November 16, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
Continuing from yesterday, it’s remarkable enough that the state spent $150,000 on a study that required information the state didn’t have. It’s even more remarkable that the very Parenting Act revisions the National Center for State Courts sought to study has the well-being of children at its very core, but the researchers could glean no information on that all-important topic. And it’s yet more remarkable that the judiciary, that’s supposed to act in the best interests of children opposes LB 27 that would help provide the type of information the researchers lacked.
All that’s enough to drop the jaws of even casual observers. We might even conclude that Nebraska’s family court judges are uncomfortable with what they’re doing regarding parenting time and would prefer the public know as little as possible about it. And of course that goes for the state’s legislators too. After all, it looks very much like those judges are failing to carry out the wishes of Nebraska’s legislative body.
Recall that the Evaluation discussed yesterday is the second of a two-part effort by Nebraska lawmakers to figure out (a) what family courts actually do regarding child custody and (b) whether their 2007 revisions improved children’s well-being post-divorce. Sensibly, they want to know the facts of those matters before proceeding.
The first part of the process produced some fascinating information. From that we learned that Nebraska’s fathers rarely get sole or primary custody of their kids. Mothers got primary custody in about 72% of cases versus 13.8% of cases for fathers. Shared custody was rarer still. We also learned that allegations of unfitness on the part of a parent, child abuse or neglect by a parent or domestic abuse by a parent were almost vanishingly rare. Those were even alleged in fewer than 10% of case filings and presumably proven in far fewer.
And that’s highly interesting considering the legislative purpose of the revisions. In the words of the Evaluation,
The Legislature, through the Parenting Act, further found that “the state presumes the critical importance of the parent-child relationship in the welfare and development of the child and that the relationship between the child and each parent should be equally considered unless it is contrary to the best interests of the child.”
Stated another way, the legislature thinks that equal time for the child with each parent is important to consider except when the child’s best interests would be adversely affected. In over 90% of the cases there’s not even an allegation of detrimental behavior by either parent. And yet Nebraska courts fail to even approach equality of parenting time in the overwhelming percentage of cases. We could almost conclude that judges are ignoring the plain intent of the Parenting Act.
After all, January 1, 2008, the effective date of the revisions, is by now a long time ago. The legislature stated that the parent-child relationship is of “critical importance in the welfare and development of the child.” And the parent-child relationship isn’t just the mother-child relationship or the father-child relationship. It’s both parents. That’s why lawmakers urged judges to consider each of those relationships equally. Are they doing so?
Who knows? We can’t look into the minds of judges, but we can look at what they do. And the sad fact is that, from prior to the 2007 revisions to the present, there’s been scarcely any change in the outcomes of custody cases. Overwhelmingly, judges still give primary custody to mothers and marginalize fathers in their children’s lives. This is true despite the legislature’s urging them to do otherwise. It’s also true despite the fact that, as we learned from Part One of the Nebraska study, only rarely does either parent even accuse the other of behavior that would necessitate seriously limiting parenting time for that parent.
Again, it looks very much like the state’s family courts are simply doing what they’ve always done, irrespective of the plain wishes of the legislature.
Recall that there are some half a dozen surveys of family court judges and family lawyers in 11 states that demonstrate astonishing anti-father bias on the part of both. Indeed, a not insubstantial percentage of those judges admitted to never acting impartially when it came to custody cases. Amazing, but true.
Which brings us back to the absence of information about child well-being that was revealed by the Evaluation conducted by the NCSC and LB 27 that would require gathering data on parenting time in custody cases. As I mentioned, the state’s judiciary opposes LB 27, and I think I know why.
If the legislature learned that the judges were doing what they’re almost certainly doing – i.e. sidelining fathers post-divorce – the information required by LB 27 would reveal that. The legislature might then realize that judges weren’t following the clear intention of the 2007 revisions to the Parenting Act. And that in turn might well spur them to pass a tougher statute, one that didn’t simply plead with judges to “consider” equal parenting, but required them to do so in the form of a presumption.
The results of Part One of the inquiry into the doings of family judges in Nebraska got us very close to that very conclusion. Clearly, the 2007 revisions have been ineffective to keep divorced fathers actively involved in their children’s lives. That’s true despite the legislature’s efforts to do just that.
Part Two of the study did nothing to disabuse us of that notion. Indeed, it did very little at all.
The next step couldn’t be clearer. The Nebraska Legislature needs to pass real child custody and parenting time reform so that the state’s children don’t lose their father to the divorce process. Real reform means a statute that’s tough enough to force judges to give each parent at least 35% of the parenting time absent extenuating circumstances like unfitness or abuse.
Nothing less will do the job. Family court judges have proven their unwillingness to follow the urgings of lawmakers. It’s time to stop urging. It’s time to mandate an equal parenting presumption.
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