“A wise rabbi once taught me that ‘thanks for everything means thanks for nothing.’ In other words, generally expressing gratitude—to God or your neighbor—means much less than enumerating the specific blessings you appreciate.”
And thus, “Thanks for everything,” which should mean so much, comes to be a meaningless phrase. Judges and lawyers who justify any and every position with a perfunctory “It serves the best interest of the child” commit the same sin. As Lee Block stated it:
The “best interest of the children” is a term that is thrown about with abandon during divorce and post-divorce. The courts, the attorneys, the parents, the guardian ad litems [sic], Children’s Protective Services, the psychological evaluator and therapists all use the term “the best interest of the children.” . . . What does “the best interest of the children” even mean?
I’ll add to Ms. Block’s question a question of my own: If we can claim to identify a child’s best interest, then can we necessarily determine a child’s “worst interest” and a child’s “adequate” or “median” interest?
Discussion of “the best interest of the child” arises most frequently over the issue of child custody; with whom will the child reside? With Mom most of the time? With Dad most of the time? With both parents, having the child spend the majority of the child’s time in the primary custody of one parent? Or with both parents, having the child spend equal or near equal periods of time in the custody of both parents?
There is no statutory definition of the “best interest of the child” in Utah when it comes to child custody; however, § 30-3-10 of the Utah Code (Custody of children in case of separation or divorce — Custody consideration) provides a list of considerations that appear to criteria for determining some of the elements of a child’s best interest. So by a process of deduction, § 30-3-10 of Utah Code seems to define the best interest of a child as follows:
|(1) If a husband and wife having minor children are separated, or their marriage is declared void or dissolved, the court shall make an order for the future care and custody of the minor children as it considers appropriate.||The best interest of a child is served by planning for the child’s future care and custody (notice the Utah Code does not even acknowledge the presumption that the best interest of the child is served by remaining in the care of the child’s own parent(s))|
|(a) In determining any form of custody, the court shall consider the best interests of the child without preference for either the mother or father solely because of the biological sex of the parent and, among other factors the court finds relevant, the following:||The best interest of a child is served by eschewing sexual discrimination against either parent (but face it, folks, this provision was included to address and remedy the undeniably widespreadubiquitous and pernicious discrimination against fathers in the arena of child custody).|
|(i) the past conduct and demonstrated moral standards of each of the parties;||The best interest of a child is served by placing the child in the custody of a parent or parent with high moral standards.So if both parents have the same moral standards, does that fact favor an award of joint custody?|
|(ii) which parent is most likely to act in the best interest of the child, including allowing the child frequent and continuing contact with the noncustodial parent;||The best interest of a child is served by awarding custody to the parent or parents who will “most likely” to act in the best interest of the child, which appears to mean, in the context of this subsection, that a parent who “allows” the child frequent and continuing contact with “the noncustodial parent” acts in the child’s best interest.Hmm. Interesting.I did not realize that a child’s best interest is served by one parent obtaining through divorce the power to “allow” the other parent contact with his own child.I did not realize that a child’s best interest is served by presuming that custody of the child will be awarded to one parent over the other (i.e., § 30-3-10 presumes that one parent will be “the noncustodial parent”).
And if we EVER examine a child custody award through the lens of “which” parent (meaning it is presumed that only one parent can meet the criterion) parent is “most likely” to act in the best interest of the child by “allowing the child frequent and continuing contact with the noncustodial parent,” then any thinking jurist must conclude, based upon towering mountains of historical evidence dating back for decades, that of the mother and father, the parent who is “most likely” to deny the child frequent and continuing contact with the noncustodial parent is the mother. No, this is not a misogynistic rant, it’s a statement of indisputable fact that no honest judge or divorce attorney can or will deny.
|(iii) the extent of bonding between the parent and child, meaning the depth, quality, and nature of the relationship between a parent and child; and||The best interest of a child is served by there being a deep, genuine bond between parent and child.So if both parents have deep, genuine bonds with the child, albeit of different kinds and in differing degrees, does that fact favor an award of joint custody? Or does this provision mandate that we determine which parent has the “deepest” of the deep bonds and the “most genuine” of the genuine bonds with the child in determining child custody? If anyone takes that last question as anything other than witheringly rhetorical, he is morally bankrupt.|
| (iv) those factors outlined in Section 30-3-10.2.[the factors of Section 30-3-10.2 are:30-3-10.2. Joint custody order -- Factors for court determination -- Public assistance.(1) The court may order joint legal custody or joint physical custody or both if one or both parents have filed a parenting plan in accordance with Section 30-3-10.8 and it determines that joint legal custody or joint physical custody or both is in the best interest of the child.
(2) In determining whether the best interest of a child will be served by ordering joint legal or physical custody, the court shall consider the following factors:
(a) whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal or physical custody;
(b) the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child's best interest;
(c) whether each parent is capable of encouraging and accepting a positive relationship between the child and the other parent, including the sharing of love, affection, and contact between the child and the other parent;
(d) whether both parents participated in raising the child before the divorce;
(e) the geographical proximity of the homes of the parents;
(f) the preference of the child if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to joint legal or physical custody;
(g) the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents;
(h) the past and present ability of the parents to cooperate with each other and make decisions jointly;
(i) any history of, or potential for, child abuse, spouse abuse, or kidnaping; and
(j) any other factors the court finds relevant.]
|The best interest of a child is served by “considering”:
This is revealing. By framing the question as whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal or physical custody, doubt is cast on the very idea. Implicit in the question is the presumption that sole custody serves the best interest of a child.
So does this mean that the court must merely determine whether each is able to give first priority to the welfare of the child and reach shared decisions in the child’s best interest, or does this mean that the court must determine “which” parent is the “best” at giving first priority to the welfare of the child and “best” at reaching shared decisions [sic] in the child’s best interest? The answer to this question is clear from the statutory provision itself.
And here’s the crazy thing about this factor: if a parent wants to sabotage an award of joint custody, all he or she has to do is refuse to cooperate with the other parent in reaching shared decisions. Yet the courts in Utah rarely hold such against the saboteur parent and instead find that “the parents” (plural) cannot cooperate when in fact only one parent isn’t cooperative.
What does this mean? Women who stay home with children and who forego or suspend careers to do so, while their husbands work full-time to support the entire family financially, argue that they are the “primary caregivers” of children, but this is patent nonsense.
I am waiting for a court to acknowledge that men cannot be penalized for having spent less time with their kids on a daily basis than did their wives because the men were working outside the home all day. It is usually in the best interest of the children for them to continue to have a close relationship with both of their parents.
|(b) There shall be a rebuttable presumption that joint legal custody, as defined in Section 30-3-10.1, is in the best interest of the child, except in cases where there is:||The best interest of a child is served by joint legal custody, but not joint physical? Why? The legislature gives no explanation. Here’s the inside scoop: the legislature wanted to ease into a presumption of joint custody, and rather than go whole-hog with a presumption of both legal and physical custody, they started with the least controversial form of custody. Trust me, eventually Utah will adopt a statutory presumption of joint physical custody, as well it should.|
|(i) domestic violence in the home or in the presence of the child;||Don’t be swept up by emotion and accept this. You’d be amazed at how scanty the “evidence” of domestic violence has to be for a court to find that it exists and thus precludes an award of joint legal custody. What is the connection between domestic violence and legal custody anyway?|
|(ii) special physical or mental needs of a parent or child, making joint legal custody unreasonable;||No argument here, so long as the courts don’t tie themselves in rhetorical knots to find pretext for the contrived existence of a special physical or mental needs.|
|(iii) physical distance between the residences of the parents, making joint decision making impractical in certain circumstances; or||How does distance between parents preclude the exercise of all forms of joint custody? Most joint legal decisions, or at least most major decisions, aren’t affected by the physical proximity of parents. Who came up with proximity as a factor in determining joint legal custody? It’s silly.|
|(iv) any other factor the court considers relevant including those listed in this section and Section 30-3-10.2.|
|(c) The person who desires joint legal custody shall file a proposed parenting plan in accordance with Sections 30-3-10.8 and 30-3-10.9. A presumption for joint legal custody may be rebutted by a showing by a preponderance of the evidence that it is not in the best interest of the child.||Before we can determine what is or is not in the best interest of a child, we need to define the best interest of the child, but no one will do that because by keeping the term undefined, plastic, and dynamic, it allows courts to do whatever they want by claiming they do so in the name of serving the best interest of the child.|
|(d) The children may not be required by either party to testify unless the trier of fact determines that extenuating circumstances exist that would necessitate the testimony of the children be heard and there is no other reasonable method to present their testimony.||As late as 1963 (perhaps later; I have not researched when the law changed), the Utah Code (§ 30-3-5) provided that children aged 10 and older of sound mind were given the absolute choice of which parent would be awarded custody of them. You’ve come a long way, baby.Now the courts do everything they can to avoid learning of a child’s custodial preference, and they use § 30-3-10(d) as the excuse. § 30-3-10(d) would appear to suggest that the policy is to avoid making children testify if there are other reasonable methods to present their testimony. But that’s not how the courts apply § 30-3-10(d). How else does one present the testimony of a child other than by testifying in court? Just look at how ambiguously § 30-3-10(d) is drafted. It reads that children cannot testify unless there is another reasonable method to present their testimony. § 30-3-10(d) is thus a Catch-22. Child cannot testify unless there is another reasonable method (another reasonable method other than what?) to present their testimony, but if one proposes a reasonable means of testifying, one can argue that § 30-3-10(d) prohibits testifying generally.So if we read § 30-3-10(d) to mean that children cannot testify in court, unless there is no other reasonable method to present their testimony, what options does that leave us?How about taking a child’s deposition? Just try asking a judge for leave to depose a child. It doesn’t happen, or if it does, the smart ass judge will “grant” permission to depose the child by saying something chilling like, “You can depose the child, counsel, but know that I think that deposing children is evidence a parent putting his interests above those of the poor child.”
How about having the child sign an affidavit? Opposing counsel would simply tear the affidavit to shreds by claiming that the words are not those of the child, but of the attorney who drafted the affidavit. And how could the drafting attorney rebut such an accusation? Only by having the child testify orally, under oath, either in court or in a deposition. Crazy.
How else does one “present” a child’s testimony without putting the child under oath?
§ 30-3-10(d) is illusory. Courts and the legislature don’t want children to testify, but they don’t have the guts to say so. Instead, they promulgate gobbledygook like § 30-3-10(d) to create a false impression that children can testify when, practicality speaking, they cannot.
Some will respond to my critique by pointing out that the courts have come up with Rule 4-903 of the Utah Rules of Judicial Administration as a means of obtaining a child’s “testimony” without either attorney or the court ever having the opportunity to confront and question the child witness. Rule 4-903 provides for “custody evaluations” to be conducted in lieu of children testifying. Rule 4-903 has the children evaluated by a psychologist or other mental health professional, who then makes a report to the court. Rule 4-903 does not provide for the court interviewing the children and doesn’t even provide for an attorney to submit a list of questions to which the child would respond. And did I mention that custody evaluations take at least 4 months and cost around $7,000 to $10,000? Well within the ability of the average divorcing parent to pay for, right?
|(e) The court may inquire of the children and take into consideration the children’s desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the children’s custody or parent-time otherwise. The desires of a child 16 years of age or older shall be given added weight, but is not the single controlling factor.||Yes, the court can do this, but the court never does this. If you don’t request a Rule 4-903 $7-10,000 custody evaluation, the court has no idea what the children want.|
|(f) If interviews with the children are conducted by the court pursuant to Subsection (1)(e), they shall be conducted by the judge in camera. The prior consent of the parties may be obtained but is not necessary if the court finds that an interview with the children is the only method to ascertain the child’s desires regarding custody.||This statutory provision might as well not exist. It’s similar to Utah’s law that still outlaws adultery; adultery is still a crime in Utah, but nobody prosecutes it. So why have an adultery law on the books at all?§ 30-3-10(1)(f) is just words on a page that have no real meaning because the courts refuse to interview children, period. If courts and the legislature are so bloody concerned with the “best interest of the children,” they have a funny way of learning about it.|
|(2) In awarding custody, the court shall consider, among other factors the court finds relevant, which parent is most likely to act in the best interests of the child, including allowing the child frequent and continuing contact with the noncustodial parent as the court finds appropriate.||“Which” parent which parent is most likely to act in the best interests of the child? That presumes that one parent ismore likely to act in the best interest of the child than the other. Where did that presumption come from? That’s like asking which half of the scissors “most likely” acts in the best interest of cutting.Why would the legislature and courts needlessly create a contest between parents as to “which” parent most fully acts in the best interest of the child?|
|(3) If the court finds that one parent does not desire custody of the child, the court shall take that evidence into consideration in determining whether to award custody to the other parent.||Well of course. As if the court wouldn’t automatically consider such a thing in making the custody award.|
|(4) (a) Except as provided in Subsection (4)(b), a court may not discriminate against a parent due to a disability, as defined in Section 57-21-2, in awarding custody or determining whether a substantial change has occurred for the purpose of modifying an award of custody.(b) If a court takes a parent’s disability into account in awarding custody or determining whether a substantial change has occurred for the purpose of modifying an award of custody, the parent with a disability may rebut any evidence, presumption, or inference arising from the disability by showing that:
(i) the disability does not significantly or substantially inhibit the parent’s ability to provide for the physical and emotional needs of the child at issue; or
(ii) the parent with a disability has sufficient human, monetary, or other resources available to supplement the parent’s ability to provide for the physical and emotional needs of the child at issue.
|You’ll get no arguments against this provision from me, although I suspect that many courts don’t obey this provision when dealing with disabled parents when deciding custody.|
|(c) Nothing in this section may be construed to apply to adoption proceedings under Title 78B, Chapter 6, Part 1, Utah Adoption Act.||This provision requires no comment.|
|(5) This section establishes neither a preference nor a presumption for or against joint physical custody or sole physical custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.||Permits wide discretion yes, encourages the creative and vigorous exercise of that discretion, no.|
So “thanks for everything,” Utah legislature and Utah courts. Thanks for needlessly making joint custody a zero-sum, winner take all, game by incentivizing parties to seek sole custody. Thanks for making it seem as though children have a voice in the custody process when in fact they don’t. With the Catch-22-esque statutory scheme you have in place and the way you construe it, you all but guarantee that you remain willfully blind to the facts and preferences pertaining to child custody you would otherwise glean from a child’s direct testimony.
I wish I had higher praise for the laws governing divorce and child custody in Utah. I really do. But the system is plagued by extremely bad statutory and rules drafting, apathetic and complacent courts (and by “courts” I mean the whole court system from the clerks up to the judges and everybody in between), and an overall hypocrisy that talks a good game, but does not perform as billed.
Divorcing parents beware. What you think the law is and how it’s actually applied and enforced are two entirely different things.
 To read Lee Block’s entire article, the link is: http://www.huffingtonpost.com/lee-block/the-best-interest-of-the-_b_822536.html.
 See Utah Code § 76-7-103. Adultery:
(1) A married person commits adultery when he voluntarily has sexual intercourse with a person other than his spouse.
(2) Adultery is a class B misdemeanor.
 I would be remiss if I did not note that there are exceptions. Some court clerks are regularly helpful and kind (and memorable, since they stand out so glaringly from the rest of the crowd). There are a few court commissioners, for example, who recognize the seriousness of their positions and feel the weight of the public trust. They try to do their best, and I thank them sincerely. Then they either burn out and quit (the tragic, but noble thing to do) or sell out and stay put long beyond their usable shelf life. I have yet to meet a judge who consistently performs consistently well in the divorce arena, but that may be because I don’t end up in front of judges very often. Why? The system is not really set up to encourage settlement, but to discourage trials for the sake of sparing the courts the workload, and in this regard the system works well, to the benefit of the system.