Nebraska Committee Files Petition to Change Rules on Custody, Parenting Time

June 1, 2014 by Robert Franklin, Esq.

The issue of shared parenting is heating up again in Nebraska. On May 29th, the Nebraska Child Welfare Committee submitted a petition to the state Supreme Court to establish rules for the state’s family courts in child custody cases. That was brought about by that gift that keeps on giving, the Nebraska 2002 — 2012 Custody Court File Research Study published by the Administrative Office of the Courts.

The study revealed a lot about how custody is apportioned in the state. Among many other things, it showed that custody outcomes vary wildly from district to district. So, not only were mothers granted sole or primary custody five times as often as were fathers, there was no rhyme or reason to the radical disparity. If a father’s case happened to fall in District Nine or Twelve, for example, his statistical likelihood of getting joint custody with shared residence was zero. By contrast, if he was lucky enough to live in District Eight, it was over 26% – not great, but much better than zero. That type of extreme disparity exists throughout the state in both custody outcomes and parenting time.

Such disparities do more than harm fathers and children; they violate the state Constitution as well. One article of the state Constitution states that “the organization, jurisdiction, powers, proceedings and practice of all courts of the same class or grade… and the force and effect of the proceedings, judgments and decrees of such courts, severally, shall be uniform.” But when it comes to family courts, they’re not, and that necessitates the Court’s establishing rules to ensure the various courts provide some sort of uniformity to their custody and parenting time orders.

That’s what the Nebraska Child Welfare Committee is asking the Supreme Court to do — promulgate those rules — and it thoughtfully provided the rules it wants the judges to establish for family courts in child custody cases. Those come in the form of some 18 factors each court would have to consider in each custody case.

Among those are “(f) the effect on the child as a result of continuing or disrupting an existing relationship; (o) credible evidence that a parent has knowingly made a false allegation of abuse, child abuse or neglect or domestic intimate partner abuse; (p) credible evidence that the parent has interfered with the other parent’s access to the child; (q) credible evidence that the parent has interfered with the child’s relationship with the other parent, and (r) each parent’s willingness to encourage a positive and continuous relationship between the child and the other parent.”

And of course there are the usual considerations like whether a parent has abused or neglected the child or engaged in domestic violence toward the other parent. Plus, there are numerous non-controversial factors like the health of the child, the age of the child, the child’s wishes if he/she is of a certain age, and the like.

In short, in addition to the usual things judges should consider in custody orders, the Nebraska Child Welfare Committee wants them to consider parents’ abilities to promote the child’s relationship with the other parent. That is, the Committee wants children to have meaningful relationships with both parents and means for courts to require that to the extent they can. Many states have statutes mandating exactly that and there’s no reason Nebraska shouldn’t become one of them. And of course the proposed rules seek to encourage judges to take seriously things like parental alienation and custody interference.

The proverbial bottom line is that, absent serious defects in one or both parents, a continuing meaningful relationship with both parents is essentially always in a child’s best interests. Much social science demonstrates as much and it’s high time judges conformed their orders to the dictates of that science. It’s time judges stopped substituting their own harebrained and often biased notions of the best interests of the child for the dictates of scrupulously-done research.

Having dealt with custody, the Committee’s petition moves on to parenting time. With certain exceptions like parental unfitness, a parent’s consent, a parent’s child abuse or domestic violence, the petition states that “in no event shall the court adopt a parenting plan in which one parent has less than forty percent (40%) of the total annual parenting time.”

That too is in line with the social science on parenting time and child well-being that finds that the benefits of shared parenting generally don’t arise when one parent sees the child less than about 35% of the time.

The petition would require judges to consider whether a parent has attempted to manipulate the proceedings via false allegations, willful conflict, interference with access, etc. It would also require judges to make written findings of fact in all cases in which it’s the judge, not the parents who makes the parenting plan, unless the parents waive the filing of written findings.

All in all, the petition would be a great leap forward for fathers, children and the Nebraska family court system. Its intention is to bring some sort of coherence to custody and parenting time cases, and thereby bring family courts into compliance with the requirements of the state’s constitution. It’s no panacea, but it would be an improvement.

As with all petitions that would alter the rules of a state agency, this one has to go before the public for a period of comment before being voted on. Just how long that period is or of just what it consists appears murky, but I suspect we’ll soon find out.

But whatever happens with the petition, it’s clear that the pro-shared parenting forces in Nebraska are going to continue to be in the face of both the legislature and the courts until the state’s policies on parenting change for the better. This is just the latest round of a donnybrook that’s who knows how long.

Here’s an article about the petition in the newspaper with the widest circulation in the state (Omaha World Herald, 5/29/14). I’m informed that, in its hard-copy version, the article appeared on Page One, above the fold. So someone knows this is a vital issue that will be making news for the foreseeable future.


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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