David R. Hartwig, ESQ.
Attorney & Counselor At Law
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Statutory Joint Custody in Divorce and Paternity.

I've been reading quite a number of posts on various family law or divorce groups calling for state or federal statutory joint-legal custody mandate, containing provisions very similar to full equal time with the children for both parents. Those claims have been touted variously as: recognition of father's rights, equal protection under the law, fantastic steps forward, recognition that our divorce system is broken, and a panoply of cures for all that ails children in divorce.

I respectfully disagree. My opinion is that legislatures taking such steps will simply calcify generalized concepts of custody claiming to equalize and streamline the process, and also abandon the individuality of the participants and their children. These generalities will become so entrenched that it will almost become impossible to shield children from abuse, and neglect -- particularly the more insidious manifestations generally lumped under mental abuse. Instead, I still believe in the courts formulating particular and specific decisions that consider the actual abilities of the individual participants in light of the needs of the children, instead of a "one size fits all" approach.

Let us just say (particularly as I am still practicing in family law) that there appears to be some judicial inertia when it comes to making decisions that go outside of any statutory box -- making more custody decisions regarding the actual best interests of the children in light of the reality of their relationships with their parents and other people of importance in their lives. Stepping outside of that statutory box requires the judge to make very specific findings of fact and conclusions at law to justify any variance from the statutory scheme. That opens the judge up to having an appeal filed, which in turn subjects the judge to a formal declaration by a superior court that he erred, as a matter of law, in making his decision to step outside the box. And, judge's don't like to be publicly told they are wrong. Let's face it, would you like it?

So, that creates what I am calling judicial inertia in judicial decisions concerning custody, parent-time, and even financial issues such as child support. I have seen what our legislature terms the statutory minimum for parent-time become, through judicial inerta, the actual, day-to-day, standard for parent-time that is ordered. The minimum is the standard parent-time, see my page on custody!

I have also seen the inertia applied in an initial custody case by both the judge and the custody evaluator, a a high conflict case. So, the inertia spreads, and contaminates the potential expert who should state, with particular detail, exactly what the parenting abilities of the parties are, and exactly what the children actually need -- the children's actual, and very real, needs and desires. From my perspective, it was simply easier for the court to fall back onto the content of the statutory box than rock the boat and have to actually make a decision supported by facts and observations.
Plus, at least in my jurisdiction, the statutes are not even clear about whether any preference for joint custody  is created. Our statute appears to say there is a preference, but then says no, the judge is not constrained in any way; and, case law says there is no preference.

But, it is clear in statute and case-law that this joint custody plan actually shifts the burden of proof away from the one asking for it to the one opposing it. Normally, the party seeking something, like joint custody (or even sole custody) has to present evidence and testimony to show the judge why he should rule that way. Not anymore. Now a parent can claim joint custody and the other party has to convince the judge to the contrary -- the parent asking for the joint custody doesn't have to prove anything. Plus, the parent opposing joint custody has to face the risk of ticking the judge off, an emotional and financial burden (as the judge could order attorney fees against the opposing parent, or even find that the opposing parent is "uncooperative" and therefor unfit to the a joint parent so the judge gives the other parent full custody). That is a very heavy burden for a parent to face when considering litigation; and, a boon for a manipulative parent to simply sit and insist on joint 50/50 custody even though such is not in the children's best interests.

Family law is not a mass-produced assembly-line undertaking. While many cases may be similar, each one is actually a very separate, and very real undertaking by parents concerned about their families, children, and ability to pursue a valuable life. The judicial system's obligation is to hear each and every claim, allegation, and concern of the parties, not simply force each case into a one-size-fits-all decree. Our children deserve to be treated as individuals, not forced to fit into a cookie-cutter.

Just one attorney's opinion.

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