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As is the case, we are asked to comment on legislation introduced across the country in support of organizations we work with. We will not be supporting Nebraska’s LB437 and we will explain why.  There are some very serious flaws within this bill that are very bad for Nebraska in many ways and will do far more harm than good and very bad for everyone in the country.

We need to do this on a page per page basis so that all clearly see the flaws that exist and what the language will do to the families of Nebraska.  Some language is a step forward but the major of this bill is major step backward and the same weak language legislative attempts to fix a seriously flawed policy towards the families of Nebraska. 

This continuing trend by some to introduce legislation that places a “one size fits all” on every parent is going to receive strong criticism from us, now and in the future. Often we see fathers claim that this is better than they have now but what they miss is that this will set all efforts to pass equal custody in the future and correct the flawed policies of state towards families backward as much as “shared parenting” has over the past twenty years.  This attitude by legislators, desperate fathers and mothers and organizations that support these bills is why comprehensive fixes don’t happen.

It comes down to a need for all to take a change in attitude and do the work required to get the changes needed.  It takes no more work to pass good legislation then it does to pass legislation that will harm every parent in this country such as this bill will.

The Flaws In Nebraska’s LB437

Page 1

Title page – no comments

Page 2

Lines 25 – 30 – This language is a presumption of shared or joint custody which already exists under current law.  This will do nothing to correct the misused discretion that the judges have and will do nothing to Assure that that joint custody is even awarded. Custody decisions will still be in the hands of those that have screwed it up before.

Page 3

No changes made

Page 4

Lines 19 – 21 -This is language best left to a parenting plan between the parents and will have no effect on the award of custody or the decisions of the court.

Lines 22 – 23 - This is language best left to a parenting plan between the parents and will have no effect on the award of custody or the decisions of the court.

Lines 24 – 27 - This is language best left to a parenting plan between the parents and will have no effect on the award of custody or the decisions of the court.

Lines 28 – 30 - This is language best left to a parenting plan between the parents and will have no effect on the award of custody or the decisions of the court.

Page 4

Lines 14 – 15 – This language is stating that a judge has a crystal ball and can tell into the future what a parent child relationship will be.  Parent -child relationships are dynamic by nature and no two children will interact with either of their parents in the same manner or parents with their children. 

Line 16 – Serious question must be raised as to whether this clause is in violation of the Americans with Disabilities Act and whether it is intended to keep a parent with a disability from having custody of their child.  Also are we now allowing the Courts to decision what a parent child relationship should be if a parent has a short term health issue such as a broken bone or life saving surgery? The age clause allows a judge to make a decision based on age which is again discriminatory.

Line 17 - 18 – Divorces by nature are disruptive to the lives of both parents and the child. Children are adaptive to change often much more so than adults. Of note is that this perceived disruption is not required to be supported by any report of any type.

Line 19 -20 – The requirement listed are extremely vague in nature in respect to the physical needs of the child. We need to question is this is done to keep lower income parents from having a relationship with their child just because someone of a higher earning capacity thinks that they are not providing enough  fancy gadgets or toys. Are we to now make decisions based on which school system or private school a child might attend is better simply because of the location of a parent’s home.

Line 21 – This line give obvious preference to a parent that has made choice to be a stay at home parent and not enter the workforce.

Lines 22 – 26 – Home dynamics and schedules especially when a child is involved in extracurricular activities mean that exacting schedules are not possible.  With agriculture being a large part of Nebraska’s economy are we now going to hold it against a farmer that has to tend to his crops in a timely and often time sensitive manner or hold it against a parent who is offered over time to supplement his income with an extra hour of work.

Line 27 – No definition is provided as to how geographic proximity is to be determined.  A 15 minute drive in the country can cover a large distance while the congestion of a city can mean the same amount of time would only allow for a few blocks of travel.

Line 28 – 31 and Line 1 of Page 6 - Serious question must again be raised as to whether this clause is in violation of the Americans with Disabilities Act and whether it is intended to keep a parent with a disability from having custody of their child.  Also are we now allowing the Courts to decision what a parent child relationship should be if a parent has a short term health issue such as a broken bone or life saving surgery? This clause also would allow a judge to deny a full relationship with a child if a parent was care for their own elderly parent in their home or with a child that has a disability of some sort.

Page 6

Lines 16 – 17 - This is language best left to a parenting plan between the parents and will have no effect on the award of custody or the decisions of the court.

Page 7

No changes

Page 8

Line 21 – 28 – There are some serious conflict in the language within this section as well as a serious question as to whether this section is in violation of U.S. Constitution’s  equal protects clause as contained in the 14th Amendment Section 1.  That section of the Constitution clearly states that  as follows:

  • Section 1.
  • All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Conflicting language comes when at one point the courts are instructed to maximize the time that each parent has and then tells the Courts that that amount of time shall be limited to 35%. This limitation of 35% is that dreaded one size fits all that has been objected to before.  One size Court ordered parenting time will have not only an adverse effect on parent/child relationships but on the economy of Nebraska by forcing parents to limit their work time to satisfy this section of the law. Public safety concerns also come into play as now this requirement if applied to fire and police officers will reduce available manpower by limiting their available hours to satisfy a forced amount of time.

Lines 30 -31 – This clause that allows the courts to terminate a parents rights lacks the required clear and convincing evidentiary standard as put forth in the USSC decision in Santosky v. Kramer, 455 US 745 - Supreme Court 1982

 

Page 9

Lines 1 – 4 – This section lacks a stated evidentiary standard for making the determination of before the court.

Lines 5 – 10 - This section lacks a stated evidentiary standard for making the determination of before the court.

Lines 11 – 12 – This section would allow a parent that has willfully denied the other parent a relationship with their child to use their own act to be used in their favor.  This section would also allow the Courts to deny a person that has been imprisoned a relationship with their child.

Lines 13 – 14 – This section lacks the necessary evidentiary standard for making this determination.

Lines 15 – 16 - No definition is provided as to how geographic proximity is to be determined.  A 15 minute drive in the country can cover a large distance while the congestion of a city can mean the same amount of time would only allow for a few blocks of travel.

Lines 17 – 20 - This is language best left to a parenting plan between the parents and will have no effect on the award of custody or the decisions of the court.

Lines 21 – 30 - This section lacks the necessary evidentiary standard for making this determination.

Line 31 thru Page 10 Lines 1 – 10 – While in previous noted sections this bill states that aspects of parenting time are to be maximized this section suggests that the courts limit the aspects of parenting timer. Parenting time is far more than simply spending time with a child it also includes the sharing of decision making and other family associated activities such as religion, education and extracurricular activities that one parent may choose to involve a child in that the other objects to. As we to believe that is it in the best interest of a child to be denied traditions such as football or baseball because a parent that is placed in control like soccer or basket weaver more?

Page 10

Lines 11 – 17 – This section has a conflicting evidentiary standard from other sections of this bill in that it uses preponderance where in others the Court are required to use creditable evidence.

 

 

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