Tag: malice

For divorced parents: why isn’t your custody award 50/50?

For divorced parents: why isn’t your custody award 50/50?

Concisely (and in no particular order):

  1. sometimes a parent’s job, physical or mental/emotional disabilities, misconduct (like domestic violence, child abuse, or substance abuse), poverty, or distance from the other parent’s residence prevents him or her from exercising joint equal (50/50) custody, even though the parent is otherwise a loving, caring, and fit parent.
    • sometimes a child is nursing and thus the exercise of joint equal custody is a practicable impossibility.
  2. sometimes a parent who could exercise 50/50 custody may not want to exercise joint equal (50/50) custody. It’s rare, but it happens.
  3. sometimes a parent could exercise 50/50 custody, but the children vehemently and rebelliously oppose it. It’s rare, but it happens.
  4. sometimes, even though the parent wants it and is worthy of 50/50 custody, the other spouse and co-parent is evil and does everything in his or her power to depict that parent as unworthy of joint equal (50/50) custody in a campaign to ensure that 50/50 custody is not awarded. This doesn’t happen all the time, but happens quite frequently (more than most people would imagine).
    • sometimes, when a parent is dealing with a malicious parent, even 50/50 custody could be awarded, the innocent parent agrees to less than 50/50 to spare the children and/or the innocent future haranguing over and sabotage of the custody award. Some parents make it abundantly clear that if 50/50 custody is awarded that he/she will make everyone from the parent to the children to the court regret it.
  5. sadly, some courts believe that 50/50 cannot work, that 50/50 causes or exacerbates inter-parental disputes to the detriment of the children, and so the court awards less than 50/50 custody believing (too often falsely believing) that less than 50/50 is for the benefit of the children. Actually, the science shows just the opposite to be true, that 50/50 custody has the effect of reducing the amount and severity of inter-parental conflict.
  6. sometimes, even though a father wants and is worthy of 50/50 custody, the judge has a bias against awarding it. For some judges it’s a belief that men simply should not or cannot be entrusted with 50/50 custody, that “the only reason the father wants 50/50 custody is because it reduces his child support obligation,” that women are “born nurturers,” or that the children, though not infants, are still too young to spend time equally in the care and custody of both parents. Some judges take the position that if the mother has been, up to the point of separation and divorce, the children’s “primary caregiver” that she must remain their primary caregiver, even though the divorce will necessitate that she get a job and no longer function as primary caregiver.
    • Although men/fathers are being treated better when they seek 50/50 custody than ever before, there is still obvious discrimination generally against fathers who can clearly exercise and who and want and who seek 50/50 custody.

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

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Should we put divorcing couples in an adversarial divorce court system?

People who are getting divorced fall into one of two categories:

  • those who want to divorce while doing each other as little harm as possible; and
    those who don’t care what happens to their spouses in divorce and who are driven by self-interest, vengeance, and/or malice.
  • Couples in the first group are not forced into being adversarial with one another or forced to process their divorce to completion through an adversarial system. If and when they simply treat each other as each of them wished to be treated, they can dissolve their marriage and divide their property and responsibility for debts between them in a fair, expeditious, and economical manner, without having to involve the court other than having the judge approve their divorce settlement.

Most divorcing couples would choose—and correctly choose—to be nonadversarial if they understood that our adversarial system is an emotional and financial meat grinder.

But, as is typical of human nature, almost everybody going through a divorce for the first time doesn’t believe the horror stories they are told about divorce, or if they do believe the stories (and these stories are true, folks), nevertheless believe that they are exceptional. Their fear, anger, and avarice blind them to reality, causing them to believe that their divorce experience will beat the odds. Fools. Damn fools (and I’m a divorce lawyer, but that doesn’t mean I want to see anybody spend money on my services needlessly). Sometimes you need to go through the court system for a divorce. Sometimes you can’t avoid it. But if you can, for the sake of you, your kids, and yes, even your terrible spouse, don’t seek to vindicate yourself in the court system, seek to extricate yourself from it as much as you effectively can.

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

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Should people be allowed to file “alienation of affections” law suits?

Allowed to? Yes. I believe that if one can prove that an otherwise happy marriage was destroyed by a homewrecker, one should have a legal cause of action for alienation of affection. But I am in the minority. And indeed, some (though few) states still allow alienation of affection law suits. In fact, Kevin Howard sued in August 2017 under North Carolina’s alienation of affection law and was awarded $750,000 in August of 2019.

Would I advise it generally? No. Alienation of affections cases are becoming increasingly unpopular. Most states have outlawed a cause of action for alienation of affections. Those states that who retain the cause of action make it hard for people to prevail. When people call me asking whether it would be a good investment to sue for alienation of affections, I tell them no. Odds of success are low, costs of litigation are high. Alienation of affections cases are unpopular with courts. In today’s world there are more satisfactory and cost-effective ways to deal with alienation of affections than suing.

To prove alienation of affection in Utah (where I practice family law), the plaintiff must establish that the defendant

  1. wilfully and intentionally alienated the spouse’s affections
  2. resulting in the loss of the comfort, society and consortium[1] of the spouse, and
  3. (to justify punitive damages) a charge of malice.

Now how easy do you believe it would be to prove that somebody willfully and intentionally “stole” your unwilling spouse away? The defendant will argue that your spouse chose to step out on you (and then likely provide the court with a a laundry list of reasons for doing so, whether good or bad, whether true or false), not that your spouse was duped into leaving a perfectly happy marriage. This is what makes alienation of affection cases so difficult to win.

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

[1] The marital alliance between a Husband and Wife and their respective right to each other’s support, cooperation, aid, and companionship. Loss of consortium is an actionable injury for which money damages may be awarded. The loss of the love, sexual relations, and services of a spouse are being considered tangible injuries. (

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