“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.”

-1 Kings 3:25

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.”

The “traditional” 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 20^th 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 parent.”

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.”