July 8, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
Nebraska’s family court judges are, for the time being at least, hiding records of their training as it relates to child custody and parenting time. Shared parenting advocate Dr. Les Veskrna has filed suit against the State Court Administrator, Corey Steel, seeking documents reflecting judicial training on those issues. Veskrna’s suit claims that the Nebraska Public Records Act and the state’s Constitution require that those records be made available to the public.
Veskrna previously requested the records, but Steel refused to turn them over, so suit was filed. So far, Steel has yet to file an official response. But, from what he’s said previously, his legal position is tenuous at best. This article is fairly blunt about the matter (Omaha World Herald, 7/5/15).
In keeping the Nebraska Constitution’s declaration that “all courts shall be open,” the open records law applies to most filings in criminal and civil cases. The lawsuit seeks clarity over the public’s right to view internal court records and documents…
None of the 18 exceptions to the open records law pertains to records maintained by the judiciary, the lawsuit alleges.
So Veskrna appears to have both the state’s Constitution and a state statute on his side. By contrast, Steel seems to have but a single line from a single attorney general’s opinion on his. And that opinion came down on the side of public access to the information sought.
In a written response to Veskrna’s records request, Steel referred to a line from a prior state attorney general’s opinion that said the open records law is not absolute when it comes to judges, who maintain “supervisory power” over their work information.
“Every court has power over its own records and files,” Steel wrote, “even if the Nebraska Public Records Act applies to certain judicial records.”
The opinion in question, by former Attorney General Jon Bruning, was in response to a state senator who wanted to know whether briefs filed with a judge were considered public records even if they bypassed the court clerk. Bruning said such materials likely would be considered public.
“It appears to us that records ‘of or belonging to’ the judicial department of state government are records subject to the public records statutes,” Bruning wrote.
So Steel is attempting to keep secret documents “of or belonging to the judicial department of state government” and using an AG’s opinion finding those records to be open to the public to do so. That’s what’s called a weak legal position.
Steel then proceeds from weakness to greater weakness.
But in denying the doctor’s request, the state court administrator went further by equating a judge’s training materials with the “deliberative process” behind legal decisions. Steel implied that the public could not legitimately assert access to a court’s deliberations.
I can only guess at what Steel means by a court’s “deliberative process.” And he seems to have offered no legal authority for the proposition that a court’s deliberative process might be rightly shielded from the public. After all, judges usually publish those processes in the form of written orders or opinions.
Whatever a judge’s “deliberative processes” might be, Veskrna’s in no way asking for them, but only the training that informs them. Steel’s legal position is like claiming that the public can’t know where a judge went to law school, what texts he/she read there or what he/she wrote about in a law review article.
The idea that the people of Nebraska aren’t entitled to know how its public servants are trained in the discipline for which they’re paid is an outrage. Under that theory, a Surgeon General might be a faith healer and the public wouldn’t have the right to know. It just doesn’t make sense.
It particularly doesn’t make sense when the topic is the judicial training of family court judges in matters relating to child welfare. Along with every other family court judge in the country, Nebraska judges decide custody and parenting time based on the “best interests of the child.” As such, it seems altogether fitting and proper that they know something about that subject. Judges, like other lawyers, are trained in the law. But unlike other lawyers, their job requires them to know about what benefits children and what doesn’t. How they acquire that information and what information they acquire relates directly to the job they’re paid to do. If they’re getting bad information, the people have the right to know and demand that their public servants be trained better. These are not revolutionary ideas. Indeed, they’re pretty much Lesson One of high school Civics.
The linked-to article makes the matter clear.
Veskrna’s request for the continuing education records stemmed from his interest in shared parenting. A growing body of research suggests that children in divorce do best emotionally and in school when they spend meaningful time with both parents, said Veskrna, director of the Children’s Rights Council of Nebraska and Iowa.
Yet a 10-year analysis of child custody cases in Nebraska showed that judges award noncustodial parents — typically fathers — an average of 17 percent of the time with their children. That equates to about five days per month.
“Looking at disparate outcomes for child custody and parenting time throughout Nebraska, it appears judicial practices are not consistent with the literature,” said Veskrna, explaining why he wants to know more about the training given to judges.
That’s the same table I’ve been pounding for years. The overwhelming weight of scientific evidence demonstrates that children do better with equal (or nearly equal) parenting time post-divorce. Indeed, leading authority on parenting arrangements and children’s welfare, Dr. Edward Kruk, has written that, “The discretionary best-interests-of-the-child/sole custody model is not empirically supported,” and “A rebuttable legal presumption of equal parenting responsibility is empirically supported.”
In other words, what Nebraska family courts do, as Dr. Veskrna says, contradicts the known science on children’s welfare post-divorce. Canadian researcher Paul Millar is even clearer:
[Sole/primary custody] 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.
That strongly suggests that Nebraska judges don’t know the applicable science on the most important subject on which they rule — children’s welfare. That in turn strongly suggests that whatever training they’re receiving is wrong.
Someone in Nebraska doesn’t want the public to know that information and I personally doubt that someone is Corey Steel.
But whoever it is who wants judicial training to remain secret, when it comes to children, the powers that be seem to always reject the notion that We the People have any business knowing what our servants are up to. And every time we do get our noses under the tent, what we see is more horrifying than we guessed. The list of abuses by CPS agencies around the country and the world is too long to detail and those abuses are invariably encouraged and exacerbated by the secrecy that cloaks the doings of child welfare agencies.
The same is true with judicial training. When Arizona judges received accurate instruction from Dr. William Fabricius of Arizona State University on the benefits of shared parenting, all of a sudden, custody outcomes and parenting time in the state changed toward greater equality. Activists in the state told me that the new training was a vital part of that change.
So Dr. Veskrna’s lawsuit hits Nebraska’s anti-shared parenting activists where it hurts the most. They’re terrified that, if judges start receiving the truth about shared parenting’s benefits to kids, their strangle hold on custody outcomes and all the money that flows along with it will come to an end. That children will benefit seems to be of no consequence.
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