Perhaps I am the only one in Wisconsin who reads the joint custody statute this way: It is NOT really joint custody - it is severable custody. In other words the statute does not require the parties to act jointly, but specifically authorizes them to act separately.
Today, the CA in an unpublished, but citeable, opinion, upheld a contempt finding against a mother who transferred school districts for the children without the father's permission. Clearly, this was not the right thing to do, but did it violate the statute warranting a contempt finding?
Here is what the statute says, as quoted in the decision:
Under Wis. Stat. § 767.001(1s), a court that gives joint legal custody of a child is ordering both parties to “share legal custody,” such that “neither party’s legal custody rights are superior,” except as otherwise provided in the divorce judgment, and, as we have discussed, all legal custodians have “the right and responsibility to make major decisions concerning the child,” including “choice of school,” except as otherwise provided in the divorce judgment. § 767.001(2)(a), (2m).(Emphasis added).
No where in the statute does it require her to get the father's consent. Rather, it specifically gives her (and the father) the right to make major decisions. Although she did not do it appropriately, how is she in contempt?
The answer is that the court is reading the statute the way they think it should be worded rather than the way it is worded.
On the good news side, this is fodder for my column - I'll post a link to it when it's published.
Father's rights groups seem to garner a great deal of media attention. It seems that every week or so there is another article about a legislative proposal to mandate joint custody - even though that term does not necessarily mean what they intend. Today, for example, an article on the NPR website is entitled: "Push To Change Custody Laws: What's Best For Kids?"
Let's start by examining the terms (law is, after all, only words). In Wisconsin, at least, "legal custody" involves only decision making about six areas, few of which are ever in dispute. The determination of where the children live is called "physical placement." In most cases, that is the battlefield.
Second, Wisconsin law does not mandate equal placement, although it encourages it.
Third, while years ago, men were significantly disadvantaged by their gender, that is not true today. In fact, absent extreme circumstances (e.g., domestic violence, substance abuse, geography) it is more common than not to see equal placement in Wisconsin divorce.
Where gender does play a role is in history. For some reason, it seems that women are more likely than men to actually give birth, take maternity leave, breast feed and thus bond with infants. Go figure. No legislation is going to change that.
Where the children are older and no prohibiting circumstances exist, our legal system does a very good job of sharing children equally between the parents.
Should it be mandatory? No. Children are not bank accounts to always be divided equally. Certain circumstances, in addition to those mentioned above, may make equal placement contrary to their best interests. One example is teenagers who are going to set their own schedule in any event.
In short, this is a solution in want of a problem. Where the interests of parents conflict with those of children, the latter should prevail. If the result is a certain amount of gender discrimination, that's the way nature made it. And the law, for all the good it can do, cannot reverse nature.
A couple of weeks ago, I reported on a proposal before the Wisconsin SC to publicize ethical grievances against lawyers in certain circumstances. A hearing on that proposal was held yesterday. According to an article in the Wisconsin Law Journal, the discussion went beyond just the proposed rule to encompass the entire disciplinary system. CJ Abrahamson is quoted as asking: “Why don’t you just speed up the process?”
She has to be kidding. It's not that the investigation stage can take too long (it can) but the biggest time drag is when the case is before the court. Ironically, I was asked today about a disciplinary matter which has been sitting before the court for well over one year. Just sitting there. No action.
One time, I was representing OLR in a matter involving a lawyer charged with lack of diligence. The matter sat so long before the SC that I asked for permission to file lack of diligence charges against each justice on the theory that they exhibited less diligence than the lawyer. Unfortunately, I was denied.
As I've ranted about before, our disciplinary system is severely flawed. It's dismaying to see how little the SC seems to understand and appreciate its own role in it.