A single mistake shouldn’t cost a parent his or her relationship with his/her child. Yet too often, family courts award sole custody based on isolated incidents or “aberrant behavior” that doesn’t truly reflect the parent’s behavior or character and that doesn’t threaten a child’s welfare.
Sole custody awards made on speculative grounds and/or in haste are essentially and effectively a partial termination of parental rights. Worse, they are essentially a partial termination of the children’s rights to the care, companionship, and love of that parent as well.
The Problem with Knee-Jerk Reactions
When judges make hasty sole or even primary custody decisions based on scanty, equivocal and/or speculative concerns, they’re essentially terminating parental rights—and the child’s right to maintain a relationship with both parents to the fullest extent reasonably possible. This approach uses a cleaver where a scalpel would suffice.
The irony is stark: many judges have made personal mistakes they wouldn’t consider grounds for losing access to their own children. Yet they’ll cite (and embellish) similar behavior as justification for severing another parent’s relationship with their child. This often stems not from genuine concern for the child’s welfare, but from fear of appearing incompetent or politically incorrect.
Greater Custodial Rights Protections Exist for Parental Rights Termination Cases
Utah provides stronger safeguards for parental rights in termination proceedings than in divorce custody disputes. This creates a troubling inconsistency. Utah Code § 80-4-104 recognizes and establishes crucial principles that should guide all custody decisions:
· Fundamental Rights: Parents possess a fundamental liberty interest in caring for their children under both state and federal constitutions. Family separation should only occur for compelling reasons.
· Heightened Protection: Government interference with parental rights requires substantial evidence and heightened constitutional protection.
· Imperfection Isn’t Disqualifying: A parent’s fundamental rights don’t disappear simply because they “fail to be a model parent.”
· A Substantive Best Interest Standard: Children benefit from being raised by their natural parents, and family integrity deserves constitutional protection.
The statute emphasizes several key and critical principles courts should follow in child custody and parent-time disputes:
- Least Restrictive Means: Government intervention should use the minimum necessary approach to address legitimate concerns.
- Presumption Adverse Custodial Interests: Courts shouldn’t assume parents and children are adversaries when it comes to child custody—it need not be presumed to be a zero-sum or near zero-sum game. “The best parent” can be—and usually is—both parents.
- Preservation Over Severance: The state’s interest lies in strengthening family relationships to the greatest extent possible, not breaking them apart.
- Primary Parental Role: Parents have the fundamental right to control their child’s upbringing, with the state playing only a supportive role at most.
A Better Approach
Rather than rushing to sole custody arrangements, courts should:
- Focus on actual harm to the child, not speculative and/or exaggerated fears
- Apply constitutional protections for parental custodial rights
- Consider less restrictive alternatives that preserve the parent-child relationship with both parents as much as reasonably possible. Expediency should be the least of the court’s concerns.
- Remember that children benefit from relationships with both parents as much as reasonably possible. The test cannot be “how little time can the kids have with this parent before it’s a problem?”
Courts must do a much better, much more thoughtful balancing legitimate child welfare concerns with the fundamental rights of both parents and children to maintain their family bonds. When we protect and foster parental rights appropriately, we ultimately foster and protect the best interest of the children.
Utah Family Law, LC | divorceutah.com | 801-466-9277
