A fit parent is awarded equal custody of two teenagers. Nothing in the record suggests that parent is dangerous, neglectful, or unfit—the court has already said so. A few months in, the kids stop showing up for their scheduled time with that parent. Not because a court found a reason for that outcome, but because the kids decided not to comply, and the parent who has them the rest of the time hasn’t done much to change that.
Now watch what happens next. The noncompliant parent doesn’t get held to the schedule the court ordered. That parent gets to argue, eventually, that the schedule should change to match what the children are already doing—and that they should be paid more in child support for the privilege. The fit parent, meanwhile, is expected to accept that this is just how it goes when kids “have a mind of their own.”
That outcome should bother you regardless of which side of a case you’re on, because it isn’t really a custody rule. It’s a rule that: 1) whoever controls a child’s noncompliance (or at least avoids responsibility for it) gets to profit from it; and 2) courts punish fit and innocent parents by perversely labeling these outcomes “in the best interest of the child.”
Before going further, it’s worth naming the honest version of the counterargument, because it exists and it isn’t cynical. A parent’s fitness finding is a snapshot, not a permanent seal of approval. Conduct that damages a teenager’s relationship with a parent—subtle undermining, a household a teenager genuinely doesn’t want to be in, something the original custody evaluation never captured—can develop after the decree without ever being litigated as its own issue. Not every instance of a child refusing time with a parent is manufactured. Some of it is earned. A framework that can’t tell those two situations apart isn’t a fix; it’s just a different way of getting it wrong. The proposal below is built around that distinction: it targets a judicial finding of non-facilitation, not a blanket presumption against whichever parent has the child less.
The Appeasement Instinct
Family courts are not neutral referees standing outside the incentive structure they create—they’re inside it, and they respond to incentives too. A commissioner or judge facing a full docket has every institutional reason to prefer the ruling that generates the least friction today over the ruling that’s actually correct. A sole-custody arrangement, however it got there, tends to break a parent’s spirit and quiet things down. The noncompliant side stops complaining. The case moves toward settlement. Everyone goes home.
The problem is that “quiet” and “correct” are not the same thing, and a system that consistently prefers quiet will consistently produce outcomes that reward whoever is best positioned to make noise—or, just as effectively, whoever is best positioned to let someone else make noise on their behalf. When a co-parent tells the court “I’ve encouraged them, but I can’t force teenagers to do anything,” and the court accepts that as a complete answer without asking what specifically was tried, the court hasn’t found a fact. It’s taken the path that ends the hearing soonest.
The Hothouse Flower Fallacy
There’s a real category of children who need courts to protect them from certain consequences—children who are too young to bear them, children facing actual danger, children whose noncompliance reflects something a parent did to them rather than something they’re choosing. Utah law rightly treats that category with enormous care, and it should.
But somewhere in family law practice, that legitimate protective instinct mutated into something broader and less defensible: the assumption that any consequence flowing from a child’s own choices is inherently a form of harm the court must prevent, regardless of the child’s age, regardless of whether a fit parent is on the other end of that choice, and regardless of who benefits from the child’s noncompliance continuing.
Teenagers are not toddlers. Utah law itself recognizes this—under Utah Code § 81-9-204(5)(b), the desires of a minor child who is 14 or older can be given added weight in a custody determination, though they are never the single controlling factor. You cannot simultaneously tell a court that a fourteen-year-old is mature enough for his or her stated preference to carry real weight, and that the same fourteen-year-old is too fragile to experience any consequence for defying a lawful court order. Those two positions can’t both be true. Either the child is an agent whose views matter, or the child is someone whose choices don’t yet carry consequences—pick one, because family law currently wants it both ways depending on which answer is more convenient in the moment.
Treating teenagers as hothouse flowers who must be shielded from every consequence of their own conduct doesn’t protect them. It teaches them that defiance of a lawful order is cost-free—a lesson that will serve them badly well after the custody and support case is decided.
The Money Problem
Utah’s child support framework ties dollars directly to overnights. A parent going from fifty percent of the time to something closer to zero isn’t just losing a relationship—the other parent is gaining a child support increase. That’s not a hypothetical incentive. It’s built into the calculation.
When a co-parent stands to benefit financially from the other parent’s time evaporating, and the mechanism for that evaporation is the children’s own noncompliance rather than anything a parent visibly did, courts need to stop treating the resulting overnight count as a neutral fact to be plugged into a formula. It isn’t neutral. It’s the output of a perverse incentive structure, and pretending otherwise is how family law ends up subsidizing the exact behavior its best-interest standard is supposed to discourage.
Utah Code § 81-9-204 already requires courts to weigh which parent is more likely to foster the child’s relationship with the other parent. That factor is meaningless if a support order calculated on actual, unfacilitated overnights can override it in practice. A court can say all the right things about fostering relationships and still produce an order that pays the parent who isn’t doing so.
“Reasoned Preference” Has to Mean Something
Utah courts weigh an intelligent, mature child’s preference under § 81-9-204(5)(b)—but the statute itself builds in a check: the child’s desires may get added weight, not controlling weight, precisely because a preference isn’t automatically reliable just because a fourteen-year-old holds it. A preference produced by one parent’s ongoing, unaddressed narrative about the other parent is not the product of the child’s own reasoning; it’s an echo. Courts that credit a stated preference without asking where it came from, and whether its bases are both credible and actually in the child’s interest, are skipping the real inquiry in favor of a shortcut that looks analytical without being analytical.
This is exactly the kind of question a court should be running down. A preference that hasn’t been tested for its origin and substance isn’t evidence of the child’s best interest. It’s evidence of whoever and whatever shaped it.
What Actually Fixes This—Without Touching the Kids
None of this requires courts to get gratuitously harsh with children. The fix isn’t aimed at kids at all. It’s aimed at realigning the adult incentives that make a child’s noncompliance profitable for one parent and costly for the other.
Impute the ordered timeshare for support purposes once a court makes an actual finding that the deviation from the ordered schedule is attributable to a parent’s failure to facilitate, rather than to the other parent’s fitness or conduct. Utah Code § 81-6-202(6) already lets a court rebut the guideline calculation and set support after considering “all relevant factors” once it finds sufficient evidence to do so—a documented pattern of non-facilitation should qualify as exactly that kind of evidence. This removes the ill-gotten financial upside without anyone touching a child’s dinner plate, and it does it through a mechanism the statute already provides, not a novel equitable power.
Treat a co-parent’s failure to use ordinary parental tools—not a failure to physically compel compliance, but a failure to use phones, cars, activities, and privileges the way any parent would to enforce household rules—as the relevant inquiry, rather than accepting “I can’t force a teenager” as a complete defense. Nobody is asking a parent to drag a child out the door and push them onto the curb. They’re being asked to parent responsibly, which often means imposing discipline and tough love.
Recognize that a co-parent’s own passive non-facilitation can constitute a material change in circumstances under Utah Code § 81-9-208. The Utah Court of Appeals held in Widdison v. Widdison, 2022 UT App 46, that a custodial parent’s unilateral severing of a child’s relationship with the other parent can support modification—and that was a case of affirmative interference, not passive drift. The logic should extend to sustained non-facilitation, but it’s worth being honest about the gap: Widdison involved active conduct, and a court asked to apply its reasoning to passive failure will expect the moving party to show the same thing—a documented, sustained pattern, not an isolated missed exchange—before treating it as functionally equivalent.
Stop treating “the child won’t cooperate” as the end of the analysis rather than the beginning of it. The questions a court should be asking aren’t whether a child is currently complying. They’re why the child stopped, who benefits from that, and what the parent has actually done about it—not what they’ve said about it. Ask whether the rejected and abandoned parent brought those circumstances upon himself.
The Real Cost of Getting This Wrong
There’s an old principle in equity that predates any of Utah’s family law statutes: a party should not be permitted to profit from her own wrong. It shows up across legal doctrine in different forms because it reflects something courts have understood for a long time—a rule that rewards whoever benefits from a bad outcome will, predictably, produce more of that outcome. Custody law is not exempt from that logic just because the “wrong” in question is a parent’s inaction rather than action, and the beneficiary of that inaction happens to be a child rather than an adult.
That principle applies with even more force at the harder end of the spectrum. A parent who simply does nothing to encourage compliance is one problem. A parent who is actively working to turn the child against the other—undermining the other parent’s authority in small ways, recasting ordinary discipline as mistreatment, rewarding the child’s refusal with extra warmth and closeness—while presenting a cooperative, hands-off face to the court, is a different and more serious one. That behavior is hard to catch precisely because it’s built to be. The alienating parent never has to say a word against the other parent in a filing or an interview; the child says it for them, and the parent gets to look like a bystander to a dynamic they engineered. A court that can’t tell a parent who tried and failed from a parent who succeeded at not looking like they tried is exactly the court this strategy is built to exploit—and it’s why the inquiry into what a parent actually did has to include a hard look at what they may have been doing quietly in the other direction.
Courts that keep treating a defiant child’s noncompliance as an act of nature—something that simply happens, with no adult author and no adult incentive behind it—will keep getting more of it, from more children, in more cases. Not because teenagers are inherently unmanageable, but because the system has quietly told every co-parent watching that noncompliance, if you can get it to stick, pays. Fixing that doesn’t require being hard on kids. It requires being honest about who’s actually driving—whether that parent is failing to act, or working hard, and quietly, to make sure the child never does.
Utah Family Law, LC | divorceutah.com | 801-466-9277