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There is an entrenched, but (in my opinion) illogical and myopic convention in Utah regarding child custody awards. While many appellate cases address the matter, my comments are based upon two cases that concisely summarize what is unfortunately considered the received wisdom on the subject of child custody awards: Pusey v. Pusey, 728 P.2d 117 (Utah 1986) and Tucker v. Tucker, 910 P.2d 1209 (Utah 1996). I hope I can refute this convention with the following comments.

Pusey v. Pusey, 728 P.2d 117 (Utah 1986) provides:

We believe that the choice in competing child custody claims should instead be based on function-related factors. Prominent among these, though not exclusive, is the identity of the primary caretaker during the marriage. Other factors should include the identity of the parent with greater flexibility to provide personal care for the child and the identity of the parent with whom the child has spent most of his or her time pending custody determination if that period has been lengthy. Another important factor should be the stability of the environment provided by each parent.

Tucker v. Tucker, 910 P.2d 1209 (Utah 1996) provides:

The court of appeals deemed three findings in particular as unsupported by sufficient evidence, namely, that (1) James was more closely bonded with the child, (2) James was able to spend more time with her, and (3) James was more religiously compatible with her. According to the court of appeals, “The record clearly shows that both parents are bonded to their daughter, that they both have roughly the same number of hours each week to spend with [her], and that both parents have expressed a willingness to allow [her] to continue participating in LDS primary,” a religious activity for children. Tuckerv. Tucker, 881 P.2d 948, 952 n. 3 (Utah Ct. App. 1994). The court of appeals found the parents equal with respect to these three considerations. It cannot be said that a trial court has abused its discretion in awarding custody to one parent over another where analysis reveals that the best interests of the child would be served equally well with either parent. The child cannot be divided into two parts. However, in the case before us, the trial judge actually found James preferable.

My commentary:

First, the law should reject the notion of “competing (See Pusey v. Pusey)” for child custody. Child custody is not (and thus need not be framed as) necessarily a zero-sum game. Indeed, “[t]he law does not, when determining custody of a child, attempt to reward or punish one parent or the other. Davis v. Davis, 749 P.2d 647, 648 (Utah 1988). Why then, frame the “factors” question as a matter presuming that there can be at most only one parent (i.e. “which parent”) who can satisfy a given factor? Why frame the analysis as a question of who “wins” the factor-meeting test:

· which parent may be (not is) the “primary caretaker,” which parent “has greater flexibility to provide personal care,” and (incredibly)

· with which parent “the child has spent most of his or her time pending custody determination [which then turns custody awards into a zero-sum game] if that period has been lengthy,”

· and which newly- (or soon to be) single parent’s “environment” is more stable than the other.

“The child cannot be divided into two parts (See Tucker v. Tucker)” is where the court’s analysis gets off on the wrong foot. It need not and should not come down to a choice of parents, but to a choice of custodial award. There are situations where the children’s time can not just possibly, but easily be divided equally or equitably between the parents. The question then is not which parent is the better choice to be awarded sole or primary physical custody, but which custodial award serves the best interests of the children.There are only two options to choose from when the question is framed as a choice between custodians. There are myriad—and far, far more malleable, flexible, adaptable, customizable—options when the question is framed as which custodial award serves the best interests of the children. Thus, the court is (and because the court is) charged by the legislature with considering joint custody in every case I determining which form of custody be in the best interest of the child (See Utah Code § 30-3-10(1)(b), “The court shall, in every case, consider joint custody but may award any form of custody which is determined to be in the best interest of the child.), it clearly can be said in light of the present statutory policy governing child custody that a trial court can (in fact does) abuse its discretion in awarding custody to one parent over another where analysis reveals that the best interests of the child would be served equally well with either parent.

Children do not (as of yet) spontaneously come into existence. They are brought into the world by parents. Parents have interests. Parents, not just their children, have best interests too. Typically in child custody matters, the best interests of the parents are served by awarding each parent/both parents the retention of custodial rights that they already had prior to litigation. Retention of custodial rights justifies and encourages the voluntary and earnest exercise of parental obligations. Where two fit parents desire to maintain a parental relationship with the children they beget, and they are willing to to undertake the duties and responsibilities of parenthood, and they are situated such that they can both subserve the legal and physical custodial best interests of their children, then the question should be what custodial arrangement is in the best interests of the family–ALL family members. Custody awards that take into account and attempt to subserve the best interests of two fit parents and children alike would, I submit, subsume the best interests of the children. A custody award that accounts for and subserves the best interests of two fit parents and children alike is certainly not antithetical to the best interests of the children, as children and parents are a family, the interests of each member of which are inextricably bound up in the interests of his fellow family members. Accordingly, child custody awards should start with the rebuttable presumption that a joint custody award serves the best interests of children. The notion that a sole custody award is “shall be presumed to be in the best interests of the child (See Utah Code § 30-3-34(2))” is patently antiquated, as well as inherently unjust and inequitable, which is why it should be rejected.

I welcome your comments.

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