A Report on Gender Discrimination in the Wisconsin Family Court System

Prepared by Wisconsin Fathers for Equal Justice - August 1997

C. For cases initiated between 1989 and 1992, equal shared physical custody awards represented only 6.7% of all cases. (Table 5)

D. For cases initiated between 1989 and 1992, the shared placement awards varied greatly based on the presiding judge. Some judges awarded shared placement awards in 30% of all divorce cases while others awarded these in 0% of all cases. (Table 12)

E. For cases initiated between 1989 and 1992, 94.5% of mothers with primary placement are awarded child support awards while only 41.9% of fathers with primary placement are awarded support awards. (Table 14)

F. Joint Legal Custody awards increased from 18% in 1982 to 35.3% in 1987 to 81.1% in 1992.(Table 1)

G. Shared physical placement awards ( more than 30% placement) has increased from 2.2% in 1982 to 7.3% in 1987 to 14.2% in 1992.(Table 2)

H. For cases initiated between 1989 and 1992, 26% of the families had a combined income greater than $50,000 per year and 38% of mothers had a similar or greater (75% or higher) income than fathers. (Table 8 page 22)


** Discussion paper #1133-97 can be downloaded from the IRP web site http://www.ssc.wisc.edu/irp/dplist.htm

Status of Gender discrimination in Wisconsin Family Courts

The significant increase of joint custody awards, the increase in shared placement awards and the use of the terms dead beat "parents" instead of dead beat "dads" indicates some sensitivity to gender bias issues in family law and the political arena. However these solutions, which sound good, do not deal with the gender bias issue honestly or in an adequate manner.

Gender bias continues to exist in Wisconsin as demonstrated by the 90% primary placement and more than 80% unequal shared placement rate in favor of mothers. Child support policy continues to be primarily aimed at fathers, results in inequitable awards in many cases which allow mothers in higher income and many shared placement families to escape their equal obligation to contribute to the support of the children while strongly enforcing a disproportionate child support obligation of fathers. It is unequally applied by the courts as demonstrated by the 41.9% child support award rate to fathers vs. 94.5% child support award rate to mothers who are awarded primary placement of the children.

Gender bias in paternity cases, which represent approximately one in four births in Wisconsin, is believed to be even worse. The administration, legislature and the courts appear to be only interested in assuring fathers assume the financial support obligation for the child and have little concern to assure the child can maintain an equal parental relationship with the father.

Gender bias exists in all levels of the family law system, from the family court commissioners to the Wisconsin Supreme Court, as demonstrated by the Luciani v. Montemmurro Case where the majority of the Supreme Court Justices showed no concern for the father's ability to provide an equal "standard of living for the children" during the significant periods of physical placement he assumed care for them.

Causes of Gender Discrimination in family law

1. Historic roots. Historically mothers have assumed the role of child raising in our society, fathers have been the providers for the families. The changes in our society, where mothers are seeking career opportunities outside the home and fathers are more involved in raising children has not been fully accepted by many older white judges who may view current family relationships from the perspective of his own, generation old values. The every other weekend (15%) visitation for fathers has been a historical visitation arrangement for many decades.

2. Political concerns. Awarding a fit mother less than 50% placement of a child would bring media and political attention on a court which may not be appreciated by the court.

3. Lack of understanding of the emotional and financial needs of children and fathers who wish to assume the responsibility to raise and support their children by caring for them directly. The terms the "best interest of the child" and "the child's standard of living" are vague and undefined terms that allow the courts to disguise gender bias decisions.

4. Judicial system efficiency. In disputed custody cases, parents are forced to undergo a process of mediation, appointment of a guardian at litem, and psychological evaluations to determine what is "in the best interest of the child". In cases where a fit father wishes to be equally involved in raising the children, the guardian at litem often recommend a 35%/65% compromise to avoid a custody battle before the court, which the parents may not be able to afford and which would be emotionally damaging to all members of the family. This compromise is "in the best interest of judicial efficiency" and not necessarily in the best interest of the child or the family.

Trial courts seldom reverse the GAL's recommendations, and appeals courts seldom reverse a gender biased decision of a trial court due to a lack of understanding or sensitivity of this issue and in the interest of judicial efficiency.

5. Administration system efficiency. Wisconsin's DWD 80 child support standard and enforcement program is based on simplicity of defining and maximizing collections of child support awards rater than equitable treatment of parents and children. In the interest of administration efficiency, no such enforcement effort is in place to assure child support payers have physical access to the children they are supporting.

6. Economic incentives from government programs have discouraged fathers from assuming an active role in raising their children. In low income families, AFDC programs entitled single mothers to benefits far greater than they may receive if they live with the natural father. Thus fathers were encouraged to abandon their children so mothers can qualify for these benefits. The new welfare reform measures should help to eliminate this incentive.

Child support enforcement agencies receive, from the federal government, a percentage of the child support collected by the State to fund their programs. If fathers support their children through direct expenditures on their behalf during the periods of placement they assume for the children, the State does not receive a percentage of these funds. The Division of Economic Support therefore has an incentive to avoid a reduction in child support awards for these expenses so they can maximize the funding for their programs. Those fathers who can not afford to pay twice for their children's expenses many not be able to assume their physical placement role in raising their children. Others are forced to pay twice for these expenses and in some cases allow the mother to escape her obligation to contribute an equal share of her income to support the child.

Impact on Families

When a fit father wants to assume his responsibility of supporting his children by caring for them directly, Wisconsin's legal process is user unfriendly. The process often forces the parents to become adversaries for the opportunity to experience the joys of raising their children, the child support funds, and the numerous legal advantage of the greater placement parent. This process is emotionally and financially damaging to both parents and the children and results in ongoing hostilities which stand in the way of constructive shared parenting, encourage further litigation or push fathers to abandon the children and become nothing more to his child than a support check.

Recommendations to eliminate Gender Discrimination in Wisconsin Family Courts

One solution to deal with gender bias is to have the legislature pass laws and the administration promulgate rules which require the courts to treat both parent's parental responsibilities equally. While this is beyond the scope of the courts responsibility, the courts do have broad equity powers and moral and legal responsibilities to stop gender discrimination in Wisconsin Family Courts. These powers and responsibilities are derived from the court's sworn responsibility to support the Constitution of the United States, US Supreme Court rulings that the state can not hinder the rights of fit parents to " custody, care and nurture of the child" and the Fourteenth Amendment which states, "no State shall ...deny to any person within its jurisdiction the equal protection of the laws."

Relying on these equity powers, the courts can apply the following measures in all divorce and paternity cases to end gender discrimination in family law matters even under the present laws.

1. Allow all fit parents an equal opportunity to decide what is in the best interest of their children in fulfilling their equal physical placement responsibilities for their children.

In all paternity and divorce hearings involving two fit parents, including hearings for temporary orders, the court can order each parent to provide the court a written parenting plan for the child which that parent believes is in the best interest of the child. The court should then presume the parenting plan which provides for both parents to most equally assume their physical placement responsibilities of the child is in the best interest of the child and incorporate this plan into the courts custody and placement order.

2. Prohibit either parent from interfering, physically or emotionally, with the equal right of the other parent to the "freedom of personal choice in matters of family life" and to "custody, care and nurture of the child" during the other parent's placement periods and the child's right to a positive parental relationship with both parents. This should include an order prohibiting a parent from moving the child away from easy access of the other parent.

3. Evaluate the fairness of child support awards defined by the DWD 80 child support standard, in all shared placement families and in all families where the combined family income exceeds $50,000, and define a child support award which requires both parents to contribute an equal percentage of their income to support their child as per WI Stat. 765.001(2) & (3) and which allocates each parent an equal per diem amount of child support funds to care for the child.

4. Strongly enforce physical placement orders as well as the child support obligation for both mothers and fathers including the imputing of incomes for both underemployed parents.