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May 17, 2017 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Before I get further into the documents on judicial education produced by the Nebraska Court Administrator, I need to go back to something Dr. Lisa Blankenau said in her presentation to the judges in 2012.

Some studies suggest that custody arrangements should have a similar ratio of parental time with the children as they had before the divorce.

I quoted that in my first piece on the document production and criticized it because, whatever the parenting time ratio pre-divorce, the child still likely attaches to both parents and it is that attachment that matters most to the child and its best interests.

Blankenau’s reference was clearly meant to encourage judges to order parenting time that approximates the ratio of parenting time done by mothers and fathers during marriage. That’s clear because, following the above-quoted remark, she then laid out a list of times spent in childcare by mothers and fathers based on what she rather coyly referred to as “time studies.” Which ones, she didn’t say, but she painstakingly broke the matter down among “Married stay-at-home mothers,” “Married Working Mothers,” “Married, stay-at-home fathers,” “Married Working Fathers,” “Unmarried working mothers” and Unmarried working fathers.”

Why would she have gone to that trouble if she hadn’t intended the judges to pay attention to which parent did how much childcare?

But now a friend has given me a heads-up on a Baltimore Law Review article written by the excellent and knowledgeable Dr. Richard Warshak back in 2011. It’s entitled “Parenting by the Clock: The Best Interests of the Child Standard, Judicial Discretion and the American Law Institute’s ‘Approximation Rule” and runs to 83 pages. It deals with the exact idea put forward by Blankenau and, tellingly, in all those pages, including 414 footnotes, there’s not a single reference to any study that “suggest[s] that custody arrangements should have a similar ratio of parental time with the children as they had before the divorce.” In fact, Warshak asks,

Why should we require judges to ignore variables that are supported in the scientific literature in favor of one variable that has no support?

That is, science identifies certain variables as influencing child well-being and the ratio of mother’s parenting time to father’s isn’t one of them.

Indeed, the very concept of the Approximation Rule (i.e. that a parent’s parenting time post-divorce should approximate his/her time in childcare pre-divorce) came, not from social scientists, but from the American Law Institute that laid the matter down in one of its many “Principles.” The rule itself is of course gender-neutral on its face, but no one pretends that, were it adopted by state legislatures, it would result in gender-neutral parenting orders. Surely the reason it’s been put forward is that the Approximation Rule would privilege mothers at the expense of kids and dads even more than is currently the case.

In evaluating its political viability, it is relevant that most commentators, including advisers to the ALI Principles, are convinced that the rule would tilt the negotiating field and trial outcome in favor of the mother.

That of course casts further light on Blankenau’s implicit support for the adoption of the Approximation Rule by judges. Much of her presentation was openly pro-mother, so that support is more of the same.

How did the ALI define what constitutes caregiving? After all, as I’ve argued many times before, earning the money to buy food for the child should count as much as spooning the food into the child’s mouth. But, needless to say, the ALI didn’t see it that way. Here’s what’s excluded from its definition of childcare:

( a) providing economic support;

(b) participating in decisionmaking regarding the child's welfare;

(c) maintaining or improving the family residence, including yard work, and house cleaning;

(d) doing and arranging for financial planning and organization, car repair and maintenance, food and clothing purchases, laundry and dry cleaning, and other tasks supporting the consumption and savings needs of the household.

In other words, what fathers typically do is to be excluded from the definition of childcare when deciding parenting time. But the Approximation Rule is actually far worse than that because parental behaviors that unquestionably affect children’s moral, intellectual and emotional welfare are simply too difficult to accurately measure.

Sociologists who use sophisticated methods to track parental time devoted to children find the task complex and daunting. The scientists dispute methods and findings, arguing issues such as to what degree does a parent's being available to, as opposed to engaged with, offspring qualify as caretaking? As Professor Michael E. Lamb explains, "Involvement is a multifaceted concept that comprises interaction, supervision, availability, and various types of cognitive and emotional engagement ....

Parents who mow the lawn or clean the house demonstrate to their children pride in the home, responsibility, discipline, delay of gratification, and maturity in completing work before play.

So of course do parents who work 40 hours a week or more to support the family. The idea that those types of parental inputs can be accurately measured is absurd. ALI’s approach is to simply dismiss them as factors to be considered as childcare. That’s not only unrealistic as a measure of caregiving, it’s misandric in the extreme and likely meant to be.

The detriments of the Approximation Rule are too many to be reprised here. Warshak’s article spells them out clearly. Most important is the fact that only one state, West Virginia, has adopted the rule and for now it appears to be a dead letter elsewhere.

Not only that, but the AR would also increase litigation in the family law field that has remarkably little of it now, as parents would vie with each other to produce the best evidence for the amount of time they spent with little Andy or Jenny. Indeed, Warshak conducted a survey of attitudes about the AR and found that,

In the Approximation Rule Survey, 88% of attorneys and child custody evaluators confirmed that, if the approximation rule were operative, the litigants in their last custody trial would have disputed the past division of caretaking functions and still proceeded to trial.

In short, Blankenau affirmed the Approximation Rule in her presentation to Nebraska’s judges despite the fact that it’s in use essentially nowhere and has been marginalized as an unworkable spur to litigation and bad feelings. That she claimed the rule is supported by “some studies” when in fact there are none lends an air of intellectual dishonesty to what she said. And the fact that the AR is blatantly pro-mother and anti-father provides a fair introduction to our inquiry into the principles at work in the education of Nebraska’s family jurists.

 

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