¶ 47. (dissenting). I agree with the lead opinion that the trial court erred in concluding that there had not been a substantial change in circumstances since the initial custody and placement determinations in this paternity action. The lead opinion concludes that this error was harmless, which perhaps it was, because the trial court ostensibly went on to consider whether modifications to the existing order would be in the child's best interest. I do not agree, however, with the lead opinion's conclusion that the trial court applied the proper standard of law in determining that it would not be in the child's best interest to modify the existing allocation of custody and placement.
¶ 48. Rather, I conclude the trial court erred in giving no consideration whatsoever to the legislatively mandated presumption "that joint legal custody is in the best interest of the child," Wis. Stat. § 767.24(2)(am) (2001-02),1 or to the legislature's direction "to set a placement schedule that maximizes the amount of time the child may spend with each parent," § 767.24(4)(a)2.1 would reverse the appealed order and remand to allow the trial court to consider whether, under the applicable statutes, correctly interpreted, joint custody should be ordered and the present physical placement schedule modified. Accordingly, I respectfully dissent.
¶ 49. There can be no question that the trial court felt constrained to apply the "continuity presumptions," Wis. Stat. § 767.325(1)(b)2, and only those presumptions, in determining whether the modifications sought by Palmersheim were in the best interest of the child. *339The trial court's comments strongly suggest that, had it not believed itself to be so constrained, it might have ordered modifications to the existing custody and placement arrangements:
The Court has to follow the statute.... It's not what I want to do; it's what I have to do. I've got to follow the statute. The statute is telling me there's a rebuttable presumption that continuing the current allocation of decisionmaking is in the best interests of the child, and I can't find sufficient evidence in this record to overcome that presumption.
Let's go to the next part of it. Continuing the child's physical placement with the parent with whom the child resides for the greater period of time is in the best interests of the child. And in order to get that change, you've got to have that substantial change in circumstances.
... I respect the guardian ad litem's recommendation, and I respect the recommendation of the social worker.2 I've got to follow the statute, and I'm not sure the statute — I'm not satisfied from the evidence that there's a substantial change in circumstances which allow me to make the modifications that I think are probably appropriate .... In fact, as I was considering this, I thought about expanding the, the visitation, but as I read this statute, I can't do that unless I am satisfied that there's been a substantial change in circumstances. So in essence, it's ... almost easier in an initial finding when the parties first come before the Court to have the Court make types of findings that would allow for visitation that the Court believes are *340appropriate. But I think that given the statute the way it is, I. . . don't think I can do it....
I understand Mr. Palmersheim's wanting to have joint custody and wanting to have extended periods of physical placement, but I don't think I can do it under the statute. I think that Mr. Palmersheim is well-motivated. I respect that. I think he's a good father.
¶ 50. The trial court's comments indicate that it may have intertwined its analysis of whether a change of circumstances had been demonstrated with its analysis of the best interest of the child in light of the continuity presumptions under Wis. Stat. § 767.325(l)(b)2. If that is the case, the court's error in finding no change in circumstances may not have been as harmless as the lead opinion concludes. Lead opinion at ¶ 15. Even though the trial court refers in the quoted portion of its ruling to a lack of changed circumstances, it was also clearly engaged in a determination of whether the continuity presumptions had been overcome. Had the trial court considered the legislative directives which favor joint legal custody and the maximization of placement time with each parent, Wis. Stat. § 767.24(2)(am) and (4)(a)2, as counterpoints to the continuity presumptions, as I conclude it was required to do, the trial court might well have granted modifications to the existing order.
¶ 51. When a trial court's discretionary determination rests on an erroneous view of the law, the court has erroneously exercised its discretion. See State v. Hutnik, 39 Wis. 2d 754, 763, 159 N.W.2d 733 (1968). I conclude that is what happened here.
¶ 52. Under the plain language of Wis. Stat. § 767.325(5m), which was enacted at the same time3 as *341the directives in favor of joint custody and maximization of placement time with each parent, "[i]n all actions to modify legal custody or physical placement orders, the court shall consider the factors under 767.24(5) and shall make its determination in a manner consistent with s. 767.24" (emphasis added). Legislative history provided to us by Palmersheim supports a conclusion that the legislature intended that courts consider its preferences for joint custody and maximization of placement time with each parent whenever a court makes custody and placement decisions. An earlier version of the legislative bill that ultimately became 1999 Wis. Act 9 provided in the newly created § 767.325(5m) that a court faced with a modification request must consider only the custody and placement factors listed in Wis. Stat. § 767.24(5). The provision was amended before final passage, however, to add the direction for courts to make the determination regarding modification "in a manner consistent with s. 767.24." The added language was apparently suggested to the drafting attorney by a member of the legislative lead author's staff, who explained in a memo to the drafter:
It appears that modifications to [the bill] suggested by the State Bar. . . would make the changes in the factors under s. 767.24(5) applicable to revisions of legal custody and physical placement orders. That memo, however, is silent with respect to the applicability of important changes to the language that are being made in s. 767.24(4)(a). The language below is intended to address this issue.
¶ 53. By relying on only the continuity presumptions of Wis. Stat. § 767.325(1) (b)2, the trial court failed to consider the possible countervailing effects of the express legislative directives favoring joint custody and *342maximization of placement time with each parent expressed in Wis. Stat. § 767.24(2)(am) and (4)(a)2. Thus, the trial court, in my view, violated the legislature's mandate in Wis. Stat. § 767.325C5m) that a court "shall make its determination in a manner consistent with s. 767.24" when considering whether to modify existing custody and placement orders under § 767.325.
¶ 54. The lead opinion justifies the trial court's failure to consider the effect of Wis. Stat. § 767.24(2) (am) and (4)(a)2 by concluding that certain provisions in § 767.24 apply only to initial custody and placement determinations but never to modification proceedings under Wis. Stat. § 767.325. Lead opinion at ¶ 24.4 It opines that applying the presumption under § 767.24(2) (am) in favor of joint custody to modification proceedings "would, in essence, eliminate the § 767.325(l)(b) presumption favoring the status quo." Id. But much the same can be said of the lead opinion's holding: it "in essence, eliminate[s]" the joint custody presumption of § 767.24(2)(am), the legislature's directive in § 767.24(4) (a)2 to maximize placement time with each parent, and the mandate of § 767.325(5m) that courts are to make modification determinations "in a manner consistent with s. 767.24."
¶ 55. In my view, the lead opinion has not sufficiently explained why we must conclude that the legislature meant what it said in Wis. Stat. § 767.325(1)(b)2 *343but not what it has more recently said in Wis. Stat. §§ 767.24(2)(am), 767.24(4)(a)2, and 767.325(5m). I am not persuaded that, in order to harmonize these statutes, we must necessarily ignore any of the legislature's directives. Rather, when we are "interpreting two statutes that are alleged to conflict, it is our duty to attempt to harmonize them in a way that will give effect to the legislature's intent in enacting both statutes." City of Madison v. DWD, 2003 WI 76, ¶ 11, 262 Wis. 2d 652, 664 N.W.2d 584.
¶ 56. One advantage of the lead opinion's interpretation, of course, is its simplicity. By permitting courts to simply ignore the express legislative directives in favor of joint custody and maximization of placement time with each parent expressed in Wis. Stat. § 767.24(2)(am) and (4)(a)2 when acting on modification requests, the lead opinion no doubt makes life a little easier for trial courts and much easier for parties seeking to maintain the status quo in sole-custody and substantially one-sided placement arrangements. Under what I believe to be the correct interpretation and application of the statutes, however, a party moving for modifications would be able to benefit from the legislative preferences expressed in § 767.24(2)(am) and (4)(a)2, while still shouldering significant burdens in seeking to disturb the status quo. Moreover, contrary to the lead opinion's suggestion, Lead opinion at ¶ 28, trial courts would not be without guidance in how to approach the modification determination.
¶ 57. First, if an existing order provides for joint custody and a placement schedule that arguably maximizes placement time with each parent, "taking into account geographic separation and accommodations for different households," Wis. Stat. § 767.24(4) (a)2, the party requesting changes would indeed swim upstream *344against a strong current of multiple legislative directives favoring the status quo. Moreover, even if the existing order provides for sole custody or a significantly one-sided placement schedule, but the order was entered at a time when the directives of the present § 767.24(2)(am) and (4)(a)2 were in effect, the moving party still has significant obstacles to overcome. He or she must show, as a threshold matter, that the circumstances that prompted the court to enter the original one-sided order, despite the legislative directives disfavoring it,5 have changed substantially. See Wis. Stat. § 767.325(l)(b)l.b.
¶ 58. It is only in the present circumstance that something approaching parity in the arguably dueling presumptions and directives occurs.6 The alleged con*345flict is not irreconcilable, however, as the lead opinion concludes. The legislature, by enacting Wis. Stat. § 767.325(5m), has expressed its intent that a parent who seeks modifications consistent with the presumption in Wis. Stat. § 767.24(2)(am) favoring joint custody, or with the directive in § 767.24(4)(a)2 for maximizing placement time with each parent, should have the benefit of the court's consideration of these legislative preferences in the modification proceedings.7 Again, the moving parent would still bear the burden of showing as a threshold matter that circumstances have changed since the initial custody and placement determinations. But, if a parent makes the required showing (which the lead opinion agrees Palmersheim has done, Lead opinion at ¶ 14), when deciding whether it is in the best interest of a child to modify an existing order for sole custody or substantially unequal placement, a court should consider the presumption of § 767.24(2)(am), the directive under § 767.24(4)(a)2, and the continuity presumptions under § 767.325(1)(b)2.
¶ 59. Although the competing presumptions may seem to point toward different outcomes in cases like *346this one, that will not necessarily be the case once the trial court has taken evidence and made its findings. See Wis. Stat. § 903.01 (providing that a "presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence"). For example, the presumption under Wis. Stat. § 767.24(2) (am) in favor of joint legal custody might be overcome by showing that "[o]ne party is .not capable of performing parental duties and responsibilities," or that "[t]he parties will not be able to cooperate in the future decision making required under an award of joint legal custody." Section 767.24(2) (b)2. The directive that "the amount of time the child may spend with each parent" should be maximized invites evidence relating to the "geographic separation and accommodations for different households" and whether more equalized sharing of placement would adversely affect the child's "physical, mental or emotional health." See § 767.24(4) (a)2 and (4)(b). The continuity presumptions of Wis. Stat. § 767.325(l)(b)2, on the other hand, seemingly call for evidence showing that the child would not be adversely affected by the proposed change, or perhaps that the benefits accruing to the child from a change would outweigh any benefits of maintaining existing custody and placement arrangements.
¶ 60. After hearing the evidence, the trial court should first make findings regarding whether any presumptions under Wis. Stat. § 767.325(1)(b)2 and Wis. Stat. § 767.24(2)(am) had been overcome, and whether the placement directive of § 767.24(4) (a)2 was shown to be infeasible or inadvisable. If the court concludes that the presumptions favoring the status quo are overcome and the competing presumption and directive are not, or vice versa, the outcome will be clear. If neither are overcome, however, leaving the § 767.325(1)(b)2 pre*347sumptions pointing toward maintaining the status quo and the § 767.24(2)(am) presumption or the § 767.24(4)(a)2 directive pointing toward modifications, the trial court's final task is to assess the strength of the competing legislative directives on the record before it, and ultimately, to determine which should receive the greater weight in the case at hand.
¶ 61. The weighing of competing goals and policy considerations is the essence of discretionary decision making. See, e.g., Connor v. Connor, 2001 WI 49, ¶ 27, 243 Wis. 2d 279, 627 N.W.2d 182 ("In its exercise of discretion, the court 'must attempt to strike the appropriate balance between the countervailing policy considerations that consistently pull at either end of the . . . spectrum.'"); State v. White, 2000 WI App 147, ¶ 4, 237 Wis. 2d 699, 615 N.W.2d 667 (concluding that trial courts "must exercise discretion on a case-by-case basis in order to balance and give effect to the [competing] goals"). That did not happen in this case because the trial court felt constrained by Wis. Stat. § 767.325(1)(b)2 to maintain the status quo. It thus gave no weight whatsoever to the express statutory preferences favoring joint custody and the maximization of placement time with each parent, which the legislature has determined to be in the best interests of children absent indications to the contrary. Because of this omission, which I conclude is contrary to the express mandate of § 767.325(5m), I would reverse and remand for further proceedings on Palmersheim's motion.
¶ 62. In sum, I conclude that the statutes under review indicate legislative preferences for certain outcomes which may or may not be in conflict in a given modification proceeding. Instead of simply ighoring pertinent legislative pronouncements, as the lead *348opinion's holding does, I believe a trial court must be permitted to consider whether the parties have rebutted the presumptions or directives weighing against their respective positions. I believe that this interpretation avoids the flaw in the lead opinion's analysis of ignoring express statutory directives, and it gives life to the legislative intent underlying the provisions of both Wis. Stat. §§ 767.24 and 767.325. Finally, because the lead opinion has concluded otherwise, and the arguably conflicting legislative pronouncements present an issue of statewide importance, I respectfully recommend that the supreme court accept review should Palmersheim request it.
All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
The guardian ad litem recommended joint legal custody and increased physical placement with Palmersheim. Although he did not file a separate brief, the guardian ad litem has informed us that he supports Palmersheim's arguments on appeal. The social worker also recommended joint custody and increased placement with Palmersheim.
See 1999 Wis. Act 9, § 3065ck.
Although the lead opinion finds Wis. Stat. § 767.24(2)(am), and apparently § 767.24(4)(a)2, inapplicable to modification proceedings, it finds § 767.24(5) to be "plainly applicable" to modifications. Lead opinion at ¶ 20. I find no language in either § 767.24 or Wis. Stat. § 767.325(5m) that allows us to pick and choose from among the provisions of § 767.24 those with which modification decisions must be consistent and those which may be ignored.
See, e.g., Wis. Stat. § 767.24(2) (b)2, which permits a court, absent agreement of the parties, to order sole legal custody to one of them "only" if certain circumstances exist.
I recognize that, while Wis. Stat. § 767.24(2) (am) creates an express presumption in favor of joint custody, § 767.24(4)(a)2 creates no similar presumption in favor of equal placement time for each parent. We concluded in Keller v. Keller, 2002 WI App 161, ¶ 12, 256 Wis. 2d 401, 647 N.W.2d 426, that § 767.24(4)(a) does not create a presumption in favor of equal placement. (We have recently reaffirmed that interpretation and concluded further that a parent enjoys no constitutional right to equal placement following divorce or estrangement from the other parent. See Arnold v. Arnold, 2004 WI App 62, 270 Wis. 2d 705, 679 N.W.2d 296, review denied, 2004 WI 50 (Wis. Apr. 20, 2004) (No. 03-1547), and Lofthus v. Lofthus, 2004 WI App 65, 270 Wis. 2d 705, 679 N.W.2d 296, review dismissed, 2004 WI 50 (Wis. Mar. 10, 2004.) (No. 03-1754). We remanded in Keller to allow the trial court to consider whether, under a proper interpretation of § 767.24(4)(a)2, the modification sought would be in the best interest of the child and whether the continuity presumption under Wis. Stat. § 767.325(l)(b) had been overcome. See *345Keller, 256 Wis. 2d 401, ¶ 13. We did not say or even suggest, however, that the continuity presumption precluded the court from even considering the directive in § 767.24(4)(a)2 in favor of maximizing placement time with each parent. Rather, our instructions in Keller are consistent with what I believe to be the proper disposition in this case: the trial court should consider both the continuity presumptions under § 767.325(1)(b) and the directives of § 767.24 in deciding Palmersheim's modification motion.
This is especially true for a parent like Palmersheim who did not have the benefit of the 1999 legislative changes at the time of the initial custody and placement determinations. My reading of these statutes thus eliminates any equal protection concerns.