We need more consistency in family law, more predictability

We need more consistency in family law, more predictability.

Divorce lawyers who know the law deserve commissioners and judges they can expect to be consistent and predictable. Cases with similar facts too rarely have similar outcomes because there is way too much inconsistency in the application of the rules in the law and because the judges’ decisions are needlessly and irrationally all over the map, they have too much discretion. Nowadays, despite doing their best to tell their clients what they can reasonably anticipate in divorce and family courtthose attorneys who are honest are telling their clients, “At this point, that it’s anyone’s guess what the court is going to do.”   

I have to wrestle with broad discretion, but there also has to be strict compliance with the rules as they exist, and we should perhaps follow a kind of a English-style unwritten constitution principle where we don’t allow the exercise of rogue discretion when there are certain sound conventions that everyone follows and expects everyone else to follow. 

Just as we need judges and commissioners who do a better job of adhering to the rules and the law, we need much more rigorous adherence to the laws and the rules by attorneys and their clients, and we need to let these people know that if they’re not going to do that they are going to lose and face sanctions. 

At the same time we need to rein in the sloppy exercise of discretion by the courts, we also need to have a broader concept of what constitutes bad faith and frivolous litigation. Contemporary Utah family law allows one to try pretty anythingand if you don’t get away with it, the likelihood of being held responsible (with sanctions and attorneys fees and criminal prosecution) is near nonexistent. 

Poor people are especially getting away with murder because the court is loathe to impose other kinds of sanctions when clearly imposing a money judgment wouldn’t do any good. Or judges are imposing impotent money judgments on poor people knowing full well that the judgment is a sanction in name only and will have no real effect on the bad faith and frivolous litigation tactics of that party in the future. 

We have to get rid of the sexual discrimination against men, to stop treating them as incompetent parents and as ATMs. 

Courts also need to realize that getting a divorce does not necessarily require spouses to fight over child custody. The idea that one parent must somehow become a non-custodial parent simply because he and spouse don’t get along anymore is overreaching. Instead, take a surgical approach. If neither spouse is accusing the other of being a neglectful or abusive parent, then why are we going to treat either parent as less? Why are we going to curtail his or her custodial rights? Why are we going to make, by judicial fiat, somebody a secondclass parent when there is no defect in that parents parental abilities and fitness? 

We can substantially reduce the cost associated with child custody disputes by having the judges interview children, and thus save substantial time and money over the appointment of a custody evaluator and/or GALs. 

We can also save substantial time and money by passing a law that presumes joint equal physical custody, unless that presumption can be overcome by compelling evidence. When we take away the incentive to litigate child custody—as opposed to encouraging it—then litigation will be reduced. I’m not talking about denying people of their rights to seek full relief and redress in the courts, but current child custody legislation in this state entices and induces parents to fight each other over custody, even if that thought never entered their minds when they chose to file for divorce. 

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


Tags: , , ,
Click to listen highlighted text!