October 12, 2017 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
This Nebraska Court of Appeals decision may prove to be important. Nominally, it makes no new law nor expands existing law. But what the trial court did and what the appellate court approved can be read as deeming equal parenting post-divorce as appropriate regardless of the level of conflict between the parents. What’s remarkable about that is that it’s in line with the science on shared parenting and parental conflict.
As Wake Forest University Professor Linda Nielsen has repeatedly pointed out, the research on parental conflict, shared parenting and child well-being shows that it’s the quality of the parent-child relationship that matters most to a child’s welfare and that, absent abuse or unfit parenting, equal parenting tends to produce the best outcomes for kids. Contrary to the claims of those who would sideline fathers in children’s lives, shared parenting doesn’t just work because the parents get along. It works in relationships in which there are high levels of conflict and low.
Is it possible that Nebraska courts have learned some of that science and are applying it correctly to cases before them?
The case of Bob Crow vs. Marlene Chelli is pretty much an off-the-shelf divorce and custody case. Marlene was originally given primary custody and Bob got every-other-weekend visitation, plus time in the summer and on holidays. But it took Marlene less than a year to convince Bob, child protective services, the police and finally a trial court that things should change. In under two years, the kids attended three different schools, were home schooled by her and had been enrolled in yet another school by Marlene.
She’d made multiple false claims of abuse of her and the children by Bob. Investigations proved the claims unfounded. To top it all off, Marlene routinely refused Bob access to the children or interfered with what he did have. For example, she told him that if he didn’t return the children earlier than the court order required at Christmas, she’d have an Amber Alert issued. He did as she wished.
All of that spurred him to ask the court to modify its original order and give him greater time with the children as well as the final say about decisions about their education. The trial court granted his petition and entered an order for week-on/week-off parenting time, in part because that can be arranged so that the parents see each other as little as possible. (Indeed, if done properly, they needn’t see each other at all. Dad can pick the kids up after school on Friday and Mom can pick them up there the following Friday. That way, there’s no interaction between the two.)
The court also gave Bob final authority about the children’s educations, as requested. Marlene appealed. The Court of Appeals rebuffed her.
“Marlene has regularly frustrated Bob’s ability to exercise his parenting time, through means disruptive to the lives of the children and the parties, and has further disrupted the children’s lives by interference with the children’s education. The parties have a contentious relationship and clearly need a physical custody and parenting time arrangement that will minimize opportunities for conflict and one that will also produce stability and consistency for the children. While the week on/week off parenting time arrangement does not necessarily reduce the total number of custody exchanges that occur during the year, it does spread them out on a regular, consistent basis, and allows for equal parenting time with both parents, something which the court addressed in its findings from the bench.”
Importantly, that interference in parenting time constituted a “material change in circumstances” sufficient to, consistent with Nebraska law, warrant modifying the custody and parenting time decree. Having been passed on by the Court of Appeals, trial courts can now do the same. Interference with parenting time can mean modification of an existing order. That’s a significant step forward.
And of course we now have dicta to the effect that week-on/week-off parenting time is a good way to avoid conflict between parents. That too is important. Before this case, the tendency of courts has been to reduce parenting time for the non-custodial parent in order to avoid conflict. That approach was avidly endorsed by the anti-dad crowd, but it had one major defect – it wasn’t good for the kids. It may or may not have reduced parental conflict, but, as much science demonstrates, children need both parents, even when they don’t get along.
Again, it’s the quality of the parent-child relationship that matters and equal parenting tends to benefit that relationship.
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