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.
Wisconsin tries to lessen divorce's adverse effects on children by
following a "best interest of the child" standard in custody/placement
decisions. Efforts are underway to replace that standard with a
rebuttable presumption of equal custody/placement in all divorce cases.
The question is, what is the best way to determine custody and placement
for Wisconsin children whose parents divorce?
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?
Searching for Solutions
How can custody/placement outcomes be better handled for children?
One idea advanced by new research is that the optimum arrangement would
be whatever most closely resembles the preseparation pattern. "It's
based on the concept that you want to maintain continuity in the
children's lives," explains La Crosse psychologist Kip Zirkel. "Any
drastic change in what the pattern was is probably not good for parent
or child. That would, of course, presume that parents were cooperative
and supportive of the idea."
Madison psychologist Kenneth Waldron points to three elements that he
believes are linked to smoothing the custody/placement decision-making
process:
More parent education. "One of the findings of
parent education programs around the country," Waldron reports, "is that
if you give parents information about what their kids need, about half
of them do what's right. So that's a first step."
Mediation. Mediation has proven to be a better route
for resolving child-related issues than litigation. When parents can
reach a voluntary agreement, chances are much higher they'll try to make
it work.
Deemphasizing placement. Shift the focus from
placement schedules, a preoccupation in too many custody disputes, to
developing a coparenting plan, advises Waldron. That entails determining
how the parents will attend to the myriad of tasks involved in
parenting, even though they're no longer living together. In addition,
says Waldron, "The burden of child support needs to be taken off the
shoulders of children's placement schedules."
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?
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.
- Judith Wallerstein,
noted family psychologist
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.
Wisconsin
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