Johnson, of Hastings, and Sherman, of Omaha, are family law attorneys.
This month, the Nebraska Administrative Office of the Courts published a landmark study on child custody awards in Nebraska from 2002 to 2012. This is the first time the Nebraska judicial branch has performed a systematic review of its custody and parenting time decisions.
According to the study, mothers were awarded sole or primary custody in 72 percent of cases, while fathers were awarded sole or primary custody in 13.8 percent. Joint custody with shared residence — essentially equal parenting time — was awarded in only 12.3 percent of cases.
The study also found that the average parenting time for non-custodial parents in Nebraska is only 5.5 days per month, while median summer parenting time is 14 days. Combined, this means most non-custodial parents have access to their children less than 20 percent of the time, a shockingly low number.
These figures are important because mental health research shows children have significantly poorer outcomes when they have insufficient parenting time with either parent. Children are less likely to finish school, more likely to engage in high-risk activities and more likely to be involved in criminal behavior than if they have two parents actively involved in their lives, regardless of whether their parents are living together.
What is sufficient parenting time? Mental health research shows that equal 50-50 parenting time provides the best outcomes, while less than 33 percent parenting time with either parent provides the worst outcomes.
As the new custody study shows, the average parenting time for non-custodial parents in Nebraska is substantially below 33 percent. Every year, more than 9,000 additional children are subjected to these types of arrangements.
The study also found significant variation in custody awards among Nebraska’s judicial districts. For example, joint custody with shared residence ranges from 26.3 percent of cases in District 1 to zero in Districts 9 and 12. Sole custody to mothers ranges from 30.8 percent of cases (District 8) to 75 percent (District 12). Sole custody to fathers ranges from 2.6 percent of cases (District 4) to 23.1 percent (District 8).
This variation demonstrates the need for uniform, research- based standards, like those that already exist for child support. Four of the 12 state judicial districts have adopted parenting time presumptions, called guidelines, all of which are different and none of which are research-based. In those districts that have not adopted guidelines, cases are often decided based on presumptions used by individual judges, which vary greatly and are rarely research-based.
Despite these troubling findings, there was some good news in the new study. Even using a very broad definition of the term “verified,” the study found verified instances of domestic violence in only 5.9 percent of custody cases. While any domestic violence is too much, many people believed domestic violence was much more common than found by this study.
The study also examined how many cases were so-called “high conflict” cases. There is no commonly accepted definition of “high conflict,” so the study’s authors created their own, very broad, definition. Even using this broad definition, the study found only 12 percent of cases could be classified as “high conflict.”
The study confirms the well-known defects of the current child custody system. Most people have firsthand knowledge of good, involved parents who, through no fault of their own, were suddenly removed from their children’s lives because our current system says there has to be winners and losers, and the losers don’t get to remain involved with their children. A truly sad — and completely unnecessary — state of affairs.
These findings make the case for immediate family law reform even more clear. Changes are needed to provide uniform, research-based standards to judges and to protect children from harmful parenting time awards. In too many instances, the amount of parenting time divorced parents receive is based not on their fitness to parent but, rather, on where they live or the judge who is assigned to their case.
Bills like Legislative Bill 22 would put all Nebraska parents on more equal footing and improve outcomes for thousands of Nebraska children every year.