December 16, 2013 by Robert Franklin, Esq.
And, while we’re on the subject of equal parenting, here’s this bill currently before the Wisconsin legislature and this article about it (WKOW, 12/9/13). Assembly Bill 540 would do more than just equalize the rights of fathers and mothers when parenting time is decided by a family court. It also makes some minor changes to child support laws, one of which I mildly disagree with.
But the core of AB540 is its intention to give children an equal relationship with each of their parents should they divorce or separate. Here’s its wording:
In determining the allocation of periods of physical placement, the court shall presume that a placement schedule that equalizes to the highest degree the amount of time the child may spend with each parent is in the best interest of the child. The presumption under this subdivision is rebutted if the court finds by clear and convincing evidence, after considering all of the factors in sub. (5) (am), subject to sub. (5) (bm), that equalizing physical placement to the highest degree would not be in the child’s best interest.
As the bill makes clear, the equal parenting provision would be subject to existing considerations in ordering parenting time. There are 16 of those that can be viewed here. In addition, any order of child custody is subject to the requirements of subsection 5 (bm) that all but forecloses any form of custody to a parent found to have committed a single incident of serious battery against the other spouse or child, or a pattern of abuse against the other spouse or child.
In short, the bill, even if passed, would change very little. If all 16 of the considerations for custody contained in subsection 5 (am) are equal between the parents and no domestic violence has occurred, the case for equal parenting will be made. In all other cases, it won’t be. So any judge who’s inclined to favor mothers will be in no way restricted in his/her ability to do so.
For example, one of the items a judge is required to assess is No. 4 – “The amount of quality time that each parent has spent with the child in the past…” That’s code for “mother.”
All the data in existence show that mothers still spend more time in childcare than do fathers who still spend more time working to support mother and child than do mothers. But guess which of those activities is – and which is not — a consideration in an order of child support. That’s right, financial support of children is excluded from the list of activities that are to be considered when deciding child custody. So when Mom spends her 26 minutes a day more on childcare than does Dad, she wins the custody sweepstakes. By contrast, Dad’s 55 minutes a day more than Mom earning to pay for the roof over the child’s head, food on the table, schooling, medical care and the like mean literally nothing. (Figures are from the Bureau of Labor Statistics’ American Time Use Survey for July, 2013.)
The point being that this bill, even if passed, will have little effect on the radically gender-biased state of child custody in Wisconsin.
Needless to say, even that modest nod in the direction of equality between fathers and mothers is too much for family attorneys in the state exemplified in the linked-to article by this worn-out claim by attorney Daphne Webb.
“It’s not really in the best interest of children to have a one-size fits all statute that does say you must equalize, unless…,” countered Daphne Webb, a family law attorney with the Stafford Rosenbaum firm of Madison.
Please. Do we have to fight the same fight every time? AB 540 no more imposes a “one-size-fits-all” system than does the man in the moon. All anyone has to do is read its clear terms to see that the same factors that now apply to custody orders would apply if the bill were to become law.
So, as seems to invariably happen when an equal parenting bill comes before a state legislature, the family lawyers start making up false claims about its contents. They did it in Minnesota, they’re doing it in Nebraska, so why not in Wisconsin?
And the same observation applies to the red herring tossed out by Webb as to all the others: If the lawyers had a real argument against equal parenting, don’t you suppose they’d make it? Yes, you’d think so, but time and again they recycle the same tired nonsense that any literate person can see in about two minutes just flat isn’t so.
Interestingly enough, here’s how the Wisconsin state Legislative Reference Bureau describes existing custody laws:
In current law, there is a presumption that joint legal custody is in the child’s best interest. The court also must allocate periods of physical placement between the parties. The court is required to 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 consideration geographic separation and accommodations for different households. The court may deny periods of physical placement with a parent only if the court finds that the physical placement would endanger the child’s physical, mental, or emotional health. When determining custody and periods of physical placement, the court is required, under current law, to consider a number of factors…
i.e. the 16 enumerated factors mentioned above.
What we have, then, is a state that already requires “meaningful periods of physical placement with each parent and that maximizes the amount of time the child may spend with each parent.” So why would fathers’ rights groups want a statute that encourages greater equality?
My guess is that the existing statute isn’t working, because judges still ignore its plain intent and leave fathers out in the cold. That’s worth thinking about when viewing proposed statutes in the future. One good example is England’s proposed family law “reforms” that read very much like the present Wisconsin statute. I’ve predicted the British bill won’t have a measurable effect on parenting time for fathers and it looks like the Wisconsin experience supports that point of view.
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