Missteps from the Start

In this chapter I relate the missteps made in the divorce itself and the ensuing conflicts around placement time that led to my first foray into Wisconsin Family Court in 2002. I do not want to burden my readers with excessive detail, but absent a certain amount of detail, my story is just general claims. So I try to walk a fine line there. Again, I leave my ex-wife and my children unnamed.

3. Missteps from the Start
David Weiss, December 6, 2010 (Day 8 of the fast)

From here on I expect my hunger will frame my writing. I’m eight full days into the hunger strike now, and I’ve lost a little over ten pounds—and a fair bit of my energy. My metabolism is definitely slowing down. I’m no longer physically hungry. But living in a home where food continues to be made and shared at mealtime, I find that the aromas jumpstart, not my stomach, but my mind and heart. I think about food, and I yearn for the social/emotional fullness of the meal. I drink my tea and join in conversation, but there is an ache. That ache is my dwelling place these days, and it’s out of that ache that I write.

During March and April of 1999 I retained an attorney and negotiated the terms of a divorce and custody agreement. Here are a few things I learned too late.

I should’ve documented the violence somehow (filed a police report, taken photographs), but it’s not surprising that I didn’t. Between the deep desire to deny just how bad it’s gotten and the smothering sense of shame, it’s much easier to hope it all goes away than to document it for posterity.

My attorney told me I could seek to list domestic violence as grounds for divorce—but he strongly cautioned against this. He said that such an allegation would throw everything up in the air. And that while I “might” be awarded full custody as a result of it, that was far from certain, and if I wasn’t able to sufficiently establish the claim, I could lose much more and build up bad blood between me and my ex for years to come. He encouraged me to go for “joint legal custody” and not mention the violence. So I kept silent.

I wish I had pushed harder. I was still partially in a state of denial. But I have lived now for a decade with the bad blood of an abusive ex who has never been held accountable to anyone, least of all to herself for the violence that happened to me. I believe she maintains the “bad blood” disposition toward me because it keeps her from having to deal with the abuse. My silence gained me nothing. And since 2002 Wisconsin Family Court has refused to even consider the role that a legacy of violence has played in our ongoing conflicts —regardless of the toll that legacy took on my daughter’s ability to have a relationship with her father.

I had retained a local attorney recommended by a friend. I specifically did not want an aggressive attorney—I did not want to “go after” my wife, I just wanted out of the marriage as quickly and painlessly as possible. In retrospect, I needed more aggressive representation, and probably an attorney with specific experience in domestic violence cases.

The divorce was financially crippling; I gave up our only car and took on all $24,000 of our shared debt. (That debt represented half of my $48,000 student loan debt, so it was ‘legally’ all mine, but we’d borrowed the entire $24,000 from 1996-98 for the sole purpose of meeting my wife’s desire to not to go back to work after our daughter’s birth. It was not debt to pursue my education but to allow her to be a stay-at-home mom.) I will likely be paying on that debt well beyond my daughter’s own college years. I was so eager to get myself and my son out of the marriage, that I was willing to take the short end of every deal just to be done with it.

But it was in the details of how our “joint custody” would work that I really needed far better representation. My wife moved three hours away, back to Wisconsin, within a week of having signed the stipulation. This was expected. What was unexpected—but should have been foreseen—was the power that having primary placement of our daughter at such distance would give my ex … and her readiness to use that power in abusive ways.

Initial placement was straightforward: every other Thursday I drove to Madison to pick our daughter up; her mother came to Iowa to get her the following Sunday. She was with me 3 out of every 14 days. We had a few extra days together every other year at Thanksgiving and Christmas—and 14 extra days over the summer, to be scheduled by “mutual agreement.” These days were few because of her young age (she was only three), and the stipulation specifically stated, “Both parties agree that the amount of summer placement time with David may increase and be shared more equally as [the child] grows older.” So we initially had about 94 days together each year, and we saw each other pretty much like clockwork, every two weeks. The only other “forward-looking” comment said: “At such time as school commences for the minor child, David will pick up the child at 6 p.m. on Friday” (rather than Thursday).

Here’s what was missing:

  • No process/mechanism to actually schedule the extra summer time with me; as though “mutual agreement” would just naturally happen.
  • No process/mechanism for how or when to increase my daughter’s summer time with me, virtually insuring that this would be another battle just waiting to happen later on.
  • And absolutely no mention of conflict resolution should we disagree on either of the above things or on anything else. The stipulation was set up from the start to provide for only two options: either we would divorce and live happily ever after, or we would hire attorneys to battle out our disagreements again and again. Did no one foresee that it might be wise to build in an obligation to use mediation as needed to resolve disputes in the most child-friendly way?

Over the next three years this missing stuff, coupled with the distance between us and her holding primary placement, created opportunities for my ex to continue exercising her need for control in ways that abused me and my relationship with our daughter. She insisted that she alone knew what was in our daughter’s “best interests” in every facet of her life, including any time spent with me. Thus, every disagreement became an occasion for her to call me a dad who didn’t care about what was best for my own daughter.

The every other weekend routine went well, except for each year when maintaining our respective Thanksgiving/Christmas holiday assignments inevitably disrupted it and we needed to trade weekends to accommodate the schedule. I was never permitted to have my daughter back-to-back weekends, so any disruption meant that I lost a weekend in the process. And each summer became a nightmare to negotiate, with my ex asserting that “mutual agreement” meant that she could veto any proposal for my extra placement time, as often as she liked, for any reason at all, and not allow me to have any of the extra days until she agreed to my proposal for all of them. She rarely provided any reasons or alternatives and always refused to meet with a third party for mediation, whether professional or informal.

I should have gone to court immediately, but saddled with $48,000 of debt, I could not imagine adding to that. So we went back and forth repeatedly, until after months of haggling, usually in early June, I got an agreement on how to schedule the precious little extra summer time that my daughter and I had together.

But as summer 2002 dawned things fell completely apart.

Because our daughter had started kindergarten the previous fall, my 3-day weekends during the school year had ceased, effectively trimming 19 days off our time together. Imagine my surprise when, during our “negotiations” for summer 2002, my ex announced that her reading of the stipulation was that I now also lost my 3-day weekends over the summer—even though these weekends had no impact on her school attendance. Despite language that clearly provided the opportunity for more summer time together as she grew older, my ex was adamant that in 2002 I was due to lose 7 days of summer placement time. It was past time to go to court, but by now things were complicated.

I had gotten re-married to Margaret in 2001. She was a former college sweetheart with whom I reconnected over the last half of 1999. She had three teenage daughter at the time, so my daughter now found herself the darling of three older sisters (in addition to her older brother), and she thrived in her place in our blended family. I had remained in Iowa teaching for one more academic year after our marriage, but in the summer of 2002 we planned to finally blend our households.

So the other piece of summer negotiations was to insure that my daughter would be with me the weekend that we loaded the U-Haul to move our Iowa home up to our new Minnesota home. I put that on the table as early as March, and by April I gave my ex the exact move date at the end of June. But negotiations to finalize placement time were going nowhere.

She remained adamant that my 3-day weekend “baseline” was gone—year round. She wanted to re-open all of the placement schedule, asserting that my move to Minnesota (increasing the miles between our homes from 160 to 250) meant that my entire time with my daughter should be decreased. (She didn’t acknowledge that it was her initial move in May 1999 that put the first 160 miles between us.) My response was to propose reducing my school year placement to every third weekend and to suggest that in 2003 we share her summer time equally to compensate for the loss in our school time together.

On June 2, 2002 I finally received a written proposal from my ex. It was for 24 days of placement time (10 days shy of what the stipulation provided!) and it specifically excluded the days of the move to Minnesota. I made several frantic attempts to reason with her by phone. I explained the importance of including our daughter in both packing up her Iowa home and driving to and unpacking in her new Minnesota home. The stipulation clearly provided me with days to use for this. There was no pressing conflict in Wisconsin. But my ex responded by saying, “Moves are hectic times; they’re no place for a 6 year-old child; she’d only be in the way or neglected. I don’t think it’s in her ‘best interests’ to be with you for the move, so I won’t allow it.”

Absent any conflict resolution measure, I was helpless to do anything except go to court. My local attorney recommended I move the case to Wisconsin myself lest my ex further stall by making that motion after I filed in Iowa court. So, on June 10, I retained a Madison attorney and asked him to file an “expedited motion for enforcement” of my placement.

The “expedited” hearing finally took place sixty-three days later on August 13. By then the move was long over, and my only memory of my daughter’s part in it is the howls of tears at the other end of the phone the night I had to tell her that I wouldn’t be picking her up before the move after all because Mom didn’t agree that it was a good idea, and so it wasn’t going to happen. I’ll say more about the “summer from hell” in my next entry.

In thinking about these years (1999-2002) I identify the following insights:

+ There’s nothing wrong with wanting an amicable divorce, but when the feeling isn’t mutual, you at least need a divorce that protects your finances and your rights as a parent. In seeking to avoid tough issues, I left myself very unprotected.

+ Even in the “best” divorces, if there are kids involved you can’t just go your separate ways; there will be conflict. So it’s best to be very clear, both about the details of placement time and about how you intend to use a third party to resolve issues down the road without escalating the anger or legal fees all over again. Had I insisted on a “mediation clause,” at least some of my problems would’ve been addressed outside the toxic dynamic between just the two of us much sooner.

+ In fact, if Family Court were really pro-family, it would insist on mediation at every possible step. It would build it into the pre-divorce process as well as into the stipulation. Instead, because lawyers (and judges?) profit more from conflict than from conflict resolution, the process favors legal “solutions” that heighten adversarial posturing both during and after the divorce—and that help neither husbands nor wives, fathers nor mothers, and most of all, not children.

+ Especially in cases of domestic violence, the abused spouse will be very tempted to leave as quickly as possible, without attending to the details necessary for long term safety and security. In these cases, it is imperative that lawyers become more active advocates. In Iowa there was no failsafe measure that anticipated future difficulties regarding placement—but all the signs were up in blinking fluorescent letters on the wall. I wasn’t in a good position to read, but someone should have. And that failure in the system has cost both me and my daughter dearly.

+ It is no excuse for the system to say that it can’t provide help the parent doesn’t ask for. Taking seriously the dynamics of domestic violence means that extra care needs to be taken to break the cycle of abusive behavior rather than just transfer it (like an abusive priest!) to the post-divorce arena. The moment my attorney heard me say the words “domestic violence,” the system should have brought a social worker (or other health professional) into play so that I could negotiate the legal departure from the marriage with guidance about the emotional stakes—and mistakes—as well.

+ Society has a vested interest in promoting the health of families overall—and in minimizing the damage when families fall apart. Beyond simply minimizing the times that divorced couples end up back in court, the Family Court system needs to acknowledge that when families are in crisis they need more than just attorneys at the table. When a “family” goes through a divorce it means kids are present, and if the Iowa Family Court system didn’t owe me any extra help, it surely owed my daughter a far better start to her young life as the child of divorced parents than it offered her. It could have done that. It didn’t. And my guess is it still doesn’t.

*   *   *

This entry is the third written during my 21-day fast for justice in family court. Next I recount my first experience in Wisconsin Family Court. You can learn more about the fast, including ways to support me, at https://tothetune.wordpress.com/hungry.

2 thoughts on “Missteps from the Start

  1. David, your story leaves me almost speechless. You are brave to tell it. Yes, people leaving domestic abuse just want to get out ASAP, sometimes needing to move fast before they, themselves, talk themselves out of it. It is difficult to make the decision to leave and follow through for many reasons. You got out, thank goodness.

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