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Fathers’ rights groups too often overlook children’s interests

Gregg Herman

Gregg Herman

With a new legislative session underway, once again there are efforts to require Wisconsin family courts to order equal physical placement in every – or virtually every – case.

These efforts are generally being made by male advocacy groups who believe that the system is gender biased and the cure is to remove discretion from the courts. For the most part, these efforts have failed. However, given the vagaries of the legislative process, one never knows.

These efforts are blind to several important aspects of family law. For one, they rely on specific examples which, even if true, would result in “anecdotal legislation,” which is a lousy way to make laws. Moreover, they make the mistake of tying the hands of a court which deals with cases with an infinite number of permutations. The effect would be to force any number of square blocks into round holes. Most importantly, these efforts are concerned mainly with parents, not with the most important parties, the children. What is best for a parent is not always best for the child and, if they differ, the latter should prevail.

For many years, the best-interest standard (which is still the gold standard, although there is no definition provided either in statutes or case law) resulted in a strong preference for the mother. In fact, some states, including Wisconsin, recognized an idea known as the “child of tender years” doctrine which provided that young children belonged primarily with their mother.

As women achieved closer to equal rights (they are not quite there yet), men advocated that “equality” should work both ways. Therefore, the reasoning went, men deserved as much time with their children as women. Note that what was best for children was not the primary consideration. Rather, it was assumed that what was best for the children was equal placement.

In many cases – in fact, in my experience, in most cases – an equal – placement order is consistent with the best interests of children as it accomplishes the very important goal of avoiding litigation. After all, if there are no overriding issues, such as domestic violence, mental health, substance or alcohol abuse, and no geographical impediments, an equal-placement order avoids the need to make nitpicky choice among a variety of similar options. Put differently, in most cases, virtually any resolution is better than a war over children.

However, there are any number of factors which would prevent equal placement from benefitting children. Choices that come up when you are dealing with a late teen-aged child (good luck telling a 16 year old with a car where to live), geography, domestic abuse, substance abuse and mental health are just a few among many reasons why equal placement might not be feasible, much less desirable.

A number of years ago, the legislative process resulted in a compromise statute, which provides that the court should “set a placement schedule that allows the child to have regularly occurring, meaningful periods of physical placement with each parent and that maximizes the amount of time the child may spend with each parent, taking into account geographic separation and accommodations for dif erent households.” Wis. Stas. §767.41(4)a.2.

Of course, maximizing a child’s time with each parent presents a mathematical impossibility as maximizing with one minimizes with the other. In any event, subsequent case law makes it clear that the statute does not mandate equal physical placement. Landwehr v. Landwehr, 2006 WI 64, 291 Wis. 2d 49, 715 N.W.2d 180, Lofthus v. Lofthus, 2004 WI App 65, 270 Wis. 2d 515, 678 N.W.2d 393, Keller v. Keller, 2002 WI App 161, 256 Wis. 2d 401, 647 N. W. 2d 426. Rather the practical implication is that equal placement is preferable, but not mandatory. And, to my view at least, that has worked out pretty well.

But that has not satisfied the father’s rights groups, which continue to advocate for mandatory equal placement, the best interests of children be damned. A Joint Legislative Council committee has been studying the issue (again) and, fortunately, is likely to reject the proposal for mandatory 50-50 placement in every case. Instead, it will likely adopt a proposal which rearranges the factors in Wis. Stats. Wis. Stats. §767.41(5), essentially just putting them in a different order. This would have no legal effect, but may have a psychological effect if a judge thinks the order of factors is important (it isn’t). The proposal may also require a court to make specific findings as to why equal placement is not in a child’s best interests if that is the final order. Again, that’s no big deal since, in a contested case, courts are required to make appropriate findings anyway.

The dangerous proposals are those which would establish a legal presumption for shared equal placement. First, we don’t need that – such a “presumption” exists in practical effect already. Secondly, and most importantly, any presumption should be made by solely taking into account what is best (or in real life, least bad) for a child caught between competing parents. And although courts don’t always get it right because courts are human, they need discretion to consider the individual, discrete facts in each case.

Put another way, the law isn’t broken, so don’t fix it.

Gregg Herman is a family-law attorney with Loeb & Herman in Milwaukee He is board certified in Family Law Trial Advocacy by the NBTA, a fellow of the American Academy of Matrimonial Lawyers and is a former chairman of the Wisconsin Bar Association and ABA Family Law Sections. In addition to Wisconsin Law Journal on family law issues, he operates Wisconsin Family Law Case Finder, a legal research site for family law practitioners. Gregg welcomes comments at gherman@loebherman.com.

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