Patrick v. Patrick
| Decision Date | 02 October 1962 |
| Citation | 17 Wis.2d 434,117 N.W.2d 256 |
| Parties | James R. PATRICK, Respondent. v. Ruth F. PATRICK, Appellant. |
| Court | Wisconsin Supreme Court |
Darrell MacIntyre, Madison, George E. Hass, Madison, of counsel, for appellant.
Wheeler, Van Sickle, Day & Goodman, Madison, for respondent.
1. Character of rights granted to James. Ruth's counsel argues that the judgment provides for dual custody (sometimes referred to as divided, or split custody) even though it specifically refers to James' right as 'visitation.' In the most restricted sense, a parent's right to visit his child while in the custody of another, means a right of access to the child. Courts often deem it wise, however, to provide that visits may be made out of the presence of the custodian of the child, and removal of the child from the state may be permitted for the purpose of allowing a visit with a parent residing in a different state. It is recognized that the child as well as the parent ordinarily has an interest to be served by visitation. 1
When custody has been awarded to one parent or a third party, and the other parent is awarded the right, for the purpose of visitation, to remove the child from the immediate care of the one having custody, the parent who exercises such right obtains a measure of authority over the child which would not be involved in mere access to it. In the nature of things the parent who removes the child and keeps it during a visit has an obligation to care for its immediate welfare and safety, and must control the child so far as is necessary to fulfill his obligation. His authority and obligation are not, however, equivalent to the authority and obligations of the one to whom the court has awarded custody.
'* * * 'Custody', in the sense we use it connotes, among other things, the right of the legal custodian to establish the legal domicile for the child, whereas such right does not abide with the parent who enjoys only the occasional right of visitation, i. e., the right to visit the child wherever it is, at certain time, or to have the child visit the parent for stipulated periods. * * *' 2
* * *' 3
It is recognized that there is significance in an award of custody to one person even if the court requires that the child live elsewhere. In Julien v. Julien 4 the judgment appealed from required the child to remain at an institution, but did not award custody to anyone. This court considered the judgment incomplete and ascribed to a statute the purpose 'that there shall be at least one person directly chargeable with the responsibility that accompanies having custody of a minor child.' (p. 91)
In Bohn v. Bohn 5 this court recited that in a judgment preceding the order being reviewed, the trial court, on a finding that neither parent was fit to have custody, had awarded custody to the county department of public welfare, but directed that the children be left with the mother as long as she cooperated with the department.
The judgment before us on this appeal clearly awarded custody of Randolph to Ruth. James will not have custody during Randolph's visits, but only such obligation and authority as are practical necessities during such visits.
2. No abuse of discretion. Several principles must be considered in our review of the portion of the judgment permitting visitation at James' home in Florida.
A. The fact that Randolph would be outside the territorial jurisdiction of a Wisconsin court should not prevent the visitation, if such removal is consistent with his welfare. 6
B. 'Minor children ae entitled to the love and companionship of both parents in so far as this is possible and consistent with their welfare.' 7
C. 'This court has repeatedly held that the matter of custody of children in divorce actions is a matter peculiarly within the jurisdiction of the trial court, who has seen the parties, had an opportunity to observe their conduct, and is in much-better position to determine where the best interests of the children lie than is an appellate court.' 8
James is 42, has been steadily and regularly employed, and owns an adequate home. His mother lives a block away. She testified that she would stay in James' home to help care for Randolph during Randolph's visits. There was testimony that James is a good father and loves Randolph.
Ruth is 41 and lives and works in Madison. Randolph stays with Ruth's sister and her family on a farm about 50 miles away. Ruth visits him once a week.
James is a man of modest means. His home is 1500 miles from Madison. The county court undoubtedly was impressed with the fact that to refuse to allow James to have Randolph in Florida would make difficult any normal relationship between Randolph and his father.
James admitted having struck Ruth on several occasions and having struck Larry, Ruth's sixteen-year-old son by a former husband. James expressed regret and acknowledged that he was in the wrong on at least some of these occasions. The evidence indicated the areas of disagreement between James and Ruth and between both of them and Larry. Under the circumstances, the county court could reasonably conclude that although James had acted improperly toward his wife and stepson on these occasions, it was improbable that he would mistreat Randolph.
Ruth requested this court to order a psychiatric examination of James and claims that it was an abuse of discretion to award extensive visitation rights without doing so.
The claim is based upon evidence of the assaults above referred to and upon several voluminous letters written by James to Ruth and to Larry's paternal grandmother with whom Larry is now living. The letters are very long, contain many references to and quotations from the Bible, much discussion of religious doctrines, and one of them refers to and explains a vision James had had years ago. The letters do not contain threats, but seem to have been written in large part in the hope of reconciliation. They may strike most people as being unusual in the extent to which James attempts...
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Berg v. Berg
...best interests of the child. Neblett v. Neblett, 274 Wis. 574, 571 [sic], 81 N.W.2d 61 (1957). As we stated in Patrick v. Patrick, 17 Wis.2d 434, 439, 117 N.W.2d 256, 259 (1962): `Minor children are entitled to the love and companionship of both parents insofar as this is possible and consi......
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...that "[c]ustody embraces the sum of parental rights with respect to the rearing of a child, including its care." Patrick v. Patrick, 17 Wis.2d 434, 437, 117 N.W.2d 256 (1962), quoting Burge v. City & County of San Francisco, 41 Cal.2d 608, 617, 262 P.2d 6, 12 (1953). A child looks to the cu......
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