Are parenting plans conducive to the best interest of the child?

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You snooze, you lose.

Gregg Herman

This was the effect of Wisconsin's child custody and placement statute, until a recent Wisconsin Court of Appeals decision, Guelig v. Guelig, No. 2005AP346 FT (Aug. 31, 2005) (recommended for publication) considered the ramifications of the failure to file a parenting plan, as required by Wis. Stat. Sec. 767.24(1m). The statute provides that, absent a showing of cause, a party who fails to file a parenting plan as required “waives the right to object to the other party's parenting plan.”

In Guelig, the court held, in dicta, that, notwithstanding the language of the statute, even if waiver is present, an overall determination of the best interests of the children is still required. A waiver by failure to file a parenting plan as required by statute can be considered only as a factor in a custody and placement determination and does not eliminate the court's obligation to base these determinations on the best interests of the child.

While this holding, albeit in dicta, eliminates the most problematic issue involved with parenting plans, the question remains whether parenting plans are, overall, conducive to the best interests of children. This question was discussed in an article in this column six years ago when the statute was first enacted. “Parenting Plans: Pros and Cons,” Wisconsin Opinions, Sept. 24, 1999. How have the issues discussed then played out in the intervening half-dozen years?

In theory, parenting plans make a great deal of sense. They force both parents to make proposals regarding all issues facing children of divorcing parents, including placement schedules, medical care, religion and parenting. Properly done, the plans require a great deal of thought and effort.

Perhaps as a result, in some counties, they are rarely used. One reason may be, as suggested in my 1999 article, that the cost may force parents to resolve issues, rather than spend the resources to work with an attorney to draft a plan, review and respond to the other parties' plan. If so, the requirement serves a valuable purpose by eliminating conflict, although not in the means intended by the drafters.

On the other hand, the impediment that these plans may cause to settling cases is by forcing certain issues to the front that might be better left at the back door.

Frequently, parties resolve role assignments, such as religion or medical care, by default rather than by express agreement. Parenting plans require the parents to affirmatively state a position on these issues. If forced to do so, some parents might choose to make something an issue, rather than just leaving matters alone. In such cases, parenting plans may end up creating more arguments between the parents than it resolves.

Not everyone agrees. Some believe that parenting plans can serve worthwhile purposes. For example, Milwaukee County Assistant Family Court Commissioner Lucy Cooper told me, “Doing a basic parenting plan as required by statute will often reveal to the parties that they actually agree about most issues. By being forced to say how they will manage the time with the children often will make them more realistic about the time they are asking for.”

Perhaps the dicta in Guelig affords an answer. As in most family dynamics, “one-size-fits-all” rules in family law sometimes force round pegs into square holes. The variety and complexity of the issues involved in custody and placement cases demand that courts exercise discretion in individual cases to tailor orders to the individual circumstances of those parents and children.

With the court of appeals thankfully removing the scary possibility of courts deciding the fate of children by default, courts can exercise their discretion in deciding in which cases such plans can be helpful or hurtful, and proceed accordingly.

Gregg Herman is a shareholder with Loeb & Herman, S.C. in Milwaukee, which practices exclusively family law. FamLawUpdate, a free e-mail service of Loeb & Herman, is available by going to www.loebherman.com or sending an e-mail.