The writer, of North Platte, Neb., is a family law attorney.
The World-Herald recently published a story about a child custody case in Grand Island (“Military mom’s career figured in custody decision; she’s filed appeal,” Dec. 27).
This case is unusual in one respect, because the father was awarded custody. The case is typical in another, because the judge awarded the noncustodial parent an “every-other-weekend” parenting time schedule. That means the noncustodial parent is only legally able to visit her child two weekends per month, or 96 hours (two 48-hour weekends) out of 720 hours.
Cases like these are based on the false premise that there should be one “primary” parent who has sole legal custody and most of the parenting time. However, mental health research shows that joint decision-making and maximized parenting time with each parent provide the best outcomes for children in most cases.
Numerous studies show a strong relationship between the amount of time children spend with each parent and positive outcomes. According to a recent presentation by Dr. William Fabricius, maximized parenting time with each parent protects children from harm to the father-child relationship, harm to the mother-child relationship and harm due to parent conflict.
Moreover, parenting plans that minimize the parenting time of one parent, which are often court-created, contribute to poor lifetime health outcomes for many children of divorce, including reduced life expectancy. Dr. Fabricius characterizes the consequences of these parenting plans as “a serious public health problem.” Children need frequent, meaningful and consistent parenting time with both parents.
Dr. Fabricius is a professor of psychology at Arizona State and a national expert on custody and parenting time issues. He also chaired a committee at the Arizona Legislature that worked for two years to revise the Arizona custody statutes. These revisions were unanimously enacted into law earlier this year.
Parents are always free to agree on whatever parenting arrangements work best for them. However, when the parents can’t agree and the court creates a parenting plan, the court is generally required to adopt a plan that provides for both parents to share legal decision-making and maximizes their respective parenting time. These provisions reflect the determination that maximized parenting time and joint decision-making should be the norm instead of the exception, as is currently the case in Nebraska.
There were 3,465 divorces involving children in Nebraska during 2010. Of these divorces, the mother was awarded custody in 2,156 cases (62.2 percent) and the father in 348 cases (10.0 percent). There was joint custody in 876 cases (25.3 percent) and another arrangement in 85 cases (2.5 percent).
The most recent mental health studies are also consistent with constitutional requirements.
For example, the Nebraska Supreme Court held that “both parents and their children have a recognized unique and legal interest in, and a constitutionally protected right to, companionship.
“In other words, the substantive due process right to family integrity protects not only the parent’s right to the companionship, care, custody, and management of his or her child, but also protects the child’s reciprocal right to be raised and nurtured by [his or her] biological parent.”
We know that children need both parents on a regular basis to thrive, and the state and private charities spend millions of dollars each year to keep both parents involved with their children. Yet divorce seems to cloud this fundamental truth.
The U.S. Supreme Court has also stated that “the interest of parents in the care, custody and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court.”
It is difficult, if not impossible, to reconcile these constitutional standards with many contested custody cases, in which judges order custody to one parent over the objection of the other fit parent.
This raises the question of whether the Nebraska Parenting Act, as applied, complies with the Constitution. This “cookie cutter” every-other weekend approach followed by many judges is not supported by mental health literature or the Constitution.
The Nebraska Court of Appeals has held that a court has the authority to order joint custody, even in cases where one of the parents refuses to consent, if the court holds a hearing and specifically finds that joint custody is in the child’s best interests. Nonetheless, many judges and other family court participants disfavor joint custody except in cases where both parents agree.
As discussed above, this reasoning is inconsistent with Nebraska law, inconsistent with applicable constitutional standards and unsupported by mental health research.
The Nebraska family law system desperately needs reform. Mental health research shows that every-other-weekend parenting time schedules are harmful to children, yet they are still routinely ordered in many cases.
It is time to stand up for children of divorce and ensure that each child has frequent, meaningful and consistent parenting time with both parents.