Equal or Joint Child Custody in Nebraska Divorce and Paternity Cases could become the standard.
Much like civil rights, women’s suffrage, and gay rights have progressed in American society, progress toward equality for joint child custody in divorce and paternity cases may soon become reality in Nebraska. LB 212 (2013) would provide a rebuttable presumption that joint custody is in a child’s best interest.
In the “olden days” fathers were automatically given the custody of his children if the parents were to divorce. Divorce was much more rare in those days, but the situation was clearly inequitable to the mother as well as detrimental to the children.
As society progressed and divorce entered the mainstream, one would expect that in the scope of child custody, mother’s would fight for a more equal standing in the custody discussion. What actually happened was a complete paradigm shift. Mothers now were given automatic custody of the children under a legal doctrine, called the “Tender Years Doctrine”
Deterioration of the child custody fairness under the “Tender Years Doctrine”
For most of the 1900s, the tender years doctrine placed the children of “tender years” of divorcing parents exclusively with the mother unless it was shown the mother was unfit. The term “tender years” is vague and ambiguous. “Tender years” could describe a thirteen year old child, as was the case in State ex. rel. Speal v. Eggers, 181 Neb. 558, 149 N.W.2d 522. But as time wore on, the age of “tender years” began to dwindle. Near the end of the “tender years” doctrine in Nebraska, children under four years old were more than likely considered “tender years”.
It is clear that this doctrine is not in the children’s best interest, however, it alleviated a lot of contentious custody cases. The fathers simply did not have any leg to stand on. It didn’t make sense to pay lawyers to fight for something that was nearly a zero shot of achieving without evidencing the mother to be unfit, a very difficult standard to meet.
Best Interests of the Child, Joint Custody Unfavored
After the Nebraska Legislature renounced the “tender years doctrine” in 1988 [see also Vance v. Vance, 231 Neb. 334, 436 N.W2d 177 (1989) ], gender was no longer supposed to play a role in determining child custody. Nebraska formally adopted the Best Interest standard, which outlines several factors a court uses to determine child custody. Typically, the parent who served as the primary caregiver, all other things being equal, could expect to be awarded custody of the children. Usually, in most family dynamics, primary caregiver is the mother. So to the extent that sex should no longer play a role in determining child custody in Nebraska, due to the traditional family dynamic, mothers continued being awarded full custody of the divorced couples’ children. In the context of paternity cases, where the parents are not married and usually not living together, mothers were unilaterally awarded custody based on their role as the primary caregiver since the father was unable, due to the lack of marriage and familial living, to be able to supply primary care.
While the Best Interest Standard paved the way to somewhat more equal standing between a mother and father, the Nebraska Supreme Court explicitly denounced joint custody except in the most rare of cases in 1984. Trimble v. Trimble, 218 Neb. 118, 352 N.W.2d 599 (1984). Nearly 30 years later, joint custody is still disfavored public policy in Nebraska unless both mother and father agreed or a trial was held and found joint custody to be in the child’s best interest.
While the Best Interest Standard is more fair than the “tender years doctrine”, it comes at the expense of incredible hostility, contention, and financial turmoil to the mother and father.
There remains a bias in favor of the mother in Nebraska courts. A recent survey, by the Omaha World Herald, of divorce cases in Nebraska during 2011 saw 60 percent of cases the mother was awarded full custody while only 10% of cases saw the father awarded full custody.
The father, if he believes he is better suited to raise the children, or simply wants joint child custody, must submit to a great amount of attorney fees, be burdened with paying the mother’s attorney fees if he loses, look like the bad guy for fighting for more parenting time with his children, be labeled a dead beat dad and told he is fighting for custody just so he doesn’t have to pay child support, etc. After the war is over, regardless of who wins, both parties are bitter and the child is harmed in the process with only seeing one of his/her parents every other weekend.
LB 212 (2013) and the presumption of Joint Custody
In an attempt to truly make the child custody process fair in Nebraska, the Legislature is currently debating LB 212. LB 212 would make joint child custody the presumption, or starting point, in all divorce and paternity cases in Nebraska. A rebuttable presumption basically means that unless the children’s best interests indicate otherwise, the joint custody of the children is presumed to be in the children’s best interest. The language of the proposed bill requires each parent to have at least 45% of the annual parenting time, or at least 165 days during a 365 day year.
This legislation does a lot of significant things:
- Relieves most of the hostility that occurs between parents who are fighting to spend more time with their children.
- Relieves the burden on Nebraska divorce and paternity courts, who are flooded with child custody trials.
- Relieves the substantial expense of court costs and attorney fees on the parent having to hire to fight for custody, or defend the status quo.
- Provides a fair starting point on developing the parenting schedule.
- Places the burden on the parent wanting to limit parenting time, rather than the other way around.
- Most importantly, allows a child to have nearly equal access to the relationship with each parent, instead of only one parent.
We will continue to watch as LB 212 goes through the Nebraska Legislature and hope that it will pass. It truly is the next progressive step to fostering a fair and beneficial custodial relationship between the parents and their children.