Letters

Go forth and multiply

I thoroughly enjoyed the article "Following in the Family Footsteps" (August 1998). The only question I thought the article neglected was "Are you a lawyer because of your family, or despite them?"

As the daughter of two attorneys, Judge Frederick P. Kessler and Joan F. Kessler, I spent the first 22 years of my life insisting that I was not going to become a lawyer myself. It wasn't until I discovered that I disliked the jobs I'd become qualified for as an undergraduate that I began to consider law school. And it wasn't until I was in law school that I realized my parents hadn't been pushing me to follow in the family footsteps. They had recognized that my personality was that of a diligent advocate even when I was a little girl.

I posed the question of the relationship between having a family full of lawyers and deciding to become a lawyer to some of the other second-generation lawyers I became friends with while in law school - Virginia Finn, whom you quoted in your article, Kathleen Garvey McNeil, and Laura Skilton Verhoff come to mind. None of us had a simple answer to the question of family influence, and all of us forged a different career path from that of our attorney-parents. In particular, none of us went straight from college to law school. But the true unifying factor among all of us is a dedication to community service and justice for the less fortunate. If a strong social conscience like that of Finn, McNeil, or Verhoff is - even partially - the result of being raised in a legal family, I say, "Fellow attorneys, go forth and multiply!"

Liza Kessler, Madison

Cure IOLTA constitutional
defect with disclosure to client

Thomas Heine's report on the U.S. Supreme Court's ruling in Phillips v. Washington Legal Foundation was an exercise in damage control and spin. (See "U.S. Supreme Court Decision Raises Questions About Wisconsin IOLTA program" July 1998 Wisconsin Lawyer, page 7.)

The Phillips case involved a constitutional challenge to the Texas IOLTA (Interest on Lawyers Trust Accounts) program. The Texas lawsuit threatened IOLTA programs across the country. Last November, former State Bar President John Skilton readily admitted that the outcome in Phillips "would be of significance to our IOLTA program - and its million dollars." Indeed, that was why the Wisconsin Trust Foundation (WisTAF) joined an amicus brief in support of the nonprofit corporation that administered IOLTA funds in the Lone Star state - the Texas Equal Access to Justice Foundation. That legal brief urged the U.S. Supreme Court to uphold the Texas program because "IOLTA programs are in the best tradition of the legal profession and not violative of the [Constitution]."

The bad news arrived last June when the Supreme Court rejected the legal arguments that IOLTA administrators have been relying upon for the past 15 years. Describing state IOLTA procedures as "confiscatory," the Court ruled that "the interest income generated by funds held in IOLTA accounts is the 'private property'" of legal clients.

Instead of a forthright report about the shellacking that he took at the Supreme Court, Mr. Heine does his best to save face. The WisTAF Board, he solemnly pronounces, believes the Phillips precedent to be of marginal relevance to Wisconsin clients because "the property laws of Texas and Wisconsin are different." Rest assured, he continues, that the WisTAF Board is "studying the decision to determine if it should adjust Wisconsin's program."

It seems clear that Mr. Heine and the WisTAF Board have grown very comfortable with the way in which the Wisconsin IOLTA program has operated over the years. They simply do not want to come to grips with the fact that their IOLTA program is as constitutionally flawed as the one administered in Texas.

The constitutional defect can be cured by a simple disclosure requirement. That is, if clients voluntarily decide to park their money in an IOLTA-like arrangement, after full and fair disclosure by the lawyer of all the relevant facts, no constitutional problem would exist. If IOLTA is as great a program as the bar leadership says it is, why is there so much reluctance to make sure clients are informed about where their money will be going?

Timothy Lynch,
Associate Director
Center for Constitutional Studies,
Cato Institute, Washington, D.C.

Joint custody is better standard

How can we seriously debate the standard in child custody placement decisions without bringing into the debate fathers or the substantial number of professionals who advocate for joint custody? The July article, "Debating the Standard in Child Custody Placement Decisions," only included Sen. George as a political advocate and left the impression that the professional community stands solidly against the presumption of joint equal placement. Certainly, fathers have an interest and an insight as they normally are the party who suffers from gender discrimination in the courts and from the prejudices of the quoted professionals in the article.

The laws of nature, the Wisconsin and U.S. constitutions, and human rights guarantee equal rights to parents of children and form the basis for the presumption of joint custody at divorce.

The best interest of the child standard is an extension of the tender years doctrine. Gender and race biases have disappeared in America in legal and overt formats. The gender bias hidden within the best interest of the child standard is simply that what is considered nurturing is more often than not associated with the traditional gender role of the mother. Under this hidden standard, unless a father is a better Mr. Mom than is mom, then his parenting is not considered as being in the best interests of the child. By example, this would mean that while dad earns the money to buy a baseball uniform, teaches his child how to play baseball, and takes his child to little league games, this does not really count for nurturing, because after the game mom launders the baseball uniform. What dad has done is fun; what mom has done is nurturing. This type of mind-think by the professionals is representative of today's gender bias in family law.

Never defining the best interest of the child was fine as long as gender roles were rigid in raising children. It was always presumed that what mother did (tender years doctrine) was in the child's best interest and this was rarely challenged, because only in the cases of an extremely unfit mother did the standard have to be applied. Simply put, dad made the money. Mom did not have an education or job commensurate with mom's societally defined role to raise the children. These rigid role functions in the marriage were extended into the divorce.

This all worked fine and dandy until the role functions began to change in the 1960s. Young women went to work, entered roles outside the family, and demanded that fathers take on a substantial role in raising the children. Fathers hesitatingly entered their new role as a hands-on parent only to find that nurturing one's children was far more satisfying than the unfulfilling and never-ending demands of corporate life. Dad thus became not only involved in the details but also in the emotional satisfaction of raising his children. However, at divorce, mom did not want to lose her respectable role as mother, and also was interested in the short-term financial benefits that accompany primary placement. But the world had changed. Dads were emotionally involved in the daily events of their children's lives with all its satisfactions. The family law system that we have in Wisconsin never considered that many fathers actually would challenge mothers over placement; the best interest of the child standard simply presumed that mom would have the children.

The substantial change in gender roles over 30 years has brought numerous contested custody cases which the best interest of the child standard never anticipated. The best interest of the child standard not only is antiquated but works against the best interest of the child. In the age of two parents working to be a middle class family, our children are not suffering from too much parenting, but from too little parenting. Equal joint parenting is the best means to maintain both parents and keep them fully involved in their children's lives after divorce.

The best interest of the child standard harms children because it draws parents into an adversarial law system that furthers the hurt and disappointments of a failed marriage and even after a trial, or perhaps especially after a trial, leaves both parents so alienated from each other that they are not likely to want to cooperate in parenting their children. The best interest of the child standard harms children by transferring the family assets from the parents to the parents' attorneys, the guardian ad litem, and the psychological professionals. The best interest of the child standard moves massive numbers of families into the ranks of the poor with the commensurate effect that children suffer under poverty. The best interest of the child standard is for many families a transfer of their hard-saved assets from their children's college education funds to the college education funds of lawyers, psychologists, and other upper middle class divorce professionals. No one has fought harder against equal joint placement than the State Bar Family Law Section.

In Wisconsin, we treat property better than we treat children. When the marital property law with its presumption of a 50/50 division of property was passed in Wisconsin, contested divorce cases based upon property division all but dried up. If Wisconsin citizens were sensible enough to treat material possessions outside an adversarial system, why can we not be sensible enough to treat our children much better than our property, recognizing that our children need all the parental involvement they can get? Our children understand what is the best interest of the child. Ask them what they are concerned about in a divorce and they will say, "I want my mother and I want my father." They fear losing either one. Our adversarial divorce system normally means that children will have one parent and one visitor, fulfilling the fear of every child of divorce.

The best interest of the child standard motivates each parent to be destructive to the other within the context of an adversarial family law system. At trial's end, neither parent nor child is better off. Families are poorer. One parent feels a winner; the other feels a loser. Children are destabilized for years to come. Only the attorneys are winners.

The Wisconsin family law best interest of the child standard harms most children of divorce. This standard is barbaric in an age where moms and dads are both physically and emotionally involved in raising their children. The presumption of joint custody is good public policy, good constitutional law, and removes most custody issues from the negative aspects of adversarial family law.

James Novak, President
Wisconsin Fathers for Equal Justice Inc.
Madison

Wisconsin Lawyer