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March 11, 2020 by Robert Franklin, JD, Member, National Board of Directors

As two equal parenting bills make their way through the Florida Legislature, this article came out against reform of child custody and parenting time (Sun-Sentinel, 2/28/20).  And guess what.  It’s written by a family lawyer.  Of course it is.  Mark Sessums is the President-elect of the Florida chapter of the American Association of Matrimonial Lawyers.  That means he gains pretty close to all his income from family law cases, which in turn means he profits from clients who fight.

Unsurprisingly, Sessums has nothing new to say about child custody or parenting time.  All his arguments are retreads and not a one of them withstands even casual scrutiny.

First, he trots out the tired old claim that existing law is all about the best interests of children, but HB 843 puts parents first. 

What utter nonsense.  Let’s take the first part of his argument first.  It’s true that Florida law, like that of every other state, requires judges to act in the best interests of children when deciding custody and parenting time.  The problem is that they don’t do it very often.  Why?

In the first place, judges aren’t trained in what forms of custody and parenting time are beneficial to kids.  Judges are lawyers, not child psychologists.  Doubtless they try to get their orders right, but the sad fact is that they don’t know the science that strongly militates in favor of equal parenting post-divorce.  Tellingly, in other states, family lawyers have strenuously objected to judges being taught that science.  So it’s no surprise that judges often make orders that aren’t in kids’ interests.

Second, as economist Paul Millar has pointed out, the single best predictor of any custody case is the sex of the parent.  Mothers get custody and fathers don’t is about as hard and fast a rule as exists in American law.  And, as Millar also points out, there’s no correlation between the sex of the parent and better outcomes for the child.  According to the U.S. Census Bureau, there has been no statistically-significant change in child custody for at least the past 27 years.  In 1993, 84% of custodial parents were mothers and today it’s about 81%.  So no Mr. Sessums, judges aren’t acting in children’s best interests, irrespective of what the law says they’re supposed to do.

And then there’s the fact that the “best interests of the child” is such a legally vague concept as to probably be unconstitutional.  After all, who has ever defined it or even tried to?  I defy anyone to come up with a definition that could serve as a reasonable guide to making custody and parenting time orders.  And if the very concept of the child’s best interests is that hard to pin down, how does Sessums figure that family court judges in the state are getting it right in all the custody cases they hear?

And then there’s his threadbare claim that equal parenting is all about parents.  It’s not.  It’s about children.  It’s also about science.  It takes cognizance of the fact that, as long as both parents are fit and non-abusive, equal parenting time is the best arrangement for children.  Some 62 different studies demonstrate the fact, including massive studies done in Sweden that conclude that equal parenting is second only to two married biological parents at promoting child well-being.

Equal parenting is good for kids, fathers and mothers.  The only ones who suffer are family lawyers who see their earnings diminished by the reduced conflict equal parenting time tends to engender.

Sessums was already scraping the bottom of the barrel when he came up with this outworn and much debunked claim.

A study in Massachusetts found that fathers who actively sought primary or joint custody obtained it more than 70 percent of the time.

Yes, and guess why they did.  When fathers get custody it’s usually because the mother in question is so deficient for one reason or another – she’s in prison, on drugs, alcohol-dependent, violent, abusive, mentally/emotionally unequal to the task, etc. – that they figure they have a chance.  In short, the study suffers from selection bias on a grand scale.  The same held true for a similar study done in the U.K.

Having failed so miserably, Sessums moves on to just making stuff up.

Additionally, this bill will roll back important protections against abusive or controlling former spouses.

No, actually it won’t.  The bill makes precisely zero changes to existing law regarding the impact of domestic violence and child abuse on custody outcomes.  That of course is as it should be.  Equal parenting is the right arrangement as long as parents are fit for duty.  When they’re not, other arrangements must be made.  HB 843 in no way hinders that.

I can only hope that Mark Sessums makes better arguments in court than he does in the newspaper.

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