be tainly releasing cautious about such personal informa- record, Because is part tion. the release not the its Moreover, scope unclear. the was apparently mother to submit exam. willing psychiatrist to the It was the perform who to the refused exam.
Third, the "contemptuous trial court's reference to actions reactions and out of presumably court" to refers the mother's denial of court-ordered visitation. Said denial is also grounds not reasonable for the trial to mentally court conclude the that mother was unbal- During proceedings, anced. court trial the mother alleged that she was not receiving court-ordered child support from the Accordingly, denying father. visita- tion, may trying she have her right been to enforce support. contempt that At the hearing, mother did She attorney. not have an indicated she that could not attorney herself, one. Not an presumably afford she did a contempt not know how to for failure to bring motion fact, pay support. January contempt child In at the hearing, support, mother raised issue of child but issue the trial court refused address the because the for contempt motion before the court violation of visitation, contempt nonpayment not for child *24 support. this aspect
The third case which deserves discus- guardian made ad sion concerns a statement the litem ad argument. Specifically, guardian at oral the litem child barri- spent had a weekend with the stated that he implied in He that this mother's residence. caded the justifies the trial court's modifica- experience somehow guardian The ad litem's custody. disagree. tion of We not and not argument are evidence statements at oral in that this case. No evidence the part of the record home, observed visited the mother's guardian ad litem home, child the or observed the child's barricaded presented ever to the trial court. living conditions was motion guardian brought The ad litem modification produce Obviously, such and had the burden evidence. presented to the if these facts were not trial alleged court, for they basis cannot constitute reasonable trial court's conclusion. perma- temporary
We reverse the trial court's and Primary placement orders. and sole nent modification should be returned to the legal custody of this child initial, 6, 1988, mother with the December accord custody order. appeals
By the Court. —The decision of the court of is affirmed. WILCOX, (dissenting). J. I
JON P. dissent because its properly I conclude the trial court exercised dis- that physical in modifying legal custody its initial cretion 767.325(l)(a). The placement under sec. record award proper "necessary applied reflects that the trial court 767.325(l)(a), modify" using standard in sec. legal process, a rational reached a reasonable conclusion that provided by the the current custodial conditions mother physically harmful to the best were interests of the child. majority opinion that "this court will not states reasonable for the trial
reverse unless there no basis *25 Majority op. court's exercise of discretion." at 766. How- majority ever, the takes a narrow view of the record to applied arrive at their conclusion that the trial court the wrong legal applied standard and that the facts to the proper legal support standard do not the trial court's conclusion. agree legal analysis pertaining
I with much of the to 767.325(1)(a) majority opinion set forth the on pages through majority However, I 766. believe the erroneously misapplied concludes that the trial court the support law this case and that the facts do not trial court's conclusion.
The trial court's written conclusions of law that custody transferring were issued with its order of the child to the father stated: 767.324(1) [sic],
Pursuant to Statutes sec. Wisconsin the Court concludes that the Guardian ad Litem and have substantial shown evidence that [Father] modification of the Court's December 1988 order must be modified custody granting to [the mother] custody because with [the mother] (Emphasis harmful to the best interest [the child]. added.)
This statement indicates that the trial court was aware applied proper legal of and The trial court standard. necessary modify cus- concluded that it was its initial tody order because with the mother was emo- tionally This was reasonable con- harmful to the child. upon clusion based findings. the record and the trial court's stated repeated mother, orders, The' after court refused to Finally, allow with the child. the father visitation necessary temporarily trial found it transfer cus- court tody to the father to allow the child to see her father. denial mother's concludes that the opinion majority relevant because father was not with the
of visitation phys- show that the denial litem did not guardian ad *26 op. Majority emotionally harmful to the child. ically or require expert majority would Apparently the at 768. her see one of denying right a child the to testimony that I it is child. believe emotionally harmful to the parents is the denying a child knowledge that common a matter of be parents of her could to visit one right 1987 Act prefatory A note to to the child. harmful 767.325, Stats., states: which enacted sec. 46 special on study, In committee its the that the current laws arrangements concluded in custody determinations practices relating to child family: affecting the and other actions divorce importance adequately the 1. Do not stress sig- interest of the child and of the best cases, child, a in most to the of nificance continuing, meaningful relationship with added.) parents. (Emphasis both of policy opinion thwarts Wisconsin's majority The parents by encour- relationship a with both encouraging visitation deny to court ordered parents aging custodial parents. to non-custodial in the mother case, court found
In this the trial jail, to but court ordered the mother contempt. The trial court Of had the trial the sentence. course later withdrew sentence, necessary it have been would jail enforced the to the father custody of the child temporarily transfer poor is a jail her time. Jail the mother served while more harm in because it does remedy these situations custodial against sentence a good. Enforcing jail a than his or her parent will lose the risk that parent creates jail during income the time causes a loss of job and importantly, sentencing par- is sentence served. More a jail might ent to cause emotional harm the child. opinion majority page quotes The at the court appeals two-year period stated, of finality which "[I]n [this] stability, not courts are to be battlefields parents weapons where wounded turn their children as against exactly However, one another." this what the mother The did this case. mother used the child as weapon against by refusing the father to allow the father daughter. majority opinion visitation with his leaves remedy type the trial court without a reasonable these contempt situations. repeated IWhile believe the mother's refusal to comply enough with the trial court's visitation order was requirements 767.25(l)(a), to meet the of sec. there was physical additional evidence of upon and emotional harm *27 rationally which the trial court could have relied reach its conclusion. The trial court found that there was substantial in evidence the that record the mother did appropriately causing child, not interact with the emo- care, tional harm the child. While under the mother's developmentally respect the child was behind with to her development, gross skills, verbal social emotional motor unruly skills, and fine motor skills. The child became after her visits with mother. The refusal to mother's comply psychiatric with the trial court's order afor eval- together contemptuous uation her with actions in out of court the led trial court to conclude that the emotionally mother's mental condition was harmful to the child. appointed Kropf expert court
The Anita as in an Kropf this case. has a in masters social work and is the Community Counseling director of the in Center Janes- Kropf living ville, Wisconsin. testified with that the emotionally mother would be harmful to best the inter- Kropf that the father child. recommended ests the opinion custody Kropf based her of the child. retain per- psychological the examinations recommendation on mother, father, Dr. the Richard Schlaefer on formed psychiatric Kropf also utilized the and father's fiance. performed father fiance of the and father's evaluations by Dr. Hann. Marek psychologist for Anita
Dr. is a who works Schlaefer Community Counseling Kropf Dr. Center. at the Psychology professor in the is also an associate Schalefer University Department of Wisconsin-Whitewater. at the having adjust- diagnosed as an Dr. the mother Schlaefer Dr. emotional features. ment disorder with mixed keep the child that the mother would Schlaefer testified life. from the mainstream social isolated spent guardian the The ad a weekend with litem guardian The ad litem stated mother's home. child the argument barricaded in the that the child was at oral with other children or was not allowed contact home and party brought guardian is who ad litem the adults. The custody visiting after to transfer because the motion witnessing living child's condi- mother's home and emergency tions, existed which he felt an situation physically harmful to the child. years The and has been child now five old years. reality custody of this over four father's for opinion majority is issued the child case is that after the of her mother. The father will be returned to seeking may cus- with the court then file a new motion *28 tody of under the "best interests" standard the child 767.325(l)(b), custody the initial order because years old. The most unfortunate now more than two well-being consequence of this case is that the emotional irreparably harmed. child has been of an innocent properly I conclude that the trial court exercised its modifying physical discretion its initial placement award because there was substantial evidence provided by in the record that the custodial conditions physically the mother were harmful to the best interests of the child. appeals.
I would reverse the decision the court of I am authorized state that Justices Ceci and Bab- join in LITCH this dissent.