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Posted by eric_k_johnson on September 12, 2011
Utah Child Custody and Custody Evaluations
Utah determines child custody arrangements between parents by purportedly following the “best interest of the child” standard. When the court deems it necessary to order a custody evaluation, Utah Rules of Judicial Administration, Rule 4-903 (Uniform Custody Evaluations) governs:
(5) The purpose of the custody evaluation will be to provide the court with information it can use to make decisions regarding custody and parenting time arrangements that are in the child’s best interest. This is accomplished by assessing the prospective custodians’ capacity to parent, the developmental, emotional, and physical needs of the child, and the fit between each prospective custodian and child. Unless otherwise specified in the order, evaluators must consider and respond to each of the following factors:
(A) the child’s preference;
(B) the benefit of keeping siblings together;
(C) the relative strength of the child’s bond with one or both of the prospective custodians;
(D) the general interest in continuing previously determined custody arrangements where the child is happy and well adjusted;
(E) factors relating to the prospective custodians’ character or status or their capacity or willingness to function as parents, including:
i. moral character and emotional stability;
ii. duration and depth of desire or custody;
iii. ability to provide personal rather than surrogate care;
iv. significant impairment of ability to function as a parent through drug abuse, excessive drinking or other causes;
v. reasons for having relinquished custody in the past;
vi. religious compatibility with the child;
vii. kinship, including in extraordinary circumstances stepparent status;
viii. financial condition; and
ix. evidence of abuse of the subject child, another child, or spouse; and
(F) any other factors deemed important by the evaluator, the parties, or the court.
Perhaps without even realizing it, Rule 4-903 presumes that child custody is a zero sum game. That may very well be because there is in the Utah Code a presumption that sole custody is somehow in the best interest of children.[1] That is wrong and must change.
A presumption of joint custody and a child support calculation formula that does not award a party for seeking child custody out of greed would substantially reduce child custody battles. Moreover, the research shows that joint custody is generally better for children and generally reduces parental conflict.
The parents came together to bring their children into the world. Unless a parent can be proven unfit (and the parental fitness bar is intentionally a low one so that we don’t have the nanny state determining what is and is not fit parenting), then the child custody award should be presumed joint, with the idea being that the child has as much time with each parent as can be reasonably accomplished. This is not an entirely foreign concept (even in the Utah Code), as even § 30-3-35 of the Utah Code provides, in pertinent part:
If the parties do not agree to a parent-time schedule, the following schedule [which has ironically become known in Utah as “the standard” parent-time award, as if it’s a foregone conclusion that a) there will be an award of sole custody to one parent[2]; and b) that all noncustodial parents fall into the same category when it comes to the parent-time they can and should exercise] shall be considered the minimum parent-time to which the noncustodial parent and the child shall be entitled.
(emphasis added)
For as warped as the policy behind § 30-3-35 is, even it allows for there to be a minimum parent-time schedule from which the court can and should expand, but that doesn’t happen very often. I acknowledge, however, that the notion of “standard” parent-time is on the wane, albeit at a glacial pace.
Now on to the custody evaluator. Even the best custody evaluations suffer from bias, excessive cost (more than $10,000 is not unusual, folks), time-consumption (they can drag on for years, and consider yourself lucky if they are completed in 6 months), and poor methodology. Further, and primarily(though not solely) as a result of judicial buck-passing[3], a “custody evaluator” has erroneously become enshrined as an infallible source of pure data and wisdom, and the appointment of a custody evaluator has thus become a knee-jerk reaction in virtually every child custody dispute.
Custody evaluators enter the evaluation ignorant of the parties’ actions. Most of their information is obtained second hand or in artificial “observational settings” that (through no fault of the setting) do not provide a clear or complete picture of actual circumstances. And need we even ponder whether the opinions of the opposing parties’ parents, relatives, and friends are terribly credible?
Custody evaluator bias is not an insult to either gender, but unquestioned, undiscovered bias too often plays a significant and tragic role in the child custody award (as if child custody is inherently or even chiefly a zero-sum game).
Each of the factors listed under Rule 4-903 are often hotly contested. Factor (A) takes into account the child’s preference. On its face, this seems a good place to start. If the child is older, and capable of understanding and remembering the actions and attitudes of both parents over a reasonable period of time, that child should absolutely have the ability to voice his or her preferences (but don’t even think of having that child’s voice heard by the court[4]). But what about the situation, for example, where a younger child has not seen one parent for several weeks or months or longer because of the malicious actions of the other parent? What about a parent who disparages the other parent to the child as part of a long-term child custody strategy (and don’t think it doesn’t happen; “Mommy hates you. She’s a drug addict.” “If you don’t tell Dr. Smith that daddy killed your pet and that you’re afraid of daddy touching you ‘again,’ then grandma will die and you’ll go to foster care and never see me again.”)?[5] A presumption of joint custody would nip some of these machinations in the bud.
How about factor (C)? When an evaluator considers “the relative strength of the child’s bond with one or both of the prospective custodians,” is it really fair to the parent who has been the “breadwinner” of the family? The question you must ask yourself is this: if you spend your days at work and support the family financially during the marriage, thus making it possible for the stay at home parent to be the stay at home parent, should your child be denied the close contact you had when you lived under the same roof with your kids just because of a divorce? We force “noncustodial” parents to pay “child support,” yet do not force the “custodial” parent to stay at home and not work, even though that is typically the basis on which the custodial parent claimed to have the stronger bond with the child. Illogical. Inequitable. Nonsensical. Bad for children. If a hard-working dad (and let’s face it; fathers are overwhelmingly the noncustodial parents and child support payors) who lovingly busted his hump every day away from home to keep his wife and kids fed and clothed knew that such a selfless behavior and attitude would result in his losing custody of his kids, how many men would continue in that same path? Factor (C) punishes the parent who sacrifices his or her time “caring” for children personally to support the family financially. Illogical. Inequitable. Nonsensical. The legislature and jurists can and must do better by children of divorce and their parents.
For similar reasons, factor (D) is grossly objectionable. To continue the “previous custody arrangements” after a divorce is, in most cases, impossible. Divorce changes virtually everything about the home and family. Even the father who works 9 to 5 typically has a deep and loving relationship with his kids! Dads (including yours truly) get home from work, help with homework, science projects, coach sports, read bedtime stories, etc. My goodness, the fact that the poor guys spend all day away at work makes their hearts and the hearts of their children grow fonder! Don’t claim you don’t understand me. If you were wondering, no, I am not divorced, thank goodness.
Factor (F) and the sub-factors under factor (E) are substantially subjective, and often do not acknowledge that circumstances existing proximate to the divorce action itself are not reflective of the more benign circumstances that existed before divorce or circumstances that will exist afterward.. It would take too long to break down each of the sub-factors, but suffice it to state that they are so broad and so nebulous as to give custody evaluators a basis for any opinion they may wish to support. Take, for example, favor (E)(viii). Some see great wealth as a detriment to a child.
Clearly some procedures are needed to determine child custody. In the ideal world of divorce, each parent would be cooperative and together they would come up with a beneficial arrangement for the children and parents alike[6] (as reasonably close to an intact family as possible—revolutionary concept). Regrettably, it only takes one unreasonable parent to derail and defeat the current methods by which child custody is analyzed and determined.
While I have strong opinions on the optimal way to fix this child custody situation, I would like to encourage and welcome comments from all of you. Do you disagree with my breakdown of these factors? Do you have a comment as to how the system should work? I always look forward to reviewing comments, and I hope this blog will get you thinking about some of the things that need to change already.
[1] See Utah Code § 30-3-34 (Best interests — Rebuttable presumption), which provides, in pertinent part:
(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.
[2] This presumption that one parent will be awarded sole physical custody runs throughout the Utah Code without the legislature even being aware of it. In addition to this presumption adopted in § 30-3-35, consider §§ 30-3-32, 30-3-33, 30-3-34, 30-3-36, and 30-3-40, all of which presume that child custody awards will be exclusively sole custody and that there will be a “noncustodial parent.”
[3] No, not all commissioners and judges are guilty of buck-passing, but too many are shrouding buck-passing in language crafted to appear as though the custody evaluation were ordered out of concern for a child’s well-being. Then these same commissioners and judges grouse that the custody evaluation has bogged the case down both financially and time-wise.
[4] Utah Code § 30-3-10(1) provides, in pertinent part:
(c) 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.
In construing subsection (1)(c), many a judge or court commissioner sees it like this:
(c) 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.
Just try to advance an argument for allowing children to testify in Utah. It is an exercise in futility.
And why should courts read any further when they have Rule 4-903 to fall back on? So long as Rule 4-903 exists, so the thinking goes, what possible “extenuating circumstances” could exist that would “necessitate the testimony of the children being heard”? The custody evaluator’s report (that costs $10,000 plus before you finally get it) is thus the “other reasonable method to present” a child’s testimony. Rule 4-903, coupled with the convenient conventional wisdom that children testifying under any circumstances is “traumatic” to children and so much so that it is never appropriate.
“Ah, but wait, Eric,” you may say, “Subsection (1)(d) of § 30-3-10 doesn’t preclude children speaking to the judge.” Well, at first blush, that appears true:
(d) 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.
But you forget that many a judge or commissioner—as well as opposing counsel who wants to ensure a child’s honest opinion is not heard or considered—reads (1)(d) differently than the words of (1)(d) denote.
You see, (1)(d) “merely” provides that the court may (not must) inquire of the children, and even then, “the expressed desires are not controlling,” and “the court may determine the children’s custody or parent-time otherwise,” so why bother inquiring with the children in the first place, eh? While the desires of a child 16 years of age or older shall be given added weight (if the court ever actually learns those desires by speaking with the child), that child’s desires are “not the single controlling factor” (duh), and so the thinking goes that there’s little point to inquiring with those children who are 16 years of age or older anyway. Besides, isn’t there a custody evaluator out there who can charge $12,000 and take 6 months or longer to tell us what the child thinks?
[5] This really occurred.
[6] This is but one reason why I advocate the standard for determining child custody as being the best interest of the family, not the best interest of the child.
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