Nebraska Bar President Marsha Fangmeyer Misrepresents Shared Parenting Bill - Again

September 27, 2013 by Robert Franklin, Esq.

A bill that would establish a presumption of shared parenting will once again come before the Nebraska Unicameral legislature this year. As of now, there are three stories related to the bill. The first is that, the president of the Nebraska State Bar Association, Marsha Fangmeyer, is again blatantly misrepresenting the terms of the bill, LB22. The second is that, if this article is any indication, the Nebraska news media have chosen to mislead the public about the facts of the bill (Star Herald, 9/25/13). And finally, the NSBA’s lobbying against the bill is in plain violation of United States Supreme Court precedent and its members’ First Amendment right of free speech.

The history of state bar opposition to LB22 is about as scurrilous as it gets, and it’s clear that’s going to continue. For background on the matter, please see my previous posts on the matter here and here and head of Nebraska’s Children’s Rights Council, Dr. Les Veskrna’s here.

To briefly summarize, the Unicameral changed the state’s laws on parenting post-divorce in 2007, but the new statute, the Parenting Act, was so bad that it received a substantial overhaul by the legislature just one year later. As things stand now, 60% of sole custody goes to mothers, 10% to fathers and 30% consists of shared custody although the percentage of parenting time fathers receive in those shared cases is unknown.

So last year, LB22 was submitted and assigned to the Judiciary Committee. It received immediate opposition from Fangmeyer and the state bar’s lobbyist. Family court judges also lobbied against it in what appears to be a clear violation of judicial ethics. Meanwhile, in order to derail the drive for more equal parenting following divorce, a committee of 34 people was formed allegedly to study how parents and children are faring under the current Parenting Act.

I detailed the many ethical violations of the committee’s membership, it’s secret meetings in violation of the open meetings requirements of Nebraska state law, the conflicts of interests of many members of the committee, the fact that, as it was first configured, there were no members who supported shared parenting and many of the members had been instrumental in writing the very Parenting Act the committee is supposed to be reviewing.

For her part, Fangmeyer claimed to be sincerely interested in reading the social science on shared parenting and its benefits to children. What she neglected to mention was that she’d had a lot of those studies for a year, courtesy of Dr. Veskrna. She either hasn’t read them or chooses to pretend she hasn’t.

As Dr. Veskrna’s article and mine make clear, the level of dissembling and outright corruption that’s been brought to bear in the service of denying children a healthy relationship with both parents is as plain as it is shocking. If these people had a principled argument against LB22, don’t you think we’d have heard or read it by now? Instead Fangmeyer can only come up with the same tired and frankly misleading claims about LB22.

Under LB 22, Fangmeyer said, courts would veer away from the best interest model to “treating children as property” in child custody cases that go to trial. “Mom has the kids 50 percent of the time and dad has the kids 50 percent of the time.”

That is not true.

“We did nothing initially on this bill until it became clear that this was the focus, making it a presumption in child custody cases that have to go to trial that the judge has to start with the 50-50 presumption,” Fangmeyer said.

That is not true.

Family attorney Paul Snyder got in on the act too.

“This new proposed legislation, if enacted, I think, is going to take us back 30 or 40 years. A presumption that both parents should have 50-50 (custody) is a presumption that they are both fit and proper, that they both have been actively involved and those presumptions are hardly ever true.

That too is not true.

Here’s LB22 as it’s currently worded. Contrary to Fangmeyer’s and Snyder’s claims, not one word in the bill refers to 50/50 custody. Not one word calls for equal custody or parenting time. Not…one…word.

Likewise, Fangmeyer’s blatantly misleading claim that under LB22, “courts would veer away from the best interest model” is simply false. Assuming (because she’s a lawyer and presumably passed law school) that Fangmeyer can read, she’s read the part of LB22 that says, “A parenting plan shall serve the best interests of the child…” and “Consistent with the child’s best interests, and absent evidence to the contrary, the court shall adopt a parenting plan that provides for joint legal custody for the child or children and that maximizes the parties’ respective parenting time.”

In short, it is both false and misleading for Fangmeyer to say that judges would “veer away” from the best interests standard. The bill is clear that nothing is to be done contrary to the child’s best interests. The entire bill is just over three pages long. It’s not possible Fangmeyer doesn’t know the truth about it, and, given that, the only conclusion to be drawn is that she’s intentionally misrepresenting its terms. For shame.

What the bill does do is modesty itself. It requires Mom and Dad to come up with a parenting plan. If they can’t or won’t, the court is required to do that for them in accord with the statute. If it’s in the child’s best interests, the judge is required to order shared legal custody, i.e. the parents are to have equal say in important matters related to the child, such as medical, educational and religious decisions.

As to physical custody, and again consistent with the child’s best interests, each parent is to receive the maximum parenting time possible. So, for example, if Mom’s work requires her to travel extensively, her maximum parenting time may be only, say, 33% of the time with little Andy or Jenny. In that case, Dad would get 67% of the parenting time and Mom would get 33%.

If the court doesn’t order time that maximizes the parenting time of each parent, he/she must make written findings of fact explaining why not.

That’s pretty much the extent of LB22 that Fangmeyer and the NSBA have been fighting as if it were the spawn of Satan. In all honesty, the bill is about as tame as it gets. It requires little of judges who remain flexible to make what orders they choose just as long as they explain their reasons for doing so. And it does not abandon the best interests of the child standard.

So why are the lawyers so bent out of shape about such a simple and noncontroversial bill? The answer in Nebraska is the same as it’s been across the country and around the world. The social science on shared custody is becoming clearer every day. When neither parent risks the all-but-entire loss of a child to the other parent in the divorce process, conflict between the two is reduced. And when conflict is reduced, so are legal fees. Divorce lawyers work by the hour and the more conflict there is, the more motions there are to file, hearings to attend, briefs to write, expert witness testimony to review, etc. Every minute of that is money in a divorce lawyer’s pocket.

But if parents went into a custody case knowing pretty well where they’d come out and that they’d still have abundant access to their children when the dust had settled, there’d be little cause for the type of unspeakably bitter conflict that’s so much a part of those cases now. Divorce lawyers know this and they want no part of easy, amicable partings of the ways.

So in state after state, country after country, it’s divorce lawyers we see lining up in the halls of state legislatures to speak out against bills that social science teaches us are good for children and parents alike. They’re not good for lawyers and that’s why attorneys Fangmeyer and Snyder are once again speaking out against LB22.

That they can only do so by misleading about the plain terms of the bill says a lot about the quality of their opposition. Again, if they had a real argument, wouldn’t they have made it by now?

And as is so often the case, the comments to the article are far more intelligent and informed than the article itself.

I’ll write more on this awful article and the NSBA’s illegal activities soon.

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