The fundamental liberty interest of a parent concerning the care, custody, and management of the parent’s children is recognized, protected, and does not cease to exist simply because a parent may fail to be a model parent or because the parent’s child is placed in the temporary custody of the state. At all times, a parent retains a vital interest in preventing the irretrievable destruction of family life.
Utah Code § 62A-4a-201 (2012).
This code provision was adopted by the Utah legislature to protect parents and their rights from undue government infringement. The question is, what impact does this have on family law, and more specifically, on divorce actions?
In Utah divorce actions the unfortunate reality is that parents are often stripped—even presumptively stripped—of parental rights. When parties reach the difficult decision to terminate a marriage, why must they terminate certain parental rights?
Currently in Utah there is no presumption of joint physical custody in a divorce setting. The commissioner (and therefore judge) must consider awarding joint physical custody, but there is no presumption of preserving joint custody in divorce. As a result, commissioners more often than not award one party sole physical custody of children with the other party having parent time every other weekend and one evening during the week.
The result of such a custody arrangement is that one party is not with his/her children on a daily basis and is thereby stripped of his/her right to be involved in the “care, custody, and management” of his/her own children. An involved parent is accustomed to making decisions about the children’s lives on a daily basis. Under the Utah Code, that same involved parent can be relegated to providing care, custody, and management only 6 days a month!
This huge change in parental involvement and authority is not for parents found to be unfit, but for parents who simply are deemed by the court not to be the “primary caretaker” of a child.
Utah Code § 62A-41-201 goes on to state:
It is in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents. A child’s need for a normal family life in a permanent home, and for positive, nurturing family relationships is usually best met by the child’s natural parents. Additionally, the integrity of the family unit and the right of parents to conceive and raise their children are constitutionally protected. The right of a fit, competent parent to raise the parent’s child without undue government interference is a fundamental liberty interest that has long been protected by the laws and Constitution and is a fundamental public policy of this state.
The Utah legislature has stated that it is in children’s best interest to be under the care and supervision of the child’s natural parents. Why must this interest change upon the parties’ separation and divorce? If anything at time of crisis or change in family dynamic, would this not be the most important time for parents to be involved in their children’s lives?
When a married couple has children they establish a co-parenting relationship that make them, as a matter of law and of fact, joint physical and legal custodians. You don’t need to be a lawyer to understand this, to know this. This relationship exists independent of the marital relationship. You don’t need to be a lawyer to understand this, to know this: when a marriage ends, co-parenting need not end as well. While parties may not be able to agree on issues within their marriage, a divorce does not mandate destruction of the the fundamental right to be a parent and to rear their children on an equal basis.
Clearly there needs to be reason involved in the process. If one parent moves an hour away from their children, or abuses or neglects his/her children, such makes co-parenting impossible and/or ill-advised. But when fit parents live within a reasonable distance of each other and can exercise joint physical custody, joint custody should be the presumption under the law. If you think joint custody is the presumption under the law in Utah, you are sadly, ignorantly, tragically, and dangerously mistaken.
 Except, apparently, in a divorce setting, where the Utah Code provides (I’m not kidding):
§ 30-3-34. Best interests — Rebuttable presumption.
(1) If the parties are unable to agree on a parent-time schedule, the court may establish a parent-time schedule consistent with the best interests of the child.
(2) The advisory guidelines as provided in Section 30-3-33 and the parent-time schedule as provided in Sections 30-3-35 and 30-3-35.5 shall be presumed to be in the best interests of the child. The parent-time schedule shall be considered the minimum parent-time to which the noncustodial parent and the child shall be entitled unless a parent can establish otherwise by a preponderance of the evidence that more or less parent-time should be awarded[.]
Utah Code § 30-3-35 and § 30-3-35.5 presume that one parent will be awarded sole physical custody of the children, with the “noncustodial” parent entitled to “minimum” “parent-time” unless he/she can persuade the court to be awarded more.
 Except when parents divorce, and then one of them is presumed to get the shaft and be consigned to the role of “noncustodial parent” merely because the parents are divorcing.
 See footnote 2.