On October 31, 2024, the Utah Court of Appeals issued it opinion in the case of Lerman v. Lerman (2024 UT App 155). It is a decision Utah sorely needed for how to treat evidence of domestic violence in the context of making child custody and parent-time awards.
The Utah Code requires trial courts to consider “evidence of domestic violence” when making custody and parent-time determinations. Indeed, the general “rebuttable presumption that joint legal custody . . . is in the best interest of the child,” does not apply in cases in which there is “evidence of domestic violence”.
In Lerman, the trial court awarded Husband and Wife joint legal and joint physical custody of their child. Wife asserted on appeal that the trial court did not properly weigh the custody factors in awarding joint legal and physical custody of the parties’ children, most notably evidence that Husband committed domestic violence. The Court of Appeals rejected Wife’s assertions and affirmed the trial court’s joint legal and joint physical custody order—as well it should have. There are two main reasons why:
1) While a court may not ignore, or completely discount, evidence of domestic violence committed by a parent merely because that violence was not visited upon the child or committed in the child’s presence, neither must a court deny a request for a joint legal and/or physical custody award merely because allegations of domestic violence are made.
2) the deferential standard of review that is applicable in this context, and the reason for it: “the unfortunately quite common occurrence, in family law cases, for (at least) one parent to level domestic violence allegations against the other.” (emphasis mine) (Id. at ¶30) While such allegations should be taken seriously and analyzed fully, trial courts necessarily grapple with whether such allegations are sincere or feigned to gain advantage in litigation. Trial courts are in a far better position to make that determination than appellate courts (and need to do a much better job of it to warrant being entrusted with the broad deferential standard).
The trial court analyzed Wife’s evidence of domestic violence thoroughly, noting that the parties had agreed upon a joint physical custody arrangement, that this arrangement had been working well since it had been implemented, that subsequent to the domestic violence occurrences both parents appeared able to co-parent and communicate for the benefit of their child, that despite the allegations of abuse, and that Wife was willing to put the needs of the child before hers and be able to communicate with Husband as necessary about the child. Indeed, the court found that “[n]o issues were presented during trial as to any major conflicts” and that “there [did] not appear to be any issues or concerns when it comes to the past and present ability of both parties to cooperate and make decisions jointly.” And the court found that both parties had “the maturity and willingness and ability to protect [Child] from conflicts that arise between them.” The court also found no “evidence or any concerns” about either party’s “past conduct and demonstrated moral conduct.” (Lerman v. Lerman, 2024 UT App 155 at ¶28). Thus, the fact that the violence occurred outside the presence of the child may nevertheless be relevant to the court’s overall assessment of the custody and/or parent-time analysis. (Lerman at ¶29)
Applying the deferential standard of review, the Court of Appeals found that the trial court did exactly what was required: it considered Wife’s evidence of domestic violence and sufficiently explained why, notwithstanding that evidence, it found a joint custody arrangement to be in the child’s best interest. Trial court did not abuse its discretion, so Wife’s arguments to the contrary were rejected. (Id. at ¶31)
The Court of Appeals did the right thing by doing the reasonable thing, instead of “erring on the side of caution” as too many judges do when faced with the Lerman scenario at trial.
Utah Family Law, LC | divorceutah.com | 801-466-9277
