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May 4, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

As I mentioned previously, Emery, et al are leading a strategic retreat on the part of anti-shared parenting forces. Opposition to children having meaningful relationships with their fathers post-divorce has been rebutted by the available social science at every turn. When McIntosh, et al and Tornello, et al came up with some truly defective research to try to prevent judges from ordering overnight visits by fathers with children under the age of four, more scrupulous scientist laid it to waste.

And as always, there’s nothing to indicate that sole custody (by whichever parent) benefits children or that primary custody/visitation is much better. So the final redoubt of the anti-shared parenting crowd is to call for more research. It’s a clever gambit. After all, by the time enough research is accumulated to satisfy them, it’ll be the next millennium and children won’t be able to define the term ‘father.’

In short, the call for more research is a delaying tactic. If it were something else, Emery, et al would surely have outlined what additional research is, in their opinion, needed. But they did nothing of the kind. No, for them research on children’s well-being and parenting time is always open-ended. There’s always more to do and we can never, ever say that finally, at long last, we know that children need both parents.

According to the seven authors of the latest articles in the Family Court Review, anyone who dares suggest that existing science is sufficient, at least for now, to guide judges in their decision-making becomes that most dreaded of all terms a “scholar-advocate.” And that, Emery, et al, assure us, is bad.

Of course, even if they’re right, even if the social science on the subject could be better, more complete (as of course it can be), these scientists, firmly ensconced in their ivory towers, don’t deign to descend to the world of everyday reality. As I’ve pointed out, whether or not the science is as perfect as some say they’d like, judges can’t wait for that day to arrive. They have to rule now on the cases before them. So, if the current science isn’t good enough, what do Emery, et al suggest those judges rely on to inform their custody and parenting time orders? Of course, they don’t say. Those current 42 studies indicating shared parenting to be preferable to all other post-divorce parenting time arrangements supposedly aren’t good enough, so I suppose judges are left to guess.

But the limitations of Emery, et al’s latest efforts don’t stop there. They eventually get down to identifying what they deem the shortcomings of “scholar-advocacy” to be. Predictably, they’re mostly as baseless as the rest of their arguments and, not occasionally, tactics used by the authors themselves.

Shifting the Burden of Proof is a common tactic of scholar-advocates. Rather than claiming the much more difficult ground of “Research supports my position!”, the clever scholar-advocate instead proclaims “No research supports the opposing position!” Shifting the burden of proof in this way is a familiar tactic among legal professionals.

Both are perfectly valid points in the abstract. But what happens when scholars like Dr. Richard Warshak and 110 others around the world in fact cite vast quantities of research in favor of the proposition that shared parenting is the best arrangement for kids? That of course is precisely what those scientists did. Indeed, perhaps the main point of the exercise of compiling the 2014 consensus report was to reprise the science supporting shared parenting and contrast it with the paucity of evidence to the contrary.

So whoever Emery, et al are referring to, it can’t be the scientists who endorsed the consensus report. Emery, et al are correct that the burden of proof falls on anyone who makes an assertion to provide evidence in support thereof. Warshak, et al, did exactly that. Shifting the burden of proof? Hardly.

Given that, the parallel claim that “no research supports the opposing position,” comes to have real meaning. When so much research favors shared parenting and virtually none opposes it, isn’t it time to draw some obvious conclusions? Again, if pro-shared parenting research were thin and scattered, I would agree that it’s too early to make a call. But it’s not, as 110 scientists have attested.

Straw-Man Arguments set up extreme or weak representations of opposing positions in order to “knock down” those arguments or research findings. Straw man arguments are, in part, the end result of oversimplification and distortion of data. They also reflect a dominant goal of advocacy…

Pot, meet kettle. Emery recently gave a day-long workshop to Nebraska psychologists in which he discussed custody and parenting time issues, among others. One of his slides contained the statement “Research shows that children always do best in joint custody.” Those were words he was putting in the mouths of “scholar-advocates” who support shared parenting.

But they’re nothing but a straw man. Neither Warshak nor any other scientist who supports shared parenting has ever said anything of the sort. Of course shared parenting doesn’t benefit all children, but Emery doesn’t hesitate to use the precise argument he condemns in his FCR piece. He’s right about one thing, though. Use of straw-man arguments is a sure sign of advocacy. That must make him one of the scholar-advocates he so roundly condemns in the FCR article. Strange, but true.

Perhaps stranger still, in another piece in the FCR, Emery and Marsha Kline Pruett excoriate Warshak for having written a brief amicus curiae in the case of Navarro vs. LaMusga that was before the California Supreme Court. That was 13 years ago, too long apparently for Emery and Pruett to remember that they, along with numerous other scientists, joined in Warshak’s brief.

No doubt about it, Warshak, et al engaged in advocacy by filing a brief in that case. The whole point of an amicus brief is to acquaint the court with information that may be extraneous to the record produced in court. Scientists and other professionals do this all the time and there’s nothing inappropriate in doing so. I would say it would be inappropriate not to.

But Emery and Pruett want it both ways. They want to engage in scholar-advocacy by endorsing Warshak’s brief and then, 13 years later condemn scholar-advocacy. At some point, I expect them to make up their minds.

I may be disappointed. That’s because the amicus brief penned by Warshak and endorsed by Emery, Pruett and 26 other scientists is an endorsement of shared parenting, among other things. On its face, the brief was a response to another amicus brief submitted by Judith Wallerstein. She restated the old Goldstein, Solnit and Freud claim that children have but one “psychological parent” and the other parent is relatively unimportant to the child. That has been thoroughly discredited and apparently it had been at the time.

Throughout the Warshak, et al brief the authors argue for children to maintain meaningful relationships with both parents as in this excerpt from the conclusion:

The authors of this brief wish to convey their deep concern over the children in this case. From their preschool days to the present, their relationship with their father has labored under formidable obstacles. The Court’s decision will either enhance the children’s opportunities to be able to receive and give love to their two natural parents, or it will dramatically increase the risk that the children will lose their connection to one of the two people in the world who have the deepest commitment to their welfare.

That’s scholar-advocacy from 13 years ago. Emery and Pruett took part in it and good for them. Better is the fact that their advocacy was on the side of shared parenting, of children maintaining meaningful relationships with both parents post-divorce.

Today, everything’s different. Today, scholar-advocacy is bad behavior. Today, the science on shared parenting is too sketchy for anyone to say whether it’s good, bad or indifferent. It takes true desperation to directly contradict one’s own work in the hope no one will notice the hypocrisy.

As I said, Emery needs to make up his mind. Meanwhile, the rest of us will go on arguing what he did 13 years ago – that shared parenting is the best arrangement for the children of divorce, absent serious unfitness on the part of one or more of their parents. And if saying so makes one a “scholar-advocate,” at least one’s advocacy is backed by sound science and a consistent viewpoint.

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