Court’s Decision Narrows the Scope of ‘Family’

By Attorney Gregg Herman
October 29, 2008

It doesn’t take a village to raise children. It takes parents.

That’s one of the central implications of a recent Wisconsin Court of Appeals is Lubinski v. Lubinski (O’Rourke) No. 2007AP1701 (Wis. Ct. App. Sept. 25, 2008) (recommended for publication).

Last week, I look at the holding in greater detail. Briefly, the District I Court of Appeals concluded that the trial court erred in ordering an injunction to enforce the physical placement schedule in the absence of Lubinski’s, the father who had been called up for active duty military service, because physical placement rights are not transferable.

The appellate court also concluded that the trial court erred in awarding Lubinski’s current wife visitation under the terms of Lubinski’s physical placement schedule for two reasons. First, physical placement bestows rights associated with legal custody, and the wife had no claim to physical placement or legal custody in this case. Second, the child’s mother has a liberty interest in determining her child’s visitation schedule with others, and there were no facts in this case justifying state intervention with that right.

The case was reversed and remanded with directions, and it appears – at least to me – that the appellate court correctly interpreted the relevant statutes.  Still, certain aspects of the decision warrant closer inspection and comment.

For starters, the court held that placement rights were not transferable.  In doing so, it effectively narrows the concept of “family.”  While this holding is consistent with Wisconsin statutes, especially as construed in light of Troxel v. Granville, 530 U.S. 57 (2000), it is not consistent with the parenting patterns of many reformatted families.  Frequently, when a parent remarries, the stepparent very much substitutes for the biological parent in caring for the child.  A broad reading of this holding could result in such arrangements serving as a basis for a modification proceeding.

Would that be a good or a bad thing?  With our high divorce rate, should legal rights easily attach to new spouses?  If so, should they also attach to other members of a new family, like stepsiblings and stepgrandparents?  If so, where should these extensions of legal rights end?

The trial court additionally found that the policy behind Wis. Stats. §767.451(5m)( c ), the statute designed to protect custody rights of parents deployed overseas in military service, applied not just to custody rights, but to placement.  The appellate court disagreed, holding that the statute applied only to custody rights, and therefore based its decision on the “plain language” of the statute.

This provision of Wisconsin statutes makes a great deal of sense, as we should protect the rights of our troops serving overseas.  However, given that physical placement rights are, practically speaking, usually more important than the rights to make certain major decisions, it will be interesting to see if the Legislature sees fit to amend the statute. Politicians might find such an amendment to be popular, but whether it would be in the best interests of children is not an easy question.

While the rights of service people should be protected, what should control when their rights conflict with those of minor children?  Being separated from a parent for a lengthy period of time may not be in a child’s best interests.

In addition, one of the risks of overseas deployment is the deterioration of marriages.  So, if the statute were to be amended to allow trial courts to grant physical placement rights to stepparents when the parent is deployed, what would happen if the marriage terminates during the deployment?  Would the placement continue, even though the one-time stepparent was no longer married to the parent?  If not, when would the termination of the stepparents rights be triggered?  Upon filing?  Upon dissolution?

All of these are issues that should be considered before jumping into the political quagmire.

These issues are not criticisms of the Court of Appeals decision.  Rather, they are questions arising from the decision.  Perhaps they will never arise, either in the political process or in future court contests.

Or perhaps they may.

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.