Stephanie R.N. v. Wendy L.D.

Citation498 N.W.2d 235,174 Wis.2d 745
Decision Date06 January 1993
Docket NumberNo. 90-1604,90-1604
PartiesIn re the Paternity of STEPHANIE R.N.: Andrew J.N., Petitioner-Respondent-Petitioner, d v. WENDY L.D., Respondent-Appellant. . Oral Argument:
CourtUnited States State Supreme Court of Wisconsin

For the respondent-appellant there was a brief by James T. Conway, Janesville and oral argument by pro-se Wendy L. Dyson, Madison.

STEINMETZ, Justice.

This is a review of a published decision of the court of appeals, In re Paternity of S.R.N., 167 Wis.2d 315, 481 N.W.2d 672 (Ct.App.1992), reversing a judgment of the Rock county circuit court, Judge John H. Lussow. There is only one issue presented in this case: whether sec. 767.325(1)(a) Stats., 1 permits a trial court to substantially modify within two years an initial legal custody and physical placement award granted to the custodial parent (the child's mother) on August 9, 1988, under the following circumstances:

(1) The custodial parent unreasonably and continuously interfered with the noncustodial parent's visitation rights.

(2) In the opinion of a psychologist and a social worker, granting placement and custody to the noncustodial parent would be in the child's best interest.

(3) Pending the modification hearing, the trial court issued a temporary order granting primary placement of the child to the noncustodial parent. The order granted alternate weekend visitation to the custodial parent. After returning from these weekend visits, the approximately two-year-old child exhibited "acting out behaviors."

(4) There was testimony presented that upon leaving the custodial parent's care, the child was developmentally behind with respect to her verbal skills, "social emotional" development, gross motor skills, and fine motor skills.

We conclude that sec. 767.325(1)(a), Stats., does not permit substantial modification of an initial legal custody and physical placement award under these circumstances. The court of appeals is affirmed.

Stephanie R. N. was born on July 4, 1987, to Wendy L. D. ("Wendy"). On April 20, 1988, Andrew J. N. ("Andrew") was adjudicated Stephanie's father in Rock county circuit court, Judge John H. Lussow.

On August 9, 1988, pursuant to Wendy's motion, the trial court issued an oral order granting Wendy sole legal custody and primary physical placement 2 of Stephanie. Andrew was granted alternate weekend and holiday visitation. 3 A written order to this effect was issued on December 6, 1988.

On December 21, 1988, Andrew filed a motion requesting the court to find Wendy in contempt of the August 9 order for denying his visitation rights. A hearing was held on January 4 and 6, 1989. At the hearing, Andrew alleged that Wendy unjustifiably refused to allow his court-ordered visitation for four consecutive weekends, 4 Christmas Eve, and a full week during his semester break from college. Wendy claimed that she justifiably denied Andrew's visitation because the child was ill. The trial court concluded that Wendy had no rational basis for these denials and found Wendy in contempt of the August 9 order. As a remedial measure, the court awarded additional visitation to the father to compensate for Wendy's past denials. In addition, the court appointed Attorney Tod O. Daniel as the child's guardian ad litem. The judge signed a written order stemming from these proceedings nunc pro tunc on February 16, 1989.

On February 2, 1989, the guardian ad litem filed another motion requesting that Wendy be held in contempt for failure to comply with the trial court's January 6, 1989, visitation order. The motion also requested that Andrew be granted temporary physical placement of Stephanie pending a full custody hearing.

On February 16, 1989, a hearing was held on this motion, at which time the guardian ad litem alleged that Wendy unjustifiably refused to allow Andrew's court-ordered visitation for the weekends of January 27, and February 10, 1989. Wendy again claimed that she denied visitation on those weekends because the child was sick. To rebut Wendy's defense, the guardian ad litem testified that Stephanie's doctor assured him that there was no medical reason for denying visitation. In addition, the guardian ad litem submitted Stephanie's medical records into evidence. In those records, the child's pediatrician indicated that through January 19, 1989, Stephanie was in excellent health, physically and intellectually. By order of February 17, 1989, the trial court granted the guardian ad litem's motion, and Andrew was awarded temporary custody of Stephanie.

Wendy refused to transfer Stephanie to Andrew pursuant to the temporary order. On February 20, 1989, a Rock county sheriff forcibly entered Wendy's residence and retrieved Stephanie. On March 3, 1989, the trial court found Wendy in contempt for refusing to comply with the temporary order. The trial court later ordered psychological testing of all persons relevant to the final determination of custody.

On October 10, 1989, at the mother's reconsideration motion hearing, the trial court stated:

I have ordered the parties to be interviewed by the counseling service and they are to make recommendations to the court, and then we would have a hearing on that, and the court would determine the fitness of the parties respectively and what's in the best interests of the child, award custody to one party or the other, and set up a visitation schedule, and that's it. (Emphasis added

On December 12 and 13, 1989, and March 19, 1990, the final custody hearing was held. The trial court concluded that modification of the initial custody and placement order was warranted. The court granted sole legal custody and primary physical placement to the father. Wendy was allowed periods of physical placement only if they were supervised by the department of social services.

When making this decision, the trial court considered several factors. 5 First, the court considered Wendy's unreasonable interference with Andrew's visitation rights. As explained above, Wendy denied Andrew his court-ordered visitation on Christmas Eve, during Andrew's semester break, and on several weekends. The record indicates that when Wendy denied Andrew his weekend visitation, she only refused to let Andrew take Stephanie out of the house. Wendy invited Andrew into her house to spend time with Stephanie. On some of these weekends, Andrew entered Wendy's home to check on Stephanie, but he did not stay for an appreciable amount of time.

Second, the trial court considered Wendy and Andrew's mental health. Two experts, a psychologist and a social worker, 6 testified for the guardian ad litem. They concluded that it would be in Stephanie's best interest to reside with Andrew. They reasoned that Andrew and his fiancee were functional, stable people, but that Wendy was a dysfunctional, unstable person. Wendy's dysfunction could cause Stephanie to become frightened, insecure, and unstable. It could also cause the child to display antisocial behavior such as hitting other children, throwing tantrums, and in general acting unruly. Moreover, said dysfunction could slow Stephanie's development.

Third, the trial court considered the fact that Stephanie was developmentally behind upon leaving her mother's care. Kristine Hanson testified for the guardian ad litem. Hanson was Stephanie's day-care provider from February, 1989, when Stephanie was temporarily transferred to Andrew's care, through August of that same year. Hanson indicated that upon entering day care Stephanie was developmentally behind with respect to her verbal skills, social emotional development (i.e., excessive crying, tantrums, etc, gross motor skills (i.e., walking on different terrains), and fine motor skills (i.e., grasping with her hands).

Hanson was qualified to make these determinations, because she holds a B.S. degree in education from the University of Minnesota, is certified by the state of Wisconsin as a child care provider, and has five years of experience in the child care field.

Finally, the trial court heard evidence that Stephanie became unruly after her weekend visits with Wendy. These visits were provided for in the February 17 temporary order. Kristine Hanson testified that on the Monday and Tuesday after Stephanie returned from weekends with her mother, Stephanie's behavior became extremely aggressive. She would attack other children without provocation, biting, kicking, and punching, until she was physically restrained. Her behavior would improve over the next two weeks until on the Friday before she visited her mother, Stephanie was cooperative and "wonderful" to have around. After visitation with her mother, this behavioral cycle would start over again. These incidents became so frequent and severe that Stephanie had to be dismissed from Hanson's day-care program.

Because the guardian ad litem sought modification of custody and placement within two years of the initial order, sec. 767.325(1)(a), Stats., is controlling. That section states as follows:

[A] court may not modify ... [an order of legal custody or physical placement] 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.... (emphasis added)

Section 767.325(1)(a), Stats., contains four elements: (1) substantial evidence, (2) that the modification is necessary, (3) because the current custodial conditions, (4) are physically or emotionally harmful to the best interest of the child. "Substantial evidence" refers to evidence which is " 'considerable in amount, value or worth.' " Corcoran v. Corcoran, 109 Wis.2d 36, 43, 324 N.W.2d 901 (Ct.App.1982).

"Necessary" embodies at least two concepts. First, the modification must operate to protect the...

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3 books & journal articles
  • Commentary: Representing the child's best interest, not the child.
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    ...parties. The GAL's statements are not evidence and cannot form the basis of a trial court's order. In re Paternity of Stephanie R.N., 174 Wis. 2d 745, 498 N.W.2d 235(1993); Goberville v. Goberville, 2005 WI App 58, 280 Wis. 2d 405, 694 N.W.2d 503. Therefore, in a contested proceeding, the G......
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    • July 30, 2007
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