“And the king said,
Bring me a sword. And they brought a sword before the king. And the king said, Divide the living child in two, and give half
to the one, and half to the other.”
The wise King Solomon of ancient
Israel knew that the true mother of a child would love that child too much to see
it cut in two. The custody battle of today, however, would confound even the wisdom of Solomon.
Two parents, both of whom love
a child, no longer love each other. They both want the child. The child wants both of them. Once the case reaches a court
of law, one parent will be a winner and one a loser. And most child psychology experts will tell you that whatever the outcome,
there will be an additional loser: the child.
“The litigation model is
completely unsuited for custodial decisions,” says Madison
attorney Diane Mader, one of many professionals who are promoting gentler ways of choosing custody. “It assumes that
people are adversaries – that’s the way the law works. It’s a good model for a car accident, but not for
a relationship where you will have to be connected for the rest of your lives.”
Mader advocates alternative dispute
mediation for the vast majority of couples. There are some significant exceptions: in cases where a parent is addicted to
drugs or alcohol, is physically violent, or mentally unstable, she says, it may be necessary to get the courts involved. However,
she says, “It is the parents who are in the best position to weigh the different factors – not a third party.
I believe most parents can do this.”
placement of children with the mother really isn’t so traditional historically. Until the last century, both women and
children were seen as the property of the husband and father, and mothers had no intrinsic rights. There was no “tender
years clause” stating that young children were better off with the mother. In the early-to-mid 20th Century,
however, mothers were seen as the dominant force in their children’s lives, and fathers were moved to the periphery.
Today, that pendulum is swinging back; although a majority of children of divorce still have primary physical placement with
their mothers, more of them are living with fathers or living equally with both parents.
Mader doesn’t advocate
50/50 placement in every case; instead, she says, the situation is different based on each family and each child. “You
have to look at the age and personality of the child,” she says.
Mader points out that many parents
are able to convince themselves they’re working “in the best interests of the child” when it’s really
their own interests they’re looking out for. The classic example is the dysfunctional parent (usually, in this case,
the mother) who refuses to give up placement only because she fears what others will think of her. Even cases of 50/50 placement can provoke negative feelings, she says; a father will see equal placement
as a “win” while a mother will see it as an emotional loss.
Kraig Byron, family law attorney
at Wilson Law Group in Madison, promotes a form of mediation
called collaborative law. In this model, divorcing parents make a commitment not to litigate any issues in the future. Their
agreement is signed by a judge, making it legally binding. “If at some point they decide to litigate, they will have
to start all over,” he says.
But the agreement isn’t
made in the dark. Child specialists are brought in to help the parents choose the best outcome for their particular child.
“This will work for parents who are willing to make a commitment and stick to it,” he says. “It involves
being able to think beyond the moment and choosing to cause the least amount of personal damage and damage to our children.”
In fact, both Mader and Byron
emphasize that “having your day in court” isn’t what it’s cracked up to be. “It does NOT mean
that the judge will be willing to hear what you want to say,” says Mader. In
fact, the litigation process – as financially expensive and emotionally exhaustive as it can be – often leaves
parents more estranged afterward than they had been before. “And when parents are filled with bitterness and resentment,
even if they don’t fight in front of the kids, the feelings spill over to them,” Byron says.
“Children need two parents
who realize that children benefit from having as many people as possible to love and care for them,” says Theresa Roetter,
who helped found the Law Center for Children and Families and is now an attorney at Hill, Glowacki, Jaeger, & Hughes LLP
in Madison. “Each parent needs to be willing to encourage their children to continue their relationship with the other
Most of the reasons why parents
get divorce – infidelity, financial problems – are about the parents’ relationships with each other rather
than with the children, she points out. “There are other cases where there is abuse or neglect and you need to protect
the child, but otherwise, it’s of no benefit to involve them in the situation,” she says. “You can’t
try to punish a spouse by preventing their relationship with the children.”
Overall, parents need to make
custodial decisions with open minds and with their children’s true best interests in mind – something that is
often easier said than done. All three experts emphasized that communication and cooperation in co-parenting insure the best
psychological outcome for children of divorce. “Often, parents say, ‘If we could cooperate, we wouldn’t
be getting a divorce,” says Mader. “But I remind them that now that you are not living with (the ex spouse), you
don’t have to put up with all the things that drove you crazy anymore. Your one task is to co-parent this kid in a way
that honors each relationship. And that is all you have to do.”