AB 400 Will Help Wisconsin’s Children of Divorce

By Jeffery M. Leving and Glenn Sacks

One of the greatest problems faced by Wisconsin’s children of divorce is the way family courts often allow one parent to move children hundreds or even thousands of miles away from the other parent after divorce. This can be emotionally damaging to children, who need the stability of two involved parents after a divorce. AB 400, which passed the Assembly last week, will help safeguard children by preventing some of these hurtful relocations.

Currently a Wisconsin parent seeking to preclude his or her children from being moved away must prove that the move is against the children’s best interests. AB 400 puts the burden of proof where it belongs—on the parent who seeks to move the children. Under the bill, the moving parent has the burden of proving that prohibiting the move would be harmful to the children’s best interests. AB 400 creates a rebuttable presumption that it is in children’s best interests to remain in the community in which they have become adjusted.

Today a parent with whom the children primarily reside can move his or her children 150 miles away without even having to notify the nonmoving parent. Even the modest restrictions on move-aways in current law are often flouted, as parents move without the court’s permission and have little reason to fear its sanction.

AB 400 requires notification and permission for moves of 20 miles or more if the parents currently live within 20 miles of each other. In addition, it requires courts to hold parents who move without permission in contempt.

The bill is opposed by the Wisconsin Coalition Against Domestic Violence, the Wisconsin Council on Children and Families, the State Bar of Wisconsin, and others. These groups are correct in their assertion that custodial parents should sometimes be allowed to move their children. This is particularly true in cases of violence, abuse or dire economic need, or when noncustodial parents show little interest in their children or do not avail themselves of their visitation time.

However, in such cases AB 400’s presumption against moves can be easily overcome. What the bill will do is empower Wisconsin courts to restrain frivolous, selfish, vindictive, or bad faith moves which needlessly separate children from one of their parents.

Opponents of the bill claim that it unfairly restricts parents with primary placement of children (usually mothers) from moving, while not restricting parents without primary placement (usually fathers). In reality, all parents involved are free to move wherever they want—it is the children who may not be moved if a court determines that it is against their best interests.

Opponents have argued that restrictions on move-aways keep custodial parents "held hostage" in their neighborhoods, and that they should be able to "move on with their lives."

In reality, both parents retain responsibilities to their children after divorce—responsibilities which are at times inconvenient or limiting. Would we argue that noncustodial parents’ responsibility to pay child support holds them "hostage?" Do we condone the behavior of divorced parents who decide to drop out of their children’s lives or stop paying child support because they’ve decided to "move on with their lives?

Opponents of AB 400 assert that children’s happiness is inextricably linked to the happiness of the custodial parent—an embodiment of the old saying "if momma’s not happy, ain’t nobody happy." Yet when Middleton, Wisconsin psychologist Dr. Kenneth Waldron reviewed over 70 studies and literature summaries for the American Academy of Matrimonial Lawyers in 2003, he found little evidence to support this. He instead concluded that the bulk of the research findings do not see relocations as a positive for children.

AB 400 now resides in the Senate Committee on Health, Children, Families, Aging, and Long Term Care. It passed the majority Republican Assembly along partisan lines by a 57-38 vote, and could face a veto from Democratic Governor Jim Doyle.

Yet post divorce move-aways are not a partisan issue—they are a children’s issue. In divorce cases it is paramount that the relationship children share with both parents be respected and protected. AB 400’s restrictions on move-aways are appropriate and necessary to accomplish this goal.