Every few years, we can count on hearing social commentary on the alleged erosion of American values.  Predictably, marriage is part of the discussion, and inevitably, the American divorce rate is cited as a cause for concern.  The figure usually cited is that 50% of marriages in the U.S. end in divorce, although the true figure is somewhere between 40% and 50% overall, with higher rates among couples who married at younger ages and lower rates for couples who married at older ages. 

The usual trajectory of this discussion is for someone to claim that we have made divorce “too easy,” that marriages are viewed as throwaway commodities, and that the whole mess started in the 1970s when American states began to adopt no fault statutes.  Prior to that time, one spouse had to claim total innocence in the marital breakdown while proving “fault” by the other party in one of several designated categories – typically adultery, desertion, or physical or mental cruelty. This proof was a painful and distasteful process, and it could both lengthen the divorce process and make it more expensive. 

The adoption of no fault provisions made it possible for one party to obtain a divorce by alleging a ground such as “irretrievable breakdown” of the marriage without specifically attributing the blame to either partner.  Since U.S. divorce rates peaked in the early 1980s after the adoption of no-fault laws, social critics periodically argue that we should return to fault-based statutes to make divorce hard to obtain.

Those of you who know me know that I am particularly interested in family law.  Through my experiences learning about and observing the practice of family law, I have become convinced that our adversarial system is, more often than not, a poor way to resolve divorce.  This is especially true where children are in the picture.

So what’s the alternative?  I don’t know, but I did learn about a relatively new process that was created to avoid litigation in these cases called Collaborative Divorce (CD).  The CD process involves both parties to the divorce voluntarily signing a contract called a “Participation Agreement”.  The participation agreement states that each party agrees to work toward a negotiated resolution and will not litigate the case.  To me, it sounded like a good possible solution for people who don’t want to be dragged into litigation.  But, the more I looked into CD, the more I realized it couldn’t be for everyone (or even most individuals) who are going through a divorce.

Late last year, the Wisconsin legislature passed Wisconsin Statute section 48.979, which allows parents to delegate their parental rights to third parties by simply filling out a “Parental Power of Attorney” (PPOA) form.

Section 48.979 essentially allows parents with legal custody of their children to designate any third-party adult with nearly full decision-making power over a child’s life. What troubles me about this new law is that it does not allow for any oversight.

Section 48.979 requires absolutely no court or child protective services approval for PPOAs. I would imagine that some parents who might use a PPOA are people who have some difficulties in their own lives and, in turn, in raising their children. There is a long-standing Constitutional presumption that parents know what is in the best interest of their children and will act accordingly. Should we take that Constitutional presumption to mean that parents who might not be able to adequately care for their children should have the power to decide with whom their children should be placed and who should make decisions about their lives?