Proposed Legislation on Removal of Children

By Attorney Gregg Herman
November 15, 2017

Dad and KidsWhen two appropriate parents live in geographical proximity, compromises usually can be made to resolve any disputes, including child placement, visitation, and custody. The same is not true, however, of relocation issues.

If one parent intends to move with the children far away from the other parent, while it is possible to negotiate summer and holiday placements, that limited-time placement is not the same as a parent being routinely and regularly in the child’s life. One solution is to prohibit removal entirely; however, in a mobile society, prohibiting removal is not always possible, especially given job transfers, remarriages, and other circumstances. As a result, the law on child relocation is one of extreme importance in the field of family law.

Several years ago, I worked with Racine attorney Judith Hartig-Osanka in revising the then-existing child removal law following her representation of the father in Kerkvliet v. Kerkvliet (166 Wis. 2d, 480 N.W.2d 823 (Ct. App. 1992)). In Kerkvliet, the Wisconsin Court of Appeals affirmed a circuit court ruling that it could not prohibit a mother’s removing the children even though the proposed action was selfish and contrary to the best interests of the children. At the time, there were certain procedural problems with the existing statute. Both Hartig-Osanka and I were proud of the bill, which was enacted by the legislature and signed by the governor, because we believed it improved the existing law.

Yet certain problems remained. For one, it was not clear if the removal statute applied to paternity cases or only to cases in which the parties were married. Further, there were no time limits for the court to conduct certain hearings to make an interim or temporary order regarding the removal. Such a time requirement is critical, especially when the move requires the children to attend a new school.

As a result of these and other issues with the law, the State Bar’s Family Law Section supports Senate Bill 448 and Assembly Bill 551 modifying Wisconsin’s removal law to address some of these open issues and attempt to improve the process. For example, the removal requirement should apply to paternity cases, because placement should not be premised on whether the parents ever married. Most importantly, the proposed legislation requires the court to maintain the primary focus on the best interest of the child.

As proud as we were of the legislation we worked on more than 20 years ago, the new legislation represents still more improvements in the law. Please call your State Senator or State Representative and ask them to support this legislation.

Editor’s Note: This article originally appeared in Inside Track, a bi-weekly newsletter of the State Bar of Wisconsin.

Video Commentary

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