Fritschler v. Fritschler

208 N.W.2d 336, 60 Wis. 2d 283, 1973 Wisc. LEXIS 1337
CourtWisconsin Supreme Court
DecidedJune 29, 1973
Docket24
StatusPublished
Cited by14 cases

This text of 208 N.W.2d 336 (Fritschler v. Fritschler) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fritschler v. Fritschler, 208 N.W.2d 336, 60 Wis. 2d 283, 1973 Wisc. LEXIS 1337 (Wis. 1973).

Opinions

Hallows, C. J.

The main issue on appeal is whether the lower court abused its discretion in not allowing Mrs. Fritschler to have custody of the children except in Wisconsin. It is claimed the trial court disregarded the recommendations of three family specialists who had recommended in effect that Mrs. Fritschler should have custody of the children in Colorado. Mrs. Bettylu Anderson, a family-court counselor for Dane county, testified concerning her report which was received in evidence. In this report she recommended that custody of the children remain with their mother and stated that if living in Colorado were in their mother’s best interests it would also be in the children’s best interests to live there. A letter from Mr. Sol Miran, court marriage counsel for the Arapahoe county district court in Colorado, was admitted in evidence. This letter in effect stated that Mrs. Fritschler was a well-balanced person with a strong need to be independent and that the children were not suffering from her decision to live in Colorado. Also admitted in evidence was the report of Howard Mausner, a certified consulting clinical psychologist for the state of Colorado, who found Mrs. Fritschler to be an intelligent woman, capable of raising her children and of making decisions. He thought a change in custody of the children would be detrimental to their mental health and future. The trial court considered this evidence and commented thereon to the effect that it was not very helpful to a determination of the issue presented.

[287]*287This court has held social workers’ reports are not binding upon a trial court which may determine the weight to be given to the reports of social workers. Larson v. Larson (1966), 30 Wis. 2d 291, 300, 140 N. W. 2d 230; Gochenaur v. Gochenaur (1969), 45 Wis. 2d 8, 19, 172 N. W. 2d 6. It has recommended the use of social workers as a helpful tool in determining the best interests of the child. Weichman v. Weichman (1971), 50 Wis. 2d 731, 184 N. W. 2d 882; Wendland v. Wendland (1965), 29 Wis. 2d 145, 138 N. W. 2d 185; Dees v. Dees (1969), 41 Wis. 2d 435, 164 N. W. 2d 282. But neither the use of such witnesses nor the acceptance of their recommendations is mandatory. If it were, the social workers would be performing the function of a judge on the bench rather than that of a witness. While the court may have misquoted one of the reports in a minor respect, we can find no abuse of discretion in its failure to accept or give more weight to the social workers’ reports and testimony. Mrs. Fritschler’s reasons for moving to Colorado were considered insufficient by the trial court. Reasons cited for her move were to escape from social embarrassment resulting from her husband’s reputation as a criminal law attorney, to take advantage of what she considered to be better job opportunities in the area of real estate sales and better recreational facilities for the children, to help relieve her arthritis and sinus problems, and lastly, to make it on her own in new surroundings without any help or hindrance from her former husband.

Whether a divorced parent who has custody of minor children should be allowed to remove them from the state depends upon what is in the best interests of the children. Mrs. Fritschler argues that what is best for the parent who has custody is, indirectly at least, for the best interests of the child. Mrs. Fritschler argues [288]*288for the proposition a divorced parent having custody should be able to take the children permanently to another state if it is not against their best interests. She relies on Whitman v. Whitman (1965), 28 Wis. 2d 50, 135 N. W. 2d 835, and Peterson v. Peterson (1961), 13 Wis. 2d 26, 108 N. W. 2d 126. In Peterson, we pointed out the 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 emphasis is not on the good reason of the parent who has custody but on the best interests of the child, which should be furthered. In Peterson we pointed out the same considerations which determine custody of children are applied to the question of removal of children out of the state, i.e., the controlling consideration is the welfare of the child. This view was followed in Whitman, relied on by Mrs. Fritschler. Language in that case to the effect that removal for a proper purpose and beneficial to the parent may be sanctioned if not detrimental to the children must be read with the more explicit language of that case, i.e.:

“A divorced man or woman is free to move about and pursue his or her life and living without restraint from his former spouse; as divorced parents of minor children they may be required to curtail these liberties or forfeit some of their rights to custody or visitation, as the case may be, consistent with the best interests of the children and the rights of the other parent.” 28 Wis. 2d at p. 58.

Thus one having custody of a child is not free to move about the country disregarding state lines, as that person would be if she did not have custody. The parent’s responsibility to the child and its interests and the rights of the other parent qualify and limit the right [289]*289and liberty to move about freely — that is one of the burdens of having custody of minor children.

In the present casé, the trial court thought the children’s best interests would be harmed by their removal from Wisconsin and the resulting separation from frequent contacts and a closer relationship with their father. While Mrs. Fritschler considered herself subject to social embarrassment because of her husband’s reputation as a criminal law attorney, the trial court took the view that Mr. Fritschler had a good reputation and the children should not be denied identification with their father by being removed outside the state where the father was not known. There was apparently no question in the trial court’s mind that Mr. Fritschler could afford to exercise his visitation rights by going to Colorado; nor was the court unaware of the possibility that the father could have custody of the children for several months during the summer if Mrs. Fritschler were permitted to exercise custody outside the state. Such alternatives were believed not to be in the children’s best interests. Living in Colorado is not as conducive to a normal relationship between a father and his children, from the children’s standpoint, as living in the same city. While a divorce terminates a marriage, it does not terminate parenthood and should not in effect do so.

While in Bennett v. Bennett (1938), 228 Wis. 401, 280 N. W. 363, a father was permitted to remove minor children to New York where he had an opportunity for employment at a larger salary with prospects for advancement, this was on the rationale that what was better for the father, who was under a duty to provide support, indirectly benefited the children. In the present case the trial court could find no such benefits from the reasons given by Mrs. Fritschler for moving to Colorado. We are inclined to agree with the trial court. [290]*290Emphasizing that the interests of the children are paramount, this court in Anderson v. Anderson (1959), 8 Wis. 2d 133, 98 N. W.

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Fritschler v. Fritschler
208 N.W.2d 336 (Wisconsin Supreme Court, 1973)

Cite This Page — Counsel Stack

Bluebook (online)
208 N.W.2d 336, 60 Wis. 2d 283, 1973 Wisc. LEXIS 1337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fritschler-v-fritschler-wis-1973.