Hughes v. Hughes

By Attorney Gregg Herman
March 1, 1998

Few issues are as contentious in family law as removal. In most placement cases, the battlefield is rather narrow. After all, one night less or more makes little difference to a parent’s relationship with the children.

Not so if one parent wishes to take the children many miles away. This is not to get into the “quality vs. quantity” of time argument. It is only to observe the difficult of being an effective parent from many miles away. With many parents unable to afford frequent trips if the children are far away, placement cases play for large stakes.

Wisconsin law has changed several times in the past several years regarding the balance between allowing one parent freedom to relocate and the need for children to have two involved parents. Recently, a court of appeals case, Hughes v. Hughes, 223 Wis. 2d 111 (Wis. App. 1998), appears to have moved the pendulum once again.

The most recent change was in response to Kerkvliet v. Kerkvliet, 166 Wis.2d 930, 480 N.W.2d 823 (Ct. App. 1992), a case where the mother was allowed to relocate from Racine to Miami with four children for reasons which were described by the trial court as “selfish, inappropriate and contrary to the best interests of the children.” Nonetheless, the court concluded, and the court of appeals agreed, that Wisconsin law did not allow a motion to be brought to prohibit a move. Thus, once there was a granting of primary placement, the primary parent had essentially a ticket to move, regardless of the best interests of the children.

Following Kerkvliet, largely at the instance of the Family Law Section of the State Bar, the legislature enacted 1995 Wisconsin Act 70. This act corrected a number of procedural problems with the prior removal law. Substantively, the law only made a modest change, allowing a motion to be brought to prohibit a move under certain limited conditions. Essentially, the new law would continue to allow a removal by the primary parent, but allowed the court to consider whether there was a valid reason for the removal.

Most removals cases are triggered by one of three events: Remarriage of the primary parent where the new spouse lives or is transferred out to state, better employment or educational opportunities, or a return to one’s original family. The law enacted after Kerkvliet was not designed to prohibit a move where one of these factors existed.

In Hughes, however, the court of appeals affirmed a trial court transferring primary placement to the father in response to a motion under sec. 767.325, the change of placement statute, following the mother’s notice of intent to move with the child. The court of appeals held that the trial court properly analyzed the case under sec. 767.325, because, in addition to the removal, there was also a substantial change in circumstances warranting a change in primary placement.

The differences between Secs. 767.325 and .327 are quite significant. Under both statutes, there is a rebuttable presumption that “continuing the child’s physical placement with the parent with whom the child resides for the greater period of time is in the best interest of the child.” Under sec. 767.327, however, the issue is specifically removal. Therefore, unless the purpose to of the move is unreasonable and not in the best interests of the child, essentially, the move happens. Under Sec. 767.325, however, the court can consider all circumstances surrounding the placement issues, not merely the reasonableness of the move.

This is not to say that the holding in Hughes is necessarily “wrong” under the facts of the individual case which the court was considering. In fact, as exhibited in the accompanying article by Milwaukee County Assistant Family Court Commissioner Lucy Cooper, some believe it to be a proper interpretation of the current law. Hughes does, however, raise substantial issues for every other removal case which is litigated in the State of Wisconsin. And, it being ordered published, these individual facts now become the law for every case throughout the state.

Following Kerkvliet, a proposal similar to the result in Hughes was made to the State Bar Family Law Section and also to the legislature as an alternative to what became 1995 Wisconsin Act 70. That proposal was rejected. It appears that the Hughes decision accomplishes exactly what the legislature refused to do.

The rejection of this approach arose primarily for two reasons. First, if a removal case can be decided as a change of placement case, it invites litigation. In the majority of cases, the children will not be substantially harmed whichever of the two homes the children eventually live in. What will substantially harm the children would be protracted litigation. Since changes of circumstances occur constantly in every dynamic family, every removal case will run the risk of being a full-fledged custody war.

Second, using the change of placement criteria would likely lead to Wisconsin becoming, once again, a restrictive removal state. While certainly valid arguments can be made for “imprisoning” divorced parents within the state, we have tried that approach in this state. Been there, done that. Wisconsin made the choice, consistent with many psychological studies, to preserve the primary attachment of the child with a parent, unless the move can be prohibited as unreasonable, which means unnecessary.

While Lucy is quite correct in her technical argument of the requirement of a substantial change under Hughes, as a practical matter, it is unlikely to make any difference. Parenting, as a function of child development, is a fast changing dynamic. After parents divorce, they each may begin new relations, change residences and go through many changes. Children, of course, change constantly, seemingly daily. Changes of circumstances are occurring constantly. Elevating these “changes” to “substantial changes” through the filing of a removal petition and thus invoking 767.325 will likely require little effort in most cases. Thus, my disagreement with Lucy is that I believe that as a result of Hughes, removal cases may routinely be handled as a placement modification hearing. That may not be wrong in under the particular facts in Hughes, or other cases for that matter. What Lucy seems to ignore is that by doing so, Hughes encourages litigation over children, rather than having presumptions in place which protect the relationship of the child with the primary parent, rather than to a geographical location.

The future after Hughes is uncertain. It can be assumed that future non-moving parents will bring a counter motion, not to prohibit a move, but to change placement after alleging that circumstances have changed since the divorce. If so, what is perhaps a correct result under one unique set of facts, will be used to substantially eviscerate the removal law of this state.

This article originally appeared in Wisconsin Opinions.

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.