On December 1, 2014 the Maryland Commission on Child Custody Decision-Making issued its final report. This committee, most of whose members are attorneys or people who get paid to serve as custody evaluators or expert witnesses in divorce lawsuits, recommended statutes and procedures for resolving child custody disputes in Maryland going forward. Note that this commission did not address Maryland’s child support guidelines, which determine the cash value of obtaining custody.
The commission recommended as a guiding principle “there should be no presumed schedule of parenting time.” In other words, a judge can impose any schedule between 0/100 and 100/0 on the child of two fit parents. Attorneys we’ve interviewed nationwide say that this leads to the most litigation and the highest total fees billed. It also puts a premium on attorneys’ personal connections with judges because we were told that, in the absence of striking facts (e.g., one parent is a drug addict), judges generally award custody and set parenting schedules based on personal prejudice and/or their relationships with attorneys. A litigant who has the means to hire a well-connected attorney can reasonably hope for a better custody outcome when there are no limits on what judges can do. (Rigid guidelines, such as “mother always wins; children with father every other weekend” or “neither parent can become primary via litigation; absent parental agreement, children alternate weeks or have a 2-2-5-5 schedule” lead to the least litigation.)
The commission’s proposed statutory language enables a judge to use virtually any conceivable basis for an award of a 0/100 or 100/0 schedule, or any schedule in between. Judges are encouraged to investigate the share of parenting responsibilities “performed by each party … before the initiation of litigation.” Aside from this approach having been discredited by academic psychologists (see the Linda Nielsen interview in one of our draft chapters), attorneys that we interviewed said that it led to substantial rewards for people who engage in pre-lawsuit planning. If Parent A expects to sue Parent B, Parent A will eagerly volunteer for all kinds of child-related tasks while asking Parent B to shop, cook, work extra hours, and do other non-child-related tasks in the marital partnership.
The commission’s proposed statutory language encourages judges to deny shared parenting to parents who are in conflict by making “the ability of each party to effectively communicate with the other party” a factor. In nearly every state where this is a factor litigators told us that parents who thought that they had a good chance to win primary custody, and the child support profits to accompany it, would simply generate conflict with the other parent. How does that work? Here’s a text message exchange contained in an exhibit to a motion in a Massachusetts case, Kosow v. Shuman. The mother of a 2-year-old sued the father following four years of marriage, seeking primary physical custody and approximately $5 million in tax-free child support. The parents, who live about 15 minutes’ drive apart from each other, are trying to coordinate an exchange:
Jessica: She gets picked up at noon if she were to go to school. Drop her off at noon.
Michael: I won’t be home till 12:45. I can drop her off at 9:30 if you u want but she will prob sleep late
Jessica: Ok well WTF. School is out at noon.
Jessica: U r fucking a selfish fuck
Jessica: And u r no role model
Jessica: I wont even say it and it is sooooooo vile
Michael: I can drop her off at 1 or u can pick her up earlier. What is ur problem?
Jessica: Fuck u
Jessica: I have had it with u and ur abuse
(After a 2012 trial, Judge Maureen Monks of Middlesex County awarded Ms. Kosow about $2 million in child support cash, a free house for 20 years, all of the expenses of the child paid (including a nanny to relieve Ms. Kosow of any hands-on child-related chores), health insurance for herself, $50,000 in annual alimony, and half of her attorney’s fees. We estimated that Kosow, while relaxing at home, out-earns her average full-time employed University of Pennsylvania classmate by 3.2:1.)
If the proposed statute is passed, Maryland should be on track to build up courthouse filing cabinets full of similar material.
The commission proposes changing some language so that it is more gender-neutral and rubs less salt into the wounds of loser parents (who will have “parenting time” rather than “visitation” under the proposed statute). Other states and countries have tried this over the past 20 years and the attorneys we interviewed generally said that it didn’t affect the amount of litigation. As long as it was plain to litigants that there would be a primary parent collecting money every month and a secondary parent paying the money the court battle could continue until all parental resources were paid over to attorneys, psychologists, and other segments of the divorce industry. Here’s a snippet from our book:
The lawyers we interviewed who had not been involved in this kind of legislation scoffed at the renaming, e.g., “You get sued, have to pay me $200,000 to defend the lawsuit, lose your parental role, are ordered to pay 100 percent of a child’s expenses plus 100 percent of the mother’s expenses to live in a five-bedroom house and not work, and babysit for free what used to be your kid every other weekend. If you can’t recognize that this is a loss because the court calls you a ‘secondary parent’ instead of a ‘noncustodial parent’, you’re an idiot.”
In something of a side-note on page 29, the commission recommends “statutory or rule change” so that it is easier for judges to make the higher-income parent (usually the defendant) pay the lower-income parent’s attorney’s fees in an “adequate and predictable” manner. This would encourage more people to file lawsuits, since they wouldn’t have to pay the costs of attorneys on either side, and would ensure that litigation could continue until the savings and income of both parents had been consumed.
If the proposed statute is adopted, Maryland will be in pretty much the same situation it is now. Children are cash-producing assets whose ownership is uncertain. The profits from ownership of these assets may be greatly in excess of what a college degree will generate. Ownership of these cash-producing assets will be determined by a single person, the family court judge, based on a combination of (1) evidence that is considered irrelevant by academic psychologists, (2) attorney argument, (3) personal prejudice, and (4) personal connections to the attorneys. Thoughtful litigants who engage in pre-lawsuit planning and post-lawsuit conflict generation will be rewarded with more time with their children and enhanced cash profits.
[How profitable are children in Maryland? Using UCLA Professor of Economics Bill Comanor's numbers on actual child-rearing costs (previous post), the OECD's estimate of how much time working parents spend on child care, a 67/33 parenting time split, and the Maryland Child Support Guidelines, obtaining a custody of a child whose other parent earns $180,000 per year will generate about $77 per hour in tax-free cash. This is more than 3X the median (taxable) hourly wage in Maryland (Bureau of Labor Statistics). Adjusting for taxes, the successful custody/child support plaintiff in Maryland will out-earn the worker by 4:1.]
Note that I don’t want this posting to be seen as an attack on the integrity of litigators, including those on the Maryland committee. Most of the 100+ litigators that we’ve interviewed for our book seem like good people. But at the same time they can’t help but feel very comfortable with what they do every day, i.e., litigate. They often don’t see litigation as harmful to children and when litigation consumes 100% of a family’s assets and parental energy for several years they explain the phenomenon by saying that there was some sort of psychological defect in the litigants. “They were high conflict people,” a litigator will say about a case that went to trial over custody of children with a cash value of $5 million, not “Our legislature, with input from our bar association, set up a completely unbounded winner-take-all system and both parents tried hard to be the winner rather than the loser.”