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Posted by eric_k_johnson on July 28, 2011
The Utah Code § 30-3-10.1 defines joint legal custody as follows:
As used in this chapter:
(1) “Joint legal custody”:
(a) means the sharing of the rights, privileges, duties, and powers of a parent by both parents, where specified;
(b) may include an award of exclusive authority by the court to one parent to make specific decisions;
(c) does not affect the physical custody of the child except as specified in the order of joint legal custody;
(d) is not based on awarding equal or nearly equal periods of physical custody of and access to the child to each of the parents, as the best interest of the child often requires that a primary physical residence for the child be designated; and
(e) does not prohibit the court from specifying one parent as the primary caretaker and one home as the primary residence of the child.
A common provision you will see in many Utah divorce decrees for cases involving minor children is something like this:
“The parties are awarded joint legal custody of their children, and in the event of an impasse over decisions between the parties regarding legal or physical custody or other parenting issues such that the parties cannot reach agreement, the Petitioner shall have the exclusive authority to make the final decision;”
or like this:
“The parties are awarded joint legal custody of their children, but in the event of an impasse over decisions between the parties regarding legal or physical custody or other parenting issues such that the parties cannot reach agreement, the Petitioner shall have tie-breaking [sic] authority.”
Now you don’t need to be a lawyer to see through this sham. Absolute power corrupts absolutely. Nothing better proves this aphorism than does an award of “final decision-making authority” in a so-called joint legal custody award. What good is being awarded “joint” legal custody if the other parent has “final decision-making” or “tie-breaking” authority? If you agree with your ex-spouse on a parenting decision, great; you presumably reached a joint decision. But if you disagree with the final decision-maker, then what? If you disagree with him, he will just invoke that “tie-breaking” authority and do whatever he wants, joint custody and your input be damned. Joint legal custody under such circumstances is illusory.
So what are the alternatives? Many attorneys and judges will tell you (incorrectly) that the “final decision-making authority” provision is necessary. Some will even tell you it’s statutorily mandated or recommended (it isn’t). The fact is that if the courts want to empower parents with true joint legal custody, there are many ways to do it. Here are but a few:
- Have any impasse subject to mediation before it can go to court for resolution.
- Give final decision-making authority to both parents by having one parent exercise it in even-numbered years, the other parent to exercise it in odd-numbered years (subject to a provision for appealing any reckless decisions or bad-faith disputes to the judge for resolution).
- Agree to settle impasses with the flip of a coin (subject to a provision for appealing any reckless decisions or bad-faith disputes to the judge for resolution). Before you mock this idea, answer me this: on what principled basis is an award of “final decision-making authority” better serve the best interest of the child?
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