In Utah, as in other states, courts deciding child custody and parent-time disputes are charged with applying the “best interests of the child” standard. That standard is necessary, but it has become a blank check for judicial social engineering. Too often, some courts indulge the temptation to—try to—craft idealized family relationships by judicial fiat rather than confining themselves to their legal and pragmatic limits. The result is predictable—parents are held to impossible or arbitrary standards of perfection, constitutional rights are infringed, overreaching court orders foster more conflict, and children are either not helped or even harmed by judicial overreach cloaked as protection.
Children who are sufficiently (yes, sufficiently, not certainly, not absolutely) safe, fed, clothed, educated, and loved by fit (fit, not perfect) parents do not need a litany of court orders to guide and control them.
The Problem of Judicial Social Engineering Efforts
Inflated Standards of Parental Fitness
Utah law presumes that parents are fit unless proven otherwise.[1] The Utah Supreme Court has long recognized the “fundamental liberty interest of a parent in the care, custody, and management of his or her child” (In re J.P., 648 P.2d 1364, 1372 (Utah 1982)). This mirrors the United States Supreme Court’s holding in Troxel v. Granville, 530 U.S. 57 (2000), that parental rights are fundamental.
If a parent is not neglecting or abusing a child, that parent is fit. To rank one parent as “more fit” based on subjective decorum is to unconstitutionally favor taste over rights.
Yet in child custody disputes between parents, Utah courts often define—and hold parents to—an idealized standard of parental fitness.
Orders frequently include restraints that go far beyond preventing abuse or neglect. Parents are prohibited from using “disrespectful tone” in their communications or even barred from speaking to their children about the divorce itself, leaving children confused and feeling their questions and concerns are disregarded. Parents are told they must “get along” or “set a good example,” as if the court could or should legislate civility as part of minimal standards of parental fitness. Court in child custody disputes often create expectations for parents that are higher—often much higher—than those to which society (and the law) holds married parents.
Micromanagement and Lifestyle Policing
Courts also overregulate logistics. They dictate exchange locations down to the curbside, or regulate lifestyle choices—religion, diet, schooling—without a factual or rational basis. Orders have regulated lawful behaviors such as dating after divorce, alcohol use, or homeschooling, even when no evidence shows any of those activities/behaviors take place and/or harm the child. These intrusions replace the statutory presumption of joint legal custody (Utah Code § 81-6-302) with subjective judicial preference imposed as the law.
Compelled Therapy Is Not A No-Brainer
One of the most troubling trends is the judicial reliance on court-ordered therapy as a panacea. Courts frequently order children into “reunification” therapy or mandate that parents under counseling without findings of unfitness. The assumption is that therapy is inherently effective and benign. But therapy is not hard science; it is often subjective, trend-driven, and susceptible to manipulation by vindictive litigants. And therapy isn’t free. Yet many courts treat it as fail-safe, as a “it can’t hurt” afterthought, or as a cynical way of appearing to take sensitive and comprehensive approach to child welfare.
There are ethical concerns as well. Forcing citizens into therapy they do not want is a profound intrusion on autonomy. Worse, compelling children into therapy with a parent they distrust is the psychological equivalent of a reeducation camp—or worse. You can lead a horse to water, but you cannot make it drink; likewise, no decree can manufacture reconciliation where distrust (and that pesky right to one’s own feelings) runs deep. Instead of healing, forced therapy deepens resentment and discredits the legal system itself.
The Cost of Overreach
These practices, while well-intentioned, corrode the integrity of child custody proceedings. They burden parents with unrealistic expectations, leave children feeling unheard, and foster mistrust and eventual distrust of the judiciary. The law does not entitle children to perfect parents or to a conflict-free family; it entitles them to care from parents who meet the constitutional—and minimal—standards of fitness.
Correcting Course
A return to first principles is key and necessary. Utah law already supplies a workable (though overly complex) statutory parental fitness standard, and judicial discretion must be surgically exercised within that framework, not beyond it. To that end:
· Courts should limit restrictions on speech or communication to cases where actual harm[2] is shown.
· Orders should avoid regulating lawful lifestyle choices (even the unpopular ones) absent compelling evidence.
· Therapy should be treated as one option, not a judicial reflex, and only ordered upon evidence that it is needed, not merely “helpful”.
· Findings must be detailed, statutory, and evidence-based, not impressionistic or based upon subjective matters of personal taste.
Such restraint is not abdication of judicial responsibility; it is fidelity to boundaries set by the state and federal constitutions and by the fundamental human rights underlying them.
Legislative Restraint
The Legislature can strengthen fairness by:
· Clarifying that both joint legal and joint physical custody are the presumptive baseline, rebuttable only by clear and convincing evidence.
· Requiring commendably detailed written findings tied explicitly to statutory factors for any restriction on speech, therapy mandates, lifestyle, or any other right or freedom.
· Limiting the duration of intrusive, burdensome, complicated orders.
· Acknowledging that parental imperfection, absent abuse or neglect, cannot be grounds for custody restrictions.
These measures would preserve judicial flexibility while reducing the scope of and opportunity for social engineering.
The Litigants and the Attorneys
Attorneys and parents must also press courts to honor these limits.
Lawyers
· Attorneys and parents must press courts to honor the limits that both the Constitution and Utah statutes impose. It is not enough to tie a restriction loosely to a “best-interest factor.” That language is the very pretext courts use to justify intrusive, subjective, and even frivolous orders. Instead, advocates should insist that every restriction be not only statutorily grounded but constitutionally sound as well.
o That means two things. First, under Title 81, findings must be linked to the enumerated factors and supported by clear evidence of actual harm or risk. Second, because custody restrictions impinge upon a parent’s fundamental rights, they must also withstand constitutional scrutiny: they must serve a compelling interest (the child’s protection from abuse or neglect) and be narrowly tailored to that purpose. These standards are not in conflict—they reinforce one another. Both demand evidence, precision, and restraint.
o When attorneys frame objections this way, they prevent the court from cloaking overreach in vague “best interest” rhetoric. The judge must show not only which statutory factor is implicated but also why the restriction is necessary, evidence-based, and no broader than required to protect the child from real—not imagined—harm. That discipline protects parents and children alike from judicial excess.
· Preserve objections on constitutional grounds, citing In re J.P., Troxel, and related precedent when orders exceed lawful authority.
· Offer concrete evidence to counter lifestyle policing—for example, showing that lawful religious practice, moderate alcohol use, controversial opinions, or candid parent-child conversations are neither inherently harmful nor necessitate regulation or infringement.
· Propose narrower remedies that address actual problems (e.g., staggered exchanges to reduce conflict rather than micromanaged scripts (“the receiving parent shall touch his/her vehicle at times during the exchange” and “the parties shall not speak to each other or make eye contact”).
Parents, too, need to know that they need not be perfect to be fit. Courts may attempt to elevate one fit parent over another by subjective measures or by rationalizing that “the more fit” of the two fit parents somehow justifies depriving parent and/or child of their familial rights (their rights!). The law demands restraint, fairness, and fidelity to principle. Utah’s children, and their parents, deserve nothing less.
In Utah, as elsewhere, some courts misapprehend their role. They are not called to fix broken families or to construct ideal families. They are called to protect children from genuine harm while respecting parental rights and the rights of children to be reared by fit parents as much as possible. Parental fitness is not perfection. No matter how carefully a decree is drafted, it will never substitute for the judgment, the immediacy, and the responsiveness of fit parents—even parents who are separated. Parents, not judges, are best equipped to regulate and meet the needs of their children. To believe otherwise is arrogance.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] See also Utah Code § 80-4-104 (Judicial process for termination–Parent unfit or incompetent–Best interest of child). Although this part of the Code deals with the termination of parental rights, its preamble reads, in pertinent part:
(1) Under both the United States Constitution and the constitution of this state, a parent possesses a fundamental liberty interest in the care, custody, and management of the parent’s child.
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(3) . . . any actions or allegations made in opposition to the rights and desires of a parent regarding the parent’s child are supported by sufficient evidence to satisfy a parent’s constitutional entitlement to heightened protection against government interference with the parent’s fundamental rights and liberty interests.
(4)(a) The fundamental liberty interest of a parent concerning the care, custody, and management of the parent’s child is recognized, protected, and does not cease to exist simply because: (i) a parent may fail to be a model parent[.]
[2] A word on harm in the child custody dispute context.
This is one of the most common judicial evasions: when pressed on overreach, courts often respond with something along the lines of “best interests does not mean merely protecting from harm; it means promoting the child’s overall welfare.” That line is then used to justify virtually any order, no matter how trivial, subjective, or invasive. This is patently wrong.
Constitutional baseline. The U.S. Supreme Court (Troxel v. Granville) and the Utah Supreme Court (In re J.P.) recognize that parents’ rights are fundamental. The state can intrude only where harm, abuse, or neglect is shown. “Overall welfare” cannot erase that constitutional floor.
1. Statutory discipline. Title 81 provides specific best-interest factors. Those factors do not give carte blanche for a judge’s subjective preferences. They must be applied in a way that harmonizes with the constitutional rule: protecting children from harm while respecting parental autonomy.
2. Logical refutation. Of course “best interests” is broader than bare survival. But that does not mean judges may redefine it however they wish. The standard must be tethered to evidence of actual risk, not speculation, not the judge’s aspirations for a child, and orders must be narrowly tailored to address that risk.
3. Practical framing. To say “best interest means more than harm prevention” is correct in the abstract (children should thrive, not just survive), but in practice it has become a license for courts to elevate subjective taste over law. The corrective is not to reduce “best interests” to harm-avoidance, but to harmonize it with constitutional protections: no intrusion without evidence, no restriction beyond what is necessary, and no substitution of judicial preference for parental autonomy and judgment.