It has become clear over the last decade that Nebraska’s family law system is broken. According to an article that appears in the current issue of The Nebraska Lawyer, the official publication of the Nebraska State Bar Association, our current child custody system is unconstitutional.
The article was written by three experienced constitutional lawyers and points out the Nebraska Supreme Court has already concluded the “best interests of the child” standard that is at the heart of our child custody system is unconstitutionally vague. The article also notes judges often issue rulings that violate the constitutional rights of parents and children.
As if this weren’t bad enough, our 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.
How did this happen? For starters, the training provided to our judges was politicized. Our judges were fed false information that was contradicted by decades of medical research. When questions were asked about this biased training, those responsible tried to hide what occurred. They only disclosed this information after they fought and lost a lawsuit brought under the state open records law.
The Nebraska Supreme Court is a large part of the problem. Our Supreme Court has been aware of these issues for years but refused numerous requests to fix them. For example, after concluding the biased judicial training materials had to be disclosed under the law as it then existed, our Supreme Court responded by trying to change the law by proposing a new administrative rule that would keep these materials secret going forward.
The judicial branch also lobbied repeatedly against legislative proposals that would have increased transparency in child custody cases.
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.
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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 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.
These actions are in addition to a series of Supreme Court decisions that put children at risk. Perhaps the most notorious was a decision that left two teen girls in the custody of their mother, whose previous boyfriend molested another of her daughters and whose current husband is a registered sex offender who served four years in prison for molesting a teenaged step-daughter from a previous relationship.
Fixing these problems is critically important. Research shows children who spend less than 35 percent of their time with either parent have significantly higher risk of poor outcomes, including early death, lower educational attainment, teen pregnancy, physical and mental health problems, drug and alcohol use and juvenile delinquency. Research also shows children do best when they spend equal time with both parents.
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.
If our judges made better child custody decisions, we could improve the lives of thousands of Nebraska children every year and at the same time significantly reduce our income and property taxes.