Stephen Petro recently made a point that should be obvious, but in the heat of litigation, often isn’t: A “reasonable” answer is not the same thing as a correct one. A reasonable answer is just something that sounds plausible. It fits a narrative. It “feels” right. But an evidence-based answer is something you can actually point to—in the record, in the data, or in the real world.
In divorce and family law, this distinction is blurred constantly. When evidence is thin, the system has a habit of papering over the cracks with two familiar phrases:
- “The court has broad discretion.”
- “The court determines credibility.”
Both are true. Both are also frequently used as to justify and shield decisions that are grounded in intuition rather than proof.
The Core Problem: Narratives vs. Facts
A plausible account satisfies logic; an evidentiary account satisfies proof. A plausible story can be made to fit the facts; evidence determines which facts actually exist.
In too many cases (especially though not exclusively in child custody and parent-time disputes) courts often accept narratives that “make sense” or “that look/sound right” without demanding proof they are actually true. Once that kind of judge or commissioner finds a story plausible, confirmation bias sets in. Every subsequent fact is filtered through that story, and the narrative is then elevated into a “finding”; at that point, it becomes nearly impossible to challenge on appeal.
That is the “plausibility trap.” If a story sounds like something a “controlling” or “unstable” person would do, a court often stops looking for evidence that the person actually did it.
What “Broad Discretion” Actually Means
You’ll hear it constantly: “The trial court has broad discretion.” But “broad” does not mean “boundless.”
Discretion is not a license to guess. It is a framework for making a choice among legally permissible outcomes based on established facts. If the findings of fact aren’t tethered to the record, calling the result an “exercise of discretion” is a legal error. Discretion operates on evidence, not as a substitute for it.
The “Credibility” Move—and Its Limits
The second line of defense is: “The court determines credibility.”
A court is allowed to believe one witness over another or reject even uncontested testimony. But it cannot do so arbitrarily. Under Utah law, a credibility determination must have a rational, articulated basis in the record. A court cannot simply decide that one version of events “feels more right” and call that a credibility finding. It must explain why—based on specific inconsistencies, documentation, or the lack thereof. Without an explanation, “credibility” is just a placeholder for judicial intuition.
Done Right: Nelson v. Nelson (2025)
If you want a clean example of how this is supposed to work, look at the recent Utah Court of Appeals case, Nelson v. Nelson, 2025 UT App 43.
The issue was whether $766,000 a husband received from his business was “income” or “loans.” The “loan” story was plausible—business owners use draw accounts all the time.
But the court didn’t stop at plausibility. It looked for evidence and found:
- Zero documentation of loan terms.
- No defined repayment structure.
- The “economic reality” that the husband worked 18-hour days for years for “no pay” if these were truly loans.
The court didn’t just say, “I don’t believe you.” It articulated why the story failed the evidence test. That is what discretion looks like when it is properly exercised.
Done Wrong: The Custody “Vibe” Check
Now compare that to what happens daily in custody disputes. A parent claims the other is “controlling,” “unstable,” and/or “emotionally harmful.” The story is built from a handful of out-of-context text messages. It hangs together. It feels “reasonable.”
The court finds the accusing parent “credible” and moves straight to restricting parent-time. What’s missing?
- Corroboration: Is there a third-party witness or record?
- Context: What happened in the texts before and after the one presented?
- Causation: Is there a reliable connection between the conduct and actual harm to the child or parent?
Instead of evidence, the court has a narrative. But because the narrative is plausible, it gets treated as fact. This effectively shifts the burden of proof, forcing the other parent to prove a negative, an almost impossible task.
Why This Keeps Happening
None of this is mysterious. There are predictable reasons courts and lawyers slide from evidence into plausibility:
- Time pressure. Temporary orders are often decided on thin records. Plausibility is faster than proof, and speed wins.
- Narrative bias. People prefer coherent stories to messy evidence. Judges are not immune to that. A clean explanation is easier to accept than a complicated record.
- “Better safe than sorry.” When allegations involve children, courts feel pressure to avoid risk. That instinct is understandable—and it often lowers the evidentiary bar. Plausible concern starts to stand in for proven harm. This is where clichés and stereotypes do real damage.
- Intermediaries. Custody evaluators, therapists, and guardians often present conclusions without fully exposing the underlying data. Their opinions get treated as evidence, even when the basis for those opinions isn’t tested or visible.
- Category collapse. Facts, inferences, and speculation get blended together. A finding that should read, “This might explain X,” ends up written as, “This is what happened.”
The Cost of Plausibility
This is not a technicality. In family law, the “plausibility trap” has devastating consequences:
- Procedural Inertia: A “plausible” story told at a 30-minute temporary hearing becomes the “status quo” for a year, often permanently altering a child’s relationship with a parent before a single piece of real evidence is ever admitted.
- Economic Guesswork: Support orders are disconnected from reality because income was “imputed” based on a plausible theory rather than a proven ability to earn.
The Discipline That Fixes This
The solution is a shift in discipline. We must stop asking, “Does this make sense?” and start asking, “Where is the evidence for this, specifically?”
Not: “It fits the situation.”
Not: “It explains the behavior.”
But: “What document, testimony, or data in the record proves or disproves this specific claim?”
If you cannot point to something concrete, you don’t have evidence. You have a theory. And in a court of law, a theory, no matter how plausible, is not enough.
The Only Question Worth Asking
“Broad discretion” is not a free pass. “Credibility” is not a blank check. Both require a foundation of actual evidence. As Petro suggests, the moment you stop asking if a story is reasonable and start asking where the evidence is, you become far harder to mislead.
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