Commentary: WI Supreme Court rules on equal placement.

Byline: Gregg Herman

A recent high court opinion finally put to rest the debate about equal placement for the children of divorce in Wisconsin.

Specifically, on June 11, 2006, the Wisconsin Supreme Court issued its opinion in Landwehr v. Landwehr, 2006 WI 64 (Jun. 6, 2006), affirming an unpublished opinion of the District I Court of Appeals.

The case resolved the perceived tension between the maximizing placement language set forth in Wis. Stat. s. 767.24(4)(a)2 and the status quo presumption in modification actions set forth in Wis. Stat. s. 767.325(1)(b)2. In its decision, the justices emphatically rejected the argument that the maximizing placement language set forth in Wis. Stat. s. 767.24(4)(a)2 mandates equal placement.

The argument over equal placement has its genesis in the father's rights movement (a.k.a. the "Mad Dads") who attempted to convince the Legislature to mandate equal placement with the infamous proposal known as SB 107. In an effort to combat the absurdity of treating children akin to bank accounts, the Family Law Section of the State Bar proposed a compromise, which neutralized SB 107 like a polio vaccine - using an inert version of the virus to defuse the harmful version.

The result was a statute which requires a court to "maximize placement time with both parents," a mathematical absurdity since, as the Court of Appeals pointed out, allocating placement between parents is a zero-sum game. Two Court of Appeals cases have held that this statute does not mandate equal placement. See Lofthus v. Lofthus, 2004 WI App 65, 270 Wis. 2d 515, 678 N.W.2d 393; Keller v. Keller, 2002 WI App 161, 256 Wis. 2d 401, 647 N. W. 2d 426.

While these Court of Appeals cases appeared to resolve the legislative intent was not to mandate equal placement, the "maximizing placement" language appears to contradict the standard for modifying placement after the divorce. After the initial order, if a child is placed with each parent for substantially equal amounts of time, there is a rebuttable presumption that maintaining substantially equal periods of physical placement is in the best interest of the child. Wis. Stat. s. 767.325 (2)(b). Where the original order places a child with one parent for a greater period of time as compared to the other parent, there exists a rebuttable presumption that continuing the child's physical placement with the parent with whom the child resides for the greater period of time is in the best interest of the child...