Wisconsin Lawyer: Dissecting the New Family Relocation Statute:

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    Dissecting the New Family Relocation Statute

    Divorced parents sometimes desire to move with their children to locations farther from the home of the former spouse. Learn here which proposed relocations are subject to a recently revised Wisconsin statute and how to comply with the law’s procedural provisions. 

    Christopher Sean Krimmer

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    Wisconsin’s new relocation statute changes the legal process and what must be established before a parent may relocate with his or her children after a divorce or paternity judgment. The changes to Wis. Stat. section 767.481 have already taken effect and apply to all new cases filed on or after April 5, 2018.1 The new relocation statute has new terms, factors, processes, and legal requirements that are all intended to streamline motions seeking a relocation of a minor child whose parents were subject to an action affecting the family.

    The prior statute required a parent to provide notice to the other parent, if the other parent had periods of physical placement with the child, of the intent to relocate with the child to another state or beyond 150 miles away from the other parent.2 The practical effect was that a parent who lived in Beloit, Wis., who wanted to move across the border to South Beloit, Ill., would be subject to the notice requirements of the relocation statute and if the other parent objected to the move, relocation would require a court order for moving potentially only five miles away. Yet, that same parent in Beloit could move to Oshkosh, 133 miles away from the other parent, and no notice or court order was required for moving the child.

    The Wisconsin Legislature recognized this inconsistency and dispensed with an out-of-state move invoking the relocation statute and narrowed the geographical distance from 150 miles to 100 miles away from the other parent.

    The legislature intended to rectify other inconsistencies and address past ambiguities in the implementation and application of the statute. Dane County Circuit Court Commissioner Mark Fremgen, who served on the State Bar’s Family Law Section Committee in respect to this legislation, identified the four major reasons for the new bill.

    “The purpose of the bill was to 1) eliminate the misconception that the relocation statute did not apply to paternity matters (the relocation applies to all actions affecting the family); 2) create a more user-friendly means to navigate a relocation (eliminate the separate need for a motion to modify, expedite the process behind the move, expedite the de novo process as to a temporary order); 3) eliminate the triggering of the statute for any moves beyond our state border; and 4) eliminate the need to file an additional motion to modify legal custody and placement (the relocation plan is deemed to be a motion to modify).”3

    The new statute addresses all those issues and more. The following is a brief discussion of the key distinctions between the new and prior relocation statutes.

    Invocation of the Statute

    As stated previously, under the prior relocation statute, a parent who wished to move with a child to another state or beyond 150 miles away from the other parent had to first provide notice to the other parent.4 Now, the statute is not invoked if a parent moves out of Wisconsin provided that the new residence is still within 100 miles of the other parent.5

    In addition, the prior statute’s 150-mile provision was changed to 100 miles. The reality is that there will often be a need to reevaluate the placement schedule of a child even for a move less than 100 miles away from the other parent. For example, a parent with equal placement of a child who wishes to move from Madison to Milwaukee, which is less than 100 miles away, would likely create sufficient conflicts in the child’s school, friendships, and activities that a review of the placement schedule would be necessary. According to Court Commissioner Fremgen, the 100-mile radius was a compromise distance, with some committee members suggesting a shorter distance and others wishing to retain the 150-mile radius from the prior statute.

    The Motion for Relocation Flowchart

    The Motion for Relocation Flowchart

    Click on the image to expand.

    A New Legal Process

    Under the prior relocation statute, the parent had to give notice by certified mail to the other parent and file the notice with the court.6 The other parent had 15 days to object to the move of the child.7 If the other parent objected, the court was required to refer the parties to mediation or other family court services and could appoint a guardian ad litem.8 If the dispute was not resolved with mediation or other family court services within 30 days, then a parent was required to file a petition, motion, or order to show cause for a change in legal custody or placement.9 A guardian ad litem was then appointed and the court was to “hold a hearing as soon as possible.”10

    Christopher S. Krimmercom csk dewittross Christopher S. Krimmer, U.W. 1997, practices family law with DeWitt Ross & Stevens, Madison.

    The new statute outlines a very different process. The parent wishing to move with the child is now required to file a motion with the court seeking permission for the child’s relocation.11 The motion must contain information related to the date of the proposed relocation; the state and municipality of the new proposed residence; the reason for the relocation; a proposed new placement schedule, if applicable; the proposed responsibilities for transportation to effectuate the proposed placement schedule; the allocation of costs associated with the child’s transportation due to the new location; a request for a change in legal custody, if applicable; and notice to the other parent that he or she can object to the proposed relocation at any time until five days before the initial hearing.12

    The parent wishing to relocate with the child must also attach to the motion a new state form titled “Objection to Relocation.”13 The court must furnish this form upon the filing of the motion seeking permission to remove the child.14 Service under the prior relocation statute was met by sending the notice via certified mail to the other parent.15 Under the new statute, service can be made by regular postal mail to the address on file with the court system for the other party.16

    Many clients do not update their addresses with the court system after the paternity or divorce case has concluded. The family law attorney may now want to advise clients at the end of their case to keep their addresses updated with the court system to ensure the client receives notice of not only this type of relocation motion but any future activities related to their case years later. It remains important to check local circuit court rules because some local rules require personal service of these motions despite the statute permitting service by mail. In fact, some local courts will be taking this opportunity with the new statute to implement new local procedures regarding relocation motions to have them litigated as expeditiously as possible.17

    The new relocation statute does take into account that a parent might not have updated his or her address with the court so if the moving parent has actual knowledge of the other parent’s new address, the moving parent must mail the relocation motion to both the address listed with the court system and the actual address of the other parent.18

    The court will hold an initial hearing within 30 days after the filing of the relocation motion.19 If the other parent was properly served but did not appear at the hearing, the court shall approve the proposed relocation plan unless the court finds it to not be in the best interests of the child.20

    If the other parent appears at the initial hearing and objects to the relocation, then the court must require the objecting parent to respond in writing within five days with the basis of the objection, a proposal for a new placement schedule, and the allocation of transportation responsibilities and costs associated with the new placement schedule.21 The objecting parent must file this response with the court and serve the other parent by mail at the address on file with the court system, and at the actual address if known to be different from the address on file with the court system.22

    The family law attorney should immediately update pleadings to reflect this new statute.

    There may be an ambiguity in the new statute as it relates to the other parent’s objection to the relocation of the child. The objecting parent is instructed that he or she must file the Objection to Relocation form within five days of the initial hearing, but the statute also provides that “if the parent not filing the motion appears at the initial hearing and objects to the relocation plan,” then the parent has five days to file an objection from the date of the hearing.23 This seems to imply that if a parent does not file the objection to relocation within five days before the initial hearing, he or she could still appear at the initial hearing and communicate an objection at that time and will be provided five days to identify the objection and put forth a proposed placement schedule.

    Alternatively, the statute could be read to mean that only if a parent objects five days before the initial hearing and appears at the hearing will he or she be provided the opportunity to file a written objection with the basis of his or her objection, a proposed placement schedule, and the responsibilities and allocations of cost for transportation associated with any new placement schedule. It is unclear what courts will do in a situation when a parent appears at the hearing objecting to the move but had failed to file the requisite objection at least five days before the hearing and what, if any, authority the court would have to excuse that omission.

    At the initial hearing, if there is an objection to the relocation, the court will then refer the parties to mediation and appoint a guardian ad litem.24 Although the guardian ad litem is appointed at that time, he or she is not required to commence work on the case until the mediator notifies the court that the parties were unable to reach an agreement in mediation.25 The mediation can be waived if attending the mediation would cause undue hardship or endanger the health or safety of a party.26

    Finally, at the initial hearing the court must set a final hearing to be held within 60 days.27 This, in effect, streamlines the legal process to a determination within 90 days after the filing of the motion with the initial hearing occurring no later than 30 days after the filing of the motion and the final hearing occurring no later than 60 days from the initial hearing.

    New Legal Presumptions Regarding Relocations

    Under the previous relocation statute, there was a rebuttable presumption that it was in the best interests of the child to continue to reside with the parent who had a greater period of placement time with the child under the existing placement order.28 This presumption is no longer in the statute.

    Under the updated relocation statute, there are two new presumptions. First, there is a presumption that the court should approve the plan of the parent proposing the relocation if the court determines the objecting parent has not significantly exercised court-ordered physical placement.29

    It is likely that there will be litigation surrounding the court’s discretionary determination of what constitutes a parent not having “significantly” exercised his or her placement. For example, will a parent who travels extensively for work and therefore misses a great deal of weekday placement periods with the children be subject to the presumption? If a parent is a service member and is on call to active duty, will this presumption apply to him or her?

    The statute does not instruct courts to determine the reasons that the parent had not exercised his or her placement nor is there a formula or threshold number of what constitutes a significant amount of missed placement days. The analysis will be fact specific, determined on a case-by-case basis depending on the placement schedule and circumstances of each case.

    Second, there is a presumption that the court should approve the relocation plan if it determines that the parent’s relocation is related to abuse of the child, a pattern or serious incident of interspousal battery, or a pattern or serious incident of domestic abuse.30 The statute references other statutes for definitions of what constitutes child abuse, interspousal battery, and domestic abuse; however, the relocation statute is silent on whether the other parent must be the perpetrator of that abuse. If a parent or child is being abused by the parent’s new spouse or partner or even a person in a dating relationship, this constitutes abuse under the relocation statute, yet, is it intended to also invoke the presumption to allow the relocation even though the other parent was not the perpetrator of that abuse?

    Understandably, the parent subject to the abuse has legitimate reasons for wanting to avoid the abuse and relocate, but from the perspective of the other parent is it fair he or she should lose significant time with his or her child as a result of the actions of the other parent’s new spouse, partner, or dating relationship? The statute will need to be clarified as to whether the presumption applies only with respect to abuse committed by a parent of the child or is intended to provide protection for the general welfare of the parent and child from any abuse.

    New Statutory Factors

    In the new statute, the number of relevant statutory factors for the court to consider in determining whether the child may move with the parent has been greatly expanded. The relocation statute now incorporates by reference all the statutory factors of Wis. Stat. section 767.41(5), which are the “best interests factors” considered in establishing the original legal custody and placement order.31 Previously, the court was limited to considering three mandatory factors and two discretionary factors.32

    The most significant difference in the statutory factors is that the court is no longer required to consider the reasonableness of the parent’s proposed relocation, although it could certainly be a relevant factor under the “catch-all” provision in Wis. Stat. section 767.41(5)16 (“Such other factors as the court may in each individual case determine to be relevant”).

    Other New Aspects of the Relocation Statute

    There are a few other important changes to the relocation statute. The new statute makes it clear that the court can issue a temporary order permitting the parent to relocate with the child if the relocation is in the child’s immediate best interests.33 The temporary order can be issued at the initial hearing. However, it is important for the family law attorney to recognize that no matter what the local rules state about the deadlines for a de novo hearing, the statute sets forth a 10-day deadline to request a de novo hearing on a relocation temporary order.34 The 10-day period starts to toll from the date of the oral decision on the temporary order and the judge must schedule the de novo hearing within 30 days after the request.35

    An ambiguity existed with the prior relocation statute regarding whether the statute applied to parents who already resided more than 150 miles away from one another. For example, if a parent who already lived in Minnesota and was actually moving closer to the other parent in Wisconsin, but still 150 miles away, did that parent need to provide the requisite notice and could the other parent object to the move?

    This issue is directly addressed and clarified in the new statute. The moving parent is not required to file a motion seeking permission to relocate if the parents already live more than 100 miles apart.36 The only obligation is to provide at least 60 days’ advance written notice to the other parent of the intent to relocate with the child, but there is no procedure for that other parent to object under the relocation statute.37

    The prior version of the statute required a parent to provide notice to the other parent of any time a parent intends to remove the child from his or her residence for more than 14 days.38 The legislature clarified this requirement in several respects.

    First, it replaced the exception to the notice requirement from when the “parents agree otherwise” to only if there is an order or judgment permitting them to be excused from the notification requirement. Second, the prior statute required the notice only if the child was being removed from his or her “primary” residence. The new statute removes “primary” and requires the notice for any removal from either parent’s residence regardless of whether the residence is the child’s primary residence. Third, the statute clarified the requisite number of days from at least 14 days to at least 14 consecutive days.39

    Under the prior relocation statute, there were often two or possibly even three separate motions related to the relocation: 1) the request of the parent to relocate with the child; 2) the relocating parent’s motion to modify the placement schedule; and 3) often, the other parent’s own motion to modify custody or placement. Under the new relocation statute, the relocation and modification in custody and placement are addressed together in the same motion.40 This is why each parent is required to submit a proposed placement schedule and determine transportation responsibilities.

    The new statute requires the court to approve the parent’s request for relocation if the relocation “only minimally changes or affects the current placement schedule or does not affect or change the current placement schedule.”41 Whether the relocation “minimally” affects the current placement schedule will be an issue for the lawyers to argue and ultimately within the judge’s discretion. Regardless, this statutory mandate applies only to the permission for the parent to move with the child. Even if the court must allow the parent to move with the child, it can still set a new placement schedule due to that relocation; presumably, the new placement schedule would only be minimally different from the current placement schedule.

    The new relocation statute applies to new cases commenced, or new modified placement or custody orders issued, on or after April 5, 2018.42 If a client seeks to relocate with a child and the judgment or prior order was issued before April 5, 2018, then the earlier version of Wis. Stat. section 767.481 still applies to that situation.43 Other provisions that will still apply to such cases include the requisite geographical distance of 150 miles or more, the duty of notice to move to another state, the need to provide certified-mail notice to the other parent (versus filing a motion for permission to relocate), the presumption that the primary placement continues with primary placement, and so on. It will be important for the family law attorney to recognize the significance of the April 5, 2018, determination date when advising clients of their obligations regarding any relocation with the child.

    Updating Pleadings

    The family law attorney should immediately update pleadings to reflect this new statute. Pursuant to Wis. Stat. section 767.215(2)(j), a petition for divorce or legal separation requires notice of the prohibition of establishing a residence for the minor child more than 100 miles away from the other party (current templates for the petition likely have the old statute referenced, which prohibits a parent from establishing a residence for the minor child more than 150 miles away from the other parent or outside of the state).

    In addition, many divorce judgment and marital settlement agreement templates include the relocation statute verbatim. These documents will also need to be updated to reflect the new language.

    Conclusion

    The new relocation statute provides more clarity for lawyers and for parents who wish to relocate with their children. At first glance, it may appear more burdensome for a parent to seek the permission of the court to relocate by requiring a hearing; however, the new statute provides more protection for both parents and the child. The statute still allows the court to retain a great deal of discretion in approving the relocation and modifying the placement schedule to reflect any new residence for the child, while also setting forth legal standards that allow lawyers to argue the merits of the client’s position. It is a well-balanced statute that factors in the equities and rights of each parent while also safeguarding the best interests of the child, a significant improvement from the prior relocation statute.

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    Christopher S. KrimmerThe fame, fortune, and prestige! All of which I have none of as a family law attorney in the Midwest. Actually, I could not be more happy practicing law.

    Despite the perception of some segments of the public, the legal profession is truly a helping profession. Most lawyers practice law to make a positive difference in people’s lives, and I am no different. Our clients invest a great deal of trust in us, whether that involves the custody of their children, handling multimillion dollar mergers, or being able to walk free in the future. I value that trust and responsibility. On a daily basis, we make a significant impact on the lives and interests of our clients. It is this sense of purpose that motivates me to be the best that I can be for my clients and the legal profession.

    com csk dewittross Christopher S. Krimmer, DeWitt Ross & Stevens, Madison.

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    Endnotes

    1 Wis. Stat. § 767.481(7).

    2 Wis. Stat. § 767.481(1)(a) (2015-16).

    3 Interview with court commissioner Mark Fremgen, May 14, 2018.

    4 Id.

    5 Wis. Stat. § 767.481(1)(a) (2015-16).

    6 Wis. Stat. §767.481(1)(b) (2015-16).

    7 Wis. Stat. § 767.481(2)(a) (2015-16).

    8 Wis. Stat. § 767.481(2)(c) (2015-16).

    9 Wis. Stat. § 767.481(3) (2015-16).

    10 Wis. Stat. § 767.481(4) (2015-16).

    11 Wis. Stat. § 767.481(1)(a).

    12 Wis. Stat. § 767.481(1)(b).

    13 Wis. Stat. § 767.481(1)(b)(4).

    14 Id.

    15 Wis. Stat. § 767.481(1)(b)(2015-16).

    16 Wis. Stat. § 767.481(c).

    17 Fremgen interview, supra note 3.

    18 Id.

    19 Wis. Stat. § 767.481(2)(a).

    20 Wis. Stat. § 767.481(2)(b).

    21 Wis. Stat. § 767.481(2)(c).

    22 Id.

    23 Wis. Stat. § 767.481(1)(b)3. in contrast to Wis. Stat. § 767.481(2)(c).

    24 Wis. Stat. § 767.481(2)(c)2., 3.

    25 Id.

    26 Wis. Stat. § 767.481(2)(c)2.

    27 Wis. Stat. § 767.481(2)(c)4.

    28 Wis. Stat. § 767.481(3)(a)2.a. (2015-16).

    29 Wis. Stat. § 767.481(4)(b)2.

    30 Wis. Stat. § 767.481(4)(b)3.

    31 Wis. Stat. § 767.481(4)(b)(1), (c)(1).

    32 Wis. Stat. § 767.481(5), (5m) (2015-16).

    33 Wis. Stat. § 767.481(3)(a).

    34 Wis. Stat. § 767.481(3)(b).

    35 Id.

    36 Wis. Stat. § 767.481(1)(d).

    37 Id.

    38 Wis. Stat. § 767.481(6) (2015-16).

    39 Wis. Stat. § 767.481(6).

    40 Wis. Stat. § 767.481(4)(b), (c).

    41 Wis. Stat. § 767.481(4)(a).

    42 Wis. Stat. § 767.481(7)(a)(1), (2).

    43 Wis. Stat. § 767.481(7)(b).