Wednesday, June 18, 2008

One more reason why the Utah Code Needs Serious Revision on the Family Law Front

§ 30-3-32 (Parent-time -- Intent -- Policy – Definitions) provides, in pertinent part:

(1) It is the intent of the Legislature to promote parent-time at a level consistent with all parties' interests.


(2) (a) A court shall consider as primary the safety and well-being of the child and the parent who is the victim of domestic or family violence.


(b) Absent a showing by a preponderance of evidence of real harm or

substantiated potential harm to the child:


(i) it is in the best interests of the child of divorcing, divorced, or adjudicated

parents to have frequent, meaningful, and continuing access to each parent

following separation or divorce;


(ii) each divorcing, separating, or adjudicated parent is entitled to and

responsible for frequent, meaningful, and continuing access with his child

consistent with the child's best interests; and


(iii) it is in the best interests of the child to have both parents actively involved

in parenting the child.

Utah Code § 30-3-33 (Advisory guidelines) provides, in pertinent part:

In addition to the parent-time schedules provided in Sections 30-3-35 and 30-3-35.5, the following advisory guidelines are suggested to govern all parent-time arrangements between parents.

(emphasis added)

But then Utah Code § 30-3-34(1) and (2) provide, in pertinent part:

(1) If the parties are unable to agree on a parent-time schedule, the court may establish a parent-time schedule consistent with the best interests of the child.


(2) The advisory guidelines as provided in Section 30-3-33 and the parent-time schedule as provided in Sections 30-3-35 and 30-3-35.5 shall be presumed to be in the best interests of the child. The parent-time schedule shall be considered the minimum parent-time to which the noncustodial parent and the child shall be entitled unless a parent can establish otherwise by a preponderance of the evidence that more or less parent-time should be awarded[.]

For crying out loud, Utah State Legislature! You’ve got the Code speaking out of both sides of its mouth.

How can § 30-3-33 expressly state that the parent-time guidelines (guidelines, mind you, not mandatory statutory provisions) are advisory and suggestive in nature, yet state in § 30-3-34 that they “shall be presumed to be in the best interests of the child” and “shall be considered the minimum parent-time to which the noncustodial parent and the child shall be entitled”? How can § 30-3-35 and/or § 30-3-35.5 both presumptively be in the child’s best interest, yet simultaneously be considered advisory, suggested, and the minimum parent-time to be awarded, and then be subject to an increase or decrease as circumstances dictate?

If we were to accept the fractured line(s) of reasoning that the current Utah Code implements in analyzing and determining child custody, joint physical custody would be all but an impossibility in any child custody case. Then again, perhaps that is precisely the legislature's intent. § 30-3-10 (Custody of children in case of separation or divorce -- Custody consideration) (1)(b) provides:

The court shall, in every case, consider joint custody but may award any form of custody which is determined to be in the best interest of the child.


Yet, thanks to § 30-3-34(2), we already know that the legislature has reached the foregone conclusion (for every divorce, apparently) that the advisory guidelines as provided in Section 30-3-33 and the parent-time schedule as provided in Sections 30-3-35 and 30-3-35.5 "shall be presumed to be in the best interests of the child" and "shall be considered the minimum parent-time to which the noncustodial parent and the child shall be entitled" unless "a parent can establish otherwise by a preponderance of the evidence that more or less parent-time should be awarded[.]"

My solution: when confronting a dispute over child custody, start with the presumption that joint legal and physical custody are inherently fair and equitable as to both parents and children and the closest approximation to an intact family, then require the parent who wishes to depart from a joint custody award to prove by a preponderance of the evidence that custody should be awarded otherwise. I defy anyone to demonstrate that my proposal is worse than what we have now.

As always, your comments are welcome.