There is growing awareness of the need for family law reform.
Children who grow up in fatherless homes are more likely to use drugs and alcohol, engage in juvenile delinquency, have long-term physical and mental health problems, have lower life expectancies and have lower educational attainment.
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.
If parents divorce or separate, research shows that shared parenting arrangements generally provide better outcomes for children of all ages across a wide range of emotional, behavioral and physical health measures. Shared parenting arrangements are those in which children live with each parent at least 35 percent of the time. Even if parents are in high conflict, most children still benefit from shared parenting if they have loving, meaningful relationships with their parents.
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.
Unfortunately, progress has been uneven.
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.
These cases are consistent with evidence that shows certain judges consistently favor mothers in their decisions instead of applying the facts in an unbiased, evidence-based manner that is in the best interests of children.
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.