Questioning practicing attorneys about the structure or results of the divorce industry brings varying responses. While more judges and attorneys acknowledge the adversarial structure of Family Court is an abomination for citizens and more attorneys are publicly stating their support for shared parenting, there remain those who defend the current system as best. This group defends their profession by claiming they aren’t just attorneys, but “child advocates”, who would staunchly advocate for systemic change if such would indeed benefit children.
Most often, their defense begins with platitudes such as “from my experience” or “from what I have seen”, but rarely any factual, validated results. Further, while some offer nebulous statements that modifications are necessary, seldom are specific changes mentioned and, almost never, are criticisms raised, even when it’s clear a “Family” Court is directly harming tens of thousands of children.
The Nebraska family courts provide a perfect example.
For years, Nebraska shared parenting advocates have pushed for legislative change, even obtaining favorable editorial page coverage from influential papers. Although Shared Parenting has received the endorsement of 110 world experts and has over 40 peer review papers saying it provides the best outcome for children, the Nebraska State Bar Association continually voiced its opposition. Not only has the Nebraska Bar opposed shared parenting, the tactics it has taken to finance its obstructionism have revealed a great deal about the character of this organization, its members and its leadership. In 2012, the bar was sued by Mountain States Legal Foundation for misuse of member mandatory dues which were “used, not only to regulate, discipline, and educate attorneys, but also to support a Legislative Program, which includes the initiation, support, opposition, or comment on legislative matters”, including shared parenting legislation.
In addition to the bar leadership, Judges were caught secretly lobbying against Shared Parenting legislation, raising serious questions about separation of powers and prompting one Senator to ask them “to stop hiding in the bushes and trying to kill this.” This breach of the Constitutional separation of powers and judicial ethics even prompted an unprecedented rebuke from the largest newspaper in the state.
But things started to change, and become much more transparent, in 2014.
That year, as a result of the lawsuit against it, the Nebraska State Bar was restructured by the Nebraska Supreme Court, which eliminated its access to mandatory dues and removed all of its regulatory responsibilities. The loss of mandatory dues took a heavy toll on the bar association, requiring the elimination of staff, subleasing of office space, cutbacks in travel and elimination of events.
Providing additional transparency was a report, requested by the Chair of the Nebraska Legislature’s Judiciary Committee. The report analyzed ten years of child custody cases and concluded “Non-custodial parents in Nebraska get an average of 5 days a month with their children”. For all those attorneys who’ve claimed family courts aren’t a “winner take all” environment, that shared parenting is a “cookie cutter approach”, or who've used the single Wisconsin study to erroneously allude that shared parenting is the national norm, where is your public condemnation of Nebraska?
When left in the hands of Nebraska attorneys, they determined “The Best Interest of the Child” was to all but remove one of their parents, and half their extended family, in almost every case. After all, if the average amount of visitation given to a child is but five days a month, the standard deviation from such a low average is insignificant. Is that not a “cookie cutter approach”? How can one claim “every case is different” if the results are always the same? Like Utah, aren't the Nebraska visitation results yet another example of "the joke in the industry is because we outlined the minimum schedule, it's become the maximum schedule"? Finally, how much “revenue” did Nebraska divorce attorneys generate to come up with what is clearly a pre-determined result? How many college educations or inheritances were taken from children to produce this "revenue"? For those who are moral attorneys, where is your public condemnation of Nebraska?
Concerned that even this miserable outcome was a sugar coating of the actual results, a Nebraska shared parenting advocate sued the state to gain access to the public, electronic records, used as the data source for the report. The state has opposed the release of these public records and unsuccessfully tried to get the suit dismissed.
Now in 2015, after the report showed that when left in the hands of attorneys, children received only 5 days a month with one of their parents, the Nebraska State Bar Association is, amazingly, lobbying against a bill which would mandate the reporting of parenting time and domestic violence information on an annual basis. As experts agree that divorce is a tremendously harmful event in the lives of children, why should such reporting not be required of those in the divorce industry? How, for example, would lawyers react to doctors saying “we don’t keep those statistics” when questioned about the results of a particular treatment for childhood cancer? Would they be quick to sue for “negligence” and why should the same standard not be applied to their profession, especially when current results of their treatment of children is so abysmal? Not maintaining these results is obviously negligence as well.
Contrast the desire of the Nebraska State Bar Association, who would like to continue to work in secret, with famed attorney Clint Bolick who, in explaining why the Goldwater Institute filed suit against the State Bar Association of North Dakota stated, “If there is any profession that would benefit from competition and transparency, it is the legal profession.” After all, as we look to publicly condemn rogue police officers or punish abusive jail guards, there is no justification for sheltering divorce attorneys who use the courts to exploit children for their own financial gain.
The advocates in Nebraska have done a tremendous job of bringing both the results and actions of the Nebraska divorce Industry into the public eye. Clearly, those who earn their living in the divorce industry would like their industry to be thought of as admirable. But how can you claim to be a “child advocate” when you turn your back on those in your profession who are clearly hurting children and doing all they can to maintain the status quo?
It’s very simple, you can’t.
Currently, but one in five Americans believe lawyers have high ethical standards. If admirable practitioners, be they bond attorneys, patent attorneys, criminal defense attorneys of even those involved in family law, would rather their profession be thought of differently, its time they publicly condemned the Nebraska divorce industry.
Otherwise, it’s impossible to tell the moral from immoral attorneys, and then, they all deserve to be painted with the same brush.