Maryland Commission on Child Custody Opts for Status Quo

December 19, 2014 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

The Maryland Commission on Child Custody Decision-Making has completed its work and filed its report. The results aren’t pretty. Very much like what happened in Nebraska when that state sought to study child custody outcomes in family courts, the Maryland Commission was made up almost exclusively of individuals with a stake in its findings and recommendations. I refer of course to family lawyers, judges and family court hangers on like guardians ad litem, etc. Unsurprisingly, its recommendations are mostly for a continuation of a status quo that enriches the participants at the expense of parents and of course children. Here’s a blog that’s familiar both with the Commission and the multiple problems of the system of child custody in this country (Harvard Law, 12/11/14).

The commission recommended as a guiding principle “there should be no presumed schedule of parenting time.”

In other words, judges can continue ordering parenting time based on their own biases; the legislature should not presume to influence those orders in the direction of shared parenting that’s known to be in children’s best interests. And of course, the lawyers on the Commission know well that an absence of a presumption of shared parenting for fit parents will continue to create conflict and therefore to line their pockets. That, after all, is the point.

Attorneys we’ve interviewed nationwide say that this leads to the most litigation and the highest total fees billed. It also puts a premium on attorneys’ personal connections with judges because we were told that, in the absence of striking facts (e.g., one parent is a drug addict), judges generally award custody and set parenting schedules based on personal prejudice and/or their relationships with attorneys.

If there’s no presumption, then both parents are encouraged to fight tooth and nail because either could win the sweepstakes or lose completely. Either could get 100% of parenting time or zero. And as I’ve pointed out many times, the greater the conflict between parents, the more attorney fees are generated. Lawyers thrive on conflict; the only ones who don’t are Mom, Dad, and the kids. Predictably, the Commission opted to plump for the former group.

As usual, the Commission demonstrated that it’s utterly unaware of or uncaring about the social science on children’s well-being as it relates to family structure post-divorce.

Judges are encouraged to investigate the share of parenting responsibilities “performed by each party … before the initiation of litigation.”

That’s another way of saying that judges are encouraged to give primary/sole custody to mothers. After all, it’s the mother who’s almost always the one to do most of the feeding, bathing, diapering, etc. Mothers are far more likely than fathers to forego paid work in favor of childcare. That means she and the child live on the earnings of the father, who pays the rent, the food bill, the medical bills, the utilities, insurance and the like. According to the anti-dad crowd, his providing the requisites of life indicates he’s not fit to be a parent to the child when the couple split up. That of course is fatuous nonsense. What he provides is every bit as necessary to child well-being as what Mom provides, but judges routinely ignore that obvious fact.

Worse though, the notion that the person who does the majority of hands-on childcare should be the one to get primary or sole custody is detrimental to the very person child custody decisions are supposed to be about – the child. As much science shows, children bond with both their parents from the very first weeks of life and to them, there’s no hierarchy. They attach equally to their fathers and mothers. So when either of them is removed from the child’s life, the child suffers because of the absence. Face it, children don’t value Dad less because he goes to work to earn the money to support everyone. They don’t, but courts do and the Maryland Commission thinks that’s just dandy.

But it turns out there’s more. That approach hasn’t just been shown to be nonsense by social science, it appears to affect parental behavior prior to filing the divorce petition.

[A]ttorneys that we interviewed said that it led to substantial rewards for people who engage in pre-lawsuit planning. If Parent A expects to sue Parent B, Parent A will eagerly volunteer for all kinds of child-related tasks while asking Parent B to shop, cook, work extra hours, and do other non-child-related tasks in the marital partnership.

Ah, so the one planning to divorce can lay the groundwork in advance and the courts will pretend not to notice.

Just in case the Commission’s bias weren’t clear by now, it went on to recommend that shared parenting be denied to parents who don’t communicate effectively with each other. In practice, that means the parent who has temporary custody or figures she’ll get it, can pick fights with the other parent and – presto! – no shared parenting. That provision gives one parent veto power over the other parent’s time with the child.

And of course let’s not forget that the prospect of child custody can equally be the prospect of significant financial benefit to the custodial parent.

If the proposed statute is adopted, Maryland will be in pretty much the same situation it is now. Children are cash-producing assets whose ownership is uncertain. The profits from ownership of these assets may be greatly in excess of what a college degree will generate. Ownership of these cash-producing assets will be determined by a single person, the family court judge, based on a combination of (1) evidence that is considered irrelevant by academic psychologists, (2) attorney argument, (3) personal prejudice, and (4) personal connections to the attorneys. Thoughtful litigants who engage in pre-lawsuit planning and post-lawsuit conflict generation will be rewarded with more time with their children and enhanced cash profits.

[How profitable are children in Maryland? Using UCLA Professor of Economics Bill Comanor’s numbers on actual child-rearing costs (previous post), the OECD’s estimate of how much time working parents spend on child care, a 67/33 parenting time split, and the Maryland Child Support Guidelines, obtaining a custody of a child whose other parent earns $180,000 per year will generate about $77 per hour in tax-free cash. This is more than 3X the median (taxable) hourly wage in Maryland (Bureau of Labor Statistics). Adjusting for taxes, the successful custody/child support plaintiff in Maryland will out-earn the worker by 4:1.]

The conclusion is unmistakable; marry a successful partner and you’re on easy street. If you become in the least dissatisfied with your marriage, you’re still on easy street. Not bad just for caring for a child you love and would probably have cared for free of charge. And let’s not forget that that’s just the child support. Tack on alimony and the combination of a child and a divorce can add up to a life of considerable ease.

I’ve said all this in one way or another before, but it bears repeating. We shouldn’t encourage people to divorce. Essentially everything about our system of divorce, child custody and alimony does exactly that for one set of people. The same system encourages another set of people not to marry in the first place.

There’s no excuse for this type of plainly dysfunctional behavior on the part of one of society’s most important institutions. Ensuring that family lawyers continue to make their yacht payments isn’t good enough.

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