Who Wins the Custody Jackpot?

Todd Strand is in a world of hurt. It’s called Hennepin County Family Court, where he’s spent the last three chilly midsummer days in divorce trial proceedings, after almost three years of legal warfare. His personal tab—not including his wife’s legal fees—has already pushed past the $100,000 mark. Seven thousand dollars of that went to cover his half of the cost of a private custody evaluation that spanned from last summer to this one. His trial didn’t conclude, so he’ll be headed back to court in two or three weeks. If things get backlogged, it could be as late as October. After hearing this deflating news, he’s not sure he’s got it in him to keep his commitment to this interview with a writer who wants him to discuss—yet again—the complicated details of his personal life. Plus, this story will be in readers’ hands long before his case is decided, which could be as far off as January 2004, depending on how long the trial drags on. It makes Todd edgy. “I don’t want to make this any worse,” he sighs into his cell phone, saying that even if we change his name, which we have, certain details might be specific enough to stick out and identify him. “Look,” he concedes, “I’m standing in line waiting to buy a burrito. I’m starved. Give me two minutes, and I’ll talk to you.”

So despite his reservations, despite his understanding that this story is not going to be strictly the one he’d like to tell about how “men are discriminated against” in family court, despite his exhaustion and stress, despite all of it, this forty-three-year-old father of two school-aged children still wants to talk. In fact, he can’t stop talking—the words just spew out involuntarily. “I’m exhausted, but I don’t mind telling about this, because when it comes down to it, this whole system is just a tragedy, and if there is anything I can do to help anybody else, it’s worth it. There has got to be a better way.”

No matter how you look at it, modern American divorce is a costly spectacle. With about a million new marital dissolutions each year, divorce is a twenty-billion-dollar-a-year industry, and the average admission price these days is fifteen to thirty thousand dollars per spouse (a figure that’s even higher in many urban areas or for complex and highly conflicted cases, such as Todd’s). Attorneys take the biggest piece of the pie, with meters running at $150 to $450 an hour to handle the legal documents. And then there is the best interest of the children to consider—a process that’s become unfathomably expensive, financially and emotionally, in a growing number of divorce cases.

For Todd, the custody dispute has gone poorly. “They want you to say every horrible thing you can come up with about the other person, and I haven’t done that. I’ve stayed on the high road the whole time, and as a result I’m losing big.” Todd wants joint legal and physical custody; his wife wants sole legal and physical custody. In Minnesota, almost all divorcing couples have joint legal custody, which means major decisions will be shared regarding the children’s education, religion, and health care. Minnesota law presumes joint legal custody except in extreme cases, such as documented abuse. Physical custody, though, pertains specifically to the everyday care and residence of the child, and while joint physical custody has gained popularity in recent decades, the majority of divorcing Minnesota mothers still retain sole physical custody (usually by agreement of the divorcing couple).

Despite these legal presumptions and precedents, Todd’s evaluator, a private professional whose work was paid for by Todd and his ex-wife, recommended sole legal and physical custody for the mother. Todd told me he didn’t feel comfortable with the evaluator from the start. “It’s crazy. What I keep coming back to is that the punishment doesn’t fit the crime. Not that I committed any crimes,” he insisted. “I haven’t. But the bottom line is they want full legal, and they want to prove I’m such a crappy dad, but it’s not true. You can just see that the custody evaluator is very biased.”

About one million American children experience their parents’ divorce each year, and nearly half of all children born today will go through some sort of custody dispute in their lifetime, because today’s divorcing parents don’t readily agree on the care and custody of their kids. Neither do the laws that govern our family courts, nor the people who practice there. Getting the issue of custody decided in court via the prevailing “best interest” standard has become a quagmire. Family court judges and referees frequently order a child custody evaluation to be conducted, and they base their decisions on the report submitted by the evaluator after the assessment has been completed, which usually takes several months. Custody evaluators can be employed by the county or by the divorcees themselves, in the former case being almost free to parents in Minnesota, and in the latter costing anywhere from two thousand to twenty-five thousand dollars.

Custody evaluations involve a full workup of “research,” including home visits, parenting observations, parent interviews, child interviews, questionnaires, psychological testing, intelligence testing, chemical dependency assessments, and interviews with friends, neighbors, teachers, doctors, dentists, babysitters, and so on. One cottage industry begets another: On the web, there are dozens of sites that describe the ins and outs of winning custody by impressing evaluators, passing psychological tests, and showcasing your ex-spouse’s parenting deficiencies without staining your own hands. There’s a tidy profit to be made from the panic and helplessness that strike when parents are being scrutinized and graded by a random stranger.

These issues and the systems governing them are so complex and variable across states and counties that to ponder them makes your head spin. Yet Sarah Ramsey does it every day. Ramsey is a law professor at Syracuse University, where she specializes in family law. She coauthored the popular casebook Children and the Law: Doctrine, Policy, and Practice. “Children aren’t so harmed by divorce, per se, but by a high level of conflict, whether it accompanies divorce or is part of the ongoing marriage,” she told me. “It would seem logical that conflict over custody would be even worse for children than conflict over something else. It is very important for parents to put their kids first and keep them out of their conflicts.”

To determine the total number of cases in which custody is disputed is to count grains of sand on a windy day, because, contrary to Todd’s experience, the overwhelming majority of disputed cases do not go to trial, even when they involve expert custody evaluators. Instead, roughly ninety-five percent of divorce cases—even the most vicious—are settled out of court without a trial. But the term “settled” is misleading in its civility, because most of these settlements occur on the courthouse steps, after a year or more of damaging accusations, affidavits, court hearings, evaluations, tests, home studies, motions, countermotions, and endless other machinations of the adversarial family-court system, including the paralyzing stress and financial strain of it all.

Still, the number of contested custody cases has increased over the last three decades. According to Canadian psychologist Tana Dineen, “This area of practice is a tremendous source of income for psychology ‘experts.’ In the mid-1970s it was estimated that in the U.S. the yearly price tag for all the custody evaluations done was $24 million.” Today, courtroom psychology is a billion-dollar industry, and custody evaluations account for a substantial slice of that revenue, probably at least $100 million.

Pages: 1 2 3 4