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Vol. 71, No. 7,
July 1998
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."
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