What’s the best way to decide who takes the children when a couple splits?

I’ll tell you one thing, it’s not the illusory “standard” (that’s not really a standard in the first place) of the “best interest of the child” that everybody talks about.

The goal of a child custody award should be the best interest of the family, both collectively and individually. Children of divorce and their divorced parents are still part of the family, albeit a broken one. With rare exception, A) divorced parents still love their children and wish to be an actively engaged part of their children’s lives and B) children of divorce want each of their parents to love and care for them as much as possible.

The idea that children of divorce are presumptively better off in the primary or sole custody of one parent to the exclusion of the other is malevolent. It’s anti-child, it’s anti-parent.

Children do not exist in isolation. Children need the love, attention, and care of both of their parents, as long as both parents are decent people. Rarely do spouses divorce over custody of their children. So why it is that parents must be made to divorce their children makes no sense. And why parents—who are not divorcing over the children—must be made adversaries in the legal system on the question of child custody makes no sense either.

Parents do not exist in isolation. With birth control and abortion being so readily available, it can be said with confidence that the overwhelming number of children born to married couples are wanted (or at least more wanted than unwanted) by their parents. If two spouses divorce because they don’t get along with each other, it makes no sense to deny them the care and companionship of their children or to deny their children the care and companionship of their parents any more than absolutely necessary under the circumstances.

What if the law were written with a rebuttable presumption that a parent who seeks an award of sole custody of children in divorce does so for selfish and/or malicious purposes? What if the law were written so that sole custody would be awarded only if a parent seeking sole legal and/or physical custody of children could overcome these presumptions by showing that 1) despite reasonable efforts to formulate and implement a joint custody award, joint custody is simply not feasible without causing the children undue deleterious effects; and 2) sole custody would be better for the children than joint custody?

Utah Family Law, LC | | 801-466-9277

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