January 31, 2014 by Robert Franklin, Esq.
The saga continues in Nebraska. As I’ve said, the anti-father forces decided last year that the best way to derail the shared parenting bill, LB 22, was to appoint a committee to investigate the matter. I suppose they figured the delay alone would be worth the time and energy required to analyze what actually happens in family courts throughout the state. So they got their friends together, formed their committee and spent $200,000 of taxpayers’ money.
At one point, pro-shared parenting folks noticed a funny thing – there were no shared parenting advocates on the committee. So, somewhat embarrassed to have been called out, a grand total of two shared parenting advocates were added to the committee of over 30 members.
They selected 392 cases of child custody decided over an 11-year period and conducted their analysis. And – lo and behold! – the data they unearthed directly contradicted every claim about shared parenting the anti forces ever made.
Domestic violence? We can’t have shared parenting because fathers are violent and we can’t expose children to that. Nope, domestic violence wasn’t even brought up by either parent in all but a handful of cases. It’s a non-issue.
Parental unfitness? Surely dads shouldn’t have custody of their kids because fathers don’t know how to care for them. They spend all their time at work and the world of children is to them terra incognita, right? Wrong again. The issue of parental fitness was brought up in only a few cases and substantiated in far fewer. Again, it’s a non-issue.
High parental conflict? Shared parenting can only work when the parents get along, so only one parent should have custody, right? Leave aside the question of why, even if that were true, should that parent be the mother in essentially all cases. And leave aside the fact that the claim itself is directly rebutted by reliable social science that shows that shared parenting tends to lessen parental conflict, particularly over time. And leave aside the fact that exactly what constitutes high conflict has never been quantified, as the committee’s report admits. Even leaving aside all those things, and applying an astonishingly broad “definition” of conflict, the report only found about 12% of cases to be high-conflict ones.
So the anti-shared parenting forces got their study of custody cases in Nebraska, the one they were certain would puncture the case for shared parenting. The only problem turned out to be that it did the opposite. It showed that the arguments against shared parenting are simply not borne out by the facts.
That led a lot of us to wonder just where the antis were going to turn next in their effort to convince people to keep fathers out of children’s lives.
Well, we’re still wondering. Immediately after the report came out three weeks ago, family lawyers Chris Johnson and Amy Sherman published an op-ed in the Omaha World Herald pointing out the need for shared parenting and its benefits to kids. The last time they’d done that, the response by domestic violence activists was swift; four days later they had their own op-ed in the same paper, predictably reprising the usual claims that utterly misrepresent the science on DV.
But now? Nothing.
The anti-dad crowd is as quiet as little mice. They’ve published no op-eds, done no interviews, made no speeches. Could it be that, at long last, they have nothing to say? Is it possible that, hoist on their own petard, they actually realize their opposition to fathers having real relationships with their children is threadbare, entirely without merit?
That’s hard to believe, given that intellectual dishonesty has been their long suit for decades. After all, it was just last summer that the president of the Nebraska State Bar, Marsha Fangmeyer and others were caught frankly lying about LB 22. So why the eerie calm now?
I hesitate to say so, but, at least for now, it looks like they may be beaten. Of course we’ll see what happens in the lobbying that goes on about LB 22. By court order of the Nebraska Supreme Court, the Bar can no longer lobby against shared parenting, and the answer to those with the domestic violence agenda is there in black and white in the committee report.
That leaves individual family lawyers who, fearing for their yacht payments, invariably oppose shared parenting laws. It turns out I’m privy to certain email threads among various family attorneys in the state, some of which I’ll share. (I’ve changed the names of the correspondents since none of these lawyers has agreed to see their emails made public.) If these are any indication, the sentiment in favor of shared parenting is at least as great as that opposed.
So “Fred” writes:
[Y]ou are making a plug for LB 22 which creates a presumption. Presumptions assume that all families ought to be treated in like manner. Each family situation is different and ought to have their parenting plan decided on a case-by-case basis. The judges I have practiced before make accurate decisions based upon the children’s best interests. We do not need a new law. There has been a change in culture where the importance of both parents is being more and more recognized. Judges have been moving towards more shared parenting time arrangements without the need to create a presumption. The culture needs to continue to move in that direction and I believe that it will as the studies continue to shape our culture…
Fred is laboring under more than one misconception. First, the presumption of LB 22 is, like all legal presumptions, rebuttable. That means either party can produce evidence to convince the judge or jury that the presumption of shared parenting shouldn’t be applied in his/her particular case. As such, the assertion that “all families ought to be treated in like manner” is just wrong. Fred’s a lawyer and he knows this.
His second misconception is that judges “make accurate decisions based upon the children’s best interests. First, LB 22 in no way abandons the best interest standard. Had Fred read the statute, he’d know that too. Second, the anti-father crowd has a way of assuming that, on one hand we have fathers’ rights and on the other we have children’s interests and the two are antagonistic. But of course the opposite is true. Once we wrap our minds around the fact that, as Dr. Linda Nielsen relentlessly proves, meaningful relationships between fathers and children are almost always in children’s best interests, Fred’s false opposition disappears.
Finally, Fred is buying into the idea, confected by the report that “judges have been moving towards more shared parenting time arrangements.” The problem with Fred’s statement is that no data bear it out. Family lawyers often say they see it more and more, and it may be true, but there’s absolutely no hard data that show it to be true.
The committee report engaged in a silly bit of statistical legerdemain to assert the same thing Fred did. They did that by choosing more cases to analyze in the later years and fewer in the former years of the 11 years studied. That way they were able to produce figures showing more shared parenting in the later years. But of course that in no way demonstrates a move toward shared parenting; it’s just the workings of anti-shared parenting folks who want to derail the movement by producing misleading figures.
Fred got a couple of apposite responses, the first from “Amanda” and the second from “Elizabeth.”
I would have to respectfully disagree with you Joel. In most courts, there already is an informal presumption in place, which is mom getting custody with limited time for dad… I agree that custody should be decided on a case by case basis; but when the hard numbers reflect that when push comes to shove and the parents have to go in front of the court and the court most often gives custody to mom, that obviously isn’t happening in a fair manner. This informal presumption also hurts the mediation process. We all know that mediation is supposed to be about putting the kids first, however, if mom goes in knowing that she has the upper hand and that it will cost her 50 – 80% in child support to agree to joint custody, why would she?... I also suspect that if each party went into the process knowing that the court was likely to order joint physical custody unless there was some impactful reason not to, it would actually lessen the amount of fighting that takes place early on in a case… Personally, I have found over the years that the vast majority of dads that I have represented truly want equal time with their kids for the very best of reasons; they love them, want to be involved in their lives in a significant manner, and feel that this would be the best for the kids. The system needs to start respecting that (and the research showing it is likely to result in better long term result for the kids) in a wide-spread manner.
Amanda nails it. First, there already is a presumption that Mom gets primary custody, albeit one not spelled out in law. Family lawyers know this very well, so the idea that there shouldn’t be a presumption favoring shared custody because, in some way, presumptions aren’t favored, just doesn’t deal with the realities of family courts.
Amanda’s correct too when she says that mothers and their lawyers know that, unless she’s truly dysfunctional or abusive, she’s going to get custody. So mediation can’t fix the informal presumption because Mom has no impetus to compromise.
And Amanda is to be commended for saying what countless fathers have said before – that they want their children for the best of reasons. The anti-dad crowd is fond of repeating the claim that fathers want equal custody only because they don’t want to pay child support. Of course they have absolutely no basis for saying that, but they say it anyway. (Hey, when you’re on the wrong side of history, you have to do what you can.) So it’s good to see Amanda rebutting that claim. Fathers do indeed love their kids and “want to be involved in their lives in a significant manner,” if only the courts would allow it.
Elizabeth chips in by agreeing with much of what Amanda wrote and adding some of her own.
Yes, cases should be decided on a case-by-case basis as no case is the same, but there is concern that the presumption we already have is puts fathers on a higher standard to rebut the presumption which does not support equality. So, why not start that both are equally qualified and fit and work from there, rather than one parent getting the presumption and making the other parent work really hard for quality time with his children?... [M]any of my clients who are males are just as involved with their children as the mothers are, and just because the parents hate one another, that is not a reason for best interests to be twisted into a presumption that mothers are 100% more beneficial for the child(ren) than fathers. I also work closely with many child therapists and psychologists, and, this study reiterates some of their concerns in that, unless it is a very serious matter, both parents should be involved as much as possible and when the non-custodial parent (typically the father) has very limited time as most custodial parents (mom’s) only follow the black-n-white of the Orders, it becomes a huge strain which ultimately hurts the children.
“George” says that “The matter of custody was settled in most of the cases before reaching trial”. His point apparently is that we don’t need to change the law because the vast majority of parents settle their cases without the ruling of a judge or jury. That of course is true, but ignores one obvious fact – that parents settle on the basis of what they reasonably predict will happen if they don’t. Fathers settle for less than what they want because they can be reasonably sure that going before a judge means they’ll pay a lot more for the same outcome.
Amanda replied to him this way:
That’s a very interesting point and this is how I think it’s relevant; that, generally about 75% of cases start with temps where the mom is given full physical custody. In a majority of cases the findings made at temps are what is carried through in a trial. Mediation doesn’t go well because mom also knows this… But how often have you seen dad given full custody right off the bat at temps without some kind of extreme showing that mom is unfit, then compare this to how often mom gets custody at temps, even when most of the facts show even parental fitness, participation, and positive child relations? Your point of interest demonstrates just how early in a case the problems start.
(“Temps” refers to temporary orders made at the outset of a custody case.) Again, Amanda makes the salient points. Mothers and fathers both know the outcome beforehand, so Mom refuses to settle for anything less and Dad agrees. Any time it’s otherwise is because Mom not just unfit, but extremely so.
Remember the Census Bureau data showing that, while 56% of non-custodial fathers are subject to a child support order, only 29% of non-custodial mothers are. Why wouldn’t Dads get a child support order? The Census Bureau doesn’t go into that, but it’s reasonable to conclude that, as Amanda suggests, for a father to get custody, there have to be serious problems with Mom. So mothers without custody tend to be far worse off than fathers without custody, so much so that Dad doesn’t even seek an order or the judge doesn’t grant one.
If this email thread is any indication, at least some family lawyers in Nebraska clearly support shared parenting and LB 22. Those who don’t offer some pretty weak reasons for their opposition. Basically, their objections are two – that presumptions unnecessarily tie judges’ hands and the statute is largely irrelevant because the great majority of divorcing parents settle their cases.
As Amanda and Elizabeth make clear, those arguments don’t hold water. If this is the best the opponents of shared parenting can do, things look pretty rosy in Nebraska.
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