By ROSS WERLAND CHICAGO TRIBUNE Sunday, April 30, 2000

CHICAGO -- She takes the end tables. He takes the lamps. She takes the big TV and the stereo. He takes the new computer and the little TV set.

Now, how about the children, the living, breathing products of this union? Under healthy circumstances, these hildren want simply to love and be loved by each parent -- the same parents who just split up the consumer goods of the marriage.

If the parents can't agree on how to share the children's time, the decision will be made for them. At a time of extreme emotional upheaval as a family disintegrates, strangers in the form of lawyers, psychologists and judges will invade the most private aspects of the family's life.

Figures from the U.S. Census Bureau showed that in 1995, the latest year available, women had residential custody of children in 85 percent of cases and men in 15 percent. There is a lot those statistics don't explain, such as how many times men asked for custody. Some studies suggest that when they fight for custody, men have a much better chance of getting it than the census figures show. And a California study suggested that even though a third of fathers would have preferred sole custody, few of them formally requested it.

The bottom line, however, is that most custodial parents are female.

John A. Bailie of Barrington, Ill., thinks anti-father bias in the court system robbed him of an active role in his son's life after Bailie's divorce in September, 1998. After spending about $55,000 on a series of three lawyers, his battle is over. Rather than a co-custodian of his son, Alex, 9, he is technically a visitor, he said, simply because his ex-wife

objected to joint custody. That means he sees his son four weekend days a month and once during the week.

When his wife asked for a divorce, he thought what many mothers probably think: He couldn't fathom the idea of not being with his child.

"It isn't just that the system totally ignores the best interests and stated preferences of the child or that it considers meaningful participation by a father in the life of his child detrimental to that child's well-being.

"What bothers me most is that throughout this ordeal, nobody ever told me that I had no chance whatsoever of ever improving the life of my child by giving him two genuine, functioning parents."

Bailie's is a familiar complaint among fathers; it's no doubt true with noncustodial mothers.

New trends

But many people in the divorce arena suspect that trends are shifting and that perhaps the new census will reflect that, with fathers holding residential custody of their children in more cases.

There remains, however, a lot of history to overcome.

"We had so many years of men working outside the home and women staying home to take care of the kids. But we've got younger, female judges on the bench, and all that is starting to change," said Tampa attorney Miriam E. Mason, president of the American Academy of Matrimonial Lawyers. "Women will give men custody. I've seen it in many of my own cases."

Many legislatures are advancing that change. Florida is among 26 states that have switched from favoring custody by one parent to favoring some form of shared custody, according to American Bar Association figures. Florida even dumped the word "custody," discouraging the idea of child ownership, and replaced it with "shared parental esponsibility."

Wisconsin recently joined the list of states favoring shared custody, with the new law taking effect May 1.

"We're whacking the heck out of the adversarial process," said divorce attorney Jim Novak of Madison, a proponent of the legislation and an advocate for fathers.

Judges don't relish role

The idea of a judge deciding where a child lives and when he sees Mom and when he sees Dad holds little appeal for anyone, including judges. One Cook County divorce judge who asked not to be named said he believes that

ideally, contested custody should be decided in a more therapeutic venue than court.

"Lawyers aren't psychologists. They have no skills that way. I'm not a psychologist," the judge said. The idea of sending the futures of children into the litigious arena of winning and losing bothers him.

He suggests that when deciding custody, judges should take a hard look at a father's motivations simply because historically custody has become a bargaining chip right along with the assets and debts.

"There are people with agendas that have nothing to do with children," he said. "Winning shouldn't be the objective, but who's best for the kids."

"I think the biggest issue is who the judge is," said Richard G. Kent, a divorce attorney in Bridgeport, Conn., and author of "Fighting for Your Children: A Father's Guide to Custody."

Beyond the subjectivity of judicial personalities, he sees broad change in his state.

"I've been doing this for 24 years, and it's night and day between the mid-'70s and 2000," he said. "In the contested cases -- and 91 percent of all cases in Connecticut end up in a settlement -- custody runs about 60 percent for women and 40 percent for men."

Divorce attorney Jed Abraham of Evanston, author of "From Courtship to Courtroom" (Bloch Publishing), writes, "The odds are it doesn't pay for you to marry and have kids."

Nevertheless, he agrees that shared custody by parents is the best alternative for children.