In Nebraska, the Realization of the Need for Family Court Reform

September 11, 2014 by Robert Franklin, Esq.

The excellent Chris Johnson is back on the pages of the Lincoln Journal Star here trying to get a reasonable shared parenting bill passed in Nebraska (Lincoln Journal Star, 9/4/14). That effort was thwarted last year by Senator Brad Ashford, then chair of the Senate Judiciary Committee that tabled the bill without a vote. That move astonished a lot of people close to the negotiations on the bill. They’d done a lot of work to get a bill that was acceptable to the usual stakeholders, including the domestic violence establishment in the state. So Ashford’s refusal to even hold a vote on the bill came as a shock and a surprise.

Now Ashford and others are singing a different tune as Johnson points out and I mentioned in an earlier piece.

[T]here is an emerging consensus among judges and lawmakers about the need to reduce winner-take-all outcomes and eliminate the system’s pro-mother bias. In mid-August, Judiciary Committee chairman Brad Ashford indicated “changes need to be made to allow more equal time for both parents” (although he earlier personally killed a shared parenting bill). In late July, a panel of judges told a conference of family law attorneys that “shared parenting is coming.” To the children and parents who have been harmed by biased parenting time awards, these are welcome words. Reform simply can’t come soon enough.

And how that time is biased! Last year’s study of Nebraska courts’ child custody decisions was pretty damning of the status quo.

This study found mothers were awarded sole or primary custody in 72 percent of cases, while fathers were awarded sole or primary custody in 13.8 percent. Joint custody with shared residence — essentially equal parenting time — was awarded in only 12.3 percent of cases.

The study also found the average parenting time for noncustodial parents in Nebraska is only 5.5 days per month, while median summer parenting time is 14 days. Combined, this means most noncustodial parents have access to their children about 17 percent of the time, which is only half the minimum parenting time recommended by mental health research.

This and other studies show the current child custody regime in Nebraska is not in the best interests of children. In fact, it harms them.

It’s a point I’ve made time and again. Judges invariably intone the mantra of the “best interests of the child” when making their rulings, but there’s nothing to indicate they know what sort of parenting arrangements actually promote children’s welfare. If they did, we’d see a lot more orders for equal parenting, i.e. somewhere between a 50/50 and a 35/65 split of parenting time, than we do. We’d see that because the social science on the matter demonstrates that it takes at least 35% of the time for the benefits of shared parenting to manifest themselves in improved behavior and mental health on children’s parts.

As Johnson says, while judges say they’re acting in children’s interests, in fact the regime of winner-take-all parenting they usually order does the opposite. By relegating one parent — usually the father — to visitor status, they deprive the child of one fit and loving parent. That turns out to be deeply injurious to kids, a fact that’s been studied, re-studied and found countless times by innumerable researchers into all aspects of children’s well-being or lack thereof.

That radical disconnect between what judges say they’re doing and the actual results of their orders is perhaps the most remarkable and worst aspect of a family court system that’s widely acknowledged to be a catastrophically expensive mess.

Whatever laws say, judges have a way of thinking they know best and what they think they know is that mothers should receive primary custody and fathers should be marginalized in their children’s lives regardless of the well-being of children, regardless of fairness or justice and regardless of the rights and welfare of both parents. Johnson gives a few examples.

Unfortunately, many judges still don’t get it. Three cases over the last 18 months illustrate how difficult it can be to overcome the system’s pro-mother bias. In one case, a mother was awarded primary custody of her young children over the objection of their fit father, despite the fact the mother attempted suicide while home alone with the children. She was unconscious from an intentional drug overdose when found, and probably would have died had she not received emergency treatment.

In another case, a mother was awarded primary custody of her infant child over the objection of a fit father despite having an unstable employment and housing situation. The father was gainfully employed, had a home and lived near other family members who helped care for the child. In contrast, the mother had been living with her mother but, after a physical altercation with her mother, moved without notifying her mother or the child’s father of her whereabouts. She planned to live with the child in an apartment with three other people. This outcome is especially troubling because the mother expressed a willingness to share custody with the father, which the judge ignored.

In the third case, a mother was awarded primary custody of her children over the objection of their fit father despite the fact she lived in the basement of a friend’s home and regularly used illegal drugs. The father lived in the family’s former marital home, which was the only home in which the children had ever lived. While the father had his own issues, mental health research shows none of them were so serious that he should have lost custody.

These cases were decided by judges in three different judicial districts around the state, so the outcomes cannot be explained as the work of a single rogue judge. These cases show that despite the encouraging words about the need for family law reform, the reality in many places is that our family law system remains deeply biased.

Anyone who follows family court proceedings can give a long list of similar cases. One of the reasons is of course the judicial bias Johnson notes. But another reason — seldom mentioned — is the very fact that many states essentially require judges to find one parent and not the other to be the parent with primary custody. As Johnson makes clear, that just doesn’t make sense. When both parents are fit and loving, as they are in all but the rarest of cases (another fact found by the Nebraska study), there is simply no reason to remove one of them from the child’s life.

The winner-take-all system of child custody leads to the most bizarre splitting of hairs. Behavior by parents that in no way affects their fitness to care for children or their willingness to do so is routinely seized on by judges as cause for consigning the parent to the family court version of Siberia. One example I’ve written about is the case of Dr. Francis Joseph in Wyoming. Explicitly found to be a fit, loving and capable parent, the judge nevertheless ordered him to spend the rest of the child’s pre-adult years as a visitor. Why? Because Joseph, in the judge’s opinion, tried too hard to win custody and thought to well of his own parenting abilities. Really. That was the “reason” given for shoving Dr. Joseph out of his daughter’s life.

The point being that the system of primary custodial parent and visitor leads to absurd distinctions between parents that have nothing to do with parental fitness and lead to damaged kids.

All Nebraskans should care about these issues. Children who have insufficient parenting time with either parent are less likely to finish school, more likely to engage in high-risk activities and more likely to engage in criminal behavior than if they have two parents actively involved in their lives, regardless of whether their parents are living together. Much of this human misery could be prevented if we simply fixed our troubled, woefully out-of-date family law system.

We’ll soon see how Nebraska deals with this self-inflicted problem. Business as usual will dictate no reform of laws that injure kids and parents alike. Reform will mean at least 35% of parenting time going to each parent. We know where we need to go, and the destination isn’t far off. Chris Johnson and many other Nebraskans know the way.

The National Parents Organization is a Shared Parenting Organization


National Parents Organization is a Shared Parenting Organization

National Parents Organization is a non-profit that educates the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents, and extended families. Along with Shared Parenting we advocate for fair Child Support and Alimony Legislation. Want to get involved?  Here’s how:

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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