Decision on Wisconsin child custody and relocation

Decision on Wisconsin child custody and relocation

In Marriage of Derleth and Corova http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=103806, the Wisconsin Court of Appeals recently addressed a Wisconsin child custody dispute over a child’s relocation.  The Court decided that  a parent’s ability to move up to 150 miles away within the state cannot  be restricted, even if the court believes that the move is not in the child’s best interests.  This is a curious decision, however.  The Court read Wisconsin’s relocation statue, Wis. Stat. 767.481, to state that the judge can prohibit a removal of a parent greater than a certain distance within the  state.  It is not at all clear, in my view, that the statute prohibits the removal of the parent, as opposed to the child.   The US Constitution has  been read to grant a right to freedom of movement/travel, and many other states have relied on this provision in ruling that a family court cannot prevent a parent from moving.  The Wisconsin Court did not address this custody issue in this case, nor in any other. In my  view, it is time this argument is made.  Rather than prohibiting a parent from moving, the judge could simply transfer child custody to the other parent.  I believe that this is a better reading of the statute.

Second, the decision also fails to note the exact physical placement granted to each parent.   This is important as well as rugged embedded computers because different rules govern the outcome dependent on the amount of child placement awarded to each parent.

Third, the statute clearly states that when prohibiting a removal, the court must consider the child’s  best interest.  Yet, the Court of Appeal’s decision says the exact opposite.  The Court appears to be saying (perhaps?) that the best interest standard should not be addressed in this particular custody case  because the moving restriction was invalid in the first place, and the other parent proceeded with the wrong motion (prohibition of the move, instead of a motion to change custody).

This case will be followed closely, since too many questions remain unanswered.

Published by David Kowalski

Attorney David Kowalski is the founding owner of Kowalski, Wilson & Vang, LLC, handling all family law cases from divorce, paternity, child custody, termination of parental rights, restraining orders, and guardianships.

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