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COA: visiting a child is exercising “physical placement”; can be a crime

State v. Angelina Hansen, 2019AP1105, 7/27/21, District 3 (not recommended for publication); case activity (including briefs)

Hansen’s triplet fourth-graders were in the legal custody of their father; he also had primary physical placement of the children. The family court’s order provided that she was to have “supervised placement only” with certain conditions, for two to four hours per week. One day, Ms. Hansen went to the lunch room of the school the children attended and sat with them while they ate. She said wanted to “hug them and tell them [she] loved them.” The court of appeals now holds that this conduct was an unlawful exercise of “physical placement” over the children, such that Ms. Hansen’s conviction for contempt of the family court order stands.That conviction came after a trial where all parties mistakenly described the court order as proscribing Ms. Hansen from “visiting” her children.  The order didn’t use the word “visit” or “visitation,” and that term is statutorily defined in a way that applies not to parents but to grandparents and others. Wis. Stat. § 767.43. But the court of appeals sees no problem because it concludes that by the simple act of being physically near her children, Hansen was exercising the right to “physical placement” of them.

“Physical placement” is also a statutory term. It means “the condition under which a party has the right to have a child physically placed with that party and has the right and responsibility to make, during that placement, routine daily decisions regarding the child’s care, consistent with major decisions made by a person having legal custody.” Wis. Stat. § 767.001(5). Hansen argued that showing up for lunch in a school setting and hugging one’s child does not involve exercising the sort of control or authority this definition contemplates. But the court of appeals holds that the statute confers two rights: the right to make decisions for the child and a separate right “to have a child physically placed with” the parent. In the court of appeals’ view, the family court order denied Ms. Hansen this latter right; she thus violated that order. The court says that “‘visiting’–or otherwise personally interacting with” one’s child is itself exercising physical placement. (¶2 (emphasis ours)).

There are a lot of problems with this reasoning. Though the court declares its view to be “common sense” and an exercise in “sensibility,” it’s not in accord with the statute. To go near or to interact with a person is just not the same as having “the right to have that person physically placed” with you, which is the statutory language the court purports to be interpreting. You might chat with an acquaintance on the street; the fact of your proximity is not an exercise of any “right” to have the person “physically placed” with you.

What’s more, even allowing that physical placement has two components–the right to “have the child physically placed” and the decision-making responsibility for the child’s care–the statute joins those components with an “and.” There’s no evidence that Hansen exercised any sort of decision-making authority during her brief lunchroom visit, so she very clearly didn’t meet both components of the definition. The court of appeals waves this away by saying that determining whether a parent has exercised the authority the the statute talks about involves “minor variables” and “nebulous questions.” This is a novel canon of statutory construction: an element that has the potential for factual nuance may simply be discarded.

The biggest problem, though, is that the court’s decision puts divorced parents in legal jeopardy in a broad range of situations that are commonplace and accepted. The court seems to recognize this, giving exactly one example in which a parent might be physically present with his or her child without exercising “physical placement”: “a sporting event.” Okay. What about a dance recital? A spelling bee? A birthday party? What about a phone call? Is that “personally interacting with” the child? Who knows; we’ll have to wait for the next prosecution to find out.

The court also rejects Hansen’s argument that her trial lawyer was ineffective for failing to show a video at her trial that she contended would have shored up her credibility on the events of the day (she was also convicted of reckless endangerment and obstruction related to her arrest at the school). (¶¶25-38).

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