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January 16th, 2013 by Robert Franklin, Esq.
I can’t add a lot to this excellent op-ed written by Dr. Les Veskrna who heads the Children’s Rights Council of Nebraska (Lincoln Journal Star, 1/12/13).  Here’s a man whose chief avocation is the improvement of the lot of children and he’s excoriating family courts for doing the opposite.  Unsurprisingly, he nails it.

Veskrna uses two recent cases in Nebraska as his point of departure.  In both, fathers were actively involved in their children’s lives and upbringing; in both they were capable and loving, and not charged with any form of wrongdoing.  The mothers, by contrast, had extramarital affairs that precipitated both divorces.  And in both, no one will be surprised to learn, the mothers received sole legal custody of the children.  To add insult to injury, in one, the mother was allowed by the court to move 150 miles away from her ex-husband and of course take the kids.  That meant not only that the children lost all but occasional contact with their father, but that they were uprooted from their friends, school, familiar homes, etc. as well.  In the other, the father received the standard four-days-a-month visitation.

Why did mothers, both of whom had committed moral wrongs that destroyed their families, get custody?  Veskrna correctly points out the reason as well as the fallacy behind it.  The reason is that the courts called the mothers the “primary parent.”  Indeed Nebraska, like many states, requires its judges to ascertain who has been the “primary parent” to the child, and gives heavy weight in custody decisions to the outcome of that inquiry.

Psychology Shows Children Identify With, Need Both Parents

But, as Veskrna so cogently points out, the concept of a “primary parent” is itself a myth.  Now, as the judges and legislatures see it, that’s not the case; any parent who spends more time than the other in hands-on child care is the primary parent.  So why does Veskrna say the notion of a primary parent is a myth?  Because it’s not the “best interests” of judges and legislatures that we’re trying to promote in custody decisions, it’s the well-being of children.  And reams of social science show that children don’t identify one parent or the other as primary and the other largely expendable.  Children see both parents as important to them and suffer terribly at the loss of either.  To them, neither parent is more important than the other.

Indeed, psychologists have long known that, from the very first weeks of life, children are able to distinguish between Mom and Dad and respond differently to their different ways of parenting.  Children in fact bond strongly with both parents almost before they do anything else.  And later, children come to see parents for what they are – discharging different roles, but equally important to them.

So, while one parent may change more diapers than the other, warm more bottles than the other and one parent may spend the day at work, come home and play with the child, neither parent is more important than the other to the child’s well-being.  This is standard child psychology and it is routinely ignored by family courts.

And that’s something that Veskrna inveighs against, as I have more times than I can count.  State legislatures enact laws and family judges issue hundreds of thousands of orders a year that directly contradict the clear teachings of child psychology and the sociology of children’s welfare.

Many people are troubled by these cases because it appears the guilty party was rewarded and the innocent parties wronged. The initial outcomes certainly seem unfair. However, this isn’t the worst part of these decisions. Not only are the initial outcomes unfair, these decisions put the children at risk for very negative long-term consequences.

Children affected by divorce fare worse, on average, on nearly every measure of health and emotional well-being including a greater risk of academic problems, alcohol and drug use, poor social skills, depression and suicide, delinquency and incarceration, and poorer physical health and early mortality. The reason for all this has much to do with the fact that one of the two most important people in a child’s life is often relegated to the role of an infrequent visitor, as the above examples illustrate…

These cases are based on the myth that one parent is the primary parent. Judges often decide cases this way even though there is no legal or mental health basis for it. More than three dozen studies over the past 20 years have found that when both parents are loving and competent, which is the case most of the time, a shared parenting arrangement – with joint decision making and near-equal parenting time – provide the best outcomes for their children.

Thank you, Dr. Veskrna.  Into the bargain, Canadian researcher Paul Millar’s analysis of nationwide Canadian data concludes not only that there is no empirical basis for maternal sole custody but in fact it may be worse for children than sole paternal custody.  Not only that, but the text from which the concept of the “primary parent” came – the 1973 book, Goldstein, Solnit and Freud’s “Beyond the Best Interest of the Child” – is just flat wrong in the factors it enumerates for deciding sole custody.  Millar concludes,

Thus, the major tenet of Goldstein, Solnit and Freud’s thesis – one that has been adopted wholeheartedly by many jurists, including the Supreme Court of Canada – is not only unsupported by evidence, but, worse, appears to promote harmful outcomes for children through the legal support given the destruction of one of the important parental relationships for the child.

For his part, Veskrna calls the notion that it promotes a child’s best interests to be separated almost exclusively from one parent “simply wrong.”  He couldn’t be more right.

And of course, the sole parent/visitor paradigm so favored by courts across this country and the world has another downside; it exacerbates conflict.  How could it not?  After all, when two adults are at each others’ throats anyway, and both know to a certainty that the most important “asset” of the marriage, the child, will be “awarded” to one of them and denied to the other, is it any wonder they pull out all the stops in their custody war?  For that matter, is it any wonder that, once the custody order is made, they continue to fight?  Mom got the prize and is determined to keep it; Dad got stiffed and wants revenge.

Veskrna knows the many studies that show that shared parenting tends to lessen conflict and doesn’t hesitate to tell his audience about them.

Finally, there’s Arizona that, as the Fathers and Families newsletter recently reported, changed its child custody statutes and, in Veskrna’s words, “ now directs courts to maximize the parenting time of both parents whenever possible.”

There’s many a slip between that requirement and truly equal parenting post-divorce, but let’s thank Dr. Les Veskrna for his valuable work promoting what’s really in children’s best interests – a full relationship with both parents.

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