In this chapter I recount my journey to Family Court Counseling Services and on to a new stipulation.

5. Family Court Counseling Services to the Rescue—NOT
David Weiss, December 10, 2010 (Day 12 of the fast)

In the fall of 2002, as the summer of hell slowly cooled to ashes, our dysfunctional divorce was remanded to Family Court Counseling Services (FCCS) for a “placement study.” We were required to attend a parenting class on the importance of good communication, etc. following a divorce.  We filled out a detailed questionnaire and were asked to have a few references write letters about our character as I recall. And we were told to clear our calendars for two entire days in mid-October for sessions that would include a joint interview, individual interviews, and a session with our daughter.

The FCCS handout pledged that the study would be “a thorough process,” aimed at gathering information and making assessments to resolve placement disputes in a way that honored the best interests of the child. It would include an effort to help the parents reach an agreement that could form the basis of a new stipulation.

The same handout explained that the FCCS “must consider” a series of factors outlined in state law. These included (Wisc. Stat. 767.24(5) at the time, the numbering has since changed):

• the mental health of each parent;
• the cooperation and communication between the parents and whether either parent unreasonably refuses to cooperate or communicate with the other;
• whether each parent can support the other parent’s relationship with the child, including encouraging and facilitating frequent and continuing contact with the child, or whether one parent is likely to unreasonably interfere with the child’s continuing relationship with the other parent;
• whether there is evidence of interspousal battery or domestic abuse.

Although exhausted from the summer’s battle, I was quite hopeful going into the fall. I was confident that my past requests and my present hopes for placement time were more than reasonable. (I was seeking every third weekend during the school year and 5 weeks—not quite half—of the summer.) I had asked repeatedly that my ex and I meet with a mediator to assist with placement negotiations and she had always refused. Now the court order of August 2002 required her to join me in this process. Unfortunately my hopes proved to be naïve.

After doing our parent education class in the morning we had what felt like a rushed, one-size-fits-all interview and work session with our counselor—the director of FCCS. She spent virtually no time trying to assess the dynamics that were driving the conflict but went immediately to work trying to nail down the nuts and bolts of a new agreement. After three hours at this, she announced, “Well, we’ve made a start. We’ve reached at least some points of agreement. I think you can finish the rest from here. We’re done.”

I asked about the one-on-one interviews that we’d been told to expect. “Oh, I don’t always think those are necessary.” I asked about her interest in meeting with Susanna, for whom the anxiety of the summer was still quite fresh. “Oh, I don’t think we need to bother her with that.” I was afraid in my ex’s presence to explain why I thought both of those pieces were so important. If I angered her now, it would surely be vented at me—or my daughter—through placement difficulties in the weeks ahead. Besides, I had been clear in my questionnaire that the abuse dynamic was alive and well post-divorce and needed to be addressed. She knew this. And the system had “promised” a one-on-one interview and a session with the child. But suddenly the system wasn’t interested in that anymore.

Two weeks later the FCCS recommendation, based on its “thorough” placement study was released. It was basically what I had asked for—only more generous: it offered me every third weekend during the school and fully one-half (about six weeks) of summer. However, FCCS recommendations are not binding on the parties. They are reported to the court, but it remains up to the parties (through attorneys or otherwise) to negotiate and file a new stipulation.

I had released my attorney after the summer debacle and was now representing myself. I immediately announced my readiness to accept the FCCS recommendation. The placement time was very good in my mind, and while I had quibbles while some of the logistical details, I knew it was a better deal than my ex would agree to in separate negotiations. It proved to be more justice than she was willing to agree to at all.

In late November she rejected the FCCS recommendations outright, putting us back to square one. Because the FCCS never actually “studied” anything, the report made no mention of the legacy of unreasonable interference with placement, the history of domestic violence or the ongoing abusive control issues—all things the statutes required FCCS to consider. Absent that, “square one” was exactly where I had been more than six months earlier. The only difference was that now there was a court-mandated deadline: a hearing would be held January 13, 2003 if we had not reached a new stipulation by then.

I negotiated toward this with my ex’s attorney. It was slow going, and we made very little progress until just days before the hearing when my ex agreed to several key points and I informed the court that a stipulation was imminent and the hearing could be canceled. Four days later, on January 13, the day of the now-canceled hearing, she withdrew her assent and everything fell apart.

In early February I wrote to the court and to FCCS, explaining that negotiations had fallen apart and asking for a hearing to be rescheduled. My letter to FCCS director in February read in part:

The dynamic of spousal abuse that was present in our marriage continues to manifest itself in these custody matters. [My ex] has an unhealthy need for control and has learned a set of unhealthy behaviors by which to seek it.  … this pattern continues to distort our discussions of custody and placement issues whenever there is disagreement over what constitutes [our daughter’s] best interests. Indeed, [my ex’s] desire to negotiate an agreement with less clarity and less accountability is reminiscent of an abusive spouse seeking a modicum of reconciliation lest the whole abusive dynamic be unmasked and terminated. I am not interested in a modicum of reconciliation. I am interested in a stipulation that is fair and just and one that safeguards my rights as a joint custody parent.

My letter to judge indentified the remaining issues:

We have reached agreement on many points, but remain in disagreement over language that would:

• insure reasonable telephone access to [my daughter];
• allow me, in extenuating circumstances, to designate an alternate driver for a placement pick-up;
• set specific guidelines under which either of us could request mediation in the future.

The absence of language to address these concerns is unacceptable to me. Our marriage was marred by a dynamic of emotional control and physical abuse on [my ex’s] part. I have continued to experience this dynamic in [her] attempts to exercise near absolute control over my access to [our daughter] since our separation nearly four years ago. It was that dynamic that precipitated my appearance in your court this past summer. And I believe it is that dynamic which now makes disingenuous offers of conciliation only to reassert a pattern of control as soon as possible.

As soon as a new court date was set, my ex renewed negotiations, while blaming me for trying to rush us back into the court system. She proposed that we use her pastor—meeting in his study—as a neutral third party to broker the remaining issues. I doubt that many persons would have considered this a “neutral” person or a “neutral” site. But I accepted the offer, determined to use every hope that was available to me.

We met for a difficult but productive session of negotiation. I crafted a draft document based on the agreements reached in our conversation, agreements we reviewed point-by-point from my notes before leaving his office. Forty-eight hours later she rejected it practically before the ink was dry. She also released her attorney about this time. But somehow, just one week before the court date, we did sign a new stipulation.

It covered all the points I regarded as essential. It gave me 14-15 school year placements each year and one half of the summer. It provided clear timetables for creating exact schedules on a year-by-year basis—and a “fall back” schedule if we couldn’t agree on new one. My daughter couldn’t be held hostage by my ex’s unwillingness to agree to proposed dates any more. And we were now legally bound to use mediation in future disputes.

On March 7, 2003, we filed a new stipulation. And I got something of a new lease on life. I never saw it in the fine print, but apparently it was designated as a “30-month lease” because that’s about how long it held up. But that’s another chapter.

Reflections …

Both in my paperwork filed before my FCCS interview and in a letter sent to the FCCS director immediately after it, I made pointedly clear my concern that the dynamic of abuse in our marriage was now trampling my joint custody rights as a father. I reiterated this months later in my February 2003 letters to both the FCCS and the court. This was the sum total of their response: .

Once more, my efforts to bring the dynamic that was undermining my placement time into the open within the system failed. Instead I found a system that was entirely deaf to my concerns. Unable to imagine them as real or unwilling to deem them relevant.

The only positive role that Family Court played in making the agreement I reached in March 2003 possible was providing the deadline of an impending court date, which motivated my ex by fear or dread to come to terms. Beyond that everything I accomplished, from the bargaining table to the word-smithing, I had to do on my own. Family Court had multiple opportunities to be supportive of my attempts to have predictable and abundant time with my daughter. They did nothing to insure this happened.

As I would discover in 2005 and 2006, even what I had accomplished would not last.

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This entry is the fifth written during my 21-day fast for justice in family court. Next I recount my continuing experiences in Wisconsin Family Court. You can learn more about the fast, including ways to support me, at http://davidrweiss.com/hungry.