Wednesday, July 8, 2009

The Joint Physical Custody Catch-22

Utah Code § 30-3-10 (Custody of children in case of separation or divorce -- Custody consideration), subsection (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.”
In practice, § 30-3-10(1)(b) is simply not applied. Courts consider the provision of § 30-3-10(1)(b)—if they consider it at all—a clumsy, idealistic, unworkable code provision, a nuisance. As such, courts, in my experience and observation, do not consider joint physical custody worthy of serious consideration and not worthy of implementing on even a temporary, trial basis.
Unless both parents agree to joint physical custody, trying to persuade courts in Utah to adopt a joint physical custody arrangement in divorce or parentage cases is, given the current climate, virtually impossible. But what is to be done when both parents are good parents, but one of the parents selfishly refuses to consider joint custody? Typically, the courts will respond to this kind of situation with reason such as, “Well, the parents can’t agree on joint physical custody, so thus joint physical doesn’t have a snowball’s chance of working, so I will have to award sole custody to one parent or the other.” Now I am not a father’s rights whacko, but 9.5 times out of 10, the parent who is awarded physical custody when there’s a custody dispute is . . . mom. So mothers, if you want sole custody even when you know your husband is a fine parent and could handle joint custody as well as you, if you claim joint custody can’t work, your odds of winning sole custody are so high as to be practically guaranteed.
What follows is the text of a temporary custody and parent-time award for an actual case of mine (used with my client’s permission, and names have been changed for privacy’s sake), with my and my client’s commentary on why the courts’ analysis of requests for joint physical custody are simply not getting the intellectual honesty and opportunity they deserve.
In the hope of persuading the Court of the request to modify the temporary orders governing legal and physical custody, I present the argument alongside the language of the court’s Temporary Orders.
The text in regular type contains the verbatim citation to the Court’s Temporary Orders
The text in italics contains the Father’s averments on the subject of child custody and parent-time that Respondent and his counsel wishes for the court to revisit and revise.
There is no finding of past or present ability of the parents to cooperate with each other and make decisions jointly, which is critical for a joint custody situation.
Mother will still not allow there to be any reasonable way to communicate and make decisions jointly because she knows this may alter the custody rights and parent-time rights.
The court finds it is in Child's best interests to have one house during her infancy and early childhood that provides stability and the court finds at this point in time that it's clearly in her best interests to have one place to reside; when Child gets older that may change, but on a temporary basis the court feels that Child needs to reside in one place.
The court never articulated the factual basis for this finding. Rather, the court in fact concluded “it is in Child's best interests to have one house during her infancy and early childhood” the court did not cite to any particular facts that support such a conclusion. Neither did the court cite to any particular facts in the record that sole custody and one place to reside” “provides stability” for Child. In fact, Child residing in one home serves to marginalize my role as a parent and father. It also empowers and emboldens the Respondent to act in way that show disrespect for me as a parent and that alienate the child from me. Allow me to provide the court with specific examples of the Respondent’s conduct as the sole custodial parent (see infra).
It has been the court's experience that it is not good for infants to be bounced back and forth during a time when it's critical for them to establish family relationships.
This ruling does not address how family relationships can be established with a non-custodial parent through a sole custody award. Moreover, there can be no denying that a sole custody award hinders the establishment of family relationships with the non-custodial parent. This is why there should be no “custodial/non-custodial” distinction. Respondent and I are both parents, and as such, barring any demonstrated unfitness on the part of either parent, our roles as to our daughter should be the same.
Because Child is thriving right now the court concludes that it is in her best interests that Respondent be awarded sole custody
To thrive means to grow vigorously or luxuriantly, to flourish. This is hardly the case with Child. While there is no dispute that Child is in good health, both physically and emotionally, within normal ranges for a child her age, such a condition is plainly not “thriving,” nor is there any evidence that she is “thriving” because of the sole custody award currently in place.
Why can it not be stated with certainty that Child is thriving in a sole-custody situation? Because there is no evidence that the child would do as well, if not better (even thrive), in a joint physical custodial relationship. If the court does not, on at least a temporary orders basis, give the parties and the child the opportunity to experience joint physical custody, then the court will never have any such evidence to consider when issuing its final order of physical custody for the child.
The Court has considered the factors under Utah Code § 30-3-10.2; the reason the court is not ordering joint custody is because there is no history that the parents have with each other and the court understands that there is a natural conflict built into this situation, although the court does not blame one party or the other.
A “natural conflict”? With respect, this is an unfair and unwarranted conclusion. What “natural conflict” exists in the instant case? The fact that Child was born out of wedlock? What conflict “naturally” arises from that? By such reasoning, any custody dispute is a “natural conflict” that would render an award joint custody an impossibility and thus render the Utah Code’s provisions regarding joint custody a nullity.
And the reason there is “no history that the parents have with each other” is because while she was pregnant the Mother told the Father that she had miscarried. Mother told Father there would be no Child. Given what Mother told Father, there need not be any “history that the parents have with each other.” So if Mother can lie about her pregnancy to Father, I would argue that this cuts against the Mother, not the Father. Because as soon as Father discovered that in fact Mother had not miscarried, Father was there, offering support and filing his parentage action to take responsibility for his Child. That’s all the history there is. Is it not enough to show that Father can be (and should be) entrusted with joint custody on at least a trial basis before a permanent order of custody is made? Of course. There can be no serious question.
Moreover, any conflict between the parties is entirely the Respondent’s doing. I do not want to fight with Mother over custody of Child, but apparently that means that if we dispute what custodial arrangement is best—albeit not ideal, but best under the circumstances, given competing opinions—for Child and her parents, one parent gets sole custody. Such thinking is illogical and imprudent.
Respondent cannot use the conflict she created as a basis for arguing joint custody will not work and that thus, she must be the sole custodial parent. To hold otherwise would provide incentive to custodial parents to claim (if not actually create) conflict between the parents in order to justify the custody award Respondent seeks in her self-interest, not the best interest of the child. Fullmer v. Fullmer, 761 P.2d 942, 948, (Utah App.,1988)
I want for Child (and for me and for Mother) that the parties be awarded joint legal and physical custody of our daughter. What I propose treats both parties equally and for the benefit of the parental relationship between the child and both of her parents. My joint custody proposal inherently does not favor one parent over the other, just as the child should not learn or be given the impression that one parent is better or more important than is the other. My custody proposal is the application of the Golden Rule. How can that realistically be deemed to create “a natural conflict”? It can’t.
It is problematic when parties have a situation where they have a child and the parents themselves have no relationship; such a situation is tailor-made for conflict, the court applauds both parties in that they have attempted, both of them, to minimize this conflict.
Finding that both “a natural conflict” exists between the parties and at the same time applauding “both parties in that they have attempted, both of them, to minimize this conflict” suggests to me that Mother and I showed a “willingness and ability to protect the child from conflict that may arise between the parents.” See Utah Code § 30-3-10.2.
The standard for determining custody is not whether or which custodial award form will result in absolutely no conflict or disagreement. Indeed, no custody award can ensure such a state.
So if the parties are applauded for minimizing conflict between them, why then, can they not be given at least the opportunity to engage in joint custody on a temporary basis, for the purpose of supplying at least the court (if not the parties and the child themselves) with evidence as to how well or how poorly joint custody may function in the life of this child?
It is apparent that the Petitioner, Petitioner, loves his child and wants what is in her best interests, but the court concludes that right now it is in Child's best interest that the Respondent be awarded sole custody of the child.
The court, after concluding that it is apparent “that the Petitioner, Petitioner, loves his child and wants what is in her best interests,” nevertheless precluded him from demonstrating whether joint custody may be better for the child than would sole custody. If, at the temporary orders stage of this case, Petitioner is not given the opportunity to succeed or fail as a joint custodian, he will never be given that chance, and when this case goes to trial the court will have (as a result of a circumstance it created) no evidence before it as to whether joint custody can and should be awarded the parties in the best interests of the child.
Otherwise stated, the Petitioner is faced with a classic Catch-22:
· To prove that joint custody is good for the child, Petitioner must present evidence in support of this point.
· To obtain and present evidence in support of this point, the parties necessarily must exercise joint custody for period a sufficient to demonstrate whether joint custody is in fact in the best interest of the child.
But the court refuses to give Petitioner the opportunity to exercise joint custody for period a sufficient to demonstrate whether joint custody is in fact in the best interest of the child because the court has presumed that joint custody is not in the child’s best interest, thus providing the court with a basis for determining that even a temporary, trial period of joint custody cannot be implemented.
The court awards parent-time to the Petitioner pursuant to Utah Code § 33-35.5 as age appropriate, but the court also orders that beginning _________, Petitioner is allowed overnight parent-time with Child, during the weekend periods of parent-time provided in § 33-35.5, i.e., on opposite weekends from Subsection (2)(d)(i), from 6 p.m. on Friday until noon on Saturday.
The period from November to December 2008 will give the Petitioner a period of regular parent-time, and then he will be able to take the child for overnight periods starting ___________ 200__.
I have voice-recorded conversations that show Mother is the instigator of self-serving, unnecessary conflict between us. Mother will not allow there to be no conflict.
The first time I was able to take Child from Mother’s home was November 18, 2008, for a period of three hours, once to twice a week, from November 18th to until Christmas Eve when I was allowed a 4.5-hour visit, instead of 3hours. Commencing ________, 200__, Mother started allowing me five to six hour periods of parent-time once to twice a week, this is the current way it is arranged, when I can establish contact with her. Several times (in audio-recorded conversations) Mother has denied me any more parent time. She insists that she has not denied me any parent time, so when I request that she follow the court’s order she refuses.
I have requested my overnight parent-time, and Mother says no. I request more days, her response is no. Several times Mother indicated that she would email me what she thought was fair parent time for me to have. I never received the email despite my having requested it multiple times of Mother. She indicated she sent the email, I told her I failed to receive it and to please print it and give me a copy she indicated to be to “busy” to do so. When I try to establish any form of long-term arrangements, Mother says, “we’ll have to see.” My parent time now is none. Mother does not answer my phone calls, and after I have called her home phone and cell phone more than a few times and a few days in a row in an attempt to communicate and coordinate with her, she will send me a voice mail saying she got a message to call me, but she will do no more. I didn’t receive parent time on Child’s birthday, my birthday nor Father’s day.
The parent-time awarded to the Petitioner is a minimum standard; Petitioner should be able to see the parties' child as often as the parties can work it out.
Mother limits me to less than the minimum parent-time I have been awarded. When I requested to see Child on a weekend, Mother informed me that: 1) It was her time with her or 2) Child (a child who is less than 2 years old) was busy and had plans. I have never had Child on a weekend; I’ve had her with me one Friday during the day and one evening visit for a three-hour period when our attorneys made her call me.
The Respondent is ordered to place Child in Petitioner's care for daycare provider purposes, if that can be resolved between the parties because Petitioner is willing to do that and his doing so is definitely in Child's best interest.
Child remains in the care of her grandmother on a daily basis while Mother is at work, school, or doing miscellaneous things such as when she is out with what she calls her “dating partner.” Mother has told me numerous times that this is where Child belongs.
There is no evidence here that Petitioner cannot take care of this child in a proper manner.
Mother has specific orders to me for which Child is to eat, dress, drink, and play. When I pick-up Child, I must take a diaper bag which contains only things that Mother sees fit for her to have. With only so much formula, only certain foods and only certain utensils she is to use. I’m not allowed to give Mother anything else that is not provided in the bag. Mother calls me while I have Child during parent-time and asks me “what is Child doing; “What she has eaten, when how many times, and why.” There has never been a time when Mother hasn’t dictated what it is I can do with Child during my parent time. If, for some reason, there is a left-over in Child’s bag that Mother gives me, or “not enough” formula drunk when I take Child home to her grandmother Mother immediately calls me while I am on my way home asks why Child did not eat all that was provided (these are recorded and the elevated anger and almost desperate sound in Mother is apparent).
The child's prior problems associated with premature birth no longer exist and so it is appropriate that the child spend as much time with Petitioner caring for her and as much time with his Petitioner and his family as it can be arranged because it is definitely in the child's best interests.
Mother insists that Child is still, to this day, a “premature infant” and that Child has eating disorders and potential health problems because of it. Mother would only send me with just one bottle of formula to last me six hours, so without Mother knowing, I found out who Child’s doctor was, called that doctor, and asked what kind of formula our daughter took. I bought the proper formula, for an extended period of time prepared Child her bottles, and gave her the proper formula and amounts when Child was hungry. One day, I forgot to empty the bottle out that Mother sent when I returned Child home. The next time I picked Child up, Mother asked what I had fed her (this was the last time I saw Mother face to face, by the way), I told Mother that I fed Child her formula. Mother asked what kind, and I told her what kind. Mother said it was the wrong kind. I just smiled because I knew it was the same kind, literally as the doctor ordered, and that I had not given Child the wrong formula. Mother then insisted that Child had been sick for a week because she was premature and I had given her the wrong food. Mother had no clue I had been giving Child the proper formula all along and I wanted to prove she was saying and doing things to make me look bad and justify why I couldn’t provide care for her.
Mother has insisted that if I’m going to be letting my family spend time with the baby then she would not let me take her and Child would stay home. Mother would say things such as, “If your family is going to be watching Child she will stay home; that’s where she belongs”. There has never been a time when I have left Child with anyone, but Mother on several occasions tried to accuse me of not bonding with Child and that I had let my family have too much time with Child. My response to Mother has always been “allow me more parent time,” but to no avail.
There are, in this case, two families that are obviously going to care a great deal for this child, so she should have the advantage of contact with the families on both her father's and her mother's sides.
As I have detailed above, I am being denied the right—even the mere opportunity—to to care a great deal for Child by denying me contact with Child. And it’s Mother, the custodial parent, who is denying me. How could anyone claim this is in Child’s best interest? How could anyone blame me for this? Why should Child and/or I suffer for this?
Petitioner is to have any other parent-time periods that that can be reasonably arranged because this is a temporary order that will give the parties and the court time to work out some parent-time. The court wants parent-time to be as open and appropriate as the parties can resolve it.
As indicated earlier Mother never coordinates extra parent time with me, nor is parent-time open because Mother says Child needs to spend time with Mother’s family. Mother has gone as far as saying “Child has things to do,” and when I insist on Mother telling me what it is our one-year old-daughter has to do, Mother says, “Play”.
Since Petitioner has a schedule that would allow him to have some time to provide care for the child during the day, when Respondent is going to work and it is possible for Petitioner to provide care for the child, Respondent is ordered to drop Child off with Petitioner, so that Child can spend the day with her father. The parties are to work on coordinating the care of the child so that the parents can provide daycare as much as possible.
Mother will not allow me to be Child’s caregiver. Mother has picked or dropped off Child at my apartment a total of six times. Mother now refuses to pick Child up or to drop her off to my apartment for parent-time. After that point, Mother said if I wanted to see Child I had to pick her up and to drop her off. Mother completely refused to do either. There were absolutely no instances nor any reasons for Mother to do this, she just started to refuse. I reminded Mother on several occasions that the court had ordered she help out in Child’s transportation, and Mother made it clear and well known to me that she did not care.
At first, I would pass Mother on the way to East Carbon to pick Child up, or pass her on my way home after dropping her off. Mother would pass by with a big smile on her face looking right at me as we passed. It was definitely known to me that she had found another way to make things difficult on me. On two occasions, Mother volunteered to pick Child up from my apartment after not having involvement in doing so for two months. The first was ________, 200__, Mother came to my apartment with a friend/coworker earlier than expected and demanded Child (my sister and two nephews were present in my apartment at this time). I got Child ready and tried to help her outside. Mother rudely grabbed Child from me, grabbed the diaper bag, and walked out . I had my audio recorder in my pocket and on. I followed Mother out and asked why she was doing what she was doing. Mother informed me “because I can.” I asked when I could see Child again and I was told that she didn’t know. I asked if I could I please have Child overnight , as the court has ordered I am to have her. Mother turned to me and said, “I will never let you keep her overnight.” Mother put Child in the car as I walked inside. Once inside, I looked out my window and watched as Mother got in the driver’s seat. Mother and her friend began laughing until they looked up and saw me watching out the window. They both stopped laughing, Mother then backed out of the driveway and went back to Price.
Another incident was ________, 200__, when Mother volunteered to pick Child up from my apartment. This time when she arrived, she pulled in with a police officer (but the officer happens to be a family friend of the Mother). The officer informed me that he was there to “keep the peace” while Mother picked up the baby. I asked him what the reason he was there was and he said that he had been called out by dispatch, and that I was to cooperate.
Petitioner's gross monthly income is $_______. Respondent's gross monthly income is imputed to be at minimum wage on a full-time basis, i.e., $________. Accordingly, child support is calculated and ordered as follows:
1. Petitioner's obligation: $_______ ;
2. Respondent's obligation: $_______ .
Accordingly, Petitioner shall pay the Respondent $________ per month for child support, until further order of the court.
I am even willing to continue to pay Mother child support at the rate set for me, were I the non-custodial parent. This is not about money and it never has been. Remember, I am the Petitioner here. I sought to establish my parental relationship through the parentage petition. As the court may recall, Mother told me she’d miscarried her pregnancy. She did not want me to know Child even existed.
This is about giving our daughter the best relationship she can have with her parents, both of them. That is all I have ever sought.
Because Child needs to be with both her parents equally, she needs active involvement, care and discipline from both her parents. Only being allowed 2-4 days a month as per Utah’s minimum child custody guidelines will not give Child that bonding she needs with both Parents.
While I make no claim to being perfect, I am a stabilizing and beneficial presence in my child’s life. Taking that presence and influence from the child does her no good. Preventing me from sharing the burdens of child-rearing will cause Mother to become a worse parent, not a better one, and our daughter will be adversely affected as a result. Saying, without any basis in fact, that I should only see our daughter once a week and every other weekend makes no sense and it’s self-evident that the less time and influence I have with our daughter the less close, the less helpful, and the less important I become to them through no fault of mine or theirs.
Motherhood is a challenge for Mother. I know she loves our daughter, but she cannot handle sole physical custody of her, especially when I am available to assist in raising our daughter. Joint physical and legal custody will benefit Mother by giving her a break from motherhood on a regular basis so that she can decompress and prepare for and enjoy the week she has the child.
Mother wants sole custody of our daughter not because it’s in the child’s best interest but because Mother considers our daughter hers; hers to control. Mother also wants the child support money through the larger amount of money she will get in child support if she is awarded sole custody. Such an arrangement is not fair to or good for anyone.
I have never done harm, nor do I pose a substantiated potential of harm to our daughter. Mother knows this, and there is no evidence to support any allegation that I pose a risk of harm to our daughter.
Before Mother and I separated I was legally and in fact the joint physical guardian and custodian of our children. Nicole and I shared the rights as joint physical guardian and custodian of our daughter to the benefit of the child.
Even though it pertains to parent-time, the language of Utah Code § 30-3-32 reflects my reasons for why I advocate joint legal and physical custody on an equal time-sharing basis:
  • Time that parents and child spend together should be at a level consistent with all parties' interests, i.e., the best interests of the family and all family members;
  • Absent a showing by a preponderance of evidence of real harm or substantiated potential harm to the child:
    • it is in the best interests of the child of divorcing parents to have frequent, meaningful, and continuing access to each parent following separation and divorce;
    • it is in the best interests of the child to have both parents actively involved in parenting the child.
    • each divorcing parent is entitled to and responsible for frequent, meaningful, and continuing access with his/her child consistent with the child’s best interests;
§ How can Mother and/or I be the most responsible of parents if contact with the child is limited to a weekday evening and every other weekend? We spend more time with co-workers than that. How does a schedule like that strengthen the parent-child bond? It simply does not because it cannot. If Mother and I are not merely entitled to, but responsible for frequent, meaningful, and continuing access with our child, then give us the fair opportunity to live up to that responsibility. Consigning either of us to spending a few days a month with them virtually guarantees that the child will grow detached and distant from the parent who, by court order of all things, is compelled to spend less time with his child than the other parent. Consistent with the child's best interests, she deserves joint legal and physical custody on an equal time-sharing basis. Anything less dooms the relationship with the “non-custodial” parent from the start. I don’t want that for me, and I don’t want that for Mother either.
Joint legal and physical custody on an equal time-sharing basis is the closest thing to an intact family that our child can have. The best, if not the only sensible, way to encourage time between parents and child at a level consistent with all parties' interests is for both parents to have frequent, active, meaningful, and continuing access to each parent following separation and divorce. If the court can think of a better way to achieve this objective than joint legal and physical custody on an equal time-sharing basis, then it not only can, but should implement a different custody award; otherwise, joint legal and physical custody on an equal time-sharing basis is what the child and parents alike deserve.
As the attorney, I am waiting to see whether the court in this particular case will find this argument persuasive. If you are a betting man/woman, however, I wouldn’t count on the court granting this motion for the reasons articulated above. I welcome a counterpoint argument, I really do. I want to ensure my and my client's reasoning is not self-serving. The point is to bring some rational analysis to joint physical custody considerations.

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