New Removal Law Ignores Certain Realities

By Attorney Gregg Herman
April 29, 2019

Dad and KidsIt’s not that the previous law on relocation was perfect (Full disclosure note: Along with the late attorney Judy Hartig-Osanka, I was intimately involved with its drafting), but the new version, while improving on certain aspects, violates what should be a principal tenet for legislation: Don’t adopt laws, at least parts of which, everyone is just going to ignore.

There is a history for such laws in family law. The “medical history” statute comes to mind. While it was subsequently greatly diluted, how many practitioners even know that some of its requirements still exist? Answer: None. The law was (and the remaining portions still are) so impractical, that it is simply ignored in real life.

Another example: The detailed parenting plans required by statute. Although some jurisdictions take that requirement seriously, others (like Milwaukee) pretend the statute does not even exist.

For that matter, some think that Act 130, which is designed to require courts to take domestic violence into account in custody and placement cases, is mostly ignored. See: Meuer, Gibart & Roach, “Domestic Abuse: Little Impact on Child Custody and Placement”, Wisconsin Lawyer, Vol. 91, No. 11 (December, 2018).

To be sure, the new relocation law has many good aspects. These include changing the “trigger” to correlate to the proposed resulting distance between the parents rather than simply crossing state lines, which may not affect placement at all if the distance is slight. For a summary of the new law, see Christopher Krimmer, “Wisconsin’s New Relocation Statute: The Basics”, 36WJFL1 (March, 2019).

Willfully Ignored?

The disturbing part is some of the provisions of the law (prediction time) are more likely to be ignored than followed. For example, filing a motion for relocation requires a lot of requirements, including listing:

Should providing this information be required? Definitely. Will it happen? My guess is that in many cases, probably not. And it’s not because this information is not necessary and appropriate. Rather, it’s too detailed for most pro se litigants (and probably some lawyers) to follow. So, I would expect a substantial number of cases with partial compliance at best.

How will the courts respond to partial compliance? In some cases, especially if there are lawyers, the court may dismiss the action and make the movant start over. There are two reasons, however, why this may not happen: First, most cases have no lawyers involved and courts are usually (understandably) more lenient for pro se litigants. Second, postponing action in certain cases might harm children. A typical example is a case in which a hearing date is close to school starting (aren’t all cases?) and forcing children to change schools mid-term is rarely good for them.

Timing Problems

Even more dubious are the timing requirements in the new law. An initial hearing is to be held within 30 days of a motion being filed. If a further hearing is necessary, it is to be held within 60 days. If there is a de novo motion brought from an FCC ruling, a trial court is to hold the hearing within 30 days after the motion is filed. Of course, there is no money provided in the legislation for more Family Court Commissioners or more courts.

Although these time limits may be “doable” in some counties, it can now take up to four months to get a hearing date before the FCC in Milwaukee County. What cases should be delayed in order for courts to comply with the new statute? Child abuse or neglect cases? Support cases in which a party desperately needs income? The statute does not specify. My guess is that, similar to the details required in notices to relocate, these time requirements will be aspirational rather than reality.

Is there anything wrong with this? Well, yes, at least in my opinion. Laws (and court orders) should have some meaning. Parties should not have to guess as to which parts are taken seriously and which are not.

Final Thoughts

The new relocation law, while having many good aspects, has all the look of a law which was drafted by a committee on which few people with real family-law experience were serving. All of its requirements are well intended and laudable. But at some point, a real life aspect should have been introduced. Yes, that’s difficult to do, but that is why it took a child without inhibitions to ask why the emperor was actually not wearing any clothes.

I truly hope that I’m wrong (which, Lord knows, has happened before), but allowing everyone to ignore laws and court orders leads to confusion or even disrespect for laws in general. If they are made without the intention of enforcing them, perhaps they should be called “court invitations” rather than “court orders”. At least that would be realistic.

Editor’s Note: This column was previously published in the Wisconsin Law Journal.

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.