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May 25, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

One of the greatest dangers to the status quo in child custody cases is information. Given that the status quo has been notoriously difficult to change over the past couple of decades, it’s no surprise that information on child custody outcomes is hard to come by. Put simply, states don’t keep track of what courts actually order in child custody matters.

Washington State started a half-hearted effort four years ago, but seems to have discontinued it after just two years of gathering data. Nebraska commissioned a one-time study that I’ve reported on several times. Its results were eye-opening to say the least. The figures showed that divorcing parents in Nebraska almost never even allege unfitness or child or spousal abuse by the other parent. Those allegations never reached double figure percentages and of course substantiated cases were even fewer.

Those who oppose equal parenting rely on the ignorance of the public and elected officials to maintain their position. One of the routine claims made is that shared parenting would give custody to abusive fathers, but the argument is considerably undercut by the fact that so few mothers even claim their partners to have abused them or their children.

So it’s no surprise that the anti-shared parenting forces in Nebraska have decided that the study they funded needs more data. It also explains why they felt the need to hire different researchers to gather the data. Apparently the first one didn’t produce the information they wanted, so they’re counting on the next person to produce data more congenial to their point of view. Meanwhile, the same folks are stridently opposing a bill that would require family attorneys to file with the county clerk information on each custody case they handle. If the bill were to pass, judges, the public and the legislature would know what’s actually going on in family courts in the state. Again, defenders of a corrupt and dysfunctional status quo fear information perhaps more than anything.

That’s why this study is so important (Real World Divorce). A recent law school graduate analyzed every divorce case filed in Middlesex County, Massachusetts in May of 2011. Middlesex is the largest county in the state and includes such cities as Boston, Lowell and others. By June of 2014, essentially all of the cases had been completed by the courts, so we know their final outcomes. Those outcomes are both predictable and alarming.

There were 243 divorce cases filed during May, of which one was between a same-sex couple. Child custody cases numbered 144.

In the remaining 242 lawsuits, more than 72 percent had been started by the wife. In other words, women were 2.6 times more likely to sue their husbands than vice versa. Among the 144 cases in which children were involved, women were 3.14 times more likely to sue their husbands than vice versa.

That means 76% of cases involving children were filed by mothers. That’s right in line with the findings of Margaret Brinig and Douglas Allen whose four-state study found 70% of divorces filed by mothers.

The median length of marriage was 10 years overall and 11 years for couples with children. The median age of children on the date of filing was seven which means that child support lasted 16 years as a median. (Child support in Massachusetts lasts until the child becomes 23.) With the reform of alimony laws, that means child support is now the chief financial factor in most divorces in which children are involved.

This also means that child support is a better long-term source of revenue than alimony. Following an 11-year marriage, the maximum statutory length of alimony is 7.7 years. Thus a plaintiff can receive child support payments for twice as long as alimony payments…

What was the final outcome of the custody and child support disputes? Women were 96 percent of the child support winners, consistent with March 2014 U.S. Census Current Population Survey data showing that 97 percent of the Massachusetts residents collecting child support are women.

That’s significantly more than the nation as a whole. The U.S. Census Bureau reports that mothers make up 89.2% of divorced parents with child support orders in their favor. (Mothers make up about 82% of custodial parents, but are about twice as likely as fathers to receive an award of child support from a court. Only 28.8% of custodial fathers have a child support award.)

And of course mothers in the Bay State are far more likely than fathers to be awarded custody of their children. Indeed, for a father to receive sole or primary custody is vanishingly rare.

Women won custody more than 91 percent of the time that there was a "primary" parent. Only 7.5 percent of the children whose custody was at issue in May 2011 lawsuits in Middlesex ended up with true shared parenting or "joint physical custody".

Dads’ poor showing in the winner-take-all child custody sweepstakes isn’t for want of trying. Recall that fathers filed 24% of divorce actions in which children were involved and the research revealed that 97% of plaintiffs sought sole or primary custody. As the write-up points out, “it is not rational for fathers to fight for custody because their chances of winning primary or shared parenting are insignificant.” But fight they do.

That’s a significant point given that one of the usual bullet points cited by the anti-shared parenting crowd claims that fathers who ask for custody routinely get it. As with most of their claims, there’s absolutely nothing to back it up, but that doesn’t stop them from doing so. Occasionally some enterprising anti pretends that the Maccoby and Mnookin study from the early 90s supports their claim, but even a casual look at it shows it does the opposite. These data too give the lie to the claim.

In addition to child support, divorce pays other financial dividends for parents who wind up with custody.

Women were 87.5 percent of the alimony winners in the May 2011 sample. Women had a 68 percent chance of being awarded the marital home, rising to 75 percent if the divorcing couple had a child under the age of 10.

As in Nebraska, divorce, custody and child support outcomes varied wildly depending on which judge decided the case.

Judge Patricia Gorman was the stingiest. Only 25 percent of cases that she heard resulted in one former spouse paying the other years of alimony and/or child support. When a case was assigned to Judge Maureen Monks, on the other hand, 55 percent of cases resulted in continuous payments for the winner. The other seven judges formed a spectrum in between these two extremes.

There was no consistency from judge to judge in how child support was calculated when income was beyond the $250,000 top of the child support guidelines. We looked at Kosow v. Shuman (10D0588) where Judge Monks used the top of the guidelines for one child and then added 11 percent of gross income (defendant ordered to pay $94,000 per year in child support, plus all of the child's actual expenses, including housing, medical care, and nannies, for 19 years; the plaintiff also received $50,000 per year in alimony). Judge Kaplan, on the other hand, approved an agreement where only 7 percent of gross income was added for a defendant with four children (Brock v. Brock). Thus the cash value of each child, as a percentage of the father's income, was 6X higher with Judge Monks than with Judge Kaplan.

This is in a state with alimony and child support guidelines.

And, as in Nebraska, apparently few divorcing spouses care to level allegations of domestic or child abuse, although the researcher admitted that requests for restraining orders might appear in other parts of the judicial system of the county. Only 17 cases out of 144 included a restraining order.

And what was true for allegations of domestic violence, held as well for allegations of unfitness. The researcher concluded that only 18 out of 288 parents were objectively unfit to parent.

Finally, the judges in child custody cases operate essentially without appellate oversight. Only one of the 243 cases was appealed. In short, judges in Middlesex County rule secure in the knowledge that their decisions are final and that no other judges will see them.

The article’s conclusion reads like a brief for shared parenting.

The data from Middlesex County Probate Court's complete set of May 2011 divorce lawsuits is consistent with what attorneys told us in interviews. The more money is at stake the harder people will fight, but most American families don't have enough money to pay for a full fight through trial. Therefore the system very seldom functions as designed. Decisions are made in an ad hoc fashion after brief motion hearings. When children are profitable, people will fight over who gets the children. Due to the statutory limitations on alimony and the typically young age of children at the time a divorce lawsuit is filed, child support is now more valuable than alimony. If a state offers to make one parent "primary" and the recipient of weekly tax-free funds from a "secondary" parent, people will fight hard to avoid being the "secondary" parent. At the same time, it is not rational for fathers to fight for custody because their chances of winning primary or shared parenting are insignificant. There is wide variation from judge to judge in the kind of litigation that can be expected and the likely outcome given the same facts.

And here are some additional facts about family court litigation in Massachusetts. These were brought to my attention by Terry Brennan whose work on child support enforcement in the state is well-known to readers of this blog.

  • Not a single Guardian ad Litem has been disciplined by a licensing board in Massachusetts in at least 4 years and psychiatrists operating as GAL's have no governing body to review ethical / moral complaints.
  • There has not been a single charge of perjury emanating from a divorce in the Massachusetts Probate and Family Courts in a two year period while 72 charges of perjury emanated from other Massachusetts courts over the same period.
  • At least 96.2% of those incarcerated by Massachusetts Probate and Family Courts over the last decade were male.
  • There are literally no educational, training or licensing requirements to be a "parent coordinator" to the Massachusetts Probate and Family Courts and none have been disciplined by a licensing board in at least 4 years.
  • The Governor's Council, the public's only oversight of judicial nominees in Massachusetts, has not voted down a Judicial nominee to the Massachusetts Probate and Family Courts in at least 30 years and only 2 have withdrawn their nomination over the same period.

Analyses like that done in Middlesex County should be performed all over the country. The numbers are as damning as can be of a process that’s arbitrary and utterly unrelated to children’s well-being. They clearly demonstrate that, contrary to what the anti-shared parenting forces would like us to believe, child custody can be a financial boon to the custodial parent and a catastrophic blow to the one who loses custody. That means states are offering financial encouragement to parents to divorce.

And of course the system of sole/primary custody is devastating to the children who have to undergo the process.

If we had 100 studies from across the country like the one from Middlesex County, I believe it would strike perhaps the heaviest blow possible for family court reforms that are long, long overdue.

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National Parents Organization is a non-profit that educates the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents, and extended families. Along with Shared Parenting we advocate for fair Child Support and Alimony Legislation. Want to get involved?  Here’s how:

Together, we can drive home the family, child development, social and national benefits of shared parenting, and fair child support and alimony. Thank you for your activism.

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