Milwaukee Journal Sentinel

Budget item overhauls court rules in custody cases

Advocates spar over change that would require judges to presume joint custody

By Meg Jones and Jeff Cole
of the Milwaukee Journal Sentinel staff
Last Updated: July 4, 1999

A provision quietly tucked into the proposed state budget would radically - and, some say, unfairly - change the way child custody is handled in divorce cases.

If the measure is approved, judges would be required to presume custody by both parents is in the child's best interest. At the urging of divorced fathers groups, the item was included in the budget process by Sen. Gary George (D-Milwaukee).

The provision also would change the way paternity cases are handled in Wisconsin, giving fathers the right to custody and placement of the child. Now, judges generally rule only on whether the father should pay child support and birth costs. But under the proposed rule, fathers would have an equal chance as the mother to gain custody.

The legislation would update child placement laws that have not changed in more than a decade, said Christopher Walther, chairman of the State Bar of Wisconsin Family Law Section, which advocated the change.

"There is perceived gender bias out there," Walther said Sunday. "You get some judges who are of the old school who believe children should be with their mothers. But we thought that wasn't a valid reason. We felt that children should still have two involved loving parents."

The proposal gives parents who have been denied access to their children by the other parent a way to see their sons and daughters, said Jan Razz, president of Wisconsin Fathers for Equal Justice.

"I think this is a significant improvement over the current system," Razz said. "We have been in contact with Senator George over this. This came about because of pressures from parents' groups to bring about changes."

The provision is a compromise from a Senate bill authored by George that would have required joint custody and allowed parents to split the amount of time children spend with each parent. The new version is not as far-reaching, said Dan Rossmiller, chief of staff for George.

Making judges presume that joint custody is best for children will "decrease the amount of bickering and fighting in the divorce system as it relates to children," Rossmiller said Sunday.

"We don't want children and their rights and interests to be the battleground," he said. "We want couples to try and work it out and to have opportunities to work to find agreement."

What about couples who can't work things out?

Supporters of the measure said court officials would be allowed to decide each case separately and would not have to grant joint custody.

But critics of the proposal said it would be tough for a parent to show he or she should have sole custody of the children even in cases of domestic violence, drug or alcohol abuse or psychiatric problems.

The measure "says that joint custody is always in the best interest of the child unless one parent can meet a very, very difficult burden of proof," said Carol Medaris, project attorney for the Wisconsin Council on Children and Families.

"The bill says even if one party is incapable of raising a child or doesn't want to raise the child, the court must still order joint custody unless there's another reason not to do it," she said.

Medaris also said that even if parents can prove their spouse has a documented history of domestic abuse, judges must order joint custody unless a second reason is found to show why courts should rule in favor of single custody.

Anne Arnesen, director of the Wisconsin Council on Children and Families, questioned why the provision was inserted into the budget process at the last minute. The measure did not come to light until the Senate released its budget proposal last week, just hours before beginning debate.

The budget is now in the hands of a conference committee composed of four Republican Assembly members and four Democratic senators, including George. Once the budget is settled in the conference committee, legislators can either vote "yes" or "no" on the entire budget package.

If approved, the measure would not take effect for six months from the date it's published to give attorneys and court officials time to learn about the change. That means it would apply to divorce petitions that start on the first day of the seventh month following publication of the new law, Walther said.

Arnesen said that so many people would be affected by the custody and paternity proposal that it should be debated on its own merits, not as part of the budget.

"It's an issue that has a lot of ramifications and it needs more public discussion," she said.

Characterizing the measure as pro-fathers, not pro-children, Sen. Alberta Darling (R-River Hills) said the provision does not belong in the state budget.

"This is too important of a policy change," Darling said. "It was put into the budget at the last minute. This bill is not in the best interest of the child."

The proposal would also change paternity law. Walther said many men taken to court over paternity believe the state simply wants them to pay child support. But they may want to take an active role in their child's upbringing.

"There are a lot of cases where the father, unfortunately, does not want to be involved in the child's life," Walther said. "But in those cases where the father wants to be involved, we want to make sure the law ensures he has every opportunity to be involved with the children. It's better for the children and it's better for society."

But Medaris said the proposed change in paternity cases would be bad news for mothers who, in some cases, got pregnant after a one-night stand.

"If mothers know by naming the father that basically the father will have joint custody and maximum placement with the child, they're not going to name the father," Medaris said.

But Walther said the mother's worry about naming the father should not come at the expense of the child's relationship with the father.

"The mom had unprotected sex with the dad; she's just as much responsible for the birth of the child as that dad. Once the child is there, if the mother is uncomfortable and finds it inconvenient to have a relationship with the father, that's something she should have probably thought about beforehand," he said.

Appeared in the Milwaukee Journal Sentinel on July 5, 1999.

© Copyright 1999, Milwaukee Journal Sentinel.