LB76

On March 8, 2007, Amy Sherman Geren testified before the Judiciary Committee of the Nebraska Unicameral regarding LB 76.  LB 76 would revise Nebraska Revised Statute 42-364 and make joint legal custody the presumption in Nebraska.  This would mean that the Judge in a divorce case would have to presume that it is in the children’s best interests for the parents to be given equal authority to make major life decisions for the child, and that they must agree on those decisions and mediate a resolution if they do not.  The bill was introduced b y Senator Carol Hudkins. 

Ms. Geren testified as follows in support of the bill:

AMY SHERMAN GEREN:  Thank you.  My name is Amy Sherman Geren.  I reside in District 20.  I’m a divorce lawyer.  I’ve been practicing divorce law for about eight to nine years.  I’ve been an attorney for about 13 years.  I share joint legal and physical custody of my two children with my former spouse, and have done so for the last ten years.  I think Nebraska needs to create a presumption favoring joint legal and physical custody, and this bill takes at least one step necessary to do that.  There is still an uneven playing filed in Nebraska as between mother and fathers, I believe.  And this body has in the past abolished the tender years doctrine; this body has in the past indicated that the courts can award joint legal custody even if the parents don’t agree to that arrangement.  But in practicality, in the courtroom I think the courts are still favoring the mothers as far as placement of custody.  Fathers are at a disadvantage going into mediation because mothers know if they push the issue they’ll probably be able to get sole physical and sole legal custody from the courts.  Mediators should remain neutral on the issue of joint legal and physical custody, and should allow parties who are at an equal bargaining position to come in and try and make arrangements that are the best for their children.  So I would really urge this committee to pass through LB 76 and would urge this committee to even go further and make joint physical custody a presumption in the state of Nebraska.  I appreciate your time.  If there are any questions, I’d be happy to answer those. 

SENATOR ASHFORD:  Thank you, appreciate your testimony.  Any questions of Amy? Do you know how many states . . .is there a presumption in any other jurisdiction that you know of?

AMY SHERMAN GEREN:   I counted this morning on one web site, and I counted 12, I believe. 

SENATOR ASHFORD:  Twelve that . . .

AMY SHERMAN GEREN:  In 12 other states there is a presumption that shared phsycial and legal custody is the best arrangement.  And then one party needs to show some reason why that’s not in the child’s best interest. 

Unfortunately, the bill was not forwarded out of committee.  Ms. Geren’s proposed changes to 42-346 are as follows and she intends on seeking out a Senator to introduce this matter again next session.

42-364

(5) After a hearing in open court, the court may shall place the custody of a minor child in joint legal custody with both parents after finding that each parent is fit to parent the child and absent a specific stated finding that joint legal custody is not in the best interests of the child. on a shared or joint custody basis when both parents agree to such an arrangement. In that event, Joint legal custody shall mean that each parent shall have participate equally rights to when make making major life decisions regarding in the best interests of  the minor child’s care. in his or her custody. The Court may place a minor child in joint custody after conducting a hearing in open court and specifically finding that joint custody is in the best interests of the minor child regardless of any parental agreement or consent. After a hearing in open court, the Court shall place a minor child in joint physical custody with both parents after finding that each parent is fit to parent the child and absent a specific stated finding that joint physical custody is not in the best interests of the child.  Joint physical custody shall mean that the child spends approximately equal amounts of time with each parent.  The Court shall order that any minor day-to-day decisions regarding the minor child’s care shall be made by the parent who has physical custody of the child at the time the decision needs to be made. 

See, Brown v. Brown, 260 Neb. 954 (2000) for language on joint physical custody and joint legal custody definitions.

I believe that our Legislature made a grave mistake in failing to advance and pass Legislative Bill 76, which would have reinforced the fact that it is in the best interests of a child to have both parents equally participating in making major life decisions for the child.

Our courts need to receive an unequivocal message that selection of a custodial parent should not be based on a parent's gender and that one parent should not have veto power over the other. At least 12 other states have similar laws, and some even provide that joint physical custody shall be presumed to be in the client's best interests.

I believe it is clear that children are harmed when they fail to have continuous frequent contact with both parents.

Amy Sherman Geren, Omaha

Printed in 06/03/07 Omaha World Herald "The Public Pulse"