In the last few years, several states across the country –
– have raised the question about parenthood after divorce. Legislators, judges, lawyers, psychologists,
mediators and parents are asking, “What is best for children of divorce?” Views differ wildly on how custody and
parenting time should be shared in a post-divorce family.
This year the Nebraska Legislature considered LB 22, a bill creating
a presumption of joint physical and joint legal custody. I now serve on a statewide committee of
lawyers and judges (some who supported LB 22) formed to evaluate and critically
examine custody and parenting time reform under Nebraska law.
In the last 13 years, I have represented equally fathers and
mothers. I have championed good parents
and advocated for hundreds of variations of parenting time based on the
uniqueness of each family. I have won
cases and I have lost cases. I have been
both affirmed and bewildered by outcomes.
I have represented both fathers and mothers who were awarded sole
custody. I have represented parents who
amicably agree to joint custody. I have
seen children thrive and I have seen children suffer.
The standard under Nebraska
law is the best interests of the child. This means that when a judge decides custody,
the standard by which they evaluate the evidence is what outcome will best
support the child. The law prohibits a
parent’s gender from being considered.
Most parents and divorce professionals will tell you that a
“one size fits all” approach to custody generally does not work. Families, and their corresponding needs, are
unique. I tell my clients, and it
remains as true today as it did when I first started practicing, that each case
My opposition to LB 22, which I made in testimony before the
State Judiciary Committee, was largely due to the vague and ambiguous language
of the bill. It lacked specification on
how custody terms were to be defined and a presumption of what joint custody
meant. As practitioners who assist the
courts in making good decisions under the law, it is imperative for both judges
and lawyers to have clarity regarding these fundamentals.
I believe when you have two good, supportive, involved
parents who have the ability to communicate well with each other for the
benefit of their children, shared parenting should be ordered and should be the
rule. Unfortunately, not all divorcing
parents fall into this category.
When they don’t, the best interests of the child call for
something different. In the majority of
cases I see, on my own case list or other cases on the judicial docket, where a
judge must decide custody because the parents can’t, you do not have parents who
are capable of co-parenting.
It can be one parent, or both, who thwarts communication or
parenting time. It can be mothers and
fathers. In these contested cases,
requiring parents to communicate daily and sort through issues related to their
children is nearly untenable when they haven’t been able to agree on the basic custodial
arrangement for their children. It is
not recommended because it is the children who are most exposed to the conflict
and who suffer.
I remain hopeful that the professionals who have dedicated
their careers to supporting families through divorce transition will continue
to work together to find the answers that best serve children and their parents