IN RE the MARRIAGE OF: James E. LONG, Petitioner-Respondent, v. Kathleen A. LONG, Respondent-Appellant-Petitioner.
No. 84-1667
Supreme Court of Wisconsin
Argued September 30, 1985.—Decided February 11, 1986.
381 N.W.2d 350
For the petitioner-respondent there was a brief by George N. Kotsonis, William E. Ryan and Law Offices of Chronus and Kotsonis, Milwaukee, and oral argument by Mr. Ryan.
This removal case stems from the divorce of Kathleen Long and James Long. The divorce judgment effective as of December 19, 1983, awarded Kathleen Long custody of the parties’ two minor sons and granted James Long reasonable rights of visitation. At the time of the divorce, both parties lived in Washington county.
In February 1984, Kathleen Long filed a motion seeking permission to remove the two children from Washington county to Peoria, Illinois, and requesting modification of the visitation arrangement. In an affidavit to support her motion, Kathleen Long stated that she had been laid off permanently from her Wisconsin job on January 6,
The circuit court heard both motions on June 22, 1984. It denied the motion to change custody, concluding that James Long had not met the test for a change of custody as set out in Gould v. Gould, 116 Wis. 2d 493, 500, 342 N.W.2d 426 (1984). James Long did not appeal the circuit court‘s custody decision. In a memorandum decision dated June 28, 1984, and an order dated July 30, 1984, the circuit court also denied Kathleen Long‘s motion for permission to remove the children. The circuit court stated that the burden was on Kathleen Long “to satisfy the Court that the children‘s best interests would not be impaired by their removal from the State under the circumstance[s] in this case.” In deciding the case the circuit court “concluded that the removal from the State . . . is not in the best interest of the children and that that interest must take priority over their mother‘s reasons supporting her request. . . .”
Kathleen Long appealed the order, arguing that the circuit court had applied the wrong legal standard. The
A removal determination, like a custody determination, is committed to the sound discretion of the circuit court. Discretionary determinations do not, however, lie beyond meaningful appellate scrutiny. An appellate court will find an abuse of discretion when, for example, the circuit court exercises its discretion on the basis of an error of law. Gould v. Gould, supra, 116 Wis. 2d at 497-98.
The issue in this case is whether the circuit court erred in its interpretation of
Section 767.245 (6), Stats. 1983-84, requires the custodial parent to notify the parent having visitation rights of the custodial parent‘s intention to establish legal residence outside the state. If the parent having visitation rights objects, the circuit court may deny the custodial
“Whenever the court grants visitation rights to a parent, it shall order the child‘s custodian to provide to the parent having visitation rights 60 days’ notice of the custodian‘s intention to establish legal residence outside this state or to remove the child from this state for a period of time exceeding 90 days. Upon motion by the parent having visitation rights and a finding by the court that it is against the best interests of the child for the custodian to so remove the child from this state, the court may deny permission to the custodian. Violation of a court order under this subsection may be deemed a change of circumstances under s.767.32, allowing the court to modify the judgment with respect to custody, child support and visitation rights so as to permit withholding of a portion of the support payments to defray the added expense to the parent with visitation rights of exercising such rights or to modify a custody order.” (Emphasis added.)
Without citing any statutory authority, the circuit court concluded that the burden of persuasion was on Kathleen Long “to satisfy the Court that the children‘s best interests would not be impaired by their removal from the State under the circumstance[s] in this case.”
In requiring Kathleen Long to meet this burden of persuasion,4 the circuit court appears to have applied the
“Whenever the court grants visitation rights to a parent, it shall order the child‘s custodian to obtain written approval of the parent having visitation rights or permission of the court in order to establish legal residence outside this state or to remove the child from this state for a period of time exceeding 90 days. Such court permission may be granted only after notice to the parent having visitation rights and after opportunity for hearing. Violation of a court order under this subsection may be deemed a change of circumstances under s. 767.32, allowing the court to modify the judgment with respect to custody, child support and visitation rights so as to permit withholding of a portion of the support payments to defray the added expense to the parent with visitation rights of exercising such rights or to modify a custody order.”
The 1984 statute differs from the earlier version in two important respects: (1) under the 1984 statute, the objecting parent must petition the court to obtain an order denying removal, and (2) under the 1984 statute, upon a petition from the objecting parent the circuit court, in order to deny permission to remove, must make a “finding that [removal] is against the best interests of the child. . . .” Under the earlier version the custodial parent had to seek the court‘s permission for removal if the noncustodial parent did not give written approval. Moreover, the earlier version set forth no test for the circuit court‘s use in deciding whether to grant permission to remove.
In Peterson, the custodial parent petitioned the trial court to remove the child from the state. The trial court granted permission. In affirming the trial court‘s order, this court adopted what it believed to be the test adopted by a majority of the courts considering this issue: If the custodial parent has good reason for moving to another state and such course of action is consistent with the welfare of the child, the court will permit the removal. Peterson v. Peterson, supra, 13 Wis. 2d at 28.
In Whitman also, the custodial parent petitioned the trial court for removal. This court affirmed the trial court‘s order granting permission and justified removal for these reasons: “the [custodial mother‘s] desire to move was for a proper purpose and [was] beneficial to her, . . . [the proposed removal] was not detrimental to the children, and . . . under the circumstances removal . . . would not constitute an undue burden upon the [father] in exercising his visitation rights.” Whitman v. Whitman, supra, 28 Wis. 2d at 59. Dissenting in Whitman, Justice Hallows advocated a different test: A custodial parent seeking to remove a child should have the “burden of proof . . . to show the well-being of the children will be better served by the removal of the children. . .” Id. at 62 (Hallows, J., dissenting).
In the Fritschler case, a custodial mother petitioned the trial court to remove the children from the state, but this time the trial court denied the petition. This court
In Fritschler, this court concluded that the trial court had not abused its discretion by refusing to grant the mother permission to move the children to a state in which she might have had a more promising future. It rejected the argument that a better life for the custodial mother would indirectly benefit the children but nevertheless accepted the rationale of a prior case that what was good for the custodial father‘s finances and career would indirectly benefit the children. Id. at 287-89.
Fritschler is not good authority for interpreting the 1984 statute. As Justices Robert Hansen and Horace Wilkie recognized in their dissent in Fritschler, undue weight was given by the trial court to the professional status and income of the lawyer-father and insufficient weight to the needs, interests, and job opportunities of the homemaker-mother. Id. at 292-93 (Hansen, J., dissenting).
Furthermore, when the court decided Peterson, Whitman and Fritschler, no statute expressly governed removal. In Peterson, this court concluded that the same considerations which determine custody of children apply to the question of removal. Peterson v. Peterson, supra, 13 Wis. 2d at 28. In Whitman, the court applied the statute relating to revision of the divorce judgment to the ques-
The custodial mother in Fritschler urged the court to hold that “a divorced parent having custody should be able to take the children permanently to another state if it is not against their best interests.” Fritschler v. Fritschler, supra, 60 Wis. 2d at 288. (Emphasis added.) The Fritschler court rejected this test, the very test the legislature subsequently adopted in the 1984 version of
We conclude that the Fritschler, Whitman and Peterson cases are not helpful in interpreting the 1984 statute, because the 1984 statute changed prior law. By requiring the noncustodial parent instead of the custodial parent to seek a court order and by imposing the “against the best interests of the child” test rather than the tests set forth in Peterson, Whitman, and Fritschler, the legislature has limited judicial intervention in the custodial parent‘s decision to leave the state. The legislature has recognized the custodial parent‘s caretaking and family decision-making responsibilities5 and has made it easier for the
This legislative recognition of the custodial parent‘s responsibilities and powers and of the connection between the child and the custodial parent does not ignore the noncustodial parent. A child‘s relationship with the noncustodial parent has an important bearing on the child‘s best interests.
The purpose of the removal statute is to sustain a relationship between the child and the noncustodial parent by protecting reasonable visitation rights.7 The removal
The statutory standard for removal of the child outside the state—whether removal is “against the best interests of the child“—must be interpreted in the context of the statutory standards for modification of visitation and change of custody.
If the circuit court grants permission to remove, the custodial or noncustodial parent may request modification of visitation because the existing visitation arrangement may no longer be suitable for a parent or the child. The court may, under the statutes, modify visitation when modification “serves the best interest of the child.”
The question of removal may cause the parents and the court to face the question of a change of custody. If the circuit court grants permission to remove, the noncustodial parent may seek a change of custody. If the circuit court denies permission to remove, the custodial parent may nevertheless wish to leave the state and yet retain custody of the child. To order a change of custody the circuit court must, under the statutes, find that a change of custody is “necessary to the child‘s best interest.”
Furthermore, in interpreting the statutes this court has held that the trial “court has no power to order where a custodial parent should live within the state” and that a noncustodial parent cannot seek a change of custody merely because the custodial parent‘s move within the state has made visitation more difficult. Groh v. Groh, 110 Wis. 2d 117, 125, 128-130, 327 N.W.2d 655 (1983).
Analyzing
A determination under
The circuit court in this case erred by failing to apply the test required by the 1984 statute, namely, whether removal is against the best interests of the children. The circuit court acknowledged that this was a close case and “concluded that the removal from the State . . . is not in the best interest of the children and that that interest must take priority over their mother‘s reasons supporting her request. . . .” The circuit court noted that the sons had a close relationship with their father, who frequently exercised his visitation rights. The circuit court found that the removal would not be psychologically damaging to the children, but that removal “would be damaging to the normal parent-child relationship.” The circuit court
We are sensitive to the need for these children to maintain their relationship with their father, but retaining the father‘s weekly visitation should not have been the sole factor on which the circuit court determined the removal to be against the children‘s best interests. Before denying removal the circuit court should have considered the testimony presented about possible alternative visitation arrangements and their effect on the children.
We decline to remand this case to the circuit court to determine whether removal would be against the best interests of the children. The parties had a full opportunity to put in their evidence relating to removal and the best interests of the children. The witnesses discussed alternative visiting arrangements, the effect of the removal on the children‘s relationship with their father, and the effect of the children‘s relationship with their father on the children‘s well-being. We have read the record, and we conclude, as a matter of law, that there is no evidence in this record to support a finding that removal is against the best interests of the children.
Kathleen Long called an expert witness, a psychologist.8 He testified that the move would not “necessarily have a significantly negative impact on the children.” He further testified that if the mother removed the children from the state, the children would be able to retain a full, complete, and loving relationship with their father. In the psychologist‘s opinion, the divorce itself had created the primary hardship on the children. Although a move would require the children to make a temporary readjustment, he believed that the place of residence was not as significant to these children, who were two and four years old, as the continuity of the primary child caretaker. The psychologist testified that a father‘s role in the children‘s developing lives is not entirely dependent upon the frequency of visitation and that, in his opinion, the removal of the Long children to Peoria would not be harmful to the children‘s best interests.
In opposing the removal motion, James Long testified that the removal of the children would make it financially impossible for him to maintain the same kind of relationship he had when the children lived in Washington county, namely, a relationship that had developed from weekly visitation. He also presented the testimony of a social worker who stated that removing the children and altering the visitation from weekly visits to less frequent, extended visits would make it difficult for the father to
The only issue in this case is whether a change in visitation arrangements and the possible change in the father-child relationship is against the best interests of the children. It is evident from the record that there are reasonable visitation alternatives—namely, less frequent but more extended visits—which will preserve the children‘s relationship with their father. There is no evidence in the record to support a finding that removal and alternative visitation arrangements will significantly harm or impede the relationship between the children and their father. The circuit court found that removal would not be psychologically damaging to the children. Accordingly, we hold that the removal is not against the best interests of the children.9
For the reasons set forth, we reverse the decision of the court of appeals and vacate the order of the circuit court. We remand the matter to the circuit court to enter an order granting Kathleen Long permission to remove the children from the state and modifying the visitation arrangement as necessary.
By the Court.—The decision of the court of appeals is reversed; the order of the circuit court is vacated; and the cause is remanded to the circuit court.
STEINMETZ, J. (dissenting). I join the dissent of Justice William A. Bablitch and also write separately.
The majority‘s construction of
The majority concludes that the circuit court erred by applying an improper test for determining whether to permit the custodial parent to move from Wisconsin. The circuit court required the custodial parent to “satisfy the Court that the children‘s best interests would not be impaired by their removal from the state under the circumstance[s] in this case.” The majority construes this test to be the same as that applied in Fritschler v. Fritschler, 60 Wis. 2d 283, 288, 208 N.W.2d 336 (1973), in which this court defined the test for permitting out-of-state moves to be:
“[T]he majority of cases on this point support the rule that if a parent who has custody of a child has good reason for living in another state, the courts will permit the removal providing such course of conduct is consistent with the best interests of the child.”
The majority considers this test to be inapplicable because it is inconsistent with
First, the majority erroneously construes
In fact, if the noncustodial parent objects, then the custodial parent cannot leave the state without the permission of the court. The custodial parent, therefore, is in the position of needing judicial assistance to advance a change in the status quo. The custodial parent is the one who is disturbing the balance of the original court order of custody and visitation and, thus, the burden of persuasion would rest on the custodial parent under the reasoning of the majority. This is consistent with the allocation of the burden of proof in other modification of visitation cases under
The majority also errs by construing
I cannot subscribe to the view that the legislature intended the phrase “against the best interest of the child” to permit only consideration of whether alternative visitation schedules would be harmful to the parent-child relationship. This interpretation of
The majority recognizes an artificial distinction between the phrase “consistent with the best interest of the child” and the phrase “against the best interest of the child.” I believe that in order to be “consistent with the best interest of the child,” a proposed modification may not be against such best interest. The majority errs in distinguishing the two phrases because it apparently construes “consistent with the best interest” to mean that a positive improvement of the child‘s circumstances is required. This court, however, has never conditioned out-of-state moves on such a showing when applying the best interest test. A careful reading of the decisions criticized by the majority, including Fritschler, shows that the court balanced the harm caused by disrupting an established visitation schedule against the advantages of the proposed move.
Because I believe that the instability in a child‘s life caused by changing visitation can be against the best interest of the child, consideration of the advantages of a proposed move is essential in order for such a move ever to be consistent with the best interest of the child. The majority prohibits consideration of the advantages of a move because it apparently believes that changes in visitation do not adversely affect the best interest of the child if alternative visitation is possible. Although I agree that changes in visitation are not as disruptive as changes in custody, see Bahr v. Galonski, 80 Wis. 2d 72, 80, 257 N.W.2d 869 (1977), it does not follow that changes in visitation are without effect. Such changes can create instability. I believe some consideration is necessary to protect against this instability, and the best interest test serves that purpose. Of course, it is a less rigorous standard than used in the custody transfer context because of the lesser disruption. See In re Marriage of Millikin v. Millikin, 115 Wis. 2d 16, 22-23, 339 N.W.2d 573 (1983). It does prevent visitation modification, however, without some countervailing advantage.
I am sensitive to the legitimate need for custodial parents to relocate out of state. We live in a society that sometimes requires mobility. However, requiring a custodial parent to show that the best interest of a child will be as well served after a move as before does not mean that moves will always be prohibited. The majority fails to note that Peterson v. Peterson, 13 Wis. 2d 26, 108 N.W.2d 126 (1961) and Whitman v. Whitman, 28 Wis. 2d 50, 135 N.W.2d 835 (1965), cases relied upon in Fritschler, both permitted out-of-state moves. The best interest test, therefore does not bar moves, but it does require that a move be for a good reason and not be detrimental to the children. Whitman, 28 Wis. 2d at 59. I believe that this is the least we can ask of a custodial parent, and I believe that this is the same test established in
My refusal to adopt the strained reasoning of the majority, which distinguishes between “consistent with the best interest” and “against the best interest,” is supported by the irrationality of the distinction. Under the court‘s construction, it is easier to modify visitation by moving out of state than it is to otherwise modify visitation. The majority offers no logical justification for this result, and indeed, I can think of none. Because the majority‘s construction of
The record does not show any advantage from the move that is not speculative at best. The custodial parent testified that she wanted to move to Peoria because she had friends and the possibility of a job there and because she thought it was less expensive to live in Peoria. These reasons lack any certain benefit to the children. The reasons might be sufficient but for the countervailing instability caused by the need to modify visitation. Moreover, the noncustodial parent testified that the move would make the exercise of equivalent visitation financially impossible. The majority ignores this fact when stating that alternative visitation should be adopted. The disruption in the established visitation schedule, even if alternatives are possible, is itself harmful to the children. The circuit court properly exercised its discretion, therefore, in determining that the speculative justifications for the proposed move did not outweigh the disadvantage caused by the resulting disruption and instability.
The majority exceeds the proper role of this court when it concludes that changes in visitation have no negative effect on children. Implicit in the court‘s conclusion is the factual finding that all visitation schedules are equivalent. Thus, the court cavalierly directs the circuit court to simply change the visitation schedule. I do not
Although I disagree with the majority‘s construction of
In summary, the majority construes
I would construe
I am authorized to state that Mr. JUSTICE LOUIS J. CECI joins this dissenting opinion.
BABLITCH, J. (dissenting). Common experience tells us that removing a child from an environment which he or she knows and trusts is generally disruptive, frequently devastatingly so. Equally true is that the new environment which the child enters may be harmful to the
The majority‘s conclusion is a serious step backward in this very critical area of family law. It cannot be justified by its strained interpretation of
This case involves interpretation of
The majority‘s interpretation is grounded on a basic hypothesis: “The purpose of the removal statute is to sustain a relationship between the child and the noncustodial parent by protecting reasonable visitation rights.”1 Majority opinion p. 532. Although the majority‘s hypothesis may appear reasonable on its face, to accept it as correct is to be drawn inexorably to the majority‘s conclusion. I agree that if the sole purpose of this section is to safeguard the right of the noncustodial parent to sustain a relationship with his or her child after divorce through reasonable visitation arrangements, then the only admissible evidence at a hearing to challenge removal of the child must relate to the adequacy of the proposed visitation arrangement. But I don‘t agree that this is the sole purpose of this section. I challenge the majority‘s hypothesis and submit that it does not capture the primary purpose of the section. From the context of the entire family code, it is apparent that the primary purpose of the section is to protect the “best interests of the child.” When viewed from that perspective, rather than from the perspective of the interests of parents, as the majority opinion does, the majority‘s conclusion must fall.
Critical to the interpretation of
In reforming ch. 767, Stats., the legislature introduced into the family code of this state important protection for the interests of the child in continuation of familial and community relationships after divorce. It mandated that courts consider the “best interests of the child” in making both temporary and permanent custody awards, in altering custody, in granting and modifying visitation rights and in property division. See
Accordingly,
The majority opinion errs by framing the issue in this case in terms of visitation arrangements only, as though the legislature intended that somehow each decision re-
Regarding the criteria which apply to the determination of custody, which is supplemented by the assignment of visitation rights to the noncustodial parent in most cases, the legislature required courts to consider “. . . all facts in the best interest of the child . . . ,” including these factors:
“(a) The wishes of the child‘s parent or parents as to custody;
“(am) The wishes of the child as to his or her custody;
“(b) The interaction and interrelationship of the child with his or her parent or parents, siblings, and any other person who may significantly affect the child‘s best interest;
“(c) The child‘s adjustment to the home, school, religion and community;
“(d) The mental and physical health of the parties, the minor children and other persons living in a proposed custodial household;
“(e) The availability of public or private child care services; and
“(f) Such other factors as the court may in each individual case determine to be relevant.”
Section 767.24(2), Stats.
Clearly the broad inquiry into the “best interest of the child” at the divorce of the parents mandated by
Thus, whether the parties stipulate to or litigate custody issues, the final judgment in a divorce in which the parties have minor children embodies an overall plan to promote the welfare of the children after the divorce. The final judgment is the result of the court‘s review of numerous factors, including relationships of the child with significant people in the child‘s life; the psychological adjustment of the child to home, school, religion, and community; the mental and physical health of all the parties in the proposed household, and more. In essence, the judgment establishes an overall post-divorce living plan for the child which is based on important needs of the child. Because the plan is an integrated plan, substantial revisions of one element of the plan reverberate through and affect the entire plan. It is self-evident that removal from the original court-approved environment will, in many cases, be a substantial revision of that plan, requiring a review of the full range of the interests of the child which originally shaped it.
I submit that preventing the court from considering the full range of the interests of the child in the context of a removal from the state defeats the legislative purpose in enacting the family code. Reducing the “best interests of the child” standard to consideration only of facts relevant to the visitation between the noncustodial parent and the child eliminates consideration of nearly all of the factors which justified the court‘s original order.
By making the quality of the relationship with the visiting parent and the potential for alternative visitation arrangements the only criteria for denial of permission to remove the child, the majority prevents a court from considering factors that may very well justify denial of permission to remove the child, even though they may not
Under the best of conditions under the principle of shared parenting, divorced parents should make important decisions which affect their children after divorce by taking into account the best interests of the children, as well as their own individual interests. Children‘s needs change, parents’ needs change. However, when parents are unable to cooperate in such decisions, including whether a child should be removed to another state at a particular time, it becomes the responsibility of the court to make the decision in the interests of the child. Accordingly, when it undertakes this responsibility, the court
Why the legislature chose to allow a court at a removal hearing to focus on the best interests of the child and to consider this wide range of factors is also clear from the historical development of child custody law. Historically, the majority‘s emphasis would have been appropriate. Until well into the nineteenth century, the law emphasized the rights of the parents, treating children as property of the parents. In early times, the law considered children as the property of the father, who therefore was presumptively the custodial parent. However, as time changed, concepts of the family changed, and childrearing became associated with the mother; then the law began to recognize a presumptive custody with the mother. See: Foster & Freed, Life With Father: 1978, 11 Fam. L.Q. 321 (1978); Roth, The Tender Years Presumption in Child Custody Disputes, 15 J. Fam. L. 423 (1976); Podell, Custody-To Which Parent? 56 Marq. L. Rev. 51 (1972); 1 W. Blackstone, Commentaries on the Laws of England 453 (Lewis ed. 1897); and 70 A.L.R. 3d 262 (1976). See also In re Marriage of Groh v. Groh, 110 Wis. 2d 117, 122-23, 327 N.W.2d 655 (1983).
More recently, the concept of shared responsibility of the parenting role has been increasingly recognized. Most states have recognized the need to consider child-related decisions at divorce as part of a process of establishing an overall living plan for the children, rather than as a series of separate decisions about custody, visitation and support. Almost two-thirds of the states now embody the concept of a joint custody in their statutes. See 11 Fam. L. Rep. (BNA) 3019 (May 7, 1985) and Folberg, (ed.), Joint Custody and Shared Parenting 159-67 (1984). This new focus on the promotion of the well-being of the child encompasses concern for the totality of the child‘s post-
The legislature, by focusing concern on the well-being of the child and the totality of the child‘s post-divorce environment, has taken an important step toward integrating insights developed by recent research on the interests of children at divorce into the law. This research demonstrates that the consideration of a broad range of environmental factors, as mandated throughout
Visitation is, of course, important. Psychological research on the adjustment of children to the divorce of their parents demonstrates that a continuing relationship with both parents is highly desirable; post-divorce arrangements that enable both parents to be responsible for the children and to express their concern for the children on a regular basis spare the children much of the pain and disorientation of a break in what remains an important emotional relationship with each parent. Wallerstein & Kelly, Surviving the Breakup 307, 310-11 (1980). In fact, researchers find that “... the key variable affecting satisfactory adjustment of children following divorce is the extent of continuing involvement by both parents in child rearing.” Folberg & Graham, Joint Custody of Children Following Divorce, 12 U.C.D. L. Rev. 523, 535 (1979). (Of course, common sense suggests that, in some situations, depending on the age of the child at divorce as well as the previous involvement of each parent with the child, the child‘s adjustment will be more affected by factors other than “continuing involvement.“)
However, more than visitation is important. Research also indicates that the adjustment of children and parents to divorce is best understood as an adjustment
I conclude from this and related research that the legislature had a very solid foundation for emphasizing the interests of the child in a stable, supportive familial and community environment when it reformed the family code in 1977. In order to effectuate the legislative intent to protect this important interest of children,
Lastly, the majority‘s conclusion can lead to very harmful and absurd results. Consider the situation in which there has been protracted battle over custody. Both parents want custody, and the court must decide between the two. Both parents submit plans to the court embodying, we must assume, plans for the children should they get custody, including available educational, health, and welfare opportunities in the environment in which they would place the children. The court, because one or both of the parties decline joint custody, must choose. See
Or consider the case where one party, for his or her own good reasons, chooses not to be the custodial parent.
Or consider the case where neither parent wants a custody change, but the noncustodial parent does not want the children removed and the custodial parent will not move if it means giving up custody. The majority, notwithstanding, would force this couple into a custody fight.
In sum, I conclude that
In addition, I agree with Justice Steinmetz that the majority errs in determining, as a matter of law, that the facts in this case permit removal even under the test it enunciates. The testimony presented to the circuit court
I am authorized to state that JUSTICE DONALD W. STEINMETZ and JUSTICE LOUIS J. CECI join in this dissent.
Notes
“. . . a growing body of social science findings . . . dispute important assumptions routinely made by the courts. These findings strongly suggest that divorce is a process, not a fixed event, and that the custodial parent and child require a period of time to adapt to the new post-divorce situation. Research indicates that courts generally do not appropriately evaluate the various factors that affect the child‘s adjustment during this process.” Wexler at 760.
Further, I submit that for the majority to characterize the unilateral decision of one parent to remove the child from the state as “family decision-making” is inappropriate. “Family decisions” result from thoughtful consideration of the impact of proposed changes on the whole family, whether or not a divorce has occurred.