If a parent is awarded sole legal custody of a child, does that award not carry with it an implicit obligation to exercise that sole legal custody power in good faith and to subserve the best interest of the child? And if so, if a sole legal custodian abuses that power, does that constitute contempt of court?
What do you think would happen in a hypothetical scenario like this (and this scenario—and ones similar to it—arises in Utah divorces regularly)?:
· Mother is awarded sole legal custody of the child.
· Both parents adhere to the same religious faith (in this case, the parents are members of the Church of Jesus Christ of Latter-day Saints (“LDS”)).
· Both parents desire for the child to be baptized when the child reaches the age of baptism (i.e., 8 years of age).
· Baptism is the formal process by which one becomes a member of the LDS church.
· The parties’ child is a boy. If a male child is not first baptized in LDS church, then he cannot be ordained to future church offices, such as deacon, teacher, priest, and elder.
· Not being baptized when one reaches the age of baptism also carries social stigma in the church (i.e., “if you weren’t baptized at 8 years old, you must have done something wrong and been unworthy”), especially for young children. Children want to be baptized and advance in the church with their peers and friends in the same age group.
· The child in question is now or will soon be 8 years of age.
· The LDS church’s policy is that fathers who are deemed worthy by ecclesiastical leaders to baptize are to baptize their own children.
· Father has been deemed worthy by ecclesiastical leaders to baptize the parties’ son.
· In the LDS church, the child gets to choose whether to be baptized and who will baptize him (he cannot be forced to be baptized against his will and cannot be forced to have someone baptize him unless he agrees to that).
· Child desires to be baptized by his father.
· Father desires to baptize the child.
· Father has asked Mother, who is the sole legal custodian, to permit him to baptize their son.
· Mother either articulates no reasons why father should not baptize child the or the “reasons” she gives for denying father the opportunity to baptize the child are clearly lame.
· There is no court order that specifically addresses the matter of baptism of the parties’ children.
Is mother’s bald refusal to permit the father to baptize their son an abuse of mother’s sole legal custody power? If so, is this contempt of court?
In my professional opinion, having sole legal custody carries a duty to exercise that power in good faith, the child’s best interests and not arbitrarily or capriciously. But in researching this question, I was surprised to learn that it may not be a “slam dunk” argument for contempt of court. In fact, it may not even rise to the level of contempt at all. Merely proving a sole legal custodial parent’s “abuse” of that power is not automatically contempt of court. Contempt generally requires a willful violation of a clear, specific court order, and some argue that unless there was a clear, specific order that permits Dad to baptize his son or a specific order that “legal custody power cannot be abused” or the like, denying the father and child’s wishes in this scenario cannot constitute contempt of court.
Consequently, the remedy for a general abuse of legal custody power appear to me to consist of petitioning to modify the legal custody award to address and cure the abuse of power problem. Petitioning to modify the legal custody award, however, is much more difficult, time-consuming, and expensive than seeking and obtaining contempt sanctions. Don’t let that happen to you.
If you are in the midst of a divorce case and you have either not settled or gone to trial yet, plan for the future while you still have the opportunity.
Practical drafting guidelines (to make contempt sanctions available in the event that a parent abuses the sole or even the joint legal custody award)
Make sure the legal custody award order has “legal custody abuse prevention” provisions. Include in the award:
1. an explicit good faith duty for all decision-making;
2. an explicit duty that the exercise of the legal custody power cannot be arbitrary and capricious;
3. an explicit duty to make decisions that subserve the best interest of the child;
4. an explicit duty:
- to provide sufficient advance notice of a decision; and
- to cite the factual bases for a decision and to articulate clearly and particularly the rationale for the decision; and
5. clear sanctions/fees for willful violations.
Doing so makes abuse of the legal custody decision-making power into sanctionable behavior without having to try to anticipate and identify every specific possible abuse of the legal custody power.
Utah Family Law, LC | divorceutah.com | 801-466-9277