Wednesday, March 26, 2008

Utah's New "Custody and Parent-time [sic] for Persons Other than Parents Act"

In it’s 2008 session, the Utah legislature passed and the governor signed Senate Bill 186. I am against it for reasons I will articulate below. First, some background on this new law. This bill allows persons who are related to a child and have assumed the role of parent to petition the court for custody or visitation. The bill:
. defines "person other than a parent" as a person who is related to a child;
. provides a procedure for a person other than a parent to gain custody or visitation;
. requires notice to a parent, guardian, or state agency with an interest; and
. provides that it may not be used against a person serving in the military who is outside the state.
Senate Bill 186 enacted new sections of the Utah Code:
30-5a-101 (Title)
30-5a-102 (Definitions)
30-5a-103 (Custody and visitation for persons other than a parent)
The full text of these new sections can be found at:
While there was some opposition in the legislature to S.B. 186, it was of the wrong kind. Many legislators wanted it to provide "parent-time" (S.B. 186 was, and I kid you not, originally titled as the "Custody and Parent-time [sic] for Persons Other than Parents Act") to anyone that could be shown to have a close, beneficial relationship with a child. The flaw in S.B. 186 is not that it is un-inclusive, but that it is over-inclusive. No such law should exist.

While I feel for non-nuclear family members and others who may have formed strong attachments to children not their own, that does not mean that such attachments should be institutionalized and given the protection and enforcement of law. It also does not mean we sacrifice basic human rights to satisfy the desires of non-biological/adoptive parents. In reference to the other non-parent visitation statute currently on the books in Utah (§ 30-5-2, Grandparent Visitation Rights) the Utah Supreme Court stated:

While the Grandparent Visitation Statute includes “child’s best interests” and “grandparent fitness” as relevant factors to the determination of whether the parental presumption has been rebutted, a judge cannot rely solely on these factors in determining whether the parental presumption has been rebutted and still comport with due process. Id.

“[T]he Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made.” In re Estate of S.T.T., 144 P.3d 1093, ¶ 33. See Troxel v. Granville, 530 U.S. 57 at 72-73, 120 S.Ct. 2054. Allowing the “child’s best interests” and “grandparent fitness” factors alone to rebut the parental presumption would come too close to allowing a judge to supersede a parent's decisions based solely on a disagreement between the parent and the judge.

The above-quoted opinion from In re S.T.T. contains powerfully persuasive reasons why non-family member visitation is poor policy. These reasons should be apparent to everyone.

A husband and wife who bring children into their own family by birth or adoption and who conduct themselves lawfully and legally as to their children are entitled to govern their family’s affairs without interference from outside third parties and/or the state. By extension, a woman who bears a child out of wedlock, and the father of that child should, so long as they conduct themselves legally and lawfully as to the child, be left alone, free of interference by the state as to what is best for the child and what other person(s) should have contact with the child (and yes, if you were wondering, this is one of the reasons why I am also against grandparent visitations statutes too, but that ship has sailed). Such parents are entitled to the assurance that they will not be surprised by an interloper seeking to interfere in their private affairs (and can we not all agree, no matter what your political or moral values, that family dynamics are and should remain almost exclusively a private matter, free of government interference?).

Minor children are subject to the will of their parents, so long as the parents do not abuse that authority. Parents, as free citizens, are not held to a standard of perfection, just a standard of basic fitness. Such recognizes that the state is certainly no better at parenting than the fit parent himself. Allowing the state to usurp parental authority is nothing short of a recipe for disaster; disaster for families and for society at large. Any time the government attempts to control matters of personal liberties and the exercise of free will and family governance it fails. S.B. 186 is and will be, if passed, no exception. Even if all one were to consider is the bottom line, S.B. 186 will not result in a net benefit to society at large. Do you trust the state to know better than you as to what is in your, your children’s, and your family’s best interests when it comes to visitation (that’s a rhetorical question)?
S.B. 186 appeals to our sense of love and affection, but it appeals not to the best interests of children but to the best interests of third party non-family members (let’s face it, grandparent visitation and non-parent visitation statutes weren’t lobbied for by grandchildren and the children of gay couples; they were lobbied for by grandparents and “psychological parents” for primarily their own benefit, and while there’s nothing wrong with wanting contact with grandchildren and children you’ve cared for from birth, don’t confuse that with a need on the part of the child or with an argument for usurping biological parental authority). S.B. 186 also ignores the practicalities entailed by it. S.B. 186 (if passed and if it withstands a challenge to its constitutionality) will create a new source of litigation. It will drive wedges between people that heretofore did not exist as a matter of law. It will substantially interfere with and adverse affect family autonomy and the right to govern and move one’s family as the family chooses. It will place in the hands of judges and commissioners power they simply do not have the time, wisdom, interest, or need to wield effectively, and certainly not better than the child’s own parents can. Children do not exist in isolation, and they do not come into this world spontaneously.

To determine whether a child should have visitation with a non-family member based upon the child’s “best interests” is facile and poor policy. There are rights and interests that trump even a child’s best interests. One of these rights and interests is the best interests of the family. The best interests of the family subsume or at least should subsume the best interests of the child. Accordingly, the best interests of the family trump (or should trump) any effort to compel a family to provide a non-parent with visitation of that family’s children.

As always, I invite your comments on this subject.

1 comment:

Anonymous said...

I just have to say a BIG THANX for this blog on this revised bill!We were just served with a petition based on this, and were floored, since the adoption took place 22 months ago, and the 2 kids involved have had no contact with the bio-grandparents during that time, and even before. In fact DCFS pulled the kids out of their home at one point in the battles, due to suspected abuse.I don't know how they can even base a petition on their so-called relationship, according to the requirements listed in the statute, but they are trying. Apparently one of the things they have to have evidence of is abuse/neglect. Well, while they may be able to base that on the Bio-parents, they cannot on the adoptive parents, especially since they have had NO contact since before the adoption! (They conveniently left out that little detail in their petition.)So luckily our attorney is requiring an amended petition listing the abuse/neglect, and told them that they were also to file a complaint with DCFS based on that.No way they can truthfully do it against US, but maybe they'll be stupid enough to try it basing it on the bio's whose rights were terminated long ago. (Hmmmmm.....I think that means that legally they are no longer the grandparents!!!) We were just glad our attorney is on the ball enough to recognize the stupidity of this petition, and the law, and glad to see you, as another attorney echoed our thoughts. Keep up the good work!