Nebraska: An Answer to Ray Keiser?

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August 6, 2020 by Robert Franklin, JD, Member, National Board of Directors

This article performs an excellent public service (Lincoln Journal Star, 7/27/20).  It once again informs us about the bankruptcy of the arguments made by anti-shared parenting activists, this time in Nebraska.  This is all they have to offer?  If so, there is in fact no argument of any substance against equal parenting.

Readers may recall that, not long ago, I posted a piece on the pro-shared parenting op-ed in the same publication by Ray Keiser.  Well, the linked-to piece is supposedly an answer to his.  It’s almost touchingly naïve.  From its ungrammatical headline to the final word, the article could have been written by a high school freshman.  And, tellingly, while it’s written by two lawyers, neither of them has any background in family law.  Is there really not one family lawyer in the state who can be convinced to trot out the usual nonsense that poses as reasoned opposition to shared parenting?  Apparently not.

The two authors, Pam Carrier and Deb Gilg offer three basic arguments: (1) Nebraska judges really sincerely try to do a good job, (2) the “best interests of the child” standard is an objective one and (3) courts are more and more ordering equal parenting time, so there’s no need for reform.

As to #1, I have no reason to believe that Nebraska judges are any more cynical or uncaring than judges of any other state.  I’m sure most of them do their best.  The question being, “is that good enough?”  And of course the answer is that, if they’re not ordering equal parenting in most cases, it’s not.  Seven years ago, when the state legislature ordered a review of family court cases, the data revealed that fewer than 6% of cases found any form of parental unfitness, child abuse or domestic violence.  In short, most parents who divorce are fit to care for their kids.  But time and again, one of them is prevented from doing so by a family court judge.

Second, the best interests standard is quite plainly anything but objective.  It is in fact the classic case of statutory language that most resembles a bucket into which a judge can dump his or her biases, prejudices, half-baked theories, etc. about what’s good for kids.  Given that few judges are educated in the literature on shared parenting – literature that strongly suggests that a child’s best interests and having as much time as possible with each parent are much the same – it’s inevitable that even the best-intended judges often get their parenting time orders wrong.

The matter actually gets laughable when we read the second comment to the linked-to piece.

Ms. Carrier and Ms. Gilg assert the “best interest of the child standard” is an objective standard. However, that’s simply not true. Numerous lawyers and legal scholars (including Hilary Clinton) have observed this standard provides no meaningful guidance to judges, which is why there often are very different outcomes in otherwise similar cases. The Nebraska Supreme Court also agrees. The Nebraska Supreme Court, in an opinion written by Ms. Carrier’s father, held the “best interests of the child” standard was unconstitutionally vague.

Yes, Pam Carrier’s own father served on the Nebraska Supreme Court and penned the opinion in the case calling the best interests standard – you guessed it – unconstitutionally vague.  But his daughter nowhere mentions that case in favor of blithely stating that, to the contrary, the standard is just fine, thank you.

The actual data on parenting time orders go a long way to rebutting Carrier’s and Gilg’s third claim.  What’s their evidence that courts are moving toward equal parenting?  None.  They surely know about the 2013 study performed in their own state, but nevertheless fail to mention it.  That may be because it rebuts their third point.  The Saini study revealed no trend toward equal parenting over the ten-year period studied, and, since there’ve been no subsequent studies performed, Carrier’s and Gilg’s assertion stands naked.

That’s even more clear when we see the figures on child custody in Nebraska.  Those show that over 70% of custody cases give primary custody to mothers and relegate fathers to the sidelines.  Fathers got primary custody in 13% of cases.  Most often, that means the standard every-other-weekend plus a couple of hours during the week visitation, i.e. not enough to maintain the father-child bonds that are so vital to the child’s well-being.

As with so many of its predecessors, the Carrier/Gilg piece has nothing to offer.  Kids everywhere, not just in Nebraska, need to maintain close relationships with both parents post-divorce.  Time and again, judges thwart that simplest and most vital of needs.  It’s time they stopped.  And it’s time anti-shared parenting advocates admit that they long ago stopped producing principled, fact-based arguments for their claims.

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