March 21, 2014 by Robert Franklin, Esq.
Well, I didn’t see this coming. As regular readers will recall, I’ve wondered what the anti-father crowd in Nebraska will pull out of its hat to oppose LB 1000, the shared parenting bill that’s now before the state’s Senate Judiciary Committee. Back last fall, they tried simply lying about it outright, claiming it mandated 50/50 parenting time. But then people actually read the bill and discovered there was no such mandate in it. So those opposed to children having real relationships with their fathers following divorce had to figure something else out.
They were banking on the state’s analysis of 11 years of child custody cases in the state to help them out. It seemed a good bet. After all, they’d packed the committee with like-minded members who duly spent state money contracting with still more like-minded researchers to do the actual gathering and analysis of the data. It looked like the fix was in.
But a funny thing happened on the way to certain defeat of shared parenting legislation. The data didn’t say what opponents thought they would. I suspect they were counting on there being an abundance of high-conflict cases, plenty of domestic violence, many unfit and uncaring fathers. Findings like those would have bolstered the suspicion that fathers should be kept out of children’s lives. But the data revealed a remarkably placid familial scene even when in the throes of divorce. The simple truth turned out to be that, even when parents were most at odds with each other, they almost never called the other an abuser, unfit or any of the slanders the anti-dad crowd was hoping for.
That left them high and dry. I wondered more than once what they would come up with to oppose fathers and children being together. And they really didn’t come up with much. Pro-dad op-eds went unanswered and LB 1000 went through a pretty amicable amendment process that seems to have satisfied most of the lobbies usually involved in parenting legislation.
That’s the status quo, at least for now. The bill is still in committee, but it looks like there’s no opposition, at least among those involved in drafting and amending it, to its passage to the full unicameral legislature for a vote. Even the domestic violence folks seem to be on board.
So it’s remarkable that, at the very last minute, an Omaha lawyer named Margaret Zarbano sent a letter of opposition to the Chairman of the Judiciary Committee, Senator Brad Ashford. I don’t know if this is a taste of things to come, but if it’s the best these people can do, passage of LB 1000 should be a cakewalk.
How to describe her letter? If all the words weren’t spelled correctly, I’d have thought it was written by a child. It’s the adult counterpart of a four-year-old’s tantrum, complete with frank untruths, a strong sense of injustice and the firm belief that, if she just behaves badly enough, she’ll get her way. Did Zarbano actually throw herself on her office floor kicking and screaming as she dictated it? I guess we’ll never know, but the image is compelling.
Her main argument against LB 1000 is one I truly didn’t see coming. Zarbano’s core complaint goes like this:
LB 1000 and AM 2358 presumes (sic) equality in mediation, negotiation and bargaining between men and women, however, nothing could be further from the truth.
LB 1000 and AM 2358 is an injustice for women. For example, a small provision of this bill mandates that the court approve a “voluntarily negotiated” parenting plan. By doing so, LB 1000 and AM 2358 ignores women’s inability to effectively negotiate with her male counterpart…. One who asks why women are effectively unable to negotiate lack (sic) education of the general social patterns affecting women…
It is ludicrous to assume that equality in the negotiation of a parenting plan between women and men magically occurs when there is no equality between the genders anywhere else.
This bill should not be advanced or passed, and its sponsors and supporters should be investigated for gender bias.
Wow. That’s a lot of arrant nonsense packed into a small space. It’s so loony it’s hard to know where to begin. I mean who’s going to do this investigation “for gender bias,” and what should they do if they find it. Should criminal charges be brought? Summary execution carried out? It reminds me of Monty Python’s self-criticism for “the making of gratuitous sexist jokes in a family film.” Zarbano claims to be a lawyer, but it’s hard to believe it when she seems to think that there’s some entity somewhere whose brief is “investigation for gender bias” in the drafting of proposed legislation. She seems to be living in an radical feminist future in which the thinking of insufficiently feminist thoughts will be ruthlessly punished.
The great irony of course is that, if she really wants gender bias, all Zarbano has to do is look at current family court practice as described by the Nebraska analysis. It shows radically skewed custody numbers favoring mothers at every turn. Funny, in her quest for gender bias where there is none, Zarbano managed to overlook the obvious and well-known gender bias against fathers. Why am I not surprised?
But regarding her main theory that, in child custody cases, mothers can’t negotiate as well as fathers, I have to say her grip on reality, already tenuous, seems to have entirely given way. After all, moms must be doing something right to get 83% of primary and sole custody nationwide. The survey of Nebraska family courts revealed fathers receiving sole custody in fewer than 10% of cases. So, needless to say, when it comes to child custody, mothers are doing just fine, whether due to negotiating skills or the more likely possibility that the game is rigged in their favor.
It’s that last that makes me hope Zarbano is onto something. It may be she believes that the bill poses a threat to the status quo, that, if passed, fathers and children may actually be able to spend real time with each other instead of the 14 – 20% visitation so commonly ordered. As I’ve said before, when mothers and fathers go into mediation, both sides know to a virtual certainty what a judge will order if they don’t agree. Mom will get primary custody and dad will see the kids every other weekend and one evening during the week, if Mom allows it. Needless to say, those aren’t negotiations. When the outcome is a foregone conclusion, there’s really nothing –and no way - to negotiate.
So it looks like what Zarbano is whining about is the loss of mother as all powerful in child custody cases. As I say, I hope she’s right.
But I’ve been too generous toward Zarbano. Her letter is actually far sillier and more feckless than I’ve described. For example, although she’s crying bitter tears about negotiation between fathers and mothers, nothing in the bill requires either to do so. Previous law encourages mediation, as it probably should, but not a word in LB 1000 or amendments thereto requires parents to negotiate.
Neither does it require them to agree on a parenting plan. It requires them to try, but if they can’t agree, the judge must design one him/herself. In short, even if her claim of a pro-father imbalance in negotiating power were true (which data from all over the English-speaking world shows it’s not), the simple solution for any aggrieved mother is to “Just say no,” and leave the matter up to the judge.
Everyone involved in drafting the bill knows this and Senator Ashford won’t be fooled by Zarbano’s nonsense. But it’s a signal feature of her letter that it makes so many claims that are well-known to be factually untrue. Why would someone do such a thing? Maybe because it’s all she has.
And that must bring us to domestic violence, the default argument for every anti-father zealot ever born.
LB 1000 and AM 2358 ignores the fact that 85% of domestic violence victims are women, see attached National Coalition Against Domestic Violence report.
That’s everything she has to say on the subject of DV. Zarbano makes no effort to explain how that sentence, even if it were factually accurate, has anything to do with the bill in question. I assume she thinks the matter to be self-evident which I further assume to be a product of only communicating with people who agree with her.
As everyone familiar with child custody law and practice in Nebraska is well aware, ample provisions are made for parents who abuse each other and/or their kids. In short, the matter of DV has been taken care of for many years. And again as the state’s analysis demonstrates, DV is even mentioned in only about 5% of cases, so it shouldn’t be the foundation on which child custody law is built.
Then there’s the fact that the two major DV organizations in the state have agreed in writing to the amended bill. The Executive Director of the Domestic Violence Council and the Legal Director of the Nebraska Domestic Violence Sexual Assault Coalition have both gone on record as supporting the bill. Again, Senator Ashford knows this. Too bad Zarbano doesn’t.
And of course her 85% claim is every bit as inaccurate as the rest of her screed. Zarbano’s support for the figure comes from 16-year-old Department of Justice arrest figures which are notoriously unequal to the task of determining which sex commits domestic violence. As all by now know, men are far less likely than women to report incidents of domestic violence and, even when they’ve been assaulted, are far more likely to be the one arrested.
The DOJ data reveal only one thing – the percentage of arrestees who are of a given sex. If we want to know the percentage of each sex that commits DV, we have to go to the hundreds of studies that ask those questions. And when we do that, we find that men and women are about equally apt to engage in reciprocal violence and women commit about 70% of non-reciprocal DV. Even run-of-the-mill anti-male DV activists admit as much. Zarbano should bring herself up to date.
The bottom line? Her letter is good news. The anti-father crowd has been reduced to this – screechy agitprop that’s long on political ideology and short on facts. Zarbano’s stuck in a radical feminist past in which pretty much anything could be claimed about fathers and children, irrespective of its accuracy, and it would be uncritically accepted. But they’ve been wrong too many times in too many ways and people are beginning to catch on. The train of progress has pulled out of the station, leaving zealots like Zarbano on the platform, waving their signs and shouting to a crowd who’s no longer there.
My next post will deal with what the amended LB 1000 really says.
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