Everyone would agree that children in a two-parent family are more likely to have a successful future, but unfortunately, reality is that not all children have the benefit of a two parent family. To suggest that “judges are the single biggest cause of fatherlessness” is simply ignoring reality.
But that was the assertion of Ray Keiser in a July 9 Journal Star Local View titled “Family law still needs reform.”
In the past 20 years, there has been a consistent move towards an equal sharing of custody. Both the courts and Legislature have recognized that involvement of both parents is in the best interest of the child.
Parenting roles have changed over the years, and judicial decisions and considerations have changed as well. The standard of “best interests of the child” continues to be the goal in the majority of child custody cases unless parental rights are terminated. This is supported by both the legislative enactments, including, “The Parenting Act,” as well as numerous Supreme Court and Court of Appeals decisions favoring the same.
All judges come to the bench with certain life experiences but must follow the law and strive to do so. Nebraska law is gender-neutral in child custody cases.
Shared parenting time, while important, is not appropriate in every case. Does one look at shared hours, minutes, or days, or should a court be looking at sharing, or the ability to share, meaningful and quality time with the children?
Often with today’s work schedules, those are two very different issues. Should the court be looking at “equal time” or “equal quality time.” Each case requires a careful analysis of numerous factors.
Mr. Keiser has suggested that the family law system has failed children. He discusses the fact that there should be “objective standards” used in deciding child custody cases. That standard is “what is in the best interest of the child.” Isn’t that what it is all about, courts striving to determine what is best for the child in a custody case?
Judges make meaningful, carefully thought out decisions, which they believe are in the best interests of the child based on the evidence before them. For those rare cases where mistakes are made, the parties both have access to the Court of Appeals and ultimately the Nebraska Supreme Court.
Occasionally, decisions are overruled. This happens when the appellate court finds that the lower court has “abused its discretion.” It is very difficult to judge the sincerity, credibility and depth of feeling of one parent or the other based on reading a cold record.
A record can provide a summary of the factors that the court heard but cannot gauge the above factors. It should not be difficult to understand that it is not beneficial to children to have lower court judgments modified or reversed on a regular basis as that would result in the children moving back and forth from one parent to a different situation.
There is a reason that trials include the live testimony of the parties and their numerous witnesses. The lower court has the ability to observe the witnesses and analyze the factors previously enumerated that must be looked at to determine what is in “the best interest of the minor child”.
District court and, in some instances, county court judges, are making very difficult decisions every day in determining what type of custody arrangement should be ordered. Custody decisions are a thankless task, but Nebraska is fortunate to have dedicated judges to advocate for the best interests of the child.
Unfortunately, in every case, each side can view the results from the lens of his/her own perspective. For that very reason, Nebraskans should be grateful for a judiciary that is tasked with making child custody decisions after carefully taking into account what is best for the children.
Pam Carrier is a retired attorney. Deb Gilg is a former U.S. attorney of Nebraska.
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