I’ve written before about alimony reform and how new laws eliminating lifelong alimony and reducing judicial discretion can pose real financial hardship to divorcing women. Unfortunately, there’s another legislative trend sweeping the nation that’s just as concerning. According to The Wall Street Journal, some 20 states are considering laws that would substantially change the way child custody is decided in divorce.Yes, judicial discretion is for circumventing the rule of law.
As with alimony reform, much of the proposed “shared parenting” legislation targets judicial discretion. Rather than evaluate individual cases based on their circumstances, judges will be strongly encouraged, or even mandated, to enact custody arrangements that are as close to 50-50 as possible. In some states, including Colorado, New York, and Washington, the proposed laws make that the mandatory default. To make a different arrangement, it must be proven that the child would not be best served by spending substantially equal time with each parent.
Such legislative changes have been proposed by men who feel they’ve been treated unfairly by a system that has, for many reasons over the years, favored mothers as custodial parents. I understand that. As a father myself, I can absolutely imagine how painful it would be to be unfairly denied time with my children.
But here’s the thing: that’s what judicial discretion is for! Experienced, knowledgeable judges are empowered to evaluate the circumstances of each case before them, and direct the litigants to the fairest possible solution to their individual case. The proposed laws remove or severely limit that flexibility. To my mind, that’s the wrong solution.
Imagine if anything else in our society worked that way. Suppose every month, when you pay rent, some judge says what you should pay. Or on April 15, instead of using tax returns, some IRS agent uses his discretion on what you ought to be paying.
And of course, some cases are not just nuanced, but dangerous. Critics of the proposed child custody laws rightly contend that insisting on a 50/50 custody arrangement gives undue influence to abusive husbands, and wrongly places the burden on the spouse in the weaker position – usually the wife – to have to prove that the arrangement is not right. Furthermore, say the critics, the vast majority of custody cases are settled out of court. The ones that go to litigation are the ugliest and most contentious cases – arguably the ones for which shared custody, an arrangement requiring maturity and cooperation, is least likely to succeed.No, this is all backwards. Women are in the stronger position. Cases are settled on an expectation of what the court will do. The most contentious cases are the ones needing 50/50 custody the most, as those need the forced involvement of both parents.
Child support, too, is undergoing “reform.” The New York Times recently reported about a demoralizing cycle in which men who can’t afford to make payments are jailed for failure to pay, then lose their jobs, then get deeper in arrears with child support payments, and so on. This is certainly a problem. Reform advocates claim that the current practice of calculating child support on the basis of imputed income (what a person is expected to earn) instead of actual income is unfair and unrealistic when jobs are hard to find and making payments is just not possible. The federal government is reportedly proposing to use actual income to calculate child support and also to consider that the noncustodial parent must have enough to live on himself.IRS taxes, Obamacare, and food stamps are based on actual income, not what some bureaucrat thinks that you ought to be making.
At first glance, this seems reasonable, and even good – so why do I find it troubling? Well, as a divorce financial professional who works exclusively with women, I can tell you that such legislation could have many unintended consequences.
Landers' arguments seem stupid to me, but he is speaking for the financial interests of a lot of ex-wives, so I am pessimistic that legislatures will pass meaningful reforms.
NPO has more criticism of Landers, and here.