Can a parent get custody of a child if he has a domestic violence protection order against him?
Nothing in Utah law prohibits a parent against whom a protective order has been issued from being awarded custody of his or her children. Nothing in Utah law presumes that a parent against whom a protective order has been issued cannot be entrusted with custody of his or her children, although the existence of a protective order is a factor to be considered. Obviously, if a protective order has been issued against a parent for the protection of the children from that parent, the odds of that parent being awarded custody of those same children are slim to none. But if the protective order were issued against one spouse against another, and there is no evidence that the person against whom the protective order has been issued poses a threat of harm to the children, then that person might still be awarded sole or joint custody of the children, unless it is shown that it is not in the best interest of the children custody of them be awarded to the parent against whom the protective order was issued.
That stated, there appears to be in the minds of some judges and domestic relations commissioners in Utah the belief that allegations of domestic violence against men are true and that allegations of domestic violence against women are either untrue or exaggerated, such that protective orders against men based upon equivocal evidence are far easier to obtain than protective orders against women. That is not fair, that is not just, but in my opinion the reason for it is because we—falsely—believe 1) men are naturally more violent than women; 2) most people would never lie about domestic violence to get an advantage over the other spouse, so allegations of domestic violence are likely to be true; and 3) no judge or domestic relations Commissioner wants to deny a request for protective order on the basis of a lack of sufficient evidence (and in my professional opinion far, far too many, if not most, protective orders are issued based upon a lack of sufficient evidence) and then read in the paper the next week that the accused put his husband or wife in the hospital or the morgue.
Making judgments upon the evidence not necessarily a terribly difficult analytical process, but it takes supreme courage to uphold the standards of evidence in the face of public pressure and the well-intentioned but nevertheless insidious tendency to take the “better safe than sorry” route. When the laws and standards of proof are not followed by the courts, nobody is protected by the rule of law. How could they be?
Utah Family Law, LC | divorceutah.com | 801-466-9277