There is a basic principle at the heart of equity: where there is a legal wrong, there should be a remedy.
But the inverse matters just as much: where there is no wrong, there should be no remedy.
Family courts too often forget that second principle. In the name of caution, convenience, or conflict reduction, courts sometimes impose orders not because a party has proven an actual legal injury, but because the requested order seems harmless enough at least, or a “prudent measure” at most. That is a mistake. It is not harmless or prudent. It’s wrong. It rewards manufactured grievances, ignores good behavior, and teaches manipulative litigants that litigation can be used as leverage even when no real problem exists.
This is especially common in child custody disputes, where one parent voluntarily extends courtesies or accommodations to the other parent (more contact with children than the court-ordered schedule provides, flexible exchanges, occasional schedule adjustments) only to find those voluntary acts repackaged as evidence that the court should impose a new compulsory obligation.
A parent should not be punished for being cooperative. Voluntary goodwill should not become a litigation trap. And courts should not convert informal cooperation into mandatory relief unless the moving party proves an actual legal problem requiring a legal remedy.
The Manufactured Grievance
Consider a simple example. A noncustodial parent is already receiving regular virtual parent-time by agreement or informal cooperation. The custodial parent is not denying contact. The child is not being cut off. There is no evidence that the arrangement is unstable, abusive, manipulative, or contrary to the child’s best interest. Yet the noncustodial parent files a motion demanding a court order for the very thing he/she is already receiving.
That may look modest on the surface. It may even sound reasonable. “If the calls are already happening,” the argument goes, “what is the harm in reducing that to a court order?” The harm is that the court has just granted a remedy without requiring proof of a wrong.
Of course, there are situations where formalizing an arrangement is appropriate. If one parent is inconsistently permitting contact, using child access as leverage, creating uncertainty, or denying reasonable communication, then court intervention may be justified. Family courts exist to resolve actual disputes, including disputes over parent-time, communication, and compliance with existing orders.
But where the evidence shows that the requested accommodation is already being provided voluntarily and consistently, the moving party should have to explain what legal injury exists. Wanting more certainty is not, by itself, proof of any wrong. Wanting leverage is not proof of a wrong. Wanting to convert the other parent’s flexibility into an enforceable entitlement is not proof of a wrong.
Courts should ask a simple threshold question: What specific legal problem requires this specific legal remedy? If the moving party cannot answer that question with sufficient credible evidence, the motion not merely should fail, it must.
The Exploitative Logic Behind These Motions
Bad-faith litigants understand something the system often refuses to acknowledge; litigation itself can be punishment.
A manipulative parent does not always need to win on the merits when abusing the process forces the innocent parent to capitulate. The other parent must respond, hire a lawyer, prepare affidavits/declarations, gather exhibits, attend hearings, and spend money defending against a problem that may not exist.
That pressure creates leverage. It encourages settlement. It extorts concessions. It rewards the party willing to manufacture conflict.
The tactic usually follows a predictable pattern.
First, a cooperative parent voluntarily provides an accommodation, courtesy, flexibility, reassurance, or information beyond what the existing order requires. The other parent then recasts that voluntary conduct as proof that the accommodation is necessary. The moving party claims uncertainty, injury, or fear of future denial, and asks the court to “just put it in the order.” But voluntary cooperation is not evidence of legal necessity. Treating it as such punishes decent conduct and discourages future cooperation.
Second, the moving party manufactures the claimed need for modification by exaggerating, mischaracterizing, withholding context, provoking conflict, or fabricating accusations. The moving party then offers the resulting controversy as the factual predicate for new restrictions, conditions, or obligations. That is not a material change in circumstances; it is bootstrapping. A party should not be permitted to create the alleged problem and then obtain judicial relief from the problem he or she created.
In both situations, the court should resist the temptation to convert convenience into compulsion. The question is not whether a new provision would be administratively easy to enter. The question is whether the moving party has proven a legitimate factual and legal basis for modification.
Courts find it all but irresistible to “just put it in the order” because doing so appears easier, even wiser, than denying relief. But when courts indulge that tactic, they send the wrong message.
They tell the cooperative parent: your flexibility can and will be used against you. They tell the manipulative parent: if you can turn goodwill into grievance, you can get new rights without proving a real violation. And they tell future litigants: if you want something, file something with the court (and lay it on thick, while you’re at it). Even if nothing is wrong.
This is how dockets get clogged with avoidable litigation. This is how families spend thousands of dollars fighting over issues that never required judicial intervention. And that is how family court becomes less available for families facing actual abuse, neglect, alienation, noncompliance, financial misconduct, and genuine legal emergencies. That is how family court loses credibility and authority.
The “Abundance of Caution” Problem
Family court judges and commissioners often justify unnecessary orders by invoking caution.
They may think: “If the parent is already allowing the calls, then ordering the calls does not really change anything.”
But it does change something.
A voluntary act is not the same as a court-ordered duty. A parent who voluntarily permits additional contact retains discretion, context, and flexibility. A parent subject to a court order faces the threat of contempt, enforcement motions, attorney fees, and future accusations of noncompliance. That distinction matters.
Courts should not treat “already doing it voluntarily” as a reason to impose a mandate. In many cases, it is a reason not to impose one. If a parent is already cooperating, and there is no evidence of denial or abuse, the court should be careful not to punish the very conduct it should encourage.
The better judicial response is not, “What is the harm?” The better response is, What is the legal basis for ordering relief when the requested conduct is already occurring and no violation has been proven?” That question protects both parents and protects the children too. It protects the cooperative parent from being punished for flexibility. It protects the moving parent by leaving open the possibility of relief if a real problem emerges. It protects the children from being exploited. And it protects the court system from becoming a tool for strategic escalation.
Family courts should be available for real legal injuries. They should not become insurance underwriters for hypothetical future conflict.
The Best Interest Standard Is Not a Blank Check
Whenever custody or parent-time is involved, someone will inevitably invoke the child’s best interest. That is appropriate. The child’s best interest matters. It is central to child custody disputes and parent-time decisions.
But “best interest” is not a blank check. It is not a license for courts to ignore procedure, invent remedies, or reward bad-faith litigation. It does not eliminate the need for evidence. It does not allow a court to bypass the standards governing clarification, modification, enforcement, or sanctions.
A court can care deeply about children while still requiring parents to prove their claims. In fact, that is exactly what courts should do.
Children are not helped when courts reward manufactured conflict or try to preempt imagined conflict. They are not helped when a cooperative parent learns that flexibility is dangerous. They are not helped when one parent discovers that litigation is an effective way to extract concessions. And they are not helped when family resources are drained by avoidable legal fights.
A sound best-interest analysis should consider not only the immediate request, but also the incentive structure the ruling creates. Does the ruling reward cooperation or punish it? Does it resolve a real problem or validate a fictional one? Does it reduce conflict or teach a parent that conflict works? Those questions belong in the analysis.
The Judicial Savior Complex
Family court has a difficult job. Judges and commissioners see families in crisis. They see pain, fear, resentment, and dysfunction. It is understandable that they may want to smooth things over, reduce friction, and craft practical solutions.
But there are limits to the judicial role. The court is not a family therapist. It is not a parenting coach. It is not a concierge conflict-resolution service. It is not clairvoyant. And it is not authorized to micromanage every imperfect family dynamic simply because doing so might feel helpful.
The court’s job is to decide actual legal disputes based on evidence, law, and the governing standards.
That does not mean courts should be cold or indifferent. It means they should be disciplined. Compassion is not the same as overreach. Prudence is not the same as passivity. And a desire to reduce conflict does not justify granting relief where no legal wrong has been shown.
When judges depart from the role of neutral arbiter and begin engineering outcomes based on vibes, hunches, or generalized caution, impartiality suffers. The party with the better evidence may lose to the party with the more dramatic grievance. The parent who behaved reasonably may be penalized. The parent who manufactured urgency may be rewarded.
That is not equity. That is institutional drift.
A Better Approach
Family courts can address this problem without becoming rigid or indifferent. They simply need to enforce a disciplined threshold inquiry before granting relief.
When a party seeks clarification, modification, enforcement, or new parent-time provisions, the court should ask:
- What specific legal wrong is alleged? Is the alleged wrong an actual wrong?
- What evidence supports the claim that the wrong occurred?
- What legal standard governs the requested relief?
- Does the requested order remedy an actual problem, or merely seek to convert a voluntary accommodation into a compulsory duty?
- Would granting relief reward cooperation and decency or punish them?
- Is the motion properly characterized, or is it a modification disguised as clarification?
- Are attorney fees or sanctions appropriate because the moving party manufactured the dispute or imposed unnecessary litigation costs?
These questions are not hostile. They are basic judicial hygiene. They separate real disputes from tactical ones. They protect children from needless escalation. They preserve court resources for families with genuine problems. And they discourage litigants from using the court system as a pressure tactic.
Accountability Requires Teeth
Bad-faith litigation will continue as long as it works.
If one parent can manufacture a grievance, force the other parent to spend thousands of dollars, obtain some concession, and face no meaningful consequence, then the rational incentive is to keep doing it.
That incentive must change. Courts should be more willing to award attorney fees when a party brings a motion without a reasonable factual or legal basis. They should dismiss disguised modification efforts at the earliest appropriate stage. They should make clear findings when a party has abused the clarification process. And in appropriate cases, they should impose sanctions sufficient to deter repetition.
The point is not to punish legitimate claims. The point is to protect legitimate claims by clearing away the junk.
Families dealing with real danger, real denial of parent-time, real alienation, real neglect, real financial misconduct, and real noncompliance need access to the courts. They should not have to wait behind litigants who have learned to turn ordinary cooperation into courtroom leverage.
No Wrong, No Remedy
Family courts should encourage genuine cooperation, not punish it. They should reward parents who solve problems informally, not teach them that every voluntary accommodation may later be weaponized against them.
Family courts should require the requisite level of evidence before granting requested relief. They should recognize that “best interest” does not mean “whatever order seems harmless enough.” And above all, they should remember that remedies exist to redress wrongs. Where there is a real wrong, courts should act. Where there is no wrong, courts should have the discipline to say no.
Utah Family Law, LC | divorceutah.com | 801-466-9277