Debating the Standard in Child Custody Placement Decisions

By Dianne Molvig

Like many youngsters, 11-year-old Josh (not his real name) has always longed to play on a soccer team. But he never has. It's not that he lacks the inclination, the skills, or his parents' consent. In fact, all through his childhood Josh has never told either of his parents, now divorced, about his desire to play soccer, fearing that it would be just one more thing for his father and mother to fight over. Who would take him to practice? To games? Working out such arrangements would only spark a parental feud, Josh figures, so rather than take that risk, he's decided to forego his dream.

Madison psychologist Kenneth Waldron recently met with Josh in the course of a post-judgment divorce mediation. "He came in to talk about his family situation," Waldron recalls, "and he was just bawling. That's going to be that kid's memory of childhood: that he didn't get to play soccer because his parents didn't get along."

Josh is one of many children caught in the cross fire of a failed marriage. When the end result is divorce, these children face a mix of emotions: fear, grief, rejection, loneliness, anger. "Children get angry at their parents for violating the unwritten rules of parenthood - parents are supposed to make sacrifices for children, not the other way around," writes noted family psychologist Judith Wallerstein in her now-landmark work, Second Chances: Men, Women, and Children a Decade After Divorce (Ticknor & Fields, 1989).

Along with the anger comes a sense of powerlessness, Wallerstein points out. "Children feel that they have no say, no way to influence this major event in their lives. Despite ongoing fantasies that things will magically get better, they cannot prevent divorce, fix it, rescue mom or dad, or rescue the marriage. No one gives priority to their wishes, concerns, and fears."

The Wisconsin judicial system strives to ameliorate divorce's adverse effects on children by following a "best interests of the child" standard in custody/placement decisions, as set forth in Chapter 767 of the Wisconsin Statutes. Efforts are under way, however, to eliminate the best interests standard and replace it with a rebuttable presumption of equal custody/placement in all divorce cases. A proposed bill to that effect failed to pass in the 1997-98 legislative session, but proponents say they'll try again this year. These developments are stirring new debate about the best way to determine custody and placement for Wisconsin children whose parents divorce.

Current law

Today, under the child's best interest standard, most custody/placement decisions ultimately are reached through parental negotiations, rather than a courtroom battle. The family court system offers resources to support the divorcing parties and their children through this major life transition, and to help the parents arrive at custody/placement agreements

While resources vary from county to county, certain provisions are standard throughout the state. By law, any family court commissioner may order the parties to attend divorce education programs, which explain the effects of divorce on children. Also, if parents dispute custody/placement at any time during the process of working toward an agreement, the law requires that the court appoint a guardian ad litem to represent the child's best interests.

The exact procedures for determining the child's best interests in disputed cases also differ by county. But various professionals usually play a role, including social workers and psychologists, as well as guardians ad litem. The professionals weigh numerous factors, including the parents' mental health, the parent-child relationships, the child's developmental stage, the level of parental conflict, and the presence of problems such as alcohol or drug abuse. Gathering information may entail psychological testing, talking to teachers and day-care providers, making home visits, and interviewing parents and children separately and in different combinations.

Based on their findings, the professionals recommend child custody and physical placement arrangements. That might be sole legal custody to one parent, or joint legal custody, under which both parents have the right and responsibility to make major decisions concerning the child.

Physical placement is a different matter, spelling out when the child actually will reside in each parental home. It may take many forms, ranging from 100 percent placement in one parental home to a 50/50 split between homes. "Shared placement" is defined as at least a 30/70 arrangement, based on research showing that being with a parent at least 30 percent of the time allows a child to experience the full range of normal parent/child interactions with that parent.

Whatever the custody and placement recommendations may be, if the parents agree to them, the court usually grants final approval. If the parents fail to agree, the court makes the ultimate decision - again, basing that decision on the child's best interests. When both parents have been found unfit, the court may declare the child to be in need of protection and services (a CHIPS case), under Chapter 48 of the statutes. In paternity matters, the mother has sole legal custody unless the court orders otherwise.

New proposals

Assembly Bill 442 (AB 442) and the identical Senate version (Senate Bill 202), introduced during the 1997-98 legislative session, called for dramatic changes in Chapter 767. Proponents say they'll return next session with another bill, much like the previous one, calling for such reforms as:

• Removing the child's best interests as the basis for a court's determination of custody.
  
  
• Mandating joint legal custody and equal periods of physical placement with both parents, unless the parents decide otherwise. (Note: Here equal physical placement means a 50/50 split between parents, not the 30/70 schedule deemed to define joint physical placement, as discussed above.)
  
  
• Requiring the court to order joint legal custody if one or both parents requests it.
  
  
• Allowing the court to order sole legal custody only if both parents agree to it, or if the parental rights of one parent are terminated.
  
  
• Demanding that the court approve any physical placement schedule the parties agree upon. When the parties don't agree, the court must order each party to submit a placement schedule, and the court chooses the one that sets forth the "most equal allocation" of physical placement.
  
  
• Requiring that the court approve any custody/placement agreement developed by the parties. The court can reject only those aspects of an agreement it finds to be "unconscionable."
  
  
• Prohibiting the court from appointing a guardian ad litem for the child in custody matters, except to bring a paternity action on behalf of a minor nonmarital child, or if a case ends up in CHIPS.
  
  
• Allowing a case to go into CHIPS only upon the petition of one or both parents. The court itself could initiate no such action, but if concerns about child welfare surface, the court must order one or both parents to file the CHIPS petition.
  
  
• Eliminating the provision that a child's best interests determination can prevent a man from pursuing a paternity action.

Supporters of these changes contend they're striving to achieve balance in custody/placement decisions. "The push for child support hasn't been counterbalanced by recognition of greater roles that fathers play," says State Senator Gary George, who cosponsored the bill. "The purpose of the bill is to act on the other side of the equation. If the noncustodial parent is obligated to pay child support because that's good for the children, it's also as important that the child have access to both parents. There should be a presumption of equally shared parenting when a family breaks up."

As for eliminating the child's best interest standard, George says, "We have to assume that the parents have the best interests of the children at heart, and that they won't use the children as weapons. I think this provision of presumed equal time with the children will go a long way toward eliminating that." Knowing up front that post-divorce parenting must, by law, be a 50/50 arrangement will, George adds, "help families deal with their situations better."

Help or interference?

Some observers remain unconvinced that divorcing parties will always put their children's needs first. "Many do, many don't," notes Thomas Barland, circuit court judge in Eau Claire County. "Often custody disputes are not so much about having the child's interests in mind as they are about the parents' desires to be the main adult in the child's life, for their own personal gratification."

Nor does Barland believe that an across-the-board presumption of equal placement/custody, unless both parents choose otherwise, is workable or realistic in all cases. While he recognizes the merits of the argument that both parents should be fully involved in their children's lives after divorce, for both the parents' and children's sakes, "that's different from mandating [equal placement]," Barland says. "Mandating it is what creates problems."

Similarly, Barland agrees it's crucial to maximize each parent's time with the child, but, he says, "that doesn't always work out to an equal basis. Children need stability, a routine. For some children shuttling back and forth is very upsetting. I think [the placement arrangement] has to vary with the child. You just can't do it the same way for all."

Echoing that sentiment is Ozaukee County court commissioner Darcy McManus. Rather than adopting a uniform placement strategy for all cases and eliminating guardians ad litem to represent the child's interests, as AB 442 proposed to do, McManus argues instead for an "intensive, one-on-one, individualized approach," in which guardians ad litem play a vital role.

"The selection of the guardian ad litem is probably the single most important step in a custody dispute," McManus says. "The best way to resolve a case is to have a good guardian ad litem who can educate the parents and steer them into parent education classes, or counseling, or whatever needs to be done to get them to work together."

Backers of the equal placement presumption, on the other hand, feel such help - whether it be from guardians ad litem or other court-appointed professionals charged with assessing the family's situation - is unnecessary intervention. "I don't think we want judges, the courts, and psychologists interfering in normal family relationships if it can be avoided," George points out. Furthermore, if equal custody/placement is not in the child's best interests, under his proposed legislation, "the judge can variate from that - with cause," George adds.

The "cause" would have to be so severe, however, that in effect judicial discretion in custody disputes would be eliminated, says Madison attorney Tom Glowacki. "The court has to approve whatever the parties agree to unless it's 'unconscionable,'" he notes, "and that's an extremely high legal standard to meet. There would have to be so much overreaching and inequality in the bargaining relationship that [the resulting agreement] is shocking to the court's conscience." Relationships with a history of abuse present other problems in working out equal placement/custody agreements. "How do you make decisions on an equal footing with someone who has terrorized you?" asks Kathleen Krenek, policy development coordinator with the Wisconsin Coalition Against Domestic Violence. "You don't. You cower in the corner. And the other person gets anything he or she wants."

As a practical matter, Glowacki questions how divorcing parties entangled in custody disputes will cope with problems that do erupt between them - if the guardian ad litem and other court-appointed professionals are out of the picture. He points to an example from his own guardian ad litem experiences: A woman hung four stockings at Christmas, including one for her ex-husband, in which she placed a lump of coal, telling the children daddy had been bad and that's what he deserved.

When Glowacki relayed the story before the Legislature's Committee on Children and Families during hearings on AB 442, "they thought that was pretty bad stuff, and they said they hoped I got on the mother about that," he recalls. "I told them I did, but show me where in AB 442 I could have done anything. I wouldn't be involved, for starters, because there'd be no guardian ad litem. And even if somehow I were involved, I could do nothing" to curtail the mother's behavior.

Placement - the "wrong battlefield"

Under AB 442, or whatever new version appears in coming months, 50/50 physical placement would become the standard for all families in divorce. But what might appear clear-cut on the books often becomes fuzzy in real life, points out Baraboo attorney and guardian ad litem Gretchen Viney. When she gets a case in which a parent demands equal placement, she says, "I ask the parent, 'Are you talking 50 percent of the overall time? Or would you be happy having the child from 9 p.m. to 9 a.m., so you'd never see the child awake? That is 50 percent of the time. Would that make you happy?'"

Even narrowing the focus to waking hours presents dilemmas in calculating a parent's time with a child, Viney adds. Do you subtract time for the child's piano lessons or Little League practice? Which hours do you actually include in "parental time"? "Eventually, relatively healthy parents come to the realization that this 50/50 thing is sort of a fiction," Viney points out. "What they really want is good access. Once you get it worked around to that, you can do all kinds of things" in devising a placement schedule.

Of course, many parents do opt to equally share both custody and placement after divorce. And some make it work, both for themselves and their children. But research shows it's the toughest schedule for parents to manage, according to Kip Zirkel, a La Crosse psychologist. Zirkel cites multiple factors that determine the success or failure of equal placement arrangements. To list just a few: Does the child have a flexible temperament to cope with dual-living arrangements? Do the parents share similar child-rearing values? Are the parents able to consult frequently about rules, school activities, expectations of the child, and so on? Do the parents live near each other, and in the same school district?

If juggling an equal placement schedule is a challenge for divorced spouses who are on fairly cordial, or at least civil, terms, it's almost certainly a disaster for parents who can barely speak to each other. "Usually when a parent thinks in terms of everything having to be equal, counting it down to the minutes - which I've seen - those are highly conflicted situations," observes La Crosse attorney Pat Heim, chair of the Child Custody Subcommittee of the State Bar's Family Law Section. "Then the interests of the child are not paramount, and the parents are not communicating. That's the worst situation for equal placement."

What often gets overlooked when adults wrangle over placement schedules is that children don't care about percentages or counting hours and minutes, notes Zirkel. He splits his professional employment between the Family & Children's Center in La Crosse, where he works with families undergoing divorce, and the U.W.-La Crosse, where he counsels college students, many of whom endured parental divorces and custody disputes during childhood. "For 15 years in my work with college students," Zirkel says, "I've asked them to tell me what they remember most about their parents' divorce. They never remember the placement schedule, unless they heard their parents argue about it. They do remember the good times with their parents, the special occasions, vacations, meals together. And, significantly, they remember the fights - very vividly."

How do different placement schedules affect children's adjustment after divorce? Research has no definitive answers, and it would be nearly impossible to measure anyway because numerous variables enter into child adjustment, not just placement. In the eyes of the law, placement is "where a child sleeps," points out Kenneth Waldron, "which is silly. There isn't a single piece of research that correlates where a kid sleeps with adjustment after divorce."

Psychologists emphasize that the primary task for parents, whether they're living together or separately, is to raise their children. The parents' relationship has changed; what the child needs to grow up to be an adjusted human being has not. "A healthy family doesn't care about time," says Waldron. "They just want to figure out how they're going to get their kid to do well in school, who's going to take the kid to soccer, how they're going to work out the orthodontics payments. Carving up the time is not the task. That's the task the legal system places on people, and now it's become a gender battle over 50/50."

Add to the gender equity issue another complication: the fact that child-support formulas are tied to placement schedules. Child support amounts decrease as placement time with the child increases. This situation further fuels contention between divorcing spouses. "I understand the frustration many fathers feel," Waldron says, "especially when historically they've had so little chance. There are good arguments on all sides of these issues. But it's a battle being waged on the bodies of children. It's a mistake to try to resolve these issues on placement because, for kids' sake, it's the wrong battlefield. That's the sad part."

Dianne Molvig operates Access Information Service, a Madison research, writing, and editing service. She is a frequent contributor to area publications.

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