A significant Wisconsin Court of Appeals case, Cordova v. Cordova, Appeal Nos. 2012AP2018 and 2012AP2802, published November 5, 2013, determined that a Court cannot restrict a parent from moving less than 150 miles from the marital home, notwithstanding the current custody and placement arrangement of the minor children. This less than 150 mile criteria applies to moves within the State of Wisconsin. (A Court can restrict a parent from moving across state lines.) The Court rejected the argument that restriction of movement was permissible if it was done in the best interests of the children, reasoning as follows:
“If the trial court had the power to make any order it pleased so long as the order could somehow be justified by recitation of the rubric “in the best interests of the children,” the limits the legislature placed on the court’s exercise of power in custody matters would be meaningless. Legal custody is subject to the provisions of court orders[, but] it is subject only to orders that the court is empowered to make. Since the court lacked the power to order the mother to move or lose custody, the order is a nullity.”
The Court based its decision on Wis. Stats. 767.481 to support its finding that “the legislature has made a judgment that moves of less than 150 miles are not subject to the best interests of the children standard.”
The Appeals Court decision is complex and raises as many questions as it answers. If a placement arrangement is unworkable because of one party’s move, is a motion to modify placement the answer? A contempt motion? What is the impact of Wis. Stats. 767.41(6)(d), which provides that “No party awarded joint legal custody may take any action inconsistent with any applicable physical placement order, unless the court expressly authorizes that action.” Does the Court’s decision in Cordova conflict with Wis. Stats. 767.41(6)(d)? What about a party’s right to marry and to move to another state? Are these constitutional rights that supercede the statute?
A client who finds him or herself with the desire or need to relocate should consult Vanden Heuvel & Dineen, S.C. to address the move’s potential impact on custody and placement. This is an area of expanding law in Wisconsin which should be addressed before, not after, any move.