Herbst v. Hansen

In Herbst v. Hansen, 46 Wis. 2d 697, 176 N.W.2d 380, 384 (Wis. 1970), the court stated the test for whether a person remains a member of a household is whether the person has intent to return. In that case, the mother had been granted custody of a ten-year-old child pursuant to a decree of legal separation. The issue was whether the child could be considered a resident of the same household as his father under the father's insurance policy. The court found the father's continued support and visitation, coupled with the parents' chances for reconciliation, precluded granting summary judgment in favor of the father's insurance carrier given the facts supported a finding that the father's absence was only temporary. The court held if a party is not living under the "family roof" at the time in question then the absence of that party must be of a temporary nature with intent to return. Id. "'Whether the absence from the household is of long or short duration is immaterial except as it may give rise to an inference of intent to remain away permanently or only temporarily.'" Id.