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Divorce and Family Law
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Personal Injury and Accidents
Robert S. Duxstad
Daniel P. Bestul
Lance A. McNaughton

How You Get There Matters

Posted: 5.30.2019  |  Author: 

Just as the leaves on the trees were beginning to turn color, my wife and I were able to get away for a short vacation.  We headed to northern Wisconsin and spent most of our time taking in a dozen or so waterfalls in Iron, Ashland and Bayfield Counties.


Several of the falls were easily accessible.  In a couple of state parks, the Wisconsin Tourism Department had even set up “selfie stations”, sturdy wooden stands where you could rest your phone to take the picture, framed by a scenic backdrop.


Most of the waterfalls, though, required more work to get to.  Some took us down gravel fire lanes, and others could only be reached after hiking a mile or two on a forest trail.


Each of the falls had its unique charm, from the 5-foot tall water slide on the Siskiwit River to the towering 165-foot drop of Big Manitou Falls.  Reflecting on the trip, on the drive back home, I realized that, while the state parks provided some fantastic vistas from easily reached observation points, by far the most satisfying experiences were the falls that I had to work to get to.  I lingered longer at those falls and took in more of the surroundings.  I felt the experience I had there was genuinely mine, rather than something that someone had selected for me.


After the trip, of course, it was back to work.  Shortly upon my return to Monroe, I spent two days in trial, where my client, and the client’s soon-to-be former spouse presented their cases to the Judge, who will ultimately have to decide what the future would look like for this family.


In between, I spent a day at a workshop sponsored by the Wisconsin Chapter of the Association of Family and Conciliation Courts.  Along with other family law attorneys and mental health professionals, I heard a presentation by Dr. Robert Emery, the director of the Center for Children, Families and the Law at the University of Virginia. Dr. Emery is internationally recognized as one of the leading experts on the intersection of child development and mental health and family law.


During his presentation, Dr. Emery mentioned a nationwide push to enact laws that require the parents to share child placement on a mathematically equal basis.  He also told us that, through research conducted by the University of Wisconsin’s Institute of Poverty Studies, we have data available on what Wisconsin parents have been doing without being told they must share placement time.


The Wisconsin study covers 20 years, from 1988 to 2008.  When the study began, shared placement – – each parent having at least 25% of the placement and time – – was very rare, and was found in less than 10% of all the cases studied. By 2008, almost half the cases had shared placement arrangements.


This shift is significant, Dr. Emery said, because social service research supports the conclusion that on average children do better when they have a meaningful relationship with both parents.  He emphasized that these generalized conclusions should not be applied to every family; because, each family is unique, and any placement arrangement should be custom fitted for each family’s unique situation.  The generalized research, Dr. Emery says, can help us analyze a placement plan, but it shouldn’t be relied on to dictate outcomes.


The Wisconsin study says, if given the chance, parents will usually figure out what’s best for their children.  A law that mandates a particular outcome – for example, requiring equal shared placement, deprives them of the opportunity to come up with a solution best suited for their family’s needs.


The Wisconsin Family Court system helps parents put together the plan for their family.  Under Wisconsin law, a court cannot grant a judgment of divorce until at least 120 days have passed from the start of the case.  This gives parents the opportunity to talk things over, become informed, and come to an agreement.


To help parents make wise and informed decisions, the family court has the authority to send them to attend a program on how parental separation can affect a child, and how the parents can conduct themselves to protect the child from harm.


Parents can work with a mediator to try to reach an agreement.  The mediator’s role is to facilitate discussions between the parents, helping them get past communication barriers to explore options for resolution.  The mediator has no authority to impose an outcome on the parents, but plays an important role in helping each parent understand the other’s goals and objectives.  Most cases are resolved before or at mediation.


If the process moves down the road without resolution, each parent will be required to write up a parenting plan.  The plan does more than just spell out a proposed placement schedule;the parenting plan addresses where each parent intends to live in the future, the parent’s hours of employment, proposals for necessary child care and school attendance, medical care, religious upbringing, communications and a whole host of other concerns.


In the event parents are still unable to reach an agreement, before any final orders are entered, the Court must appoint a Guardian ad Litem.  The Guardian ad Litem’s role is to represent the best interest of the child in court proceedings.  The Guardian ad Litem stakes out a position, and advocates for that outcome.  The Guardian ad Litem can play a big role in helping resolve cases, because he or she brings a new perspective to the case, and encourages each parent to view their children’s situation from that perspective.


Of course, if the parents can’t reach an agreement, it is up to the Judge to set the placement schedule.  Here, the Judge must consider a list of sixteen factors identified by the legislature as having a bearing on the placement determination.  The Judge has the authority to decide which of these factors are most significant, and which ones have little, if any, influence on the decision.


We need courts for families, like the one I spent time with after my vacation, who are unable to reach an agreement on outcomes.  Even then, the rules need to be flexible, and the outcomes need to be tailored to the individual family situation, not dictated by some generalized research. The Wisconsin study shows that, when given the opportunity, parents will gravitate to an outcome that promotes the best interests of the children, and they don’t need a law to tell them what to do.


Those state park selfie stations provided some nice pictures, I’m sure, over the course of the summer, they probably produced thousands of virtually identical pictures.  My favorite pictures from my vacation – the ones that mean the most to me, are the ones that I had to work to get.


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