Status Quo Statute Bumps Heads with Statute Pushing Joint Custody

By Attorney Gregg Herman
July 24, 2004

What happens when new legislation causes a direct conflict with an existing statute? Did the Wisconsin legislature forget about the existing law? How does an appellate court, which is supposed to interpret statutes, not rewrite them, deal with such a conflict?

Such a conflict was the subject of a decision in early last month from the Wisconsin Court of Appeals in In re the Paternity of Nicholas B.P., Nos. 02-3390 and 03-1267, which was recommended for publication.

In February, 1992, Leanne M.A. and Bradley J.P. entered into a stipulated paternity judgment which awarded Leanne sole custody (and presumably primary physical placement) of Nicholas, born Oct. 6,1991, with Bradley having periods of physical placement “as agreed between the parties.”

In August, 2001, Bradley filed a modification motion requesting joint custody and shared physical placement of Nicholas. The social worker, as well as the GAL, recommended joint custody and increased placement to Bradley. Nonetheless in December 2002, Portage County Circuit Court Judge John V. Finn denied Bradley’s motion, concluding that Bradley failed to establish a substantial change in circumstances since the entry of the previous order per Wis. Stat. § 767.325(1)(b)1.b and that Bradley failed to rebut the presumption in favor of maintaining the status quo in custody and placement matters per sec. § 767.325(1)(b)2.

Bradley moved for reconsideration, alleging that the rebuttable presumption in favor of the status quo violated his constitutional right to equal protection. Finn denied the motion for reconsideration, indicating that it was not unfair to presume to maintain the status quo in the eleven years since the entry of previous order. Further, Finn noted Bradley should not be permitted to raise his constitutional argument six months after the hearing on his original motion. Bradley appealed from both the December 2002 order denying his modification motion and the February 2003 order denying reconsideration.

The District IV majority opinion, authored by Judge Higginbotham, held that the trial court erred in concluding that there was not a substantial change in circumstances, as the trial court focused on the years immediately preceding the hearing. Instead, the court of appeals concluded, that “when the entire relevant time period is considered, the facts clearly show a substantial change in circumstances.” Nevertheless, the court of appeals concluded that the trial court’s error was harmless, as the trial court did proceeded to an analysis of best interest considerations to determine whether Bradley rebutted the status quo presumptions in § 767.325(1)(b)2.

Bradley argued that the trial court erred in applying the custody status quo presumption, rather than the joint legal custody presumption set forth in § 767.24(2)(am). Bradley supports his position by pointing out that § 767.325(5m), which provides that custody and placement modification proceedings be made “in a matter consistent with s. 767.24,” obligated the trial court to presume that joint legal custody is in Nicholas’ best interest, per § 767.24(2)(am). This result would, in effect, establish a presumption of joint legal custody in all cases, pre or post judgment.

The majority disagreed. It held:

“[T]he most reasonable interpretation of Wis. Stat. § 767.24(2)(am) is that the presumption that joint legal custody is in the child’s best interest applies only in initial legal custody determinations, not in modification determinations. Were we to conclude that the § 767.24(2)(am) presumption favoring joint legal custody applied to a Wis. Stat. § 767.325(1)(b) motion for modification of custody and physical placement, such a conclusion would, in essence, eliminate the § 767.325(1)(b) presumption favoring the status quo.”
Judge Lundsten filed a concurring opinion, agreeing with the holdings of the majority, but concluding that the statutes at issue are unambiguous, which resolves itself in the same fashion as the majority’s analysis.

Meanwhile, Presiding Judge David G. Deininger dissented, opining that the trial court erred in giving no consideration to the joint legal custody provisions of §767.24(2)(am) or the maximizing placement with each parent factor contained in §767.24(4)(a)2. The dissent suggests that the trial court felt overly-constrained by the status quo presumption and, had it not been so constrained, it may have reached a different result. Interestingly, the dissent concludes that both presumptions (status quo and joint custody) should be weighed and considered by the trial court in rendering its decision.

While the court took care not to criticize the legislature, a more skeptical eye would question whether the legislature ever thought about the conflict between the new and the existing statutory provisions. The answer, no doubt, is in the negative. The legislative analysis by the majority of the court seemed result-driven. There is indeed a difference between an initial award of custody and future modifications. By keeping the bar for modifications relatively high, the court discourages such actions.

Peoples’ lives are constantly changing. As in this case, people move and change jobs with regularity. By making modification actions easy, any change could become the basis for legal action.

Sometimes that might be a good thing. Then again, regularity and consistency in placement is a good thing, as well. Although the majority had to engage in a theoretical exercise to find a metaphysical “legislative intent”, the final result promotes consistency for children. While it would have been nice had the legislature considered all the statutes it was affecting, the appellate court completed the legislative process, while camouflaging its decision as “ascertaining” legislative intent.

This article originally appeared in 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.