On June 6, the Wisconsin Supreme Court clarified an important legal issue in placement modification determinations in Landwehr v. Landwehr.

The Supreme Court confirmed that, in a placement modification under Sec. 767.325(1)(b), Stats., Sec. 767.24(4)(a)(2), Stats., does not mandate equal placement. A child’s parental time should be maximized within the overall placement schedule and the statutorily-required factors. The Court also confirmed the continuing primacy of the child’s best interests.

The Court considered the following language of Sec. 767.24(4)(a)2 in modification proceedings:

“…The court shall set a placement schedule that allows the child to have regularly occurring, meaningful periods of physical placement with each parent and that maximizes the amount of time the child may spend with each parent, taking into account geographic separation and accommodations for different households.”

(Emphasis added).

Michael and Bernadette Landwehr divorced in 2000. Their children were primarily placed with Bernadette. Michael had placement Wednesday evenings, Thursday overnights, and alternate weekends.

Michael left his job, started a business and moved close to Bernadette and the children’s school. Based on claimed reduced work hours and his new residence’s location, Michael, over two years after initial placement, petitioned for equal placement under Sec. 767.325(1)(b).

The trial court increased Michael’s placement by 10 nights in the summer but retained the existing schedule for the school year. Michael appealed, and the court of appeals affirmed the decision of Milwaukee County Circuit Court Judge William Sosnay.

In affirming the court of appeals, the Supreme Court rejected Michael’s argument that, where both parents live near each other and are available, willing and able to accommodate equal placement, Sec. 767.24(4)(a)2 mandates equal placement to “maximize” parental time. The Court held that the statute’s “plain meaning,” supported by its legislative history, “reveals that the Legislature did not intend the term ‘maximizing’ to mean equal placement or equal time.”  Par. 11.

It agreed with court of appeals decisions so holding. Keller v. Keller, 2002 WI App 161, Par. 12, 256 Wis.2d 401, 647 N.W.2d 426; Lofthus v. Lofthus, 2004 WI App. 65, Par. 14, 270 Wis.2d 515, 678 N.W.2d 393; Arnold v. Arnold, 2004 WI App. 62, Par. 11, 270 Wis.2d 705, 679 N.W.2d 296.

The Court noted that, under Sec. 767.325(1)(b)2.a and b, the first consideration is whether a substantial change of circumstances occurred and whether the current placement is in the child’s best interests. Par. 12. The Court also recognized Sec. 767.325(1)(b)2’s rebuttable presumption that the status quo serves the child’s best interests. Id. If the trial court decides to modify placement, its determination must be consistent with Sec. 767.24, considering Sec. 767.24(5) Stats.’ factors. Sec. 767.325(5m), Stats.  Par. 13.

The Court recognized that Sec. 767.24(4)(a)2 does not contain equal placement language or define “maximizes the amount of time.…”  Par. 15. Considering the phrase’s plain meaning and statutory location, the Court concluded that the general “maximizing” directive does not supersede Sec. 767.24(5)’s 16 factors or trump the specific statutory status quo presumption.  Pars. 16-18.

The Court held that construing the term “maximize” to mandate equal placement would “be a distortion of the term as it is used within the statutory scheme”. Par. 23.  It noted the Legislature’s creation of two separate rebuttable presumptions. Where placement has been substantially equal, Sec. 767.325(2)(b) presumes that that arrangement serves the child’s best interests. Where, however, one parent has greater placement, Sec. 767.325(1)(b)2.b presumes that continuing placement with that parent is in the child’s best interests.  Par. 22.  Had the Legislature wanted to create an equal placement presumption, it would have explicitly done so. Par. 21.

The Court reaffirmed the child’s best interests standard, stating that the term “maximize” could not:

“…supersede the trial court’s discretion to construct a schedule it determines is in the best interest of the child and otherwise in conformity with the intricate dictates of §767.24”  Par. 20.

The Court, while not required to do so, examined the legislative history, concluding that the history supports its interpretation of the statute’s plain language.  Pars. 24-29.

The Court concluded by reiterating that Sec. 767.24(4)(a)2 requires that the court “maximize the amount of time within an overall placement schedule”, considering the child’s best interest, Sec. 767.325(1) and (2)’s status quo presumption, Sec. 767.24’s general factors, and, when relevant, Sec. 767.24(5)(am)’s specific factors.  Par. 35. Based on the record, the Court upheld the trial court’s discretionary placement determination. Pars. 30-32, 35.

Chief Justice Shirley S. Abrahamson’s concurrence emphasized that the courts should consider the actual amount of time a child is likely to spend with each parent.

In confirming the primacy of the trial court’s discretion to act in the child’s best interests (including the need for stability and continuity) in modification motions, Landwehr reached the correct conclusion. Regardless of one’s opinion of the result, the decision will aid litigants by clarifying Chapter 767, Stats.’ statutory interplay.

Diane Slomowitz, who authored this column, is a partner at Fox, O’Neill & Shannon, S.C. in Milwaukee. Slomowitz can be reached at www.foslaw.com or sending an e-mail to dslomowitz@foslaw.com.

Diane Slomowitz and Bruce O’Neill represented Bernadette Landwehr.

This column is a contribution by members of the Association for Women Lawyers, but does not necessarily represent the opinions of that organization.