With Voiland out, judge returns boy to mother

Malloy finds that former jurist did not have the authority to overturn decision, orders boy to live with father
By 
BILL SCHANEN IV
Ozaukee Press staff

Before leaving office last month after a tumultuous six years on the bench, Ozaukee County Circuit Judge Joseph Voiland left his mark on a custody case that, in the words of the attorney appointed to represent an 11-year-old boy, threw the child and his family into “legal limbo.”

On Tuesday, Ozaukee County Circuit Judge Paul Malloy — working quickly to sort the boy’s life out before the beginning of school — reversed Voiland’s orders and issued one of his own that will result in the boy being reunited with his mother, stepfather and stepsister in Texas later this week.

Malloy found that Voiland did not have the authority to vacate the January order of Circuit Court Commissioner Barry Boline that the boy live with his mother, a former Grafton and Port Washington resident who now lives in Texas. Malloy also concluded that in June Voiland improperly ordered the child be removed from his Texas home and placed with his father in Wisconsin.

In addition, Malloy reinstated attorney Karl Schefft as the boy’s guardian ad litem. Voiland had dismissed Schefft after the two clashed over Voiland’s decision to vacate Boline’s placement order.

Schefft, who supported the boy’s placement with this mother in Texas, called Voiland’s decision “improper, unfair and contrary to the law” in a March affidavit supporting a motion for reconsideration.

“This puts ... the minor child whose best interest I have been representing in an untenable position,” Schefft wrote in his affidavit. “This leaves (the boy), his mother, his father and his grandmother in legal limbo.”

In asking to be reappointed as the boy’s guardian al litem, Schefft told Malloy Tuesday, “I think Judge Voiland was unhappy with me because he didn’t think he did anything wrong. I think he had it in for me.”

The boy’s stepfather said in an interview Monday that the 11-year-old had adapted well to life in the Dallas suburb where he lived with his 6-year-old stepsister and his biological mother and attended classes last school year. Then Voiland’s order turned their lives upside down, he said. 

“This whole thing has caused a lot of tension,” the boy’s stepfather said. “We’re on edge. My daughter is absolutely devastated, and as a parent, I just feel helpless.”

The custody case dates to 2008, and in March of that year then-Court Commissioner Darcy McManus granted the boy’s mother and father joint custody and ordered that the child’s primary placement be with his mother.  

The case was assigned to Voiland in 2014, but as court commissioner, Boline handled much of the work, which over the years involved issues ranging from  support payments to visitation rights.

Last year, the child’s mother petitioned the court for an order allowing her to move her son to Texas.

Schefft supported the mother’s request. The child’s father, who lives in Wisconsin, opposed it. 

Boline held a Jan. 10, 2019, hearing at which several witnesses testified. Boline ordered that the boy move to Texas with his mother but live with his father during spring and winter breaks from school, for a month during summer and on specified weekends.

A subsequent agreement gave the child’s maternal grandmother visitation rights.

Voiland’s March 19 order vacating Boline’s ruling and ordering a custody and placement study conducted by the Ozaukee County Human Services Department stunned people involved in the case.

In his affidavit, Schefft noted that no one involved in the case petitioned Voiland to review Boline’s decision. 

Schefft wrote that Voiland issued his order “with no notice to the parties or their counsel and no notice to me as (the boy’s) guardian ad litem, with no hearing, with no request from any party or any party’s attorney and without any input from me as (the boy’s) guardian ad litem.”

Because no one involved in the case asked Voiland to review Boline’s decision within the time frame prescribed by law, the court commissioner’s order became final, and Voiland didn’t have the authority to overturn a final order, Malloy concluded.

In addition, Voiland erred in ordering the child be placed with his father in Wisconsin because he did not hear testimony or make a transcript of a telephone conference he had with those involved in the case before making his decision, Malloy said. 

Because of that, and at the request of the mother’s attorney, Malloy ordered the county to pay for the custody placement study and some of the guardian ad litem fees, costs that would otherwise be paid by the child’s parents.

“This study should not have been ordered,” Malloy said. “This is something they (the parents) should not have to pay for.”

A custody and placement study Voiland ordered in a different case was at the heart of accusations he made against Boline and Malloy during a 16-month investigation of the Ozaukee County court system prompted by Voiland’s claims that Boline, Malloy and Clerk of Courts Mueller had committed criminal misconduct in office in an effort to undermine him. An administrative probe ordered by the Wisconsin Court System found no basis for Voiland’s accusations of criminal misconduct. 

In December, months after that finding, Voiland announced he would not seek a second term in office. 

 

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Wisconsin’s largest paid circulation community weekly newspaper. Serving Port Washington, Saukville, Grafton, Fredonia, Belgium, as well as Ozaukee County government. Locally owned and printed in Port Washington, Wisconsin.

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