In RE MARRIAGE OF GOULD v. Gould , 116 Wis. 2d 493 ( 1984 )

STEINMETZ, J.

(concurring in part, dissenting in part). I would send the case back to the trial court for findings that either the change in custody is necessary or not in the best interest of the child, applying the test for custody set by this court in In re Marriage of Millikin v. Millikin, 115 Wis. 2d 16, 23-24, 339 N.W.2d 573 (1983). The trial judge did not enunciate that he was applying that test but for good reason. Millikin was decided in 1983 and this transfer of custody was entered in 1982. The trial judge should have the opportunity to apply this court’s recently established test to the record before him.¹

Millikin stated that “necessary” meant “that the change of custody itself is needed because the current custodial conditions are harmful in some way to the best interest of the child.” Id. at 23. Now this court states: “The circuit court believed that the extramarital relationship might be harmful in the future, but this belief is not sufficient to constitute a finding that the change of custody is necessary now. Any harm was speculative and in the future.” (Supra, at pp. 501, 502.) This is an extension of Millikin that will not allow a change in custody by the trial judge unless the harm has already been done. I do not agree with that position. That would not allow for experts testifying with any relevance that the child is too young now to be harmed presently; however, having reached the age of reason, the child may by her mother’s example accept as sociologically and morally a way of life not accepted by a majority of society and therefore be harmed in the future. Extramarital affairs may be by some accepted as the thing to do presently; however, it is not within this country’s heritage of morality. The harm, if it exists, must be in the future when considering emotional, social and moral attitudes and that is what trial judges must predict with the help of experts in the child-rearing field and social, psychological and psychiatric evaluations and the judge’s observation of all the parties. It was wrong of the trial court to label this hard-felt, experienced, informed judgment of the best interest of the child and the harm in the future as “a gamble” and this was inconsistent with the test to be applied. Trial judges find custody matters, whether initial custody awards or changes in custody, as their most difficult and responsible decisions.

A seven year old child may not presently be harmed by her mother’s conduct but her entire future life and attitudes are now being formed; the judge should not be bound to wait for harm to be present since that could be only when the child is too old for custody at all. The only harm that can be found presently by the living conditions would be physical harm by the majority’s approach.

“Religion” adjustment is a proper factor according to the legislature (sec. 767.24(2) (c), Stats.) to be considered in making a custody determination. It is therefore a permissible factor for consideration. This mother’s beliefs or lack of them are consistent with her moral attitude and may in the future be dangerous to the child’s health or morals. See Welker v. Welker, 24 Wis. 2d 570, 576, 129 N.W.2d 134 (1964).

I concur with that part of the majority’s opinion which reverses the court of appeals decision. However, I dissent from that portion of the opinion which returns the custody of the minor to the mother by reversing the trial court. I would remand the case to the trial court for findings consistent with the guidelines of Millikin.

1 This is especially valid since the mother has married between the time of the hearing and when the case reached this court.