Nebraska Custody Rulings Violate Constitution, Impair Child Well-Being

January 6th, 2013 by Robert Franklin, Esq.
In this article, attorney James Bocott of North Platte, Nebraska absolutely nails the ongoing scandal that are our family courts (, 1/4/13).  Bocott hits all the high spots, from the gender-based inequality of custody outcomes, to the harm that does children, to the social science on child well-being, to the shocking “cookie-cutter” approach to custody taken by the great majority of family courts.  Unsurprisingly, he also quotes the excellent Dr. William Fabricius of Arizona State University who’s done some of the best research into children’s welfare and custodial arrangements.  It’s a must-read, and I hope every elected official in the state does so.

Cases like [the one mentioned] are based on the false premise that there should be one “primary” parent who has sole legal custody and most of the parenting time. However, mental health research shows that joint decision-making and maximized parenting time with each parent provide the best outcomes for children in most cases.

Numerous studies show a strong relationship between the amount of time children spend with each parent and positive outcomes. According to a recent presentation by Dr. William Fabricius, maximized parenting time with each parent protects children from harm to the father-child relationship, harm to the mother-child relationship and harm due to parent conflict.

Moreover, parenting plans that minimize the parenting time of one parent, which are often court-created, contribute to poor lifetime health outcomes for many children of divorce, including reduced life expectancy. Dr. Fabricius characterizes the consequences of these parenting plans as “a serious public health problem.” Children need frequent, meaningful and consistent parenting time with both parents.

Dr. Fabricius is a professor of psychology at Arizona State and a national expert on custody and parenting time issues. He also chaired a committee at the Arizona Legislature that worked for two years to revise the Arizona custody statutes. These revisions were unanimously enacted into law earlier this year.

It’s worth mentioning that those revisions were reported on by Fathers and Families member Clay Robertson.  As of now, Arizona has one of the most progressive custody laws in the country and I have no doubt that Fabricius is in no small part responsible for its enactment.  I have high hopes for improved outcomes in custody cases in Arizona.

Importantly, Bocott lets Nebraskans know that (a) the constitutions of the state and the United States accord with the social science on child well-being and (b) state courts routinely contradict both legal documents and the social science in their custody rulings.  Do parents in the state understand their constitutional rights?  Do the lawyers?

The most recent mental health studies are also consistent with constitutional requirements.

For example, the Nebraska Supreme Court held that “both parents and their children have a recognized unique and legal interest in, and a constitutionally protected right to, companionship.

“In other words, the substantive due process right to family integrity protects not only the parent’s right to the companionship, care, custody, and management of his or her child, but also protects the child’s reciprocal right to be raised and nurtured by [his or her] biological parent.”

We know that children need both parents on a regular basis to thrive, and the state and private charities spend millions of dollars each year to keep both parents involved with their children. Yet divorce seems to cloud this fundamental truth.

The U.S. Supreme Court has also stated that “the interest of parents in the care, custody and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court.”

It is difficult, if not impossible, to reconcile these constitutional standards with many contested custody cases, in which judges order custody to one parent over the objection of the other fit parent.

This raises the question of whether the Nebraska Parenting Act, as applied, complies with the Constitution. This “cookie cutter” every-other weekend approach followed by many judges is not supported by mental health literature or the Constitution.

The Nebraska Court of Appeals has held that a court has the authority to order joint custody, even in cases where one of the parents refuses to consent, if the court holds a hearing and specifically finds that joint custody is in the child’s best interests. Nonetheless, many judges and other family court participants disfavor joint custody except in cases where both parents agree.

As discussed above, this reasoning is inconsistent with Nebraska law, inconsistent with applicable constitutional standards and unsupported by mental health research.

The Nebraska family law system desperately needs reform. Mental health research shows that every-other-weekend parenting time schedules are harmful to children, yet they are still routinely ordered in many cases.

It is time to stand up for children of divorce and ensure that each child has frequent, meaningful and consistent parenting time with both parents.

I couldn’t have said it better myself.  The people and, more importantly, their elected officials and judges must take heed.

Thanks to Jim for the heads-up.

Leave a Reply

Your email address will not be published. Required fields are marked *