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  • WisBar News
    November 11, 2013

    Court Cannot Nix Parent’s Intrastate Move Less than 150 Miles Away

    Nov. 11, 2013 – Circuit courts cannot place moving restrictions on divorced individuals with young children, so long as the ex-spouse does not move outside the state or move more than 150 miles away, according to a recent decision by a state appeals court.

    After five years of marriage, Missy Derleth and Andrew Cordova entered divorce proceedings. The couple had small children together. Derleth made arrangements to move to the Appleton area, about 147 miles away from the family home in Rhinelander.

    A court ordered joint custody with shared placement of the couple’s children, but gave primary placement to Derleth, who submitted her plans to move.

    But Cordova and a guardian ad litem objected to Derleth’s move.

    They said allowing Derleth to move that far away was not in the best interests of the children, who would be required to travel back and forth. The trial court ruled that Derleth could not move more than 45 miles from the Rhinelander area.

    After the divorce judgment was entered, Derleth filed a motion to allow the move. A different judge ruled that Derleth could move within 150 miles of Rhinelander.

    In Derleth v. Cordova, 2012AP2018 (Nov. 5, 2013), a three-judge panel for the District III Court of Appeals agreed. It clarified that a trial court does not have authority to restrict one divorcing parent who wants to move in-state up to 150 miles away.

    Wis. Stat. section 767.481 requires parents with shared placement to notify the court of any intent to move more than 150 miles away from the other parent’s home. The circuit court can restrict such moves, or out-of-state moves, if not in the child’s best interest.

    But under prior case law, the appeals court explained, circuit courts don’t have broad authority to make custody determinations based on the child’s best interest.

    “If the trial court had the power to make any order it pleased so long as the order could somehow be justified by recitation of the rubric ‘in the best interests of the children,’ the limits the legislature placed on the court’s exercise of power in custody matters would be meaningless,” the panel noted, citing Groh v. Groh, 327 N.W.2d 655 (Wis. 1983).

    “Accordingly, the circuit court here had no authority to prospectively order that Derleth not move beyond forty-five miles from the marital home in Rhinelander,” wrote Deputy Chief Judge Michael Hoover. “[T]he legislature has made a judgment that moves of less than 150 miles are not subject to the best interests of the children standard.”

    The appeals court also ruled that Derleth is entitled to a portion of unvested retirement money that was excluded from the court's marital property division determinations. However, the court rejected Derleth's claim that the trial court improperly excluded other fringe benefits from the calculation.

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