Brian James Geigle v. Jaime Ashley Benner

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 22, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP1904 Cir. Ct. No. 2016FA223

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN RE THE PATERNITY OF G. L. G.:

BRIAN JAMES GEIGLE,

PETITIONER-RESPONDENT,

V.

JAIME ASHLEY BENNER,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for St. Croix County:
R. MICHAEL WATERMAN, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2020AP1904

¶1 PER CURIAM. Jaime Benner appeals an order granting sole legal
custody and primary physical placement of her son, Gabe,1 to Gabe’s father, Brian
Geigle.2 Benner argues that the circuit court erroneously exercised its discretion
by awarding Geigle legal custody because the court failed to recognize that she
made better decisions than Geigle regarding Gabe’s care. She also contends that
the court erroneously exercised its discretion by awarding Geigle primary physical
placement because the court failed to apply the presumption that continuing
Gabe’s primary physical placement with Benner was in Gabe’s best interest and
because there was no evidence to rebut that presumption. In addition, Benner
argues that the court “improperly elevated the increased conflict between the
parents over [Gabe’s] daily needs ….” Finally, Benner asserts that the court
improperly admitted evidence of her multiple reports of child abuse by Geigle and
that the court failed to apply a presumption of good faith to her reports. We reject
Benner’s arguments and affirm.

BACKGROUND

¶2 Benner gave birth to Gabe in 2013. Having never been married to
Benner, Geigle filed a petition in 2016 seeking to be adjudicated as Gabe’s father
and awarded legal custody and physical placement. Geigle was subsequently

1
For ease of reading, we refer to the child in these proceedings by a pseudonym, rather
than his initials. See WIS. STAT. RULE 809.19(1)(g) (2019-20). All references to the Wisconsin
Statutes are to the 2019-20 version unless otherwise noted.
2
Gabe’s guardian ad litem (GAL) filed a statement on June 17, 2021, advising that she
would not be participating in this appeal but that she “joins in the position of [Geigle].” Benner’s
counsel later sought clarification from this court regarding whether the GAL’s statement required
a reply. Ultimately, the GAL’s statement did not require a reply because Benner’s reply brief
responded to the issues raised in Geigle’s response brief and, thus, adequately responded to the
GAL’s suggestion that we accept Geigle’s arguments. To the extent the GAL’s statement
advances any new argument not raised in Geigle’s brief, we do not consider that argument.

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adjudicated Gabe’s father in July 2016. After a contested trial, the circuit court
issued an order in June 2017, awarding the parties joint legal custody and shared
placement of Gabe (“the 2017 order”). Benner was assigned placement on
weekdays during the school year and weekends during the summer, and Geigle
was assigned the opposite schedule.

¶3 In December 2018, Geigle filed a motion seeking to modify the 2017
order to give him sole legal custody and primary physical placement of Gabe. In
support of his motion, Geigle filed an affidavit asserting, among other things, that
Benner had not supported his relationship with Gabe, that Benner had
unreasonably restricted Gabe’s placement with Geigle, and that Benner had made
“repeated false allegations” to social services and law enforcement regarding his
having sexually and physically abused Gabe. Benner later filed her own affidavit,
in which she acknowledged, among other things, that she had made reports
regarding concerns that Geigle was sexually and physically abusing Gabe. Benner
asserted that those reports were still under investigation. Benner later filed her
own motion requesting sole legal custody and primary physical placement.

¶4 The circuit court received evidence on the two motions over the
course of several hearings in 2020. The court heard testimony from many
witnesses, including Benner, Geigle, investigators from law enforcement and child
protective services, teachers from Gabe’s school, Beverly Green (a
psychotherapist who began working with Gabe in 2019), Dr. Christopher Babbitt
(a clinical psychologist who evaluated the parties and completed a custody study
at the request of Gabe’s GAL), and Dr. Kelly Champion (a clinical and forensic
psychologist retained by Benner to review and analyze Babbitt’s report).
Following the hearings, the court issued a detailed written decision with numerous

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findings of fact. The court also considered each of the factors set forth in WIS.
STAT. § 767.41(5)(am) bearing on Gabe’s best interest.

¶5 As relevant to this appeal, the circuit court found that from a young
age, Gabe had exhibited concerning behavior, which was, at times, aggressive or
sexual in nature. The court acknowledged that Gabe struggles academically and
that his school had developed an individualized education plan to address his
special needs. The court recognized that both parties spend quality time with
Gabe and support his educational and recreational needs. It also noted, however,
that Benner has more insight into Gabe’s educational needs and that her
involvement in Gabe’s education has been more consistent and robust than
Geigle’s involvement. The court found that Gabe loves both of his parents and
wants to spend quality time with each of them.

¶6 The circuit court also discussed conflicts between the parties. The
court recognized that communication between the parties had grown worse over
the years and that both parties were responsible for the breakdown in
communication. The court found that Benner had not supported Gabe’s
relationship with Geigle and that she had interfered with “Geigle’s placement,
communication, and relationship with [Gabe].” In particular, the court found that
Benner had excluded Geigle from decisions regarding Gabe’s medical and dental
care, had made derogatory comments about Geigle in Gabe’s presence, had
misrepresented to others that she had an order for protection against Geigle while
“with[holding Gabe] from Mr. Geigle for six weeks,” and had refused to provide
Geigle with four days of court-ordered “make-up time.” In addition, the court
noted that Benner engaged in domestic abuse in front of Gabe in February 2020
when she struck Geigle six to eight times and broke his phone and television. The
court found that Gabe stood between his parents during the incident and “was

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traumatized.” Despite the parties’ issues, the court recognized that Geigle
continues to show a willingness to support Gabe’s relationship with Benner.

¶7 The circuit court also considered allegations of sexual and physical
abuse. It found that “Benner has committed herself to prove that Mr. Geigle is
physically and sexually abusing [Gabe]” but that “[h]er allegations are unproved.”
The court further noted that “[c]redible evidence suggests that either Ms. Benner
has jumped to conclusions from misinterpreted facts or that she has outright
misrepresented facts to concoct a false narrative about Mr. Geigle. In either case,
the parties cannot co-parent under the persistent cloud of unfounded allegations of
child abuse.”

¶8 Although the circuit court acknowledged that Gabe “has said things
that are cause for concern,” the court further recognized that Gabe later recanted
some of his earlier statements and told his therapist that Benner “just makes stuff
up about his father.” The court found that law enforcement had investigated
Benner’s claims of abuse and that Gabe has been interviewed numerous times.
The court also noted that none of the investigations or interviews “produced
evidence sufficient to substantiate the allegations of abuse or commence child
protection proceedings.” In addition, the court concluded that Benner failed to
establish that any of Gabe’s scratches, marks, bruising, or injuries in the past were
the result of abuse, recognizing that Gabe gave conflicting accounts about how the
injuries occurred.

¶9 Ultimately, the circuit court awarded Geigle sole legal custody and
primary physical placement of Gabe. The court found that Benner had
unreasonably refused to cooperate with Geigle and that Geigle had rebutted the
presumption of joint legal custody and had shown that a change of legal custody

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was in Gabe’s best interest. The court also found that a change of physical
placement was in Gabe’s best interest, noting that Benner had engaged in repeated
acts that have harmed Gabe and that Benner’s placement needed to be limited to
protect Gabe. The court acknowledged that Geigle had “his own shortcomings as
a parent, but none of them remotely approach Ms. Benner’s behavior and none of
them have caused [Gabe] harm.”

¶10 Benner now appeals. Additional facts will be noted as necessary
below.

DISCUSSION

¶11 We review a circuit court’s decision to modify a custody or
placement order, including the court’s determination of the child’s best interest,
for an erroneous exercise of discretion, giving deference to the court’s decision
and affirming the decision if the court applied the correct legal standard and
reached a reasonable result. Hughes v. Hughes, 223 Wis. 2d 111, 120, 588
N.W.2d 346 (Ct. App. 1998); see also Landwehr v. Landwehr, 2006 WI 64, ¶7,
291 Wis. 2d 49, 715 N.W.2d 180; State v. Lucas, 2006 WI App 112, ¶23, 293
Wis. 2d 781, 718 N.W.2d 184. Whether the circuit court has applied the correct
legal standard is a question of law that we review de novo. Landwehr, 291
Wis. 2d 49, ¶8. In addition, a court’s findings of fact will not be set aside unless
they are clearly erroneous, and we give due regard to the court’s opportunity to
judge the witnesses’ credibility. WIS. STAT. § 805.17(2). If a court does not fully
explain its reasoning, we may nevertheless “examine the record to determine
whether the facts support the trial court’s decision.” Earl v. Gulf & W. Mfg. Co.,
123 Wis. 2d 200, 205, 366 N.W.2d 160 (Ct. App. 1985).

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I. The circuit court’s modification of legal custody and physical placement

¶12 Benner argues that the circuit court improperly modified the 2017
order under the standards set forth in WIS. STAT. § 767.451(1)(b). She contends
that the court erred in awarding Geigle sole legal custody because the court placed
too much weight on her reports of abuse and her lack of cooperation with Geigle
without: (1) crediting her beneficial impact on Gabe’s education and
development; and (2) considering Geigle’s lack of cooperation with her. Benner
also contends that the court failed to apply the rebuttable presumption under
§ 767.451(1)(b)2.b. that physical placement with her was in Gabe’s best interest.3

A. Modification of legal custody

¶13 A court may modify a legal custody order after two years
if: (1) there has been a substantial change of circumstances since the entry of the
last order affecting legal custody; and (2) the modification is in the best interest of
the child. WIS. STAT. § 767.451(1)(b)1. In determining whether modification is in
the best interest of the child, the court must consider the factors set forth in WIS.
STAT. § 767.41(5)(am). Sikraji v. Sikraji, 2014 WI App 113, ¶24, 358 Wis. 2d
639, 856 N.W.2d 617. There is a rebuttable presumption that continuing the

3
Benner argues for the first time in her reply brief that the circuit court’s decision to
change primary placement and legal custody was “contrary to the great weight of the evidence
and the child’s best interests.” Specifically, she contends that “the court’s findings regarding
[Benner’s] alleged harm to [Gabe] were against the great weight of the evidence[] and … were
insufficient to support the court’s determination that changing primary placement and joint legal
custody was in [Gabe’s] best interest ….” We refuse to consider these arguments because a party
cannot raise an issue for the first time in a reply brief. See A.O. Smith Corp. v. Allstate Ins. Cos.,
222 Wis. 2d 475, 492, 588 N.W.2d 285 (Ct. App. 1998). Benner did not challenge the
sufficiency of the evidence supporting the court’s factual findings in her brief-in-chief; therefore,
we limit our discussion to those arguments advanced in Benner’s brief-in-chief.

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current allocation of decision making under a legal custody order is in the best
interest of the child. Sec. 767.451(1)(b)2.a.

¶14 The circuit court found that both parties stipulated to there being a
“material change in circumstances … since the 2017 order.” The court also found
that there was “a factual basis for the stipulation considering the deterioration of
communication between the parents, the worsening conflict, and the frequent
involvement of child protective services.” Benner does not dispute these findings
on appeal, and we therefore do not address them further.

¶15 Benner does argue, however, that the circuit court erred by awarding
Geigle sole legal custody because Benner “was found to make better decisions for
their child with special needs.” She also contends that the court failed to consider
whether Geigle’s actions were unreasonable. She asserts that the court should
have given more consideration to each party’s ability to make decisions for Gabe
than the parties’ unreasonable lack of cooperation. Benner argues that the court
committed reversible error by failing to consider Geigle’s unreasonable lack of
cooperation and by failing to consider her superior capacity to understand Gabe’s
needs and to make decisions on Gabe’s behalf.

¶16 Contrary to Benner’s arguments, the circuit court did not find that
she had a superior capacity to understand Gabe’s needs and that she made “better”
decisions than Geigle regarding Gabe’s education and health care. The court did
find that “Benner’s educational interactions have been more consistent and robust
than Mr. Geigle’s [involvement]” and that “Benner has more insight into [Gabe’s]
educational needs than Mr. Geigle.” The court also found, however, that both
parents have admirable qualities as parents and both spend quality time with Gabe.
The court further found that “[b]oth parents support [Gabe’s] educational needs,

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and they spend quality time reading and working on his school assignments.” In
short, while the court was complimentary to Benner’s parenting, it did not find
that Benner had “superior decision-making” abilities, that she had a better
understanding of Gabe’s needs, or that she was more capable of following through
with parental responsibilities. That may be Benner’s view of the evidence, but the
court did not make those findings.4

¶17 In addition, although Benner criticizes the circuit court for not
considering Geigle’s lack of cooperation with her, the court’s decision shows that
it properly considered both parties’ levels of cooperation. In fact, the court
expressly considered the “[c]ooperation and communication between the parties
and whether either party unreasonably refuse[d] to cooperate or communicate with
the other party.” See WIS. STAT. § 767.41(5)(am)10. The court recognized that
both parties share in the blame for their breakdown in communication, but the
court noted that “[f]ar and above the[ir] petty squabbles are the allegations of
abuse.” The court found that Benner “remains fixated on proving Mr. Geigle is an
abuser” even though all of her allegations were unsubstantiated. The court
believed that Benner’s allegations had tainted nearly every interaction between the
parties.

¶18 Despite explicitly considering Geigle’s cooperation with Benner and
whether the parties unreasonably refused to cooperate with each other, the circuit

4
To the extent Benner argues that the circuit court was required to determine exactly
which parent made “better” decisions, we disagree. A court’s best-interest analysis is guided by
WIS. STAT. § 767.41(5)(am), which does not require a specific determination of who makes
“better” decisions. Although a court could certainly consider that assessment in its analysis,
§ 767.41(5)(am) does not require it to do so. Again, the court in this case discussed all of the
factors under § 767.41(5)(am), and its findings support a conclusion that Geigle is a capable
parent.

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court did not find that Geigle unreasonably refused to cooperate with Benner.
That determination is supported by the record. Geigle testified that he
communicates with Benner when Gabe is injured, that he supports Gabe’s
relationship with Benner, that he always prepares Gabe to go with Benner at the
end of Geigle’s placement, that he tried to communicate with Benner using the
Our Family Wizard application despite her refusal to do the same, and that he
cooperated with law enforcement and social services investigations. As Geigle
correctly observes, appellate courts review findings of fact by searching the record
for evidence to support the circuit court’s findings, not for evidence to support
findings the court could have made but did not. See Noble v. Noble, 2005 WI App
227, ¶15, 287 Wis. 2d 699, 706 N.W.2d 166. Accordingly, we need not consider
whether there was evidence that would have permitted the court to find that Geigle
unreasonably refused to cooperate.

¶19 Furthermore, the circuit court reached a reasonable conclusion when
it found that a change of legal custody was in Gabe’s best interest and that Geigle
had rebutted the presumption of continued joint legal custody. As mentioned
earlier, the court found that Benner unreasonably refused to cooperate with Geigle.
In particular, the court found that Benner refused to communicate using the Our
Family Wizard application; that she excluded Geigle from decisions regarding
Gabe’s education, medical care, and dental care; and that she had committed
herself to proving that Geigle had physically and sexually abused Gabe.

¶20 All of these findings are supported by the record. Benner admitted
that she refused to communicate with Geigle through the Our Family Wizard
application, despite a court order directing her to do so. In addition, Geigle
testified that Benner removed Gabe from school, without Geigle’s permission or
knowledge, to take Gabe on out-of-state vacations to Washington, D.C., and

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Idaho. Geigle also testified that Benner did not inform him or obtain his consent
before taking Gabe to see a new therapist at the University of Minnesota or before
taking Gabe to a new dentist. Moreover, Dr. Babbitt testified that he believed
Benner “would continue to try to find a way to find [Geigle] somehow to be an
abusive parent.”

¶21 Based on all of these facts, the circuit court could rationally find that
Benner unreasonably refused to cooperate with Geigle to parent Gabe. Under
WIS. STAT. § 767.41(2)(c), a court cannot award sole legal custody “to a parent
who refuses to cooperate with the other parent if the court finds that the refusal to
cooperate is unreasonable.” Thus, the court could not grant Benner’s request for
sole legal custody. The court could also reasonably conclude that Benner’s
repeated refusal to cooperate with Geigle was contrary to Gabe’s best interest
under § 767.41(5)(am)10. and that Geigle rebutted the presumption under WIS.
STAT. § 767.451(1)(b)2.a.

¶22 Finally, Benner argues that WIS. STAT. § 767.41(6)(b) supports the
proposition that a circuit court can award joint legal custody where parental
conflict can be addressed by granting one parent sole authority to make specified
decisions, such as education and health care decisions. She appears to contend
that the court should have awarded her sole power to make education and health
care decisions for Gabe instead of awarding Geigle sole legal custody.

¶23 Benner’s arguments are unpersuasive. WISCONSIN STAT.
§ 767.41(6)(b) provides that “in making an order of joint legal custody, the court
may give one party sole power to make specified decisions, while both parties
retain equal rights and responsibilities for other decisions.” Although a court
could find that giving sole power to make specified decisions to one parent might

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be in the best interest of the child, Benner has not identified any legal authority
that requires a court to consider such an option before awarding sole legal custody
to a parent. Moreover, the word “may” in § 767.41(6)(b) plainly communicates
that a court has discretion in awarding sole power to make specified decisions.

¶24 In sum, the circuit court did not erroneously exercise its discretion
by modifying the 2017 order to award Geigle sole legal custody.

B. Modification of physical placement

¶25 Benner next argues that the circuit court failed to apply the
rebuttable presumption that maintaining Gabe’s primary physical placement with
her was in Gabe’s best interest, pursuant to WIS. STAT. § 767.451(1)(b)2.b. She
contends that the presumption requires that Gabe continue to reside primarily with
her because under the 2017 order, Gabe resided with her for more time than
Geigle, which she calculates to have been roughly 61.5% of each year. Benner
asserts that the court’s failure to apply the presumption is reversible error alone.
She further argues, however, that there was no evidence to rebut the presumption.

¶26 In response, Geigle appears to argue that the circuit court did not err
by failing to apply the presumption set forth in WIS. STAT. § 767.451(1)(b)2.b.
because the court’s physical placement decision was instead governed by
§ 767.451(2)(a).5 Based on subsec. (2)(a), Geigle seems to contend that the court

5
WISCONSIN STAT. § 767.451(2)(a) applies when the parties have substantially equal
periods of physical placement and circumstances make it impractical for the parties to continue to
have substantially equal physical placement. If those criteria are met, a court may modify
physical placement “if it is in the best interest of the child.” Id. Subsection (2)(a) does not
impose a presumption that having substantially equal periods of physical placement is in the best
interest of the child.

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did not need to apply a presumption that continued placement under the 2017
order was in Gabe’s best interest. In the alternative, Geigle argues that the court’s
decision reflects that it considered the rebuttable presumption when determining
legal custody and that the evidence was sufficient to rebut any presumption
regarding physical placement.

¶27 For our purposes, we will assume, without deciding, that the circuit
court’s decision to modify physical placement was governed by WIS. STAT.
§ 767.451(1)(b) because, ultimately, the application of the rebuttable presumption
under § 767.451(1)(b)2.b. does not alter the outcome of this appeal.6 Under
§ 767.451(1)(b)1., a court may modify a physical placement order after two years
if: (1) there has been a substantial change of circumstances since the entry of the
last order affecting physical placement; and (2) the modification is in the best
interest of the child. Again, the court must consider the factors under WIS. STAT.
§ 767.41(5)(am) to determine the child’s best interest. Sikraji, 358 Wis. 2d 639,
¶24. In addition, as indicated above, there is a rebuttable presumption that
“[c]ontinuing the child’s physical placement with the parent with whom the child

6
For WIS. STAT. § 767.451(2)(a) to apply, the parties must have had “substantially equal
periods of physical placement.” Neither party, however, has explained the meaning of
“substantially equal periods of physical placement” or adequately discussed whether their roughly
60/40 physical placement schedule during the year met that statutory standard. Because neither
party has developed a statutory interpretation argument regarding § 767.451(2)(a) and because it
ultimately does not affect the outcome of this appeal, we will assume, without deciding, that
subsec. (2)(a) does not apply.

We do note, however, that the 2017 order reflects that the circuit court found “shared and
equal placement is necessary” and that “the shared and equal placement schedule …
accomplishes the objectives of the statute and is in [Gabe’s] best interest.” The court awarded
“shared placement” in 2017. In its 2020 order modifying placement, the court similarly stated
that it had previously “ordered shared physical placement, with each parent having equal
parenting time.”

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resides for the greater period of time is in the best interest of the child.”
Sec. 767.451(1)(b)2.b.

¶28 Although the circuit court did not explicitly acknowledge the
rebuttable presumption in WIS. STAT. § 767.451(1)(b)2.b. in its decision, the
absence of such a statement is not, as Benner contends, reversible error alone.
Rather, we may examine the record to determine whether the court’s findings
nevertheless support its decision to modify physical placement. See Earl, 123
Wis. 2d at 205; see also Andrew J. N. v. Wendy L. D., 174 Wis. 2d 745, 767, 498
N.W.2d 235 (1993) (“[W]e will not reverse if facts of record applied to the proper
legal standard support the [circuit] court’s conclusion.”). Here, the court’s
findings of fact demonstrate that modification of physical placement was in
Gabe’s best interest despite the presumption stated in § 767.451(1)(b)2.b.

¶29 The circuit court carefully considered all of the factors under WIS.
STAT. § 767.41(5)(am), often making numerous findings with respect to each
factor. Again, the court found that both parties spent quality time with Gabe and
supported his educational and recreational needs. The court also found both
parties to have admirable qualities as parents. Benner correctly observes that the
court found a lot of positives in Gabe’s placement with Benner under the 2017
order, including: (1) Benner’s availability during non-school hours; (2) Benner’s
insight and participation in Gabe’s education; (3) Benner’s home environment on
a farm, where Gabe could ride his dirt bike and care for animals; and (4) Gabe’s
positive adjustment to his school and teachers in Minnesota. Nonetheless, the
court also recognized numerous instances in which Benner’s behavior had harmed
Gabe.

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¶30 The circuit court’s concern regarding Benner’s harmful behavior
was a reoccurring theme throughout its decision. In particular, the court credited
Dr. Babbitt’s testimony that Benner had attempted to condition Gabe into disliking
Geigle, that she subjected Gabe to frequent interviews in hopes of collecting
evidence against Geigle, and that she coached Gabe about what to say during his
interviews. The court found “[t]his behavior [to be] unhealthy, harmful, and
contrary to [Gabe’s] best interests.” The court further recognized,

[Gabe] knows that his mother is accusing his father of
serious wrongdoing. On some level, [Gabe] knows the
accusations are untrue, but [Gabe] feels pressured to say
things to please his mother and satisfy her beliefs that
Mr. Geigle is an abuser. This causes [Gabe] emotional
conflict, distress and anxiety. Ms. Green and other
professionals question whether [Gabe] recognizes the
difference between reality and Ms. Benner’s opinion of
Mr. Geigle. This is unhealthy for [Gabe] because it
contaminates his memories and perception of reality, which
is contrary to his best interests. Ms. Benner’s placement
time needs to be significantly restricted to avoid continued
harm to [Gabe].

(Emphasis added.)

¶31 The circuit court also discussed an instance in which Benner
engaged in domestic abuse in front of Gabe by striking Geigle six to eight times
and breaking Geigle’s phone and television. The court found that Gabe stood
between his parents during this altercation and “was traumatized.” Finally, the
court expressed concern that Benner had “no insight about how her behavior
harms [Gabe], and therefore, she will likely continue it.” Contrary to Benner’s
assertions, such conduct does relate to her quality of caring for Gabe. The court
acknowledged that Geigle had “his own shortcomings as a parent, but none of
them remotely approach Ms. Benner’s behavior and none of them have caused
[Gabe] harm.”

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¶32 Benner contends—without any support—that the circuit court “did
not consider the harm of removing [Gabe] from [Benner’s] home.” Although the
court did not expressly comment on how Gabe might be harmed as a result of
having less physical placement with Benner, we reject Benner’s proposition that
the court did not consider how modification to physical placement might affect
Gabe. As we discussed earlier, the court expressly acknowledged the benefits of
Benner having physical placement of Gabe and her admirable qualities as a parent.
At a minimum, the court would have recognized that Gabe would not have the
same benefit of Benner’s placement if physical placement were modified.

¶33 Furthermore, the circuit court’s decision reflects that Benner’s
harmful behavior outweighed any harm that might have resulted from modifying
physical placement. The court recognized that Gabe’s “best interests are fulfilled
in a stable and predictable environment.” The court also recognized, however,
that Gabe was not receiving the predictability and stability he needed because
Benner’s “repeated allegations of abuse [had] interrupted quality placement.”
Based on the court’s concern that Benner’s behavior would continue, the court
believed that Benner’s placement time needed “to be significantly restricted to
avoid continued harm to [Gabe].”

¶34 In light of the circuit court’s findings that Benner’s behavior would
continue to harm Gabe, the court was not required to maintain the status quo and
allow further harm to Gabe. The court reached a reasonable conclusion that
Gabe’s best interest required significantly reducing Benner’s physical placement,
even when considering the presumption in WIS. STAT. § 767.451(1)(b)2.b. that
Benner’s existing level of physical placement was in Gabe’s best interest.
Accordingly, the court did not erroneously exercise its discretion by modifying the
2017 order and awarding Geigle primary physical placement.

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¶35 Having rejected Benner’s general argument that the circuit court
erred in its decision to modify the legal custody and physical placement order, we
now consider Benner’s remaining and more particular arguments.

II. The circuit court’s consideration of Benner’s harmful behavior and of the
potential harm in modifying Benner’s legal custody and physical placement

¶36 Benner argues that the circuit court’s best interest analysis
improperly considered the conflict between the parties as more significant than
Gabe’s daily needs and care.7 She contends that “[t]he statutory presumption[s]
alert[] courts to the importance of consistency for a child and the trauma that can
occur when a dramatic change happens.” Benner again asserts that the court failed
to consider how Gabe might be harmed by a reduction in Benner’s placement.

¶37 Benner’s arguments are misplaced. Although the circuit court did
consider the conflict between the parties and Benner’s unreasonable refusal to
cooperate, the court also expressed serious concerns regarding how Benner’s
behavior has harmed, and would likely continue to harm Gabe. The court properly
considered each of the factors under WIS. STAT. § 767.41(5)(am), including
Gabe’s development and educational needs, as well as factors bearing on the
parties’ fitness as parents. As discussed earlier, the court did not find that Benner
made better decisions for Gabe’s educational and health care needs, nor did it find
that Geigle could not properly care for Gabe. The court also recognized Benner’s

7
Benner’s arguments appear to challenge the modification of both legal custody and
physical placement, but they are, at times, unclear in that regard. We recognize that some of her
arguments under this section may be more relevant to legal custody or physical placement and
could therefore be addressed earlier in this opinion. In the interest of completeness, we will
nevertheless construe her arguments discussed in this section as challenging both, at least to the
extent that is Benner’s intent.

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positive qualities as a parent, and it would have been well aware of the obvious
reality that Gabe would not benefit as much from Benner’s positive qualities if the
court awarded Geigle sole legal custody and primary physical placement.
Nevertheless, given the other evidence presented, the court could reasonably
conclude that Benner’s custody and placement needed to be limited in order to
prevent further harm to Gabe.

¶38 Benner also contends that Andrew J. N. is instructive and shows that
the harm of separating a child from the child’s mother might be greater than any
harm associated with a mother interfering with the child’s relationship with the
father. In Andrew J. N., our supreme court reviewed a circuit court’s decision to
modify a less-than-two-year-old custody and placement order. Andrew J. N., 174
Wis. 2d at 755-58. The court’s decision was governed by WIS. STAT.
§ 767.325(1)(a) (1991-92), which required “substantial evidence that the
modification is necessary because the current custodial conditions are physically
or emotionally harmful to the best interest of the child ….” Andrew J. N., 174
Wis. 2d at 760 (emphases added). In considering this standard, the supreme court
recognized that “substantial evidence” means “considerable in amount” and that
“[t]he ‘necessary’ standard requires more than a showing that the proposed
modification is in the child’s best interest.” Id. at 760-61 (citation omitted). The
court concluded “[t]here are no facts of record which provide a reasonable basis
for the [circuit] court to conclude that modification was ‘necessary.’” Id. at 768.

¶39 We disagree with Benner’s argument that Andrew J. N. is
instructive. Modification in that case required “substantial evidence” that
modification was “necessary”—standards that were inapplicable to the circuit
court’s decision here. See id. at 760; see also WIS. STAT. § 767.451(1)(b).
Moreover, the Andrew J. N. court expressed concern regarding the lack of

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evidence showing harm to the child in that case. Andrew J. N., 174 Wis. 2d at
768-69. Specifically, the court noted that “denying a child the right to visit a
parent may be emotionally harmful to that child” and that “[t]he expert’s opinion
that [the mother’s] dysfunction ‘could’ cause emotional harm to [the child],
although relevant to the best interests standard, is much too speculative to assist
the [circuit] court in determining whether modification is ‘necessary.’” Id. Here,
the court found that Benner’s behavior had caused harm to Gabe and that such
harm was likely to continue due to Benner’s inability to appreciate how her
behavior harmed Gabe. Andrew J. N. therefore does not benefit our analysis.

¶40 Benner next argues that the circuit court ignored unrebutted expert
testimony that the quality of parenting is the best predictor of a child’s success.
Benner highlights Dr. Champion’s testimony that the quality of the parents’
relationship never exceeds “the contributions of the individual parenting
characteristics.” She again contends that the court improperly considered her
conflict with Geigle as more important than the quality of each party’s parenting.

¶41 Benner’s argument again fails to appreciate the circuit court’s main
reasoning for awarding Geigle sole legal custody and primary physical placement.
The court was not exclusively concerned with the parties’ conflict with each other.
Rather, the court’s biggest concern was with how Benner’s behavior caused—and
was likely to continue to cause—harm to Gabe. Specifically, the court was
concerned that Benner conditioned Gabe into disliking Geigle; that she had
exaggerated and misrepresented Gabe’s statements; that she might be
contaminating Gabe’s memory; that she engaged in domestic abuse that
traumatized Gabe; and that she had “interfered with Mr. Geigle’s placement,
communication, and relationship with [Gabe].”

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¶42 Even if the circuit court had accepted Dr. Champion’s testimony that
the quality of parenting is the best predictor of a child’s success, the court was not
required to reach a different conclusion in this case because Benner’s harmful
behavior is not indicative of quality parenting. The court could reasonably find, as
it did, that Gabe’s best interest required that Benner’s custody and placement be
limited.

III. The circuit court’s reliance on Dr. Babbitt’s custody study

¶43 Benner also argues that the circuit court erroneously relied on
Dr. Babbitt’s custody study. She first contends that Babbitt improperly filed his
study on the same day he testified, which she contends violated the timing
requirements in WIS. STAT. § 767.405(14)(b)1. In response, Geigle asserts that
Benner “waived” any argument regarding the court’s reliance on Babbitt’s study
by failing to object to the admission of Babbitt’s report. He further contends that
§ 767.405(14) does not apply because the court did not order Babbitt to complete a
custody study; rather, Gabe’s GAL requested the study.

¶44 Benner does not respond to Geigle’s argument that she “waived” any
argument regarding Dr. Babbitt’s custody study, and we therefore deem that
argument conceded. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp.,
90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (unrefuted arguments may
be deemed conceded). In any event, Benner did not object to the admission of
Babbitt’s report at the hearing, and she therefore has forfeited any argument
regarding the circuit court’s consideration of the study. See Holmes v. State, 76
Wis. 2d 259, 272, 251 N.W.2d 56 (1977) (“[A]n objection must be made as soon
as the opponent might reasonably be aware of the objectionable nature of the
testimony. Failure to object results in a [forfeiture] of any contest to that

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evidence.” (citations omitted)); see also State v. Ndina, 2009 WI 21, ¶29, 315
Wis. 2d 653, 761 N.W.2d 612 (clarifying that forfeiture is the failure to make the
timely assertion of a right and waiver is the intentional relinquishment or
abandonment of a known right). Furthermore, the timing requirements under WIS.
STAT. § 767.405(14)(b)1. do not apply here because, as Babbitt testified, the GAL
retained him to complete the study, not the court.

¶45 Alternatively, Benner argues that Dr. Babbitt’s report and testimony
were flawed and incredible—apparently, as a matter of law—in light of
Dr. Champion’s report and testimony. Among other things, Benner emphasizes
Champion’s conclusions that Babbitt reached new and conflicting psychological
conclusions without any objective testing, that his evaluation of Geigle’s
intelligence was unsupported by any objective data, and that his testing did not
comport with the current standard of empirical support required in high-stakes
forensic evaluations.

¶46 Contrary to Benner’s arguments, the circuit court did not err in
relying on Dr. Babbitt’s testimony. The court, sitting as the trier of fact in a
custody dispute, had the responsibility of considering the credibility of the
witnesses; “weigh[ing] the evidence, including expert testimony[;] and resolv[ing]
conflicts in the evidence.” See Hughes, 223 Wis. 2d at 128. The court did
precisely that, stating:

Dr. Champion believes there are flaws and irregularities in
Dr. Babbitt’s work, and because of them, Ms. Benner asks
the Court to completely disregard Dr. Babbitt’s opinions.
The Court is disinclined to do so. Expert witnesses
commonly find flaws in their opponent’s work, and
Dr. Champion brought her considerable expertise to bear in
such an endeavor. But none of Dr. Champion’s criticisms
persuaded the Court that Dr. Babbitt’s opinions were
invalid or should be disregarded. In the absence of an

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alternative opinion, against which to weigh Dr. Babbitt’s
opinion, Dr. Champion’s criticisms were not helpful.

¶47 The circuit court further explained that it was only concerned with
Benner’s behavior, not with Dr. Babbitt’s diagnosis or explanation for that
behavior:

Dr. Babbitt offered a psychological explanation for
Ms. Benner’s behavior, an explanation that stirred great
controversy during the trial. The reason behind
Ms. Benner’s behavior is of little concern to this Court.
What is the Court’s concern is the fact that Ms. Benner’s
behavior is harmful to [Gabe], and [Gabe’s] best interests
will be fulfilled if Ms. Benner’s placement time is limited.

(Emphasis added.) The court’s comments reflect that it thoughtfully weighed
Babbitt’s testimony and opinions and then resolved disputes between his
testimony and Champion’s testimony. Our role is not to second-guess a circuit
court’s role in this regard. The court did not err in considering Babbitt’s
testimony.

IV. The circuit court’s consideration of Benner’s reports of child abuse

¶48 Finally, Benner argues that the circuit court erred by denying her
motion in limine, which sought to prohibit evidence identifying the persons
reporting Gabe as a potential victim of child abuse. Specifically, she contends that
WIS. STAT. § 48.981(7) prohibited the disclosure of information identifying her as
a reporter. In the alternative, she argues § 48.981(4) creates a presumption that
her reports were made in good faith and that the court failed to apply the
presumption when considering her reports. She also contends the court
erroneously treated unsubstantiated reports as false reports.

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¶49 In response, Geigle argues that WIS. STAT. § 48.981(7) does not
apply because Benner’s reports were made in Minnesota rather than Wisconsin.
He further contends that even if WIS. STAT. ch. 48 did apply, the circuit court did
not violate § 48.981(7) because it was common knowledge throughout the
proceedings that Benner made numerous reports of child abuse.

¶50 We review a circuit court’s decision to admit evidence for an
erroneous exercise of discretion. Martindale v. Ripp, 2001 WI 113, ¶28, 246
Wis. 2d 67, 629 N.W.2d 698. However, the interpretation and application of a
statute are questions of law we review de novo. 118th St. Kenosha, LLC v. DOT,
2014 WI 125, ¶19, 359 Wis. 2d 30, 856 N.W.2d 486.

¶51 “WISCONSIN STAT. § 48.981 provides the procedure for making
reports and investigating claims of suspected child abuse or neglect.” D.B. v.
County of Green Lake, 2016 WI App 33, ¶22, 368 Wis. 2d 282, 879 N.W.2d 131.
As relevant to this appeal, § 48.981(7)(a) provides that “[a]ll reports made under
this section, notices provided under sub. (3)(bm) and records maintained by an
agency and other persons, officials and institutions shall be confidential. Reports
and records may be disclosed only to the … persons [enumerated under
§ 48.981(7)(a)1.-17.]” In the context of a child custody proceeding under WIS.
STAT. § 767.451, the statute provides that “either parent of a child may authorize
the disclosure of a record for use in [the proceeding] … when the child has been
the subject of a report. Any information that would identify a reporter shall be
deleted before disclosure of a record under this paragraph.” Sec. 48.981(7)(b). In
addition, § 48.981(4) provides that “[f]or the purpose of any proceeding, civil or
criminal, the good faith of any person reporting under [§ 48.981] shall be
presumed.”

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¶52 Even if we were to assume, as Benner argues, that WIS. STAT. ch. 48
applies to the circumstances at hand, the plain language of WIS. STAT. § 48.981(7)
did not require—under the circumstances of this case—that the circuit court
exclude evidence of Benner’s reports of suspected child abuse. Subsection (7)(b)
specifically permitted Geigle or Benner to authorize the disclosure of reports of
child abuse involving Gabe for use in these proceedings. In addition, although
subsec. (7)(b) requires that any identifying information of a reporter be deleted,
Benner’s identity as a reporter was not “confidential” long before she filed her
motion in limine, which was filed only one business day before the trial began. As
Geigle aptly observes, Benner’s identity as a reporter was “common knowledge.”

¶53 Indeed, in July 2019, Geigle filed an affidavit asserting that Benner
had “made multiple false allegations against [him] to law enforcement, social
workers and others. All of her claims have been unsubstantiated.” Benner, in
turn, filed her own affidavit admitting that she had filed multiple reports: “My
reports are not ‘allegations.’ I am truthfully reporting what [Gabe] has told me.”
Benner then proceeded to identify several of the allegations that she had in fact
reported, which need not be repeated here. Benner also stated that others had filed
reports, including Gabe’s teachers and a therapist—identifying the therapist
specifically by name.

¶54 Whether the initial disclosure of Benner’s identity as a reporter of
child abuse violated WIS. STAT. § 48.981(7)—whenever that may have occurred
and whoever may have done so—is not at issue in this appeal. What is at issue is
whether the circuit court erroneously exercised its discretion by denying Benner’s
motion to exclude evidence “disclosing the identity of the reporter” even after the

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parties and the court knew Benner to be a reporter, and after that fact became a
relevant, substantive issue in these WIS. STAT. ch. 767 proceedings.8 Because
§ 48.981(7)(b) allowed Geigle or Benner to authorize the disclosure of child abuse
reports involving Gabe in these proceedings and because Benner herself
acknowledged to the court that she had reported Geigle multiple times for possible
child abuse, we conclude the court did not erroneously exercise its discretion by
allowing Geigle to present evidence of Benner’s numerous reports.

¶55 In addition, the circuit court did not conclude that Benner’s
unsubstantiated reports were false. In fact, the court left open the possibility of the
reports being true while recognizing that “[c]redible evidence suggests that either
Ms. Benner has jumped to conclusions from misinterpreted facts or that she has
outright misrepresented facts to concoct a false narrative about Mr. Geigle. In
either case, the parties cannot co-parent under the persistent cloud of unfounded
allegations of child abuse.” The court further acknowledged that despite the
numerous reports, “[n]one of the referrals, investigations, or interviews produced
evidence sufficient to substantiate the allegations of abuse or commence child
protection proceedings.” The court also noted that none of the trained
professionals “who spoke with [Gabe] found evidence to substantiate claims that
[he] has been abused.” In sum, the court did not find that Benner’s reports of
abuse were false, but it recognized that “the evidence she presented fell well short”
of showing that Geigle had abused Gabe. It was well within the court’s province
to reach these conclusions under the circumstances.

8
We note that Matthew Stephenson, a child protection investigator with Washington
County Community Services in Minnesota, did not identify any reporter other than Benner in his
testimony. In fact, he redacted information of those mandatory reporters from the relevant
documents and expressly refused to provide “the name of the reporter if it’s a mandated reporter.”

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¶56 The circuit court’s decision also reflects that the evidence rebutted
any presumption of good faith reporting under WIS. STAT. § 48.981(4). The court
gave Benner the benefit of the doubt by declining to find that she outright
misrepresented facts. The court nevertheless found Benner’s conduct to be
severely misguided, especially in light of Gabe’s best interest. Again, the court
found that none of Benner’s numerous reports were substantiated, none of the
trained professionals found evidence to substantiate Benner’s claims, and the
evidence Benner presented at the hearings “fell well short” of proving that Geigle
had abused Gabe. The court also found that Benner told Geigle on more than one
occasion that “she wants to minimize his time with [Gabe] and that she will
outspend him in court to achieve her goal.” Significantly, the court also
“question[ed] the veracity of Ms. Benner’s accusations of abuse” because her
proposed placement would have still allowed Geigle to have physical placement of
Gabe on the weekends throughout the year. Based on all of these findings—
coupled with the court’s findings that Benner unreasonably refused to cooperate
with Geigle—the court could reasonably determine that Benner did not act in good
faith when filing numerous, unsubstantiated reports of child abuse.

¶57 Benner further contends, relying on WIS. STAT. § 48.981(4), that as a
good faith reporter she has “immunity from any liability, civil or criminal ….”
She argues that one could reasonably conclude that immunity from “liability”
includes protection against “losing primary placement of your child and having
your contact severely limited.” In essence, she contends that the circuit court
could not consider her reports of child abuse as a factor in deciding whether to
modify the 2017 order.

¶58 Even if we were to conclude that the presumption of good faith had
not been rebutted in this case, we disagree that losing placement and custody of a

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child constitutes “liability,” as that term is used in WIS. STAT. § 48.981(4).
Section 48.981(4)(a)1. provides that any person who participated “in the making
of a report” “in good faith in connection with a report under this section has
immunity from any liability, civil or criminal ….” Although “liability” is not
specifically defined, § 48.981(4) plainly does not apply to the present
circumstances. See State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58,
¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (“[S]tatutory interpretation ‘begins with
the language of the statute. If the meaning of the statute is plain, we ordinarily
stop the inquiry.’” (citation omitted)). “Liability” is generally defined as “[t]he
quality, state, or condition of being legally obligated or accountable; legal
responsibility to another or to society, enforceable by civil remedy or criminal
punishment.” Liability, BLACK’S LAW DICTIONARY (11th ed. 2019).

¶59 An order reducing a party’s custody or placement does not impose
civil or criminal “liability” because it does not impose legal responsibility or hold
that party legally accountable. See id. Moreover, a court’s decision to modify a
custody or placement order is guided by its analysis of the child’s best interest, not
an analysis of whether one parent should be held legally responsible or
accountable for his or her conduct. See, e.g., WIS. STAT. § 767.451(1)(b). The
circuit court could therefore determine that despite Benner making reports in good
faith, her conduct was nevertheless harmful to Gabe and his best interests were
served by awarding Geigle sole legal custody and primary physical placement.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

27