January 15, 2018 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
This excellent piece by the equally excellent Ray Keiser demonstrates what we’ve learned from custody and parenting time data out of North Dakota (Lincoln Star Journal, 1/10/18). I refer of course to the fact that one’s outcome in a custody/parenting time case depends, not on the best interests of the child, but on which judge decides the case. The simple fact is that some judges understand the need for shared parenting and some don’t. Each judge intones the mantra that, whatever the final order, it’s all in “the best interests of the child.” But some orders do and some don’t actually promote that.
So, we find in one court a judge issuing a week-on/week-off parenting order and in another, with equally fit parents, the standard, off-the-shelf order giving every other weekend visitation to Dad. More than anything else, the extreme and entirely random differences in parenting time orders reveal that judges are acting on something other than children’s interests. That in turn teaches us that perhaps the most important reform is in how judges are educated about what really promotes children’s well-being and what doesn’t. Overwhelmingly, that means maintaining meaningful relationships with both parents.
Judges are the single biggest cause of fatherlessness. Every year, defective child custody decisions hurt thousands of Nebraska children. Based on Nebraska Department of Health and Human Services data, we estimate these decisions cost Nebraska taxpayers more than $500 million every year.
Now, I don’t know where he got that $500 million figure, and I’d like to. If any reader knows where I can find that information, by all means send it to me. But however it was derived and whether $500 million is an accurate figure, it’s unquestionable that fatherlessness costs us plenty. It costs us in police resources, prisons, productivity lost due to drug and alcohol dependency issues, treatment of those problems, treatment for depression, lower employment, poorer educational outcomes, higher welfare costs, etc. How one goes about putting a figure on all that, I have no idea, but the fact remains that it costs us.
Our judges have shown some improvement in recent years. Last November, the Nebraska Court of Appeals ordered a trial judge to adopt a week-on/week-off parenting plan. Consistent with the research, the court held that “modifying custody to a week on/week off parenting schedule is in the children’s best interests.”
A month earlier, the Court of Appeals affirmed a parenting plan that involved two children, including one with special needs; a mother who was a nurse with specialized training and a flexible work schedule; and a father who traveled frequently for work. In response to these facts, the trial judge created a 10-day/four-day schedule for the special needs child and a week-on/week-off schedule for the second child.
A year earlier, the Court of Appeals reversed a cookie-cutter, every-other-weekend schedule and ordered the trial judge to more equally divide the parenting time.
Every-other weekend plans are problematic because the child has less than half the minimum recommended parenting time with the non-custodial parent. This case involved a firefighter father who lived only a mile from the mother and could exercise significant parenting time. The appeals court held “awarding [the father] only two weekends of parenting time per month … was an abuse of discretion” by the trial judge.
So there are some judges, including those occupying appellate benches, who are coming to understand the value of shared parenting and the detrimental effects of the “cookie-cutter” every other weekend approach.
Last month, the Nebraska Supreme Court affirmed a decision that rewarded a parent who engaged in parental alienation. Among other things, this case involved a parental child abduction, a name change of the child to eliminate all references to the targeted parent and complete denial of access to the child. Another affirmed a decision that refused to remove two teenage girls from the home of their mother and stepfather, a registered sex offender who served four years in prison for molesting a teenage stepdaughter from a previous relationship.
In the last two months, the Court of Appeals has three times affirmed cookie-cutter, every-other-weekend parenting plans. In one such case, the court affirmed a decision that gave a father an every-other-weekend parenting schedule despite the fact he lived less than a mile from the mother in a small town. The trial judge in this case was the same judge who earlier refused to remove the teenaged girls from the home of their sex offender step-father.
In addition, the trial judge who was reversed in the firefighter case has resisted the Court of Appeals order. He stalled six months before creating a new parenting plan and, when he finally did so, gave the father only 30 percent of the parenting time, far less than what the appeals court ordered.
It’s a roll of the dice. Get a sensible, educated judge and your chance of maintaining a strong relationship with your kid is pretty good; get the opposite and you’re all of a sudden a visitor who’s told that it’s in his child’s best interests to not see his/her father much. This is true despite the fact that, as Canadian researcher Paul Millar has commented, there is literally no evidence for the proposition that sole/primary custody is in children’s interests and a great deal that it’s not.
What can be done? First, the state should collect and publish parenting time data, by judge, in every child custody case. DHHS already collects related data in these cases, so this would add one additional question to an existing questionnaire.
Second, judges who consistently make biased or defective decisions should be barred from hearing child custody cases and should be accountable to the same extent as other government employees.
Finally, the state should adopt parenting time guidelines that reflect the best available research and direct judges to equalize the parenting time of both parents whenever possible.
I would add a fourth. Judges should be trained in the science on shared parenting. My guess is that there are few judges who hate fathers or consciously believe that they should be sidelined in their children’s lives. My guess is that most are at least well-intentioned. Whatever the case, all judges should be given the opportunity to know and understand the overwhelming scientific evidence that shared parenting is the best arrangement for kids short of intact families.
Well done, Ray Keiser and well done Lincoln Star Journal for running the unvarnished truth about the scandal that is ongoing in Nebraska’s family courts.
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