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man repairing girl bike smallMay 16, 2013 by Robert Franklin, Esq.

It looks like the Nebraska State Bar Association is in full damage-control mode. They'll have to do better than this shoddy piece of agitprop (Journal Star, 5/11/13).

Not long ago, Dr. Les Veskrna, head of the Nebraska organization the Children's Rights Council, wrote an op-ed in the Journal Star newspaper. I wrote a piece about it here. Veskrna was bemoaning the fact that, once again, the lawyers of the state had banded together to defend their own and, more importantly, their bank accounts. They did that by lobbying against a shared parenting bill that was before the unicameral state legislature this year, LB 22, the text of which is here. They won again; the bill died in committee.

And Veskrna isn't happy about that, as well he might be. He rightly pointed out that family lawyers had lobbied against the bill despite the fact that masses of social science show that (a) shared parenting is better for kids than the current system, (b) kids desire equal parenting, (c) shared parenting arrangements tend to ameliorate conflict and (d) sole and primary parenting tend to exacerbate it. As we see in state after state, family attorneys oppose shared parenting without knowing much or anything about its effects or those of the primary arrangements they so often endorse. And of course judges know no more about the science of family structure post-divorce than the lawyers who appear before them do.

So Veskrna rightly excoriated the Nebraska State Bar Association for its opposition to the shared parenting bill. Now comes the "response" by the president of the NSBA, Marsha Fangmeyer. She's indignant - shocked, shocked! - that someone should impugn her organization so. < blockquote>The NSBA, along with groups like Voices for Children, does oppose an amendment to a bill introduced in the Legislature that seems to require judges to adopt a Parenting Plan that establishes joint custody of children in all cases, instead of deciding such issues based on what is in the best interests of the children, the requirement of current law.

About the best I can say about that statement is that it's just wrong. I say that assuming that Fangmeyer can read and I make that assumption because she's a lawyer and therefore passed law school. If I'm wrong, someone correct me. Put simply, the contention that LB 22 requires or even "seems to require... joint custody of children in all cases," is flat not true. Look at LB 22. Note that it states more than once that the best interests of children are paramount in all custody decisions. Note that it uses the language "absent evidence to the contrary" to show that the goal of shared custody may not be in children's best interests in all cases. Note also that LB 22 maintains in full force and effect state policy that children shouldn't be exposed to child abuse or neglect by a parent and therefore evidence of same can be used to negate shared parenting.

In short, Fangmeyer lied. She told the people of the State of Nebraska that which is not true, and not just once.

The amendment we oppose also provides that the judge must divide decision-making authority between the parents.

Again, that's an outright falsehood. The operative language includes the words "absent evidence to the contrary." In other words, under this amendment, a judge could hear evidence that joint decision making wasn't in the child's best interests and issue a different order. Fangmeyer's claim that the judge "must" issue a joint order is false, plainly stated in black and white.

Having informed the Nebraska public that LB 22 would have mandated certain behavior by judges that it plainly does not mandate, Fangmeyer then moves on to her real point which is that the status quo is just fine, thank you. She never lets on as to just what that status quo is because that would seriously undercut her argument. Fangmeyer claims that, since the current law encourages parents to agree on a parenting plan, it's the best thing going. After all, those who agree come up with what's best for them and their kids and those who can't, well, we don't want to force them to do anything, now do we?

It is simple common sense that when two parents can't agree on the amount of time, or sharing of responsibilities with their children, forcing a 50/50 split and oftentimes inconsistent decision-making is not workable.

It's simple, alright, and it's certainly common, but "sense" it's not. In the first place, "forcing" is what judges do. That's what court orders are. Court orders tell people to do things and if they refuse, they can be held in contempt of court. So as far as coercion goes, a 50/50 split is no different from the standard 80/20 split. Fangmeyer's a lawyer; she knows this very well. But she doesn't want Nebraskans to know it because that would undermine her specious claim that, in some way, the current system isn't coercive whereas LB 22 would be. That's patent nonsense. Tell a loving father that a judge's order that he only see his kid four days a month isn't coercive.

Why is such a parenting arrangement "workable," but a 50/50 split "not workable?" Fangmeyer doesn't explain, likely because she hasn't the least knowledge about the social science on shared parenting.

In his Local View, Veskrna cited studies that show joint custody provides the best outcome for children. We should look at these studies. We also should look at studies that address “high conflict cases” where the parents cannot or will not communicate in a civil manner and cannot resolve parenting issues. How does that conflict affect the children and how do we address it?

Uh, Marsha, "we" have already done that. There are a great many studies on conflict in custody cases. Some of them have been around for decades. What they show is that sole and primary custody arrangements tend to make conflict worse, not better. Worse, they tend to shove the non-custodial parent out of the lives of his children. By contrast, 50/50 arrangements tend to lessen conflict, particularly over time. That's because neither parent feels disenfranchised.

Isn't it strange that the president of the Nebraska State Bar Association would have no knowledge of that large body of social science? Isn't it odd that she takes to the pages of a major state newspaper only to reveal her ignorance of all that information that bears directly on her chosen topic? I wonder if that's her level of preparation when she goes to court.

And since I'm stating the obvious, I may as well point out that Fangmeyer lauds the current system in which parents are encouraged to agree on a parenting plan. Most of them do of course because the vast majority of parents don't have the money to hire a lawyer and fear the increase in adversarial bad blood if they do. So they agree. And what do they agree to? Overwhelmingly, they agree to what they think a judge would order if they left it up to him/her to decide a custody arrangement.

And it turns out that Nebraska, unlike almost all other states, has a method of tracking custody arrangements in both agreed and court-ordered cases. It turns out that mothers get primary custody in about 60% of cases and fathers in about 10%. Joint custody makes up the other 30%. What we don't know is what "joint custody" actually means. Obviously, 50/50 parenting time qualifies as joint custody, but so would 75/25. What about an 87/13 split which is roughly what Dad getting four nights a month comes to? Do the lawyers that fill out the forms call that joint custody? Sole maternal custody? We don't know, but suffice it to say that that 30% of joint custody obscures as much as it reveals.

So when Marsha Fangmeyer defends the status quo, that's what she's defending. Of course, if LB 22 were the law of the land, the vast majority of parents would be agreeing to 50/50 parenting because they'd know it's what a judge would likely order anyway.

In perhaps the most scurrilous aspect of her whole sorry piece, Fangmeyer actually claims that the NSBA wants only the best for kids.

We have met recently with the senators who sponsored the legislation in question and will continue to be an active participant in the legislative process on this important issue. The Nebraska State Bar Association will do everything we can to assist in making certain that the interests of children of divorce are protected.

There's a real problem with that claim that I'll go into in more detail later, but for now let's just recall the words of Dr. Veskrna.

Is this why the NSBA opposes shared parenting proposals time and time again? The NSBA has been asked numerous times to make a proposal -– any proposal -– to help kids caught in custody disputes but they haven’t offered any. Not one.

Yep, the NSBA is all for what's best for kids, just as long as a meaningful relationship with their loving fathers isn't part of it. Like lawyers in other states, what those in Nebraska prefer and lobby for is the status quo, the high-conflict, shove-Dad-out-of-junior's-life status quo. It may be good for lawyers' bank accounts, but it's lousy for everyone else.

The National Parents Organization is a Shared Parenting Organization

The National Parents Organization is a non-profit organization that is educating the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents and extended families. If you would like to get involved in our organization, you can do so several ways. First, we would love to have you as an official member of the National Parents Organization team. Second, the National Parents Organization is an organization that believes in the importance of using social media as a means to spread the word about shared parenting and other topics, and you can visit us on our Facebook Page to learn more about our efforts. Last, we hope you will share this article with other families using the many social networking sites so that we can bring about greater awareness of shared parenting. Thank you for your support.

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