August 23, 2017 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
At last! Out of Nebraska there comes both a sensible trial court ruling and a sensible appellate court one. In a nutshell, the family court judge ruled that two parents, Thomas and Angelina Spethman, were imperfect, but loving parents. Each had foibles, each failed at times to keep promises, each lapsed briefly in oversight of the kids, etc. But none of that interfered with their love for and dedication to their five children. So the week-on/week-off parenting schedule the trial court ordered and that Thomas and Angelina adhered to was appropriate and worked well.
In short, both courts kept their eye on the ball. That is, in all child custody cases, what’s most important is what’s best for the kids. What’s best for the kids tends strongly to be equally shared parenting. And we don’t require perfection of either parent in order to enter an order that doesn’t marginalize one in the lives of the children. Every parent who’s ever lived is flawed in some – usually many – ways. That is not a reason to interfere in their relationship with their children.
Indeed, that’s precisely what both courts ruled regarding certain odd sexual behavior by Thomas toward Angelina. He once, perhaps twice, had sex with her while she was sleeping. Now, I call that strange behavior, but it has nothing to do with his relationship with his children, his love for them or his competency as a parent. To their credit, both courts noted that and ruled accordingly.
As for the court’s exclusion of evidence related to Thomas’ past sexual conduct, the district court concluded the evidence was not relevant since there was no showing of any nexus between the alleged behavior and any impact on Thomas’ parenting, and even if the evidence was relevant, the court concluded that the danger of unfair prejudice outweighed the probative value of the evidence.
But that wasn’t the extent of the complaints Thomas and Angelina had against each other. Thomas failed to pick the kids up at school on time; Angelina allowed a child to be burned while she was cooking dinner. Thomas arrived at Angelina’s house unannounced to pick up shoes for the children. Angelina did more of the day-to-day parenting than did Thomas. Such and more was the litany of grievances each had against the other. Both courts understood them for what they were.
Our de novo review of the record reveals two parents trying very hard to juggle the demands of five children while also running a business…
In the course of managing the significant responsibilities associated with their personal and professional lives, they have also had to contend with the breakdown of their marriage. Mistakes have been made or in some cases, poor judgment exercised, by both parties. Each has engaged in unfavorable behaviors, but the evidence supports that both love their children and do their best to take care of their needs.
That was, appropriately, all there was to it. The parents aren’t perfect, but they’re doing their best in a difficult situation. What arrangement of custody or parenting time would make things better? None. The judges understood that.
All too often, we see courts searching for some less than ideal behavior on one parent’s part for the sole purpose of marginalizing him in the children’s lives. As I’ve said many times, that is not what the inquiry should be. The inquiry should be whether either parent is so deficient or so dangerous that removal or marginalization of the parent would be less detrimental to the child than continued contact. Children need both their parents. That means that, in order to justify limiting parenting time for one parent, courts must meet a very high standard of demonstrating the parent’s unfitness or risk of harm to the child. That standard is necessary because marginalizing one parent in the child’s life is itself detrimental to the child. Courts must invariably do what’s best for the child under the circumstances of each case. Equally shared parenting is usually what’s best and it should never be displaced because one parent fails to live up to some ideal or one parent does the job better than the other. If a court rules that it’s not, it needs to have a compelling reason.
The judges in Spethman vs. Spethman seem to have understood the above and ruled accordingly. Good for them. Every judge should read the appellate court’s opinion and use the trial court’s decision as a template. If the best interests of the child is to be anything but an empty mantra to intone, equal parenting must become the default parenting arrangement in child custody cases.
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