Nebraska Bar Opposes Public Information about Family Courts

February 1, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

At long last, it’s becoming obvious that truth is the enemy of those opposed to shared parenting. What’s becoming even more apparent is that the anti-shared-parenting crowd knows it.

Followers of this blog know that the State of Nebraska looks to be the thin edge of the equal parenting wedge. That’s because those opposed have, for many years now, been slowly running out of excuses for their opposition. That’s brought them inexorably into conflict with the known facts about shared parenting, the known facts about parenting legislation and the known facts of U.S. Supreme Court precedent. But more recently it’s brought them into conflict with, well, known facts.

Advocates opposed to children having both parents in their lives have always had a rough go of it. It’s hard enough when the social science on children’s well-being frankly demonstrates that children’s best interests lie in maintaining real relationships with both parents post-divorce. But, in state after state, country after country, they’ve always been happy to ignore the science and deflect attention to other issues like inter-spousal violence.

But in Nebraska, shared parenting forces have doggedly forced the legislature to confront the realities of children’s suffering in the wake of their parents’ separation. Year after year, they’ve improved legislation that would establish in law what’s actually in children’s interest — meaningful relationships with both parents.

That disturbed the anti-shared-parenting folks to such an extent that Nebraska State Bar Association President Marsha Fangmeyer was driven to outright public lying about the bill.

Embarrassing as that was, though, it was nothing to what came next. The same NSBA routinely lobbied the state legislature on behalf of or in opposition to whatever bills it chose, including shared parenting ones. As a mandatory state bar, that very plainly violated Supreme Court precedent holding that doing so violated the free speech rights of dissenting members. So blatant were the NSBA’s many violations that it found itself on the losing end of a lawsuit brought by aggrieved lawyers. The state Supreme Court’s ruling in the matter all but destroyed the NSBA altogether, slashing its fee structure and sharply restricting its regulatory functions.

What looked like the last straw for anti-shared parenting advocates came when the unicameral legislature ordered a study of what actually goes on in family courts. The report of that study was made public last January and, for the anti-dad/anti-kid crowd, the results were not good. In a time of growing awareness of children’s need for their fathers, the data showed Nebraska courts overwhelmingly giving sole and primary custody to mothers. When social science demonstrates children’s need for ongoing relationships with both parents, the study revealed kids are allowed to see their non-custodial parents only 17% of the time on average.

And this is in a state in which allegations of domestic violence and parental unfitness were made in only about 6% of cases and proven in far fewer. That essentially knocked the props out from under the anti-shared parenting movement. For years they’d relied on the notion that fathers are so routinely violent toward their children and their wives that removing them from the lives of both was justified. Now we know that even those wives, at the time of greatest animosity toward their husbands, almost never even claimed any form of abuse or unfitness.

So, if you’re dogmatically opposed to children having real relationships with their fathers, what do you do? With every argument you’ve ever made stripped naked in the public square, how can you continue to do what you’ve always done?

The answer is coming into focus, and this op-ed by the excellent Chris Johnson helps the process along (Lincoln Journal Star, 1/30/15).

Among other things, it seems there’s a bill before the legislature that Johnson describes as follows:

In order to avoid disputes about what really occurs in Nebraska courts and to provide additional transparency, a legislative bill (LB27) has been introduced that would collect data about parenting time and domestic violence in every Nebraska case in which parenting time is awarded or modified. This information would be collected through an existing process that has been in place for many years, so the additional cost to taxpayers would be negligible. The information collected would be published annually so judges, lawmakers and citizens could evaluate whether these cases are being decided fairly.

What could be more reasonable? The bill would allow the state to systematically gather data on what actually occurs in family courts. That would educate the public, the legislature, lawyers and judges about the realities of child custody cases. The information gathered would allow Nebraskans of every stripe to know the facts and decide whether there are problems in family courts that need attention. The information would also guide lawmakers and rulemakers in what type of attention, if any, the situation required. After all, how do you fix a problem if (a) you don’t know if you have one and (b) what type of problem it is, if you do?

That would all be accomplished virtually free of charge by simply requiring litigants or their attorneys to fill out a form at the end of a child custody case.

What’s to argue with? Nothing really, but the NSBA found a way.

Inexplicably, the Nebraska State Bar Association (NSBA) leadership decided to oppose this bill and its goal of greater judicial transparency. The NSBA took no position on a similar transparency bill two years ago. In other contexts, the NSBA claims to support transparency and efforts to reduce judicial bias, even spending $100,000 three years ago to sponsor a national conference on racial and ethnic fairness in the courts. The NSBA leadership says it opposes LB27 because it doesn’t want information tracked about individual judges. However, this position is hard to understand, because the NSBA itself tracks information about individual judges through its judicial evaluation survey, which collects and publishes feedback from lawyers about individual judges every two years before Election Day.

In short, the same NSBA leadership that’s always opposed shared parenting is now opposing the right of the public and its elected representatives to know basic facts about what family courts are up to. Does it get more scurrilous than that? It does. This is the NSBA, after all.

The NSBA leadership took this position without seeking input from its members or from family law practitioners. The NSBA leadership has been criticized in the past for using the organization’s funds and name to pursue its own political agenda. This criticism was part of the reason the Nebraska Supreme Court fundamentally restructured the NSBA last year to eliminate its access to mandatory dues and remove all of its regulatory responsibilities. Critics of the NSBA had hoped this rebuke would cause the NSBA leadership to be more focused on providing value to its members and improving the quality of legal services to Nebraskans. Unfortunately, that doesn’t seem to be the case.

Yes, they’re at it again. Under the banner of an organization that boasts thousands of members, NSBA leadership has taken it upon itself to oppose a bill that’s utterly non-controversial apparently because its opposition to shared parenting is implacable. How many people made the decision to oppose LB27? Three? Four? Half a dozen?

We’ll never know, but if there were ever a case of a tiny minority seeking to rule a huge majority, this is it. Transparently, that tiny minority is terrified of the facts about child custody cases becoming public. But, as I’ll detail in my next post, the anti-dad/anti-kid crowd’s antipathy for the truth doesn’t stop there.

National Parents Organization is a Shared Parenting Organization

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