Erin W. Case, Part Two: Silliness About Genetic Testing, Shared Parenting

July 16, 2017 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Continuing from Friday’s post on the Erin W. case out of Nebraska.

The trial court and the Nebraska Supreme Court found a way to deny genetic testing to a mother, Charissa W. who wanted to find out whether her ex-husband is the father of her daughter. They’re better acquainted with Nebraska law than I am, so I’ll assume they’re correct on the law.

But the decision raises the obvious question “Why would we ever not want to know who the father of a child is?” For the life of me, I can’t come up with a single reason. The closest I can get is that, as in Erin’s case, the man who’s been acting as dad may not be the actual dad and yet the child believes he is. Learning that he’s not could lead to upset on the child’s part.

In that situation, reasonably sensible courts and parents could fashion a protocol for informing the child, depending on its age, and integrating the actual father into its care. We’ve seen that done before and will again.

Beyond that, the powerful reasons for learning the truth are legion. Most important is the medical necessity of the child to know its genetic heritage. Doing so can facilitate diagnosis of a great many diseases and conditions and rule out many others.

And if we’re interested in shielding the child from the heartache of learning that the man she thinks of as Daddy actually isn’t, what do we do when the child realizes that there’s no family resemblance between her and him? Those are the types of facts that have a way of coming out whether we want them to or not. How will she feel when she learns that her true biological father has been kept out of her life? That’s not a way to avoid emotional trauma.

Then of course there’s the issue of parental rights. Supposedly fathers have them. So what about G.T. in the Nebraska case? Charissa was very frank in saying the reason she hadn’t told him about the child she believes to be his is that she didn’t want him to be involved in her life. How does the State of Nebraska square G.T.’s supposedly constitutionally protected parental rights with its courts rubber-stamping Charissa’s denial of them? We should be reducing mothers’ power over fathers’ rights, not enhancing it.

Child support? In the case in question, Erin obviously is perfectly content to pay it to Charissa. But what about the next case in which the duped dad pays child support for a child who’s not his? And what about the biological father who gets a free ride. Both of those situations contradict public policy that says parents should be required to support their own children and, by extension, non-parents shouldn’t.

There’s a simple way around these problems: any party to a divorce or custody case who wants DNA testing performed should be able to have it performed. With the truth about paternity in hand, the court and the parties can figure out what to do next. Without it, there’s a large can of worms just waiting to be opened. Genetic testing is easy, fairly quick and inexpensive. Excuses for hiding from the truth aren’t good enough.

Then of course there’s always the broader solution to the problem – test the DNA of every child at birth. That way there would never be a doubt about a child’s paternity. Everyone concerned would know the facts from the outset and parenting arrangements and child support could be accurately decided. And litigation of the matter would never be required.

And, just in case anyone thought the Nebraska Supreme Court was through being misguided, be advised, it wasn’t. Among her other efforts to get Erin (aka the only father the child has ever known) out of her daughter’s life, Charissa objected to the 50/50 parenting time arrangement she herself had agreed to and that had worked well for almost a year prior to the trial court’s entry of its order. The Supreme Court rightly put that idea to rest, but, in so doing, revealed its profound ignorance about equal parenting.

We have held that joint physical custody should be reserved for those cases where, in the judgment of the trial court, the parents are of such maturity that the arrangement will not operate to allow the child to manipulate the parents or confuse the child’s sense of direction, and will provide a stable atmosphere for the child to adjust, rather than perpetuating turmoil or custodial wars.

Notice the assumptions made about shared parenting. First is that it should be ordered in only rare cases. Second, the court believes (and apparently has believed since 2007 when the case of Zahl v. Zahl was decided) that, in shared parenting arrangements, the child becomes able “to manipulate the parents.” Amazing. That’s a first for me. Has there ever been a finding that children in 50/50 arrangements magically become able to manipulate their parents in ways children in other parenting arrangements can’t? The answer is ‘no.’ The high court is imagining things. I’d be interested to know where they got that particularly bizarre notion.

And what about shared parenting “perpetuating turmoil of custodial wars? As Dr. Linda Nielsen has repeatedly pointed out, the scientific literature gives no indication that shared parenting does any such thing. The Court is laboring under the assumption, perpetuated by anti-shared parenting forces, that shared parenting promotes parental discord. It doesn’t. Plus, in order for it to work, shared parenting doesn’t require that parents get along especially well. Again, the science on the matter is clear. Of course, as we know, the powers that be in Nebraska have been successful in shielding judges from the realities of that science, so I suppose we shouldn’t be surprised at the arrant nonsense in the Court’s opinion.

Then again, the Court could have looked at its own words.

During the pendency of this divorce action, Charissa and Erin agreed to the entry of a temporary order granting them joint legal and physical custody of the child and providing equal parenting time on an alternating 5-day schedule. The parties operated successfully under this joint custody arrange­ment for nearly a year, and there is nothing in the record suggesting the parties or the child experienced difficulty with the arrangement.

Erin and Charissa of course are hardly the closest of friends. Charissa has done all in her power to remove Erin from her daughter’s life and he’s done all in his to remain there. And yet, exactly like the countless parents in study after study, the two make their 50/50 plan work very nicely. That’s exactly what the science shows, but the Court, steeped in the folklore of the anti-dad movement, didn’t notice.

Bottom line: good outcome, bad decision.




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Together, we can drive home the family, child development, social and national benefits of shared parenting, and fair child support and alimony. Thank you for your activism.

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