Marriage of Long v. Long

381 N.W.2d 350, 127 Wis. 2d 521, 1986 Wisc. LEXIS 1645

• Court: Wisconsin Supreme Court
• Decided: February 11, 1986
• Docket: 84-1667
• Status: Published

Opinions

SHIRLEY S. ABRAHAMSON, J.

This is a review of an unpublished decision of the court of appeals filed March 7, 1985, summarily affirming an order of the circuit court for Washington county, J. Tom Merriam, circuit judge. The circuit court denied Kathleen Long, the custodial parent, permission to remove the parties' two minor children from the State of Wisconsin. Because we conclude that the circuit court abused its discretion by erroneously interpreting sec. 767.245(6), Stats. 1983-84, the removal statute, we vacate the order of the circuit court. We reverse the decision of the court of appeals and remand the case to the circuit court with directions to enter an order granting Kathleen Long permission to remove the children from the state and modifying the visitation arrangement as necessary.¹

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, 1984, that she was unemployed, that she believed she could get a job near Peoria, and that she would "do all in her power to see that the children continue[d] a good and building relationship with their father." James Long filed a motion objecting to the removal of the children from the state because it would decrease his visitation with the children, thereby frustrating his ability to help raise and nurture his children.² James Long also requested the court to transfer custody of the children to him.

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 court of appeals summarily affirmed the circuit court's order, holding that the circuit court "correctly stated that Kathleen [Long] had to demonstrate that the best interests of the children would not be impaired by their removal from Wisconsin." The court of appeals then concluded that the circuit court's determination that the children's removal was inconsistent with their best interests was a reasonable exercise of its discretion.

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 sec. 767.245 (6), Stats. 1983-84, the statute governing removal in this case.³ Questions of statutory interpretation are questions of law, and this court need not defer to the circuit court's interpretation of the statute.

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 parent permission to remove if it finds that the proposed removal is against the best interests of the child. Sec. 767.245(6), Stats. 1983-84, provides as follows:

"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 pre-1984 version of sec. 767.245(6). The pre-1984 version of sec. 767.245(6) required the custodial parent to obtain either court approval for removal or the written permission of the parent with visitation rights. Section 767.245(6), Stats. 1981-82, which was enacted in 1977, provided as follows:

"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 affirming the circuit court's test for denying permission to remove, the court of appeals did not refer to either version of sec. 767.245(6) but relied on Fritschler v. Fritschler, 60 Wis. 2d 283, 208 N.W.2d 336 (1973), which in turn relied on 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). This court decided these three cases before the legislature adopted a statute specifically governing removal.

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 affirmed. Writing for the majority, Justice Hallows interpreted the Peterson and Whitman cases as adopting the following test: Removal is permitted if it promotes or at least is consistent with the best interests of the child. Fritschler v. Fritschler, supra, 60 Wis. 2d at 288, 290. The court found that removal would disrupt visitation and that the best interests of the children would be served by their remaining in Wisconsin. The trial court and this court apparently considered the father's visitation rights as the most significant factor. Id. at 289-90. Both courts ignored the impact of the custodial mother's well-being on the children and refused to consider alternative visitation arrangements.

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 question of removal. Whitman v. Whitman, supra, 28 Wis. 2d at 56. Fritschler relied on these two cases rather than any statute.

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 sec. 767.245(6).

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 custodial parent to remove the children from the state.⁶ The legislature has apparently determined that a custodial parent should not be compelled to live in this state to retain custody of the child. Because removal may offer emotional and financial advantages to the custodial parent, removal may also foster the well-being of the child, for the interests, of the child and the custodial parent, the primary caretaker, are intricately connected.

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 statute, however, is not designed to burden unduly the custodial parent or to impede his or her decision-making authority as the primary caretaker. Visitation is a flexible arrangement that the parents and the court can modify as circumstances require without undermining the relationship of the child and the noncustodial parent. Section 767.245(2), Stats. 1983-84. Visitation arrangements depend on circumstances, such as the proximity of the child's residence to that of the noncustodial parent and the needs of the child. In short, visitation arrangements reflect a variety of approaches to encouraging a relationship between the child and the noncustodial parent — they do not reflect the existence of a noncustodial parent's inviolate right to any particular arrangement.

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." Section 767.245(2), Stats. 1983-84.

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." Section 767.32(2), Stats. 1983-84. This court has said that the word "necessary" in sec. 767.32(2) implies that the change of custody itself is needed because the custodial conditions are harmful in some way to the best interests of the child. Millikin u. Millikin, 115 Wis. 2d 16, 23, 339 N.W.2d 573 (1983); Gould v. Gould, 116 Wis. 2d 493, 500, 342 N.W.2d 426 (1984). The removal statute, sec. 767.245(6), provides that a violation of an order not to remove is not per se grounds for change of custody; it is a circumstance for the circuit court to consider.

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 sec. 767.245(6) in the context of custody and visitation, we interpret sec. 767.245(6) as requiring the circuit court to recognize, in making its determination on removal, that the custodial parent has the power and responsibility to make decisions for the family unit, that the custodial parent's well-being affects the children's well-being, and that the circuit court has broad latitude in fashioning and modifying visitation arrangements and has limited latitude in changing custody. We conclude that a finding under sec. 767.245(6), Stats. 1983-84, that an out-of-state move will be against the child's best interests must rest on more than a determination that removal will in some way change the visitation arrangements or change the child's relationship with the noncustodial parent. We conclude that a finding under sec. 767.245(6), Stats. 1983-84, that an out-of-state move will be against the child's best interests requires a finding that removal and alternative visitation arrangements will significantly harm or impede the child's relationship with the noncustodial parent and that this harm to the relationship will work to the child's detriment. If the custodial parent's primary purpose for the removal is to defeat or impede visitation, the removal is against the best interests of the child.

A determination under sec. 767.245(6) that removal is against the best interests of the child is limited to one issue: would removal with a change in visitation significantly harm the relationship between the child and the noncustodial parent and thus adversely affect the child. If the noncustodial parent opposes removal in the belief that removal would adversely affect the health, education, or welfare of the child — aside from or in addition to the adverse effect on the child resulting from a change in the visitation arrangement and significant harm to the child's relationship with the noncustodial parent — then the noncustodial parent should seek a change of custody on the grounds that the custodial conditions in the other state are harmful to the best interests of the child. Millikin v. Millikin, 115 Wis. 2d 16, 23, 339 N.W.2d 573 (1983).

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 based its finding solely on the disruption of the existing visitation of the children with their father. The court did not approach the case recognizing that the mother as custodial parent has the power and responsibility to make decisions for that family unit, that her well-being affected the children's well-being, and that it must consider alternative visitation arrangements. Because the circuit court's denial of removal was based solely on the disruption of the existing visitation arrangement, the court's finding of damage to the normal parent-child relationship is not equivalent to a finding that the removal is against the best interests of the children. Indeed, as we explained above, the circuit court found that the removal would not be psychologically damaging to the children.

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.

In support of her motion for permission to remove the children, Kathleen Long testified that the parties had lived in Peoria from 1977 to 1981, that she wanted to return 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 than in Washington county. Peoria is approximately 250 miles from Washington county.

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 maintain his parental relationship with his sons. But even the social worker testified that the change in visitation arrangements would not be harmful to the children.

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.

1 Although not relevant to the appeal, it appears that the mother and children lawfully moved to Peoria while the appeal has been pending. The parties apparently agreed to the removal and to alternative visitation for James Long pending appeal. In an affidavit to the court of appeals in a related matter, Kathleen Long's attorney provided evidence that the sons were spending their summer, vacation periods, and two weekends per month with their father and that the parties were sharing the transportation costs of the children's visits by meeting halfway, in Rockford, Illinois, and by suspending support payments during the summer visitation. We do not know, however, if these arrangements are the present visitation arrangements.

2 In an affidavit to support his motion, James Long stated that Kathleen Long had interfered with his visitation rights on several occasions. There appear to be two occasions when the parties disagreed on visitation rights. On one occasion there was a disagreement over who would have the children on one of the son's birthdays. On the other occasion there was a disagreement about the children's whereabouts when Kathleen Long and the children became snowed in while visiting in Illinois.

3 Section 767.245(6) was amended effective May 18, 1984. Although the amendment was not in effect when the divorce judgment was entered or when Kathleen Long filed her motion to remove on February 15, 1984, it was in effect when the circuit court held its hearing on June 22, 1984, and issued its decision. James Long's brief cited the 1984 statute as the governing law, and the parties agreed on review, and we so hold, that the 1984 amended statute governs this case.

4 The 1984 statute does not explicitly impose a burden of persuasion on either of the parents. The general rule is that a party using the judicial process to advance a position carries the burden of persuading the court. Loeb v. Board of Regents, 29 Wis. 2d 159, 164, 138 N.W.2d 227 (1965). Accordingly, the burden of persuasion would be on the noncustodial parent as the moving party seeking judicial intervention.

The Minnesota Supreme Court in interpreting its removal statute adopted a presumption in favor of removal and imposed the burden of persuasion on the noncustodial parent. Auge v. Auge, 334 N.W.2d 393, 399 (Minn. 1983).

5 This court has said that "[c]ustody embraces the sum of parental rights with respect to the rearing of a child, including its care." Patrick v. Patrick, 17 Wis. 2d 434, 437, 117 N.W.2d 256 (1962), quoting Burge v. City & County of San Francisco, 41 Cal. 2d 608, 617, 262 P.2d 6, 12 (1953). A child looks to the custodial parent for guidance, discipline, the necessities of life and parental comfort in a stable, settled atmosphere. The custodial parent provides the day-to-day routine of the child, the quality of life, and the general style of life. The noncustodial parent and child do not live together as a single family unit. Westrate v. Westrate, 124 Wis. 2d 244, 248, 369 N.W.2d 165 (Ct. App. 1985).

The statutes provide that an "award of legal custody of a child" confers on the legal custodian "the right and duty to protect, train and discipline the child, and to provide food, shelter, legal services, education and ordinary medical and dental care, subject to . . . any existing parental rights and responsibilities and the provisions of any court order." Sections 767.24(1)(d), 48.02(12), Stats. 1983-84.

Limiting judicial intervention in post-divorce family decision making is supported by a growing body of social science findings. See, e.g., Wexler, Rethinking the Modification of Child Custody Decrees, 94 Yale L.J. 757, 760, 784-803 (1985).

6 In the past, one of the reasons courts were reluctant to permit out-of-state removal was the fear of losing jurisdiction. Auge v. Auge, 334 N.W.2d 393, 399 (Minn. 1983). All fifty states and the District of Columbia, however, have provided jurisdictional protection of child custody decrees by adopting the Uniform Child Custody Jurisdiction Act. Unif. Child Custody Jurisdiction Act, 9 U.L.A. 22-23 (Supp. 1985). See, e.g., Ch. 822, Stats. 1983-84. Federal law provides additional jurisdictional protection under the Parental Kidnaping Prevention Act of 1980, 28 U.S.C. § 1738 A (1982). For a discussion of these acts, see Note, Residence Restrictions on Custodial Parents: Implications for the Right to Travel, 12 Rutgers L.J. 341, 353-57 (1981).

7 Section 767.245(6) is part of sec. 767.245 governing visitation rights.

8 The parties agreed to retain and share the expenses of one expert witness. They did not agree, however, to rely on the expert's testimony.

9 Kathleen Long asserts that the test used by the circuit court in this case violated her constitutional right to travel. In view of our holding in this case we need not consider this issue.