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.

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."

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