Dees v. Dees

Decision Date04 February 1969
Docket NumberNo. 113,113
Citation41 Wis.2d 435,164 N.W.2d 282
PartiesCarole Jean DEES, Appellant, v. Irvin H. DEES, Jr., Respondent.
CourtWisconsin Supreme Court

Godfrey, Godfrey & Neshek, Elkhorn, for appellant.

Davies & O'Brien, Delavan, for respondent.


There is no legal area in which the trial court has more responsibility than in deciding custody matters. 1

On the limitations inherent in the review of custody placement orders by trial courts, this court has conceded that 'The written record does not afford us an opportunity to see and hear the attitudes, demeanors and appearances of the parties and other witnesses.' 2 and concluded 'The credibility of witnesses and the weight of the testimony (in custody hearings) is best determined by the trial court.' 3 As a general proposition, it follows that great weight is to be given to fact findings made by trial courts in child custody hearings.


Great stress is placed in appellant's brief on the fact that the trial court did not find the plaintiff 'unfit' but only found that she was unable to 'adequately care' for the child. 4 The suggestion is that unfitness' relates only to morals and that 'inability to care for' relates to other disqualifying facts, including mental illness or emotional dysfunctioning. The statement in Sommers v. Sommers 5 that the statutory statement 'unable to adequately care' refers to circumstances '* * * other than those arising from moral unfitness and which could include the parent's physical, mental, or other conditions or circumstances which would make it difficult or impossible for a morally fit person to give proper care to a child' 6 is not to be read as limiting 'unfitness' to be a custodian as applying only to moral misconduct. When the Wisconsin legislature added the phrase 'unable to adequately care' to the statute, 7 it broadened the basis of trial court discretion in the custody placement area, but it did not narrow the concept of 'unfitness' as limited to the morality of parental conduct. It provided an alternative basis for denying custody. Actually, there is an understandable reluctance of family courts to pronounce a parent to be 'unfit.' Particularly, as here, where one deals with a person of fragile mental or emotional strength, such pronouncement can sound like a judgment of doom and adversely affect the recovery of mental or emotional health. In jurisdictions where children are

                still treated as near-chattels in a comparing of respective rights of parents to custody, this distinction between unfitness and inability to adequately provide care may be very important.  In this state, where the primary and controlling consideration is what will be best for the child is not as crucial because in this state the would-be custodian must establish not only fitness and ability to provide adequate care but also that his or her being awarded custody would be in the best interests of the child.  This court has held that a mother can be a fit person to have the custody '* * * but because of other comparative circumstances custody to the father serves the best interest of the child.'  8 also suggesting that 'A court should not necessarily feel impelled to make a finding of unfitness on the part of the mother when it has determined that the best interests of the child demand its custody be placed in the father.'  9  Under the 'comparative circumstances' test, we deal not in the coin of censure of blame, but in the concentration of concern on what order will best protect and promote the well-being of the child

It cannot be doubted or denied that the plaintiff has suffered from serious mental and emotional disorders over an extended period of time. In 1960 she began treatment with a psychiatric clinic in Milwaukee. In 1962 she was hospitalized for mental illness. In 1966 she discontinued treatments at the Milwaukee clinic and consulted the Walworth County Counselling Clinic. Since 1967 she has been under the care of Dr. Walter J. Gleason, clinical psychologist and director of the Walworth clinic, undergoing group therapy and consulting with him for an hour every other week. In 1966 her condition was diagnosed by the Milwaukee clinic as 'schizophrenic reaction, undifferentiated.' In 1962, at the time of her hospitalization, Dr. Gleason stated she was probably in a 'psychotic condition.' In 1967 Dr. Gleason described her condition as 'suffering from an emotional disorder characterized by loss of confidence in self, anxiety and a dependency on her mother.' At the time of the hearing, Dr. Gleason testified to her 'considerable improvement in anxiety level * * * greater confidence in herself * * * coming to realize the necessity of being independent's but stated she was in need of further counselling.


Appellant takes the position that she has recovered sufficiently from mental and emotional disorders to entitle her to the custody of the child of the marriage. As stated by the trial court, this claim asks, '* * * whether the plaintiff since the divorce has mentally, physically and emotionally improved to where she could reasonably be expected to assume adequate parental responsibility toward her son.'

The trial court concluded that the plaintiff's condition had not sufficiently improved to the extent that custody could or should be awarded to her. There is ample evidence in the record to sustain this finding.

While the psychologist treating her testified to her considerable improvement in the areas of anxiety, self-confidence and dependency upon her mother, he also listed areas in which she still needed to improve, including judgment, impulsiveness and sense of dignity. In the light of conduct that can only be described as extremely bizarre, such need for further improvement cannot easily be disregarded. The psychologist concluded his direct examination with this statement:

'* * * I'm sure that she will try. I could not say based on what I know that she is not a fit mother. She has her areas of weakness, to be sure, things The progress and prognosis appear promising, but full and complete recovery is not clearly established by this testimony and the entire record.

she'll have to work on, things she'll have to watch out for.'


The issues before the trial court are, however, not to be narrowed and limited to an inquiry as to the degree of recovery from mental and emotional disorders of the custody-seeking parent. This court has said that children are not to be taken from a parent custodian as a penalty for improper conduct. 10 It is equally true that children are not to be given to a custody-seeking parent as a premium or reward for good conduct or recovery from mental or emotional difficulties.

In post-trial hearings as to custody, as well as at the time of trial, the trial court has the responsibility to determine what disposition and what conditions will best serve the interests of the children involved. As this court has stated:

'It is his task to determine what provisions and terms would best guarantee an opportunity for the children involved to grow to mature and responsible citizens, regardless of the desires of the respective parties. This power, vested in the family court, reflects a recognition that children involved in a divorce are always disadvantaged parties and that the law must take affirmative steps to protect their welfare.' 11

In this case, at the time of oral argument, it was stated that the defendant-father had remarried, purchased a home and intended to seek a transfer of custody to him. If he were so to do, it would be incumbent upon him not merely to establish his fitness, but also to prove that the best interests of the boy would be served by the transfer or change of custody. If the plaintiff-mother were to establish full and complete recovery from the disorders that have plagued her, that fact alone would not require nor justify, ipso facto, the transfer of custody to her. It would still be her responsibility to also establish that the future well-being of the child would be furthered by the change of custody. This court has said 'The polestar remains the welfare of the child.' 12 That means just that.


One of the affirmative steps that can be taken by trial courts in custody matters is the appointment of a guardian ad litem to represent the interests of the child or children who are subjects, not objects, of the court inquiry. In the Wendland Case 13 this court stated that guardian ad litem should be appointed in contested custody disputes where '* * * relying on the two parties and the investigation of a welfare agency may not produce all the important evidence that the court should consider in looking after the best interests of the children * * *' 14

More recently, in Koslowski v. Koslowski 15 the suggestion was repeated and expanded, this court stating, '* * * we recommend the practice of appointing a guardian ad litem to represent the interests of the children in those instances where the evidence is either non-existent or inadequate to determine the comparative fitness of the parents and where the best By any or all of these tests this is clearly a case in which the trial court should have appointed an attorney to serve as guardian ad litem for the child, Scott. The appointment of the guardian would have in this situation aided the trial court in fully considering whether the welfare of the child might not be best served by his remaining in the foster home with the minister and his wife where he has spent two formative years. A growing child is not a ping pong ball to be lightly batted back and forth from one home to another. The foster parents are not parties to this action, but the child is, and all available alternatives must be evaluated in reaching the determination as to what order will best serve the child's present and future well-being. If the appointment of such legal...

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    ...and available from a custodian who has proven as successful at it as the grandmother has in respect to Michael. In Dees v. Dees, 41 Wis.2d 435, 440, 164 N.W.2d 282 (1969), the court discussed unfitness as "Actually, there is an understandable reluctance of family courts to pronounce a paren......
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