Editor’s note: This article provides one of two perspectives featured in this week’s edition of WisBar InsideTrack. The other perspective, offered by Michele L. Perreault, can be found here. These perspectives are adapted from articles in the June 2011 Wisconsin Journal of Family Law.

June 15, 2011 – In relevant part, Assembly Bill 54 seeks to equalize physical placement between parents to the highest degree; it also seeks to create a lower burden for modifying placement. As a family law attorney, I support the former and endorse amending the latter. Opponents, however, narrow-mindedly declare the bill nothing more than father’s rights legislation – as if equality and fairness are outmoded principles. Admittedly, many supporters, including myself, are greatly troubled by the outdated prejudices and biases that judges still perpetuate from the bench.

The Problem: Three Judicial Biases Work Against Fathers

First, some judges simply do not believe in equal placement¹ and instead promote stability bias; they favor geographical stability, which, in reality, means one-parent stability.² Second, these judges promote mother bias through their belief that – if a child must live with only one parent – mom is best.³ They carry on this belief in spite of research signifying that a child living with only dad, as compared to a child living with only mom, does better psychologically, physically, socially, and academically.⁴ Third, these judges promote conflict bias through their belief that conflict prohibits equal placement.⁵ This belief, once again, is contrary to research demonstrating that a child in a high-conflict environment is in greater need of equal placement because the child is in greater danger of feeling abandoned and having low self-esteem.⁶

Combined, absent great expense to involved fathers of full litigation, the three judicial biases continue to routinely deny fathers justice in family court. To obtain leverage, mothers have incentive to avoid cooperation, initiate conflict, make false allegations, obtain unnecessary injunctions, set up home elsewhere, and alienate the father. None of these actions is in the child’s best interest, but they allow mothers to punish fathers and maximize child support. Turning to judges, it is nearly impossible to vote out seated judges and appeals are routinely cost prohibitive and seemingly impossible to win.⁷

The Solution: Presume Equal Placement to Encourage Fair Settlement

Clearly, the current system is broken. The presumption of equal placement is a simple and inexpensive solution that will encourage settlement though predictable outcomes while reducing the need for costly guardian ad litem fees⁸ and custody studies. While encouraging settlement, however, AB 54 still incorporates a case-by-case, best-interest analysis. Parents will not be forced into unwanted placement. In addition, the courts will continue to protect children from sexual, domestic, or substance abusers.⁹ Moreover, the fact that many family law cases currently settle means neither that agreements are favorable to the parties nor that agreements are in the best interests of the children. Factors forcing compromise are trial costs, congested courts, and judicial intimidation.

To further spur settlement, parties reaching an agreement absent full litigation should be allowed easy court access concerning modification, although the language under Wis. Stat. section 767.451 should be applied to parties once they have tried the matter. This compromise will ensure that AB 54 does not become “the Family Lawyer Full Employment Act of 2011.”¹⁰

Equal Placement is in the Best Interest of the Child

Finally, and most importantly, research shows equal placement to be in the best interest of the child. After divorce, a child simply does best when he or she spends equal time with mom and dad – quantity of time, not simply quality of time, is what counts.¹¹ Following a split, most fathers quickly adapt to become great caregivers; they should not be punished for having provided financially during the relationship. Further, research indicates that “fathers have an independent effect on child well-being.”¹² A child having substantial father contact generally does better socially, academically, and physically – even when social-economic variables are taken into account.¹³ Alternatively, a fatherless home can have severe adverse consequences for a child: risky social behavior, teenage pregnancy, and poor academic achievement.¹⁴ Concerning teenage pregnancy, many of the fathers are older men,¹⁵ indicating that teenage girls are attempting to replace their missing fathers at great risk to their respective economic futures and health. Clearly, this is not in their best interests.

Conclusion

If opponents of presumed equal placement are truly interested in the best interest of the child, they must look past their preconceived cultural and social biases; they must avoid sexist and discriminatory stereotypes and take a fresh look at the social science with open minds. Research shows – in the vast majority of cases where both parents are ready, willing, and able – that presumed equal placement is in the best interest of the child. Unequal placement should be reserved for the minority of cases in which it is truly appropriate. Therefore, Wisconsin should adhere to its ideal of being forward thinking and implement the presumption of equal placement between parents. In the best interest of the child, Wisconsin must lead the way for other states to follow.

Endnotes