A Moving Case Against Removal Law

By Attorney Gregg Herman
November 30, 2005

On November 9, 2005, the Wisconsin Assembly passed a bill by vote of 57 to 38 vote that would substantially change Wisconsin’s removal law, greatly restricting a parent’s ability to move with a minor child.

The proposed legislation, AB 400, now goes to the state Senate.  Given the wide margin by which it passed the Assembly, absent prompt attention by the Family Law Section of the State Bar of Wisconsin, there is a significant chance that this bill could become the law in Wisconsin.

Under the proposed bill, the “trigger” for notice of removal would be reduced from a proposed move of 150 miles or more from the other parent within the state to 20 miles from the other parent if the parties already live within 20 miles of each other.  This “trigger” is in effect regardless of whether the proposed move would affect the placement schedule or not.  As a result, there will need to be substantially more removal actions filed with the court (or more likely, many parents in violation of the law).

The proposed law would require a court to find a moving parent in contempt and to pay costs and attorney’s fees if the parent moves with the child without obtaining a temporary order allowing such a move.  While current law gives the court discretion as to whether to make these orders, the proposed law would take discretion out of the hands of the court and make a contempt finding mandatory.

The proposed law would also change the burden of proof for removal where the moving parent has the child for the greater period of time, by defining the “greater period of time” to mean physical placement for at least 90% of the time.  The proposed bill does not define how  “90% of the time” is calculated.

The bill also makes substantial changes in Wisconsin law where the parents have joint legal custody and substantial equal periods of physical placement.  Once again, the proposed bill would make it substantially more difficult for a parent to move with a child, by reallocating the burden of proof in most instances.

In addition, the proposed bill requires that, if the court does not prohibit the move or removal, the court must order that the parent moving pay any additional transportation costs that the other parent will incur as a result of exercising periods of physical placement.  Once again, the proposed bill would allow no discretion on behalf of the court.

Removal is a highly-charged issue in family court.  On the one hand, we have a highly mobile society and many parents in intact families move constantly.  To prohibit a removal may prohibit educational or employment opportunities and leave a parent feeling trapped far away from family and friends.

On one hand, any removal law must also be careful not to violate a right to travel under the constitution.  On the other hand, allowing removal may cause an involved, loving parent to become an occasional visitor to a child.  Given a lack of financial resources, it can make an involved parent into a distant relative and deprive a child of a loving, caring parent.

As a result, courts need to have a great deal of discretion in these cases.  Factors such as the reasons for a proposed removal, the effect on the children and the effect on each parent vary so widely from one case to another that efforts to limit the discretion of the court, such as AB 400 would do, is unduly restrictive on courts.  As the Oregon Court of Appeals stated in a recent decision: “We note at the outset that “relocation cases” such as this are among the most difficult cases that the courts are called upon to decide.  This is true both factually and legally.  It is difficult to formulate a legal test to govern when it is appropriate to allow a custodial parent to move with a child. It is also hard to apply a standard formula to this type of case because there are numerous competing interests and issues and so many variations in particular circumstances.”  Hamilton-Waller v. Waller, A120424, November 9, 2005.

While the removal law in Wisconsin certainly could use some modification, this bill is not the way to do it.  The law on removal is so difficult and complicated and deals with issues so sensitive and difficult, that a great deal of consideration and thought need to be brought to it by all concerned.  It is strongly hoped that the Family Law Section of the State Bar of Wisconsin actively oppose this bill and that any modification in the removal bill does not tie the hands of the courts to do what is best for the children in all instances.

This article originally appeared in Wisconsin Law Journal.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.