Connecticut Law Tribune Wrong on Child’s Best Interests

June 12, 2014 by Robert Franklin, Esq.

I write often enough about the dogged resistance to the concept of shared parenting on the part of family lawyers. We see it every day, particularly when state legislatures are in session. Then family lawyers troupe in to committee chambers across the country to inveigh against shared parenting, usually with trumped up excuses, misleading claims and sometimes outright falsehoods. One example of the last was Nebraska Bar President Marsha Fangmeyer openly lying about the clear, simple terms of a shared parenting bill before the state Judiciary Committee.

However they do it, family lawyers oppose shared parenting largely because it stands to cut into their fees. Shared parenting is well-established to reduce parental conflict and, as I’ve pointed out many times, lawyers take parental conflict straight to the bank.

Their arguments against shared parenting run to form. None of them is worth the bullet point in front of it, but they’ve got their story and they’re stickin’ to it. One of those arguments is that what’s important in custody cases is the best interests of children, not the rights of parents, which looks good on a bumper sticker, but doesn’t survive even casual scrutiny.

For one thing, every shared parenting bill ever written explicitly states that the best interests of children shall be paramount in all parenting orders. So the argument that, in some way, shared parenting bills are all about parents and not about kids is nothing but a straw man.

The corollary to the lawyers’ arguments is that parents’ rights and children’s interests are in some way antithetical. Of course, in all but the very rarest of cases, they’re not. Children benefit from having both parents remain a big part of their lives following divorce and naturally, shared parenting laws promote that. So there’s no “parents vs. children” scenario, but that doesn’t stop the lawyers from pretending that, when it comes to shared parenting laws, there is.

That brings us to this article in the Connecticut Law Tribune (Connecticut Law Tribune, 6/11/14). It’s pure pabulum, as intellectually bland as anything I’ve ever read. But its aim is to preserve the best interests standard in Connecticut child custody cases and it seems to have been occasioned by the recent amendment to state law reforming the guardian ad litem system there. From here, I’d guess that the popular outrage at GALs that boiled over and necessitated the reform law scared the legal establishment enough that it’s was thrown back on its heels. The Tribune article looks like something written by someone who’s terrified the rabble might demand further changes. It looks prophylactic.

Unfortunately for the anonymous writer, it’s so vague and colorless, I doubt it’ll have much of an impact on anyone. But still, in it we discern the familiar mumblings of a family law bar that has no clue about what people are angry at or worse, what the best interests of children actually consist of. According to the writer, a child’s best interest is something to be divined by a judge in ways that are simply unknowable to most of us.

Over the years, the legislature has added various "factors" to the list in Connecticut General Statutes §46b-56 that the decision-maker should consider. But those factors are merely guidelines to be considered. No single factor is dispositive and in the end, the decision-maker must decide between the competing claims of two (often very good and capable) parents based on the "best interest of the child."

Perhaps the greatest value of adding statutory factors and improving procedures rests in the notion that the decision-maker will have a wider variety of legislatively established words, phrases, and language with which to describe how or why a custody decision was made. But, in the end, the essence of that decision is not likely to be captured fully in words. Worse yet for the parent on the receiving end of a negative decision is the unfortunate reality that if the unspoken essence of that judgment remains beyond the grasp of the decider, then that parent will not receive any better explanation upon which to justify the loss beyond the words the decision-maker has used to describe that decision after it has been made.

I can only guess at what that’s supposed to actually mean and why it’s supposed to matter. But certain things stick out. First and foremost of course is the fact that it never occurs to the writer that we actually know pretty well what contributes to child well-being post-divorce. Equally shared parenting has been demonstrated by much social science conducted over several decades in dozens of different countries involving huge numbers of people to give the best outcomes for kids. Children in shared parental care do better than their peers in unequal parental arrangements.

Parents do too. Fathers and mothers are less stressed, less conflicted, happier, more fulfilled, more likely to be employed, less likely to abuse drugs and alcohol, etc. than are those in the winner-take-all system.

And of course, when we ask kids their preference, they overwhelmingly say they want to be with their parents equally. Some 93% of those in shared care and 70% in non-shared arrangements said they preferred to see their parents the same amount of time.

So in fact, judges know perfectly well how to order parenting that promotes children’s interests in the great majority of cases. Just order equal parenting (meaning anywhere between a 65/35% and a 50/50% split) and move on to the next case. Of course that’s not appropriate in some cases, such as those in which one parent is unfit or where there’s an issue of ongoing child abuse or serious partner abuse. But absent those relatively rare occurrences, equal parenting is the answer. No oracles to consult, no tea leaves to read.

Speaking of reading, it’s not apparent the Tribune writer has done any, at least not on the social science of parental arrangements post-divorce as they relate to children’s welfare. There’s a lot of very good information on the subject, but the writer either doesn’t know about it or doesn’t want his/her readers to.

After all, how can a person who knows the first thing about children’s well-being write this?

the decision-maker must decide between the competing claims of two (often very good and capable) parents based on the "best interest of the child."

No, actually, the decision maker doesn’t have to do any such thing. Unless there’s a law in Connecticut prohibiting shared parenting, no one need ever choose one parent over the other and pretend that in some way doing so benefits the child. It’s long been one of the weirdest aspects of family law that judges do exactly what the writer describes. They look out from the bench at two demonstrably fit and loving parents and decide that the child will effectively lose one of them. And then they say they’re acting in his/her interests. It’s enough to make your head spin.

We the People made it hot for the powers that be in the family law system and they’re rightly nervous. If this article’s any indication, they have good cause to be.

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