Paternity of S.R.N., In re

• Decision Date: 20 February 1992
• Docket Number: No. 90-1604,90-1604
• Citation: 167 Wis.2d 315,481 N.W.2d 672
• Parties: In re the Paternity of S.R.N. A.J.N., Petitioner-Respondent, d v. W.L.D., Respondent-Appellant.
• Court: Wisconsin Court of Appeals

Page 672

481 N.W.2d 672

167 Wis.2d 315

In re the Paternity of S.R.N. A.J.N., Petitioner-Respondent, ^d v. W.L.D., Respondent-Appellant.

No. 90-1604.

Court of Appeals of Wisconsin.

Submitted on Briefs July 2, 1991.

Opinion Released Feb. 20, 1992.

Opinion Filed Feb. 20, 1992.

[167 Wis.2d 318] For the respondent-appellant the cause was submitted on the briefs of James T. Conway of Janesville.

For the petitioner-respondent the cause was submitted on the briefs of George K. Steil and Margery M. Tibbetts of Brennan, Steil, Basting & MacDougall, S.C. of Janesville.

The cause was submitted on a brief of Tod O. Daniel of Janesville, guardian ad litem for S.R.N.

Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.

SUNDBY, Judge.

In this appeal, we decide that sec. 767.325(1)(a), Stats., does not permit the circuit court to substantially modify its initial legal custody and physical placement order in the two years after its entry solely to correct the custodial parent's unreasonable interference with physical placement of the child with the noncustodial parent. We conclude that when evidence of the custodial mother's interference with physical placement of the child with the father is removed from consideration, the guardian ad litem failed to support his motion to change custody by substantial evidence that removal of the child from the mother's care and custody was necessary because the current custodial conditions were emotionally harmful to the best interest of the child. ¹ We therefore reverse the final order entered April 20, 1990 which transferred the "care, custody and control" of the child from the mother to the father. We also reverse the order entered February 17, 1989, which temporarily transferred physical custody of the child from the mother to the father.

BACKGROUND

The underlying action is a paternity action begun by the father. The child was born June 4, 1987. On December 6, 1988, the circuit court reduced its oral order of August 9, 1988 to writing and entered its order which awarded sole legal custody of the child to the mother and granted the father visitation or periods of physical placement. ²

Motions were filed by each party to find the other in contempt of the court's oral order of August 9, 1988. On January 4, 1989, the trial court heard the father's motion filed December 21, 1988. The court found the mother in contempt of its physical placement order and sentenced her to a jail term, with the right to purge her contempt by complying with a new physical placement schedule. The mother called to the court's attention that the guardian ad litem had not been present at the hearing. The court held a further hearing on January 6 at which it appointed a new guardian ad litem, allowed the contempt finding to stand but rescinded the jail sentence and ordered the successor guardian ad litem to investigate whether the child had health problems which interfered with periods of physical placement with the father.

On January 26, 1989, the guardian ad litem informed the court by letter that he had been advised by a doctor who examined the child that there was no medical reason, nor had there been a medical reason, which would interfere with periods of physical placement of the child with her father. On February 2, 1989, the guardian ad litem moved the court to find the mother in contempt of previous physical placement orders, to impose sanctions on her, and to transfer physical custody of the child to the father. The circuit court heard his motion on February 16, 1989.

On February 17, 1989, the court entered two orders. The first order was made nunc pro tunc January 6, 1989, and found the mother in contempt, rescinded the sanctions imposed on her on January 4, established a new physical placement schedule, and ordered the guardian ad litem to "conduct an investigation into what is in the best interests of [the] minor child and report to the Court...." The second order was a temporary order which transferred the "care, custody and control" of the child to the father pending continuing investigation by the guardian ad litem as to the child's best interest, and a further hearing at which "custody" and "visitation" would be determined. On February 20, the sheriff successfully executed a search warrant, seized the child and placed her with her father.

On March 3, 1989, the court granted the guardian ad litem's motion to find the mother in contempt for failing to obey the custody-change order and, as a remedial sanction, suspended periods of physical placement of the child with the mother, except under supervision, subject to posting of a $2,000 cash bond. The mother posted the bond which was returned to her after entry of the final order.

On April 20, 1990, after a hearing on the issues of custody and visitation, the circuit court finalized its previous transfer of the "care, custody and control" of the child to the father, denied periods of physical placement of the child with the mother except under supervision, and ordered the mother to pay child support and reimburse the county for the guardian ad litem's costs and fees.

On January 4, 1991, we dismissed the mother's appeal from a number of the orders entered in this action as untimely but concluded that we had jurisdiction of her appeal from the final order entered April 20, 1990. That appeal brought before us all previous nonfinal orders.

SYNOPSIS OF DECISION

Because the modification orders were entered within two years of the circuit court's initial order determining legal custody and physical placement, sec. 767.325(1)(a), Stats., governs. Section 767.325(1)(a) provides:

Within 2 years after initial order.... [A] court may not modify any of the following orders before 2 years after the initial order is entered under s. 767.24, unless a party seeking the modification, upon petition, motion, or order to show cause shows by substantial evidence that the modification is necessary because the current custodial conditions are physically or emotionally harmful to the best interest of the child:

1. An order of legal custody.

2. An order of physical placement if the modification would substantially alter the time a parent may spend with his or her child.

Section 767.325, Stats., applies to motions, petitions or orders to show cause to modify paternity judgments. Section 767.51(6), Stats.

At the outset, we emphasize that in his motion of February 2, 1989, the guardian ad litem ³ did not seek to remove the child from the mother's care because the current custodial conditions were physically or emotionally harmful to the child's best interest. At the initial hearing on his motion, the guardian ad litem testified: "I don't have any concern at all for this child being well cared for." The sole reason for his motion is revealed in his further testimony, that,

It is my opinion that the best interests of this child require that [the mother] be sanctioned--because, apparently, nothing else is working--to get her attention, to get her to understand that this child is not a pawn to be used in whatever vendetta she feels toward [the father] for whatever reason.

The circuit court correctly refused to permanently transfer physical custody of the child to the father solely on the evidence that the mother had unreasonably interfered with physical placement of the child with the father. The court erroneously assumed, however, that the guardian ad litem's motion permitted the court to redetermine legal custody and physical placement. The court therefore transferred physical custody of the child to the father temporarily, ordered psychological examinations of the father, his fiancee, the mother and the maternal grandmother, and scheduled a hearing on the issues of custody and visitation. After the hearing, the court concluded that its initial order "must be modified because custody with [the mother] is emotionally harmful to the best interest of [the child]." We decide that this conclusion is not supported by substantial evidence addressed to the correct legal standard under sec. 767.325(1)(a), Stats.

The evidence presented by the guardian ad litem erroneously focused on the best-interest-of-the-child standard under sec. 767.24(5), Stats., instead of the correct necessary-to-modify standard of sec. 767.325(1)(a), Stats. Also, the evidence erroneously focused on conditions as they existed after the child was removed from the mother's care, rather than on "current custodial conditions."

The guardian ad litem did not present evidence that the mother's interference with physical placement of the child with the father was emotionally harmful to the child. A psychological examination of the child was not performed. A home study was not done. Finally, the evidence is substantial and uncontradicted that, while in the mother's care, the child was a normal, healthy, thriving child.

Therefore, we conclude that substantial evidence does not support removal of the child from the mother's care unless the custodial parent's unreasonable interference with physical placement of the child with the noncustodial parent is, of itself, substantial evidence that removal of the child from the custodial parent's care is necessary. We conclude that it is not.

1. Modification to Correct Mother's Interference With Physical Placement

The circuit court found that the mother unreasonably interfered with physical placement of the child with the father. We need not decide whether that finding is clearly erroneous because we conclude that a motion to substantially modify legal custody or physical placement in the two years following entry of the court's initial order may not be supported by such a finding, unless the moving party shows that such interference was physically or emotionally harmful to the best interest of the child.

The guardian ad litem argues that whether the custodial parent has unreasonably interfered with the child's continuing relationship with the noncustodial...