Custody Laws: Our Government in (In)Action

Custody Laws: Our Government in (In)Action April 13, 2012
My testimony in front of the Judiciary and Public Safety Committee of the Minnesota Senate (photo by Courtney Perry/All Rights Reserved)

Last month, I testified in front of the Judiciary and Public Safety Committee of the Minnesota Senate. I spoke in favor of Bill 1402, which aims to bring presumed equality to shared parenting time in divorced families. Currently, the presumption in Minnesota — that is, the guidelines that are recommended for family court judges to follow — is that one parent gets the majority (75%) of parenting time, and the other parent gets the rest. As you might guess, the 75% almost always goes to the mother. (I won’t comment on my own custody arrangement; negotiations are ongoing.)

This bill has been bouncing around the Capitol for over a decade. One intrepid woman, Molly Olson, has kept the bill alive. She — and I — believe that it is in the best interests of children that the default presumption should be 50-50. The bill makes all sorts of exceptions, for unfit parents and other extenuating circumstances.

By the time I testified, the bill had basically been gutted. The percentage was dropped from 50% to 35%. Nevertheless, I testified that the Court system has habituated a outdated notion that mothers are always better to be the primary parent than fathers. I argued that when the judicial branch of our government is too habituated in certain patterns, the legislative branch needs to step in and set things right.

I acknowledged that it’s odd for a white man to be claiming discrimination. Even so, that’s what this is.

But here’s the funny thing: Democrats are unanimously against this bill, and Republicans are for it. You know who else is against it?

Divorce lawyers. Even my own lawyer is against it.

Testifying for the bill were parents (both mothers and fathers), a grandmother, two social workers, and a couple former state legislators who are also attorneys. Even a woman in her 20s who is a child of divorce testified emotionally that she had virtually no relationship with her father until recently, because of the existing law.

Testifying against the bill: the lobbyist for the state association of matrimonial lawyers. Plus a couple other lawyers, one of whom practices in Wisconsin.

This is a slam dunk, I thought. It couldn’t have been more clear that lawyers like the current bill, but no one else does. It’s about then that someone in the gallery leaned over and whispered that the Judiciary Committee is made up of State Senators who are — you guessed it — lawyers.

Once the hour of testimony from the public was over, the Senators on the Committee — particularly the Democrats — immediately began attacking the testimony of those supporting the bill. One Senator repeatedly stated that the bill had not been worked on long enough; the bills she works on, it seems, take even longer than 10 years to pass. Another Senator dismissed my testimony, saying “There are always two sides of every story.” Other Senators were equally dismissive. Still others spent the entire meeting on their iPads, not even paying attention.

It seems that, to the Democrats, support of the bill would undermine women’s rights. But, as the grandmother testified, as a feminist she is offended by the current law. She said that feminists like her fought in the 1970s for equality, not for laws that favor women.

However, the bulk of the discussion among the Senators themselves was around selfishness. They brought the lobbyist for the divorce lawyers back to the table to answer their questions, and almost all of the questions were regarding how the law would be abused if it were amended. The consensus among the Democrats is that those who want the bill changed are simply wanting to get out of child support payments. That’s it. That’s why we want more time with our kids, so that we can make lower payments.

I find this kind of thinking odious and offensive, especially from supposed “liberals.” And it reminds me of a quote I recently saw on Brian McLaren’s blog; it comes from Jonathan Haidt’s new book, The Righteous Mind: Why Good People Are Divided by Politics and Religion. I’ll close with this quote, because it explains to me the closed-mindedness of the Democrat Senators on that committee:

Despite what you might have learned in Economics 101, people aren’t always selfish. In politics, they’re more often groupish. When people feel that a group they value — be it racial, religious, regional or ideological — is under attack, they rally to its defense, even at some cost to themselves. We evolved to be tribal, and politics is a competition among coalitions of tribes.

The key to understanding tribal behavior is not money, it’s sacredness. The great trick that humans developed at some point in the last few hundred thousand years is the ability to circle around a tree, rock, ancestor, flag, book or god, and then treat that thing as sacred. People who worship the same idol can trust one another, work as a team and prevail over less cohesive groups. So if you want to understand politics, and especially our divisive culture wars, you must follow the sacredness.


The bill, in it’s gutted form, passed out of committee on a straight party-line vote. It went on to two other committees. God only knows if it will ever get to the Senate floor for a vote.

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  • Your testimony should have included the movie, Mrs. Doubtfire. Or better, dressed as Mrs. Doubtfire.

    Having spent my entire childhood with 2 parents and their lawyers fighting over custody, I’m behind you. Custody should be determined on a case-by-case basis. I even find the word “custody” spine shuddering. Is that all kids are to their parents? Dependents in a parents custody for child support abatement? Sick.

  • Chris

    As a divorced father who has also been on the 25% end of things, I think a more balanced custody sharing arrangement would benefit everyone, but especially the children of divorce. Obviously there needs to be ways in which it does not automatically apply in cases of unfit parents, etc. But the system that seems to almost always favor the 75% time going to the mother seems to overlook that most fathers want more than 25% and that children of divorce would benefit from a more equally shared custody arrangement that allows for stronger, sustained relationships with both parents. The accusation that such arrangements will be abused to simply reduce/avoid child support obligations is ridiculous. While there may be a small minority of parents who might abuse it for such motivations, the current system is also abused for equally selfish other motivations as well. To deny changes that would benefit children and families of divorce based on such a small possible minority is irresponsible. Thank you, Tony, for being a voice on this important subject in your own state and context.

  • Chris

    Tony, I’m not clear as to why the divorce lawyers are so opposed to the bill- is it because they share the thinking that a shared arrangement will be used/abused to reduce/avoid child support obligations? What are their objections to the changes?

    • Hard to say, Chris. It seems that they like the system as it is — they know how it works. I think they opposed the change to 50-50 because then there’d be less to fight about in court.

      • Chris

        I wondered if part of the motivation behind the opposition was that changed guidelines would result in less contentious settlement procedures and thus less hours to bill.

        I’m both a divorced father and child of divorce myself and know how painful it all is on both ends of the spectrum. It’s sad that the system seems to refuse to make changes that might abate some of the pain for everyone in these difficult situations. I need to look into if there are any efforts being made to move to a more equitable system here in my own state. As I said earlier, thanks for being a voice in your own state’s process, as well as calling attention to these important issues on your blog.

      • JoeyS

        I have a friend who just became a moderator for families going through divorces. During his training they had a lawyer come in who made it very clear that he was not in favor of moderation. When families use moderators instead of courts lawyers get a lot less business.

  • Bill

    Tony, you are 100% right on. I’m disappointed by the blindness of our leaders, especially our more ‘liberal’ leaders, who are more tribal than mindful.

  • Dale Friesen

    I’m wondering if there are other ways of thinking about this. I agree both parents should have custody and that it is tragic that it is assumed that the mother will get the children, but I’m not sure if the 50/50 method is best. I’m not a child of divorce but the thought of having to uproot weekly or biweekly between two homes does not sound appealing. Are there other models? Maybe its not practical but I often wonder if ex spouses could intentionally live within a block of each other so that the kids could have both parents in their lives more organically.

    I don’t know just thinking out loud.

    • Larry Barber

      Well, I heard of one case where the kids lived in the same house all the time and Mom and Dad moved in and out every week. This could get complicated if the parents get remarried, though.

    • Curtis

      I’m not personally invovled in divorce either, so I don’t speak with any real authority. But that is my first impression too. The conversation should be about what is best for the kid, not necessarily what is “fair” for everyone else.

      The idea of a kid living out of a suitcase seems like the worst possible outcome. Maybe the automatice 75/25 split is set up by default to avoid that scenario whenever possible. But I see no reason to assume that the 75% time should automatically be with mom. And if parents can make a reasonable case about how a 50/50 arrangement can best serve the needs of the kid, then that should get a fair hearing as well.

      I wish the best for your family and your children, Tony.

      • The fact is, the kids change homes as many times per month in 50/50 as they do in 75/25. If it’s one-week-on-one-week-off, they change less in the 50/50 arrangement.

    • Tessa

      Totally agree. In my work with children, I’ve seen how incredibly hard it is on them to go back and forth in a 50-50 split. And sure, the idea of one house where parents move in and out every other week is great, but most people cannot afford such an arrangement.

      Am not speaking out against fathers having equity in custody at all. I am, however, looking at what is best for children because they are the ones who are most impacted and vulnerable in custody arrangements.

      Let’s keep children first.

      • Tessa

        My “totally agree” was in response to Dale’s post. Somehow it didn’t get put in the proper spot!

        • Vickie

          Studies are now emerging based on years of divorce research that it is more important for a child to have a relationship with both parents than to have a single home base. Not that dual-residence living is not quite problematic and difficult, but for proper/best child development, the “number one priority” is now understood to be quality time spent with each parent (assuming good health of both).

          If our legal system can’t get to a 50/50 presumption (keep in mind–that’s just presumption, not a final decision), at the very least I hope someday it stops absentmindedly catering to the mother. Too many times the mother is assumed the better caretaker, despite her behavior proving otherwise. I have seen this in action, and it is both infuriating and heartbreaking.

  • Randy

    How do you keep your cool? The ignorance and blatant disregard for something that is obviously fair and just for everyone involved. I am not divorced but I have a daughter, if it ever came to divorce and it was not 50/50, I don’t know how I would handle it. I hope it works out.

  • Scot Miller

    When I finally decided to divorce my wife, I knew that I would have to deal with my son’s mother for at least 13 more years (and in reality, probably until one of us dies). When I visited a lawyer, he explained the hostile, confrontational nature of the legal system, and that we would become mutual adversaries. I couldn’t live with my wife anymore, but I didn’t think it would be good for my son for me to enter into hostilities with his mother. That’s why I decided to go to a divorce mediator, where we could work out our divorce. I think it worked out OK for us (I am the custodial parent, and my son visits her twice a year).

    A lawyer was involved at the very end of our process, after we had figured out how we wanted to take care of our son after the divorce. (My ex-mother-in-law was quite unhappy with me, and hired the lawyer to be sure I didn’t take advantage of her daughter.) I was happy not to get any child support payments, but her lawyer insisted that my ex is legally required to make a minimal payment.

    I’m not sure if divorce mediation would work for everybody, but it’s turned out well for me.

    • I think this is absolutely right. The only solution here is to find ways to make divorce “freely available, safe, and rare.” ‘Safe’ in the sense that it doesn’t store up vitriol in casks from which it can be poured in the future. I think the biggest problem is that “groupishness” leads friends and extended families to pick sides instead of lending their good offices towards a humane solution for all, with particular emphasis on the children. Our “adversarial” legal system obviously plays into that.
      We chose to hire one lawyer rather than two, on the theory (which the lawyer found novel) that she was to represent the interest of the situation going forward, not any individual in particular. My wife was in no particular mood to compromise – never was – but as my pastor says, marriage (or divorce) doesn’t need to be 50-50, 80-20 will work.
      We ended up with shared custody and week and week until the kids were old enough (16) to make their own choice. I think that was a mistake … neither one of us could track enough to monitor homework or social relationships as well as we should, and there was a lot of room for the boys to play Mom vs. Dad.
      The best solution is clearly to make the birth family work; when that fails, the next best is to be a the center of a “village” that works for the best out of the whole situation. A radical departure from How Things Are, sadly.

  • Ancius

    I imagine that cultural biases still threaten to favor the mother, while access to better lawyers tends to favor the primary income earner. I’d expect these biases to pervert justice when, for example, the father is the primary caregiver and the mother is the primary income earner.

    I can also see how the unequal custody presumptions would presumably benefit lawyers. Generally, I bet lawyers tend to win whenever the law itself raises the stakes in a legal dispute.

  • Jill

    Sorry, you are dealing with this, Tony. I was raised by a divorced mother with untreated mental illness for years. Shall I send my psychologists bill to the Judiciary and Public Safety Committee? Perhaps their assumptions need a kick start reminder. Why wouldn’t they start at 50/50 and let the exceptions move after that?? Oh, yea. Lawyers.

  • When people filter everything solely thru their agenda—what is best for the people they actually pass laws for becomes secondary (at best). Sounds like this is sadly what is happening with politicians and lawyers in this case.

    Seeing the world solely thru our agenda blinds us to others inherent humanity.
    Sorry you have to go thru this…

  • Patrick S

    And this system, with its influence peddlers and unseen rationale is what you want when it comes to your health care or your child’s education? Yowza. I don’t know how anyone could extrapolate your experience to those issues and still believe more government is the right answer to nearly every question.

    • Curtis

      Not to get all ideological, but would less government be better? I do have first-hand experience in dealing with child custody when there is no government intervention involved. Believe me, the greed, bribery and corruption in these cases makes Minnesota family court look like a walk in the park on a sunny day.

      Instead of falling into the same old big government / small government camps, can’t we all agree that we need better government and leave it at that?

      • Patrick S

        In answer to your first question, yes, starting from the exceptional encroachment by government these days, less government is always preferable. To answer the opposite way you’d have to agree that someone else knows better than you do what is best for you.

        In answer to your last question, the idea of ‘better government’ is like the idea of reaching the horizon. You know it is there but it will never be reached because government, even when it functions well, is a brake on civilization and progress, determined by the whims of power and agendas.

        I’ve spent 20 years in and out of government. There are occasions, a lot actually, when government gets it ‘right.’ But my larger point, as Tony saw in his experience at the Capitol, is it is maddening. Now extrapolate his experience to the idea of changing a rotten law dealing with healthcare or education and you see how dysfunctional government is.

        Sorry for the long answer…

        • Curtis

          If custody disputes were handled without a functioning government intermediary, the rich would get whatever they want and those with less means would have no recourse. Look at how child custody is handled in some third-world countries if you want a glimpse of that “utopia”. Does government make mistakes? Of course. Is government slow and inefficient? Yes. When peoples lives are at stake, slow and inefficient beats insensitive expediency any day of the week.

          Mistakes and injustice can occur with or without government involvement. The differences are that 1) without government intervention, it is predicable that the wealthier party will always come out on top, with no regard for the welfare of those with less means and 2) without government intervention, the wronged party has no forum in which to express their grievances, as Tony has done here.

  • Mine is a long story so I won’t bore you… or maybe I will even with my shortened version. My ex and I have a 50-50 split now, although I had the kids for about 3 years about 100% of the time. During that time, I could have filed and received full custody of the children – but to what end… bitterness, resentment, paying lawyers fees? Even though I didn’t like her all the time, I still tried to model respect and care for their mother through this entire process – and that this is how they should treat her.

    Every situation is different, and of all the things I can say about my ex, she nor I have never intentionally made the kids suffer for our failures. Sure, living in two different homes sucks and I never envisioned it for our family. But the kids have adjusted as kids are prone to do. I’m not saying it’s perfect for them, but compared to other situations that kids face throughout the world I wouldn’t put it on par with the worst of situations that children face.

    I used to think (like some have mentioned) that we should keep one home for the kids and their mom and I should move back and forth. Well, for those altruistic folks who think that’s best for the kids, it just isn’t in my opinion. Life moves on after divorce and as sad as it seems at the time, everyone needs to adjust. Mom and Dad also move on, have different relationships that make us (oftentimes) happier, better people. If I had never moved on, I wouldn’t have met their current stepmother who is amazing to them, adds value to their lives and makes their Dad a stronger, happier man.

    What’s happening in your state Tony just out and out sucks. California is a no-fault state so I have to think it’s child custody laws seem to fall in line with that. From day one, my ex and I sought out mediation and never wanted to keep our children away from the other parent for any reason. I can’t imagine any parent thinking that 25% is enough time. For me, 50% sucks since I feel I miss so much of their day to day lives. But as they have grown older, I see them pretty much as much as I want. My oldest drives and he actually pretty much stays with us here and there whenever he wants to and for the most part – he calls the shots.

    And that’s the good news Tony. Regardless of your current situation, it can all change as the kids get older and have more of a say in what they do or do not want. Keep the lines of communication open, treat the other parent with the up-most respect and be there at every single opportunity that you can… and things will be just fine. That’s my two cents.

    • Yes, I’m trying to play the long game.

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  • Nadine

    This is one of those social justice issues that I think gets swept under the rug because custody splits (with or without divorce) are so commonplace that people don’t think of them that way. It takes people like you to stand up and say things are wrong.

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  • Steven

    I don’t know where people get this idea that parents seek equal time with their children in order to decrease their child support obligations. I wonder if it comes from the same place that would suggest that parents seek unequal time with their children in order to increase their child support receipts.