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NPO publishes blog articles to inform and to stimulate conversation about issues of importance to NPO's mission.  All blog articles express the opinions of the authors as individuals and do not necessarily reflect the views of National Parents Organization, its Board of Directors, or its executives.  

July 29, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

This is about as stark and hard-hitting an article on family court reform as I’ve read (Lincoln Journal Star, 7/26/18). It’s author, Dr. Les Veskrna pulls no punches.

Veskrna of course is the one who went to court to force the Administrator of Courts in Nebraska to divulge the materials used to train the state’s judges in matters of custody and parenting time. The documents were damning. Not only did judges receive claims that outright contradicted the overwhelming weight of known science on those matters, the skullduggery that preceded that training would have humiliated more scrupulous public figures.

The state first offered shared parenting proponent Linda Nielsen the job of educating the judges. Nielsen was an excellent choice. But someone in the anti-dad crowd got wind of it and frankly lied in order to keep Nielsen from presenting and replace her with anti-shared parenting advocate Robert Emery.

Veskrna tells it like it is. He points out that three of the top constitutional lawyers in the state have recently written in the official house organ of the Nebraska State Bar Association that the “best interests of the child” standard is unconstitutional both on its face and as it’s applied. They also pointed out that, in a slightly different context, the Nebraska Supreme Court explicitly found it to be so. The distance from that decision to finding the BIC standard unconstitutional in child custody cases is vanishingly short.

Not only does that standard violate legal precepts, it violates medical/psychological ones as well.

[O]ur judges’ historic child custody practices are the exact opposite of what medical research recommends. Our judges historically disfavored the custody arrangement that research shows provides the best child outcomes – joint custody – while favoring the custody arrangement that is associated with the worst.

A single standard that violates both legal and scientific requirements – it’s hard to fail more miserably than that.

But Veskrna’s far from done. He addresses the state’s highest court head-on.

The Nebraska Supreme Court is a large part of the problem.

Indeed it is. After being forced to turn over those judicial training materials, what did the court do? Did it move to ensure better training in the future? It did not. On the contrary, it demanded the establishment of a special administrative rule that would keep such materials secret from the public from here on.

The judicial branch also lobbied repeatedly against legislative proposals that would have increased transparency in child custody cases.

As I’ve said before, efforts to simply get divorcing parents to fill out a simple one-page form describing their custody and parenting time orders were opposed by the Supreme Court and other members of the judiciary. Maintaining that information would have made it possible to actually know what judges were doing in custody cases. Researchers could then know and publicize the reality of children’s outcomes in family courts. Hard data on what is done by family court judges is a vital first step in any effort at reform, but (or perhaps because of that) the judiciary resisted. It seems that, across the board, Nebraska’s judges don’t want the people who pay their salaries to know what they’re doing. That is beyond outrageous.

Once the problems with biased judicial training were confirmed, a group of doctors and lawyers asked the Supreme Court to investigate and correct the false information that was given to our judges. The Supreme Court refused.
Family law practitioners have long known the structure of our child support guidelines can discourage joint custody, which is the custody arrangement that provides the best outcomes for children. As a result, the Nebraska Child Support Advisory Commission recommended changes to the guidelines can discourage joint custody, which is the custody arrangement that provides the best outcomes for children. As a result, the Nebraska Child Support Advisory Commission recommended changes to the guidelines that would reduce this problem, which were then sent to the Supreme Court for approval. The Supreme Court refused.
A year earlier, a group of respected family law practitioners asked the Supreme Court to adopt uniform statewide parenting time guidelines, which would also have significantly reduced these problems. The Supreme Court refused.

I call these doings strange. The very institution that, in a child welfare case, called the best interests standard unconstitutional and thereby practically begged lawyers to raise the same issue in a custody or parenting time case, doggedly resists even the most anodyne efforts at family court reform. Why would the justices open the door to reform and then stand in the way?

But no one is required to understand the inside workings of the members of the court. We’re only required to say what they publicly do. And what they do is invariably opposed to children’s true interests and those of their parents. The Court is also none too friendly to the legitimate interest the people of the state have in knowing what their elected officials are doing and how their hard-earned tax money is being spent.

Every year, defective child custody decisions hurt thousands of Nebraska children. Based on data from the Nebraska Department of Health and Human Services, we estimate these decisions cost Nebraska taxpayers more than $500 million every year.

One last thing: do members of the Court imagine that, with their multiple failures to do the obvious right thing by Nebraska’s children, their multiple refusals to come clean about what judges are doing and how they’re being trained, that shared parenting stalwarts like Les Veskrna are going away? If so, they’re sadly mistaken. If they continue on this path, the embarrassments, the public shaming will only continue. If for no other reason than a sense of their own dignity, you’d think they’d change.

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