Nebraska: Increase in Joint Custody Correlated with Decline in Divorce Rate

March 1, 2021 by Robert Franklin, JD, Member, National Board of Directors


(Channeling Garrison Keillor.)  Well, it’s been a quiet week at the Nebraska Court of Appeals.

Oh, the judges are as busy as usual, but none of the cases they decided last week was a family law matter.  In fact, over the last three weeks, they’ve decided 22 cases, just two of them from the family courts and only one of those was a child custody case. 

So what?

A reliable source in the state, who’s followed family court doings for many years, tells me that the appellate docket used to have more family law matters than any other kind, even criminal cases.  But now, week after week, a search for family law cases decided by the Court of Appeals turns up nothing.

That of course raises the obvious question, “Why the change?”  Perhaps there are as many family law cases being litigated as ever, but for some reason far fewer are being appealed.  Nope.  Since 2010, initial family law filings are down an astonishing 27.7% despite the state’s population increasing by 5.6% over that same time.  So again, “Why the change?”

It turns out that the decline in court filings neatly tracks the increase in joint custody rulings.  In 2010, the number of divorce cases in Nebraska hit an all-time high of 3,465 and has declined steadily to its current level of 2,504 in 2019.  Again, that’s in a state whose population is increasing.

Meanwhile, joint custody orders have been rising; they doubled between 2010 and 2019 from 25.6% of all family law matters involving children to 50.6%.

In short, the rate of joint custody went up and the rate of divorce filings went down during exactly the same time. 

Coincidence?  Hardly.  It’s long been understood that sole/primary custody regimes encouraged divorce.  Researchers Margaret Brinig and Douglas Allen long ago reported that women are far more likely to file divorce actions than are men because they “know they’ll get the kids.”   In fact, Brinig and Allen said that single factor “swamped all others” in predicting who would file.  Likewise, the State of Kentucky has seen a decline in divorce filings since the implementation of its first-of-its-kind presumption of equal parenting.

Needless to say, a reduction in the number of divorces is sound public policy.  Kids suffer terribly when their parents split up and courts make the matter worse by failing to divide parenting time equally between the parents, or as close to equally as feasible.  And of course single parents, particularly single mothers, are more likely than any other demographic group to live in poverty.  And if the parent lives in poverty, so does the child.  Fewer divorces mean improved children’s welfare.

Now, Nebraska hasn’t changed its family laws on parenting time or custody, so what happened to increase joint custody?  That’s hard to say, but I think there are two possibilities.  The first is that the tireless efforts of shared parenting advocates such as the National Parents Organization and others to educate everyone, including judges and lawyers, about the benefits to children of equal custody may have finally begun to bear fruit.  Maybe judges have finally gotten the message.  Certainly, cases before the Nebraska Court of Appeals and Supreme Court can be read that way.

Or maybe its parents who’ve learned.  After all, over 90% of divorce cases aren’t actively litigated.  Parents decide to divorce, make the necessary filings in court, decide on custody and a parenting plan and present those to the judge who, in all but the rarest of cases, is quite happy to sign his/her name at the bottom of the Agreed Order. 

Judges have been the targets of advocacy by both pro- and anti-shared parenting forces, so it’s hard to know if they’ve changed their views.  But there’s a lot in the MSM and social media to the effect that kids benefit from real relationships with both parents after the adults split up, so perhaps parents have taken the message to heart.       

Whatever the case, fewer divorces is a societal plus.  Shared parenting tends to produce fewer divorces.  Are policymakers listening?  Are lawyers?  Judges?

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