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Debating the Standard
in Child Custody Placement Decisions

Help or interference?

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?

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.