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Posted by eric_k_johnson on August 19, 2011
The Perils of Settling Out of Court in Child Custody Cases
Amber S. Taylor fka Amber S. Elison v. Clinton J. Elison 2011 Ut. App. 272.
The Utah Court of Appeals, in its decision in the case of Amber S. Taylor fka Amber S. Elison v. Clinton J. Elison, published Thursday, August 18, 2011, overturned a decision of a district court (the trial court) regarding an order in a couple’s decree of divorce that provided for automatic transfer of child custody from one parent to the other if the custodial parent left Utah subsequent to entry of the couple’s decree of divorce.
The divorce decree specifically provided that if the mother left Utah, the father would be awarded custody of the parties’ children.
Mother moved out of state, father went to court to enforce the change of custody order. The trial judge acknowledged the change of custody provision in the decree, noted that the mother had moved out of state, and awarded custody of the children to the father. Simple, right?
Wrong. The court of appeals remanded the case (sent the case back to the trial court), instructing the district court that irrespective of the provision for automatic change of custody if mother moved out of state, the trial judge had to weigh the best interest of the children before deciding whether to transfer custody to the father.
The Court of Appeals specified in its opinion that the more rigorous “best interest of the child” review was appropriate in this case, in part because the divorce was settled out of court, rather than as a result of litigation and a trial on the issue of child custody.
While no one can deny that Utah courts take the duty to protect children (and all members of the public, for that matter) seriously, the Taylor decision is in my opinion, ultimately troubling. It appears that with this decision (and others like it) the Court of Appeals discourages agreement and settlement between divorcing couples for parties who are concerned about a custodial parent’s potential relocation.
The courts at all levels discourage costly, time-consuming, risky litigation and strongly encourage parties to settle. But if settlement can be disregarded because the issues were “merely” resolved by stipulation, where’s the value and security and predictability in a divorce decree obtained through settlement?
And consider one of the public policy implications of such a position by the appellate courts:
Settlement |
Litigation and Trial |
1) Couple has child custody dispute in divorce, including concerns about dealing with relocation by the custodial parent out of state in the future, and its impact on their children; |
1) Couple has child custody dispute in divorce, including concerns about dealing with relocation by the custodial parent out of state in the future, and its impact on their children; |
2) Couple formulates and stipulates to a plan for resolving their dispute, and this plan resolves, to both parents’ satisfaction, the concerns about dealing with relocation in the future; |
2) Couple litigates the issue; |
3) Couple submits to the court for approval their stipulated plan that resolves, to both parents’ satisfaction and with their informed consent, the concerns about dealing with relocation in the future; |
3) One of the two parents must, given the nature of litigation, “win” the dispute, thus leaving the other the loser (maybe the loss was relatively insignificant or crushing, but that doesn’t matter, trial’s over, the dispute is resolved, like it or not). |
4) Court approves the parties’ plan (and remember, the court didn’t have to approve the plan if it felt the plan did not subserve the best interest of the children) and enters the plan as an order. |
4) Court enters its trial decision as an order. |
5) Stipulated order is subject to modification because it was not “adjudicated.” |
5) Trial court decision order is not subject to modification because it was adjudicated? |
QUESTIONS:1) How is the litigation route realistically and/or substantively any different or any better than the settlement route in a case such as this?2) Does having the issue of child custody tried by a judge really result in a child custody award that inarguably subserves the best interest of the children (this is a rhetorical question, lest anyone wonder)?3) What’s the point of submitting a settlement stipulation to the court for court approval if the court’s approval can simply be dismissed on the basis that the trial court merely “approved” a couple’s stipulation and did not try the issues? What incentive does this give parties to settle?4) What fundamental, crucial characteristic of trial ensures the best interest of the child is infallibly served?5) How does a child custody settlement between the parent parties somehow place the best interest of the child at unacceptable risk? And if you tell me that it’s because sometimes litigating parents compromise in settlement to save money, time, and reputation, without selflessly considering the best interest of the children, then:a) you are a hopeless, witless idealist to think that trial judges consistently care about children more than their own parents, understand children better than their own parents, and will craft orders that will unerringly take care of children better than will a deal between the parents (besides, any deal reached between the parents has to be approved by the trial judge anyway); andb) you’ve just dealt a death blow to settlement as a general policy. |
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While Utah courts claim to encourage and favor settlement of divorce issues over litigating them, there is often an unexpected, unpredictable, uncontrollable level of future court involvement in the enforcement of those decrees. Worse, nobody knows if and when that involvement may arise or how that involvement will affect the parties and their children despite the settling parties’ best laid plans.
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