In 2021, researchers at the University of Virginia published a study in Nature built around a Lego structure (Adams, Converse, Hales, and Klotz). Participants had to stabilize a platform so it could support a heavy brick. Each block they added cost ten cents. The cheapest fix was free: remove the one block that kept the platform from resting securely on the layer beneath it.
Most people added blocks. When the researchers reminded participants that removal was an option, more of them found the subtractive solution. The same pattern showed up across eight experiments. When people try to improve something, they look first for what to add, even when taking something away would work better.
Family law has this problem, and it deserves a subtractive audit.
How the system responds to problems
When family law hits a problem, it adds. Another required disclosure. Another factor for judges to weigh in child custody disputes. Another hearing, another form, another professional, another mandatory provision in the parenting plan. Another exception to the rule, and another set of findings the judge must make. More therapy, more counseling, more workshops.
Most of these additions can be defended on their own terms. More information can be useful. Judges should consider relevant facts. Procedural safeguards can protect litigants. The problem is accumulation. Dozens of individually defensible additions add up to a system that costs ordinary families tens of thousands of dollars and months or years of their lives, often with little to show for it.
So the question is not whether a rule or procedure can do some good; almost anything can, in some case. The question is whether the benefit justifies the cost it imposes on every family that has to pass through it.
The hard cases are real
A subtractive approach does not mean pretending hard cases are simple. Abuse, hidden assets, serious mental illness, addiction, and complicated business interests can require real investigation and careful judicial work. Those cases may justify complexity.
The audit’s job is to make complexity justify itself, case by case and rule by rule, instead of applying hard-case machinery to every case because hard cases exist.
Litigation surface area
Before asking how to resolve a dispute more efficiently, ask whether the legal system needs to recognize that dispute at all.
Family law turns an enormous number of ordinary disagreements into legally enforceable questions: schedules, exchanges, activities, vacations, phone calls, transportation, school decisions, medical decisions, communication methods. Some of these need a judge. Many do not. But once the law converts an issue into something a court can decide and enforce, it also creates something the parties can fight over.
Call that “litigation surface area.” The more legally significant questions a case contains, the more places conflict can attach. A vague standard creates a dispute over what it means. A new requirement creates a dispute over compliance. Another professional creates another opinion to accept, attack, or rebut. Another exception creates another factual question about whether it applies. A rule meant to resolve conflict can manufacture more of it.
Three places in Utah practice show how this works, though none of them is unique to Utah.
Parenting plans. A detailed plan feels protective. Utah’s statute requires each parent in a custody or parent-time case to file a proposed plan with the first pleading, Utah Code § 81-9-203(2)(a), and requires a residential schedule that covers holidays, family birthdays, vacations, and other special occasions, § 81-9-203(14). Failing to comply with a plan provision can result in a contempt finding, § 81-9-203(15)(b), and a motion alleging noncompliance with parent-time can carry attorney fees and costs, § 81-9-208(11). The vehicle is a Rule 7B motion. Every specific is an enforceable obligation, and every enforceable obligation is a potential motion. Some provisions solve a recurring, documented problem. Many solve a problem the parents never had and create one they now do. The audit question for each provision is simple: what specific recurring problem does this solve, and what happens when someone misses it by twenty minutes?
Courses and disclosures that attach to the category, not the case. Parents with minor children who file for divorce or temporary separation must complete a divorce orientation course, § 81-4-105(1)(a), and a mandatory parenting course, § 81-9-103. The requirement applies whether the parents are fighting over everything or have already agreed on everything. The statute itself contemplates evaluating whether the orientation course works. Financial disclosure follows the same pattern: Rule 26.1 requires a Financial Declaration with supporting documents from both parties within 14 days after the first answer, across the entire category of domestic relations actions. Utah R. Civ. P. 26.1(c). Each of these exists for a reason. The audit asks how much of that machinery a case needs when nothing in it is contested, and who has measured the answer.
Professionals. Guardians ad litem, custody evaluators, special masters, parent coordinators, and other neutrals can be indispensable in the right case. Utah law authorizes several of them: attorney GALs in district court custody matters, Utah Code §§ 78A-2-703, 78A-2-705; special masters for parenting disputes, Utah R. Civ. P. 53A; and a GAL when parents file inconsistent parenting plans, § 81-9-203(7), who may then file a third plan of their own. Each produces something that has to be accepted, attacked, supplemented, or rebutted. Appointing one when the parents agree on everything except a single narrow question adds cost and a new source of conflict. The question is not whether the professional can help. It is whether this case needs one and what it will cost the family to find out.
Custody and the problem with “best interest”
Custody law may be the clearest example. Utah’s statute directs courts to consider three mandatory matters, Utah Code § 81-9-204(3), and then lists seventeen discretionary factors, the last a catch-all, § 81-9-204(4)(a)–(q). A request for joint custody adds nine more, § 81-9-205(5)(a)–(i). Once all of that can change the outcome, rational litigants gather evidence about it, take discovery on it, put on testimony about it, and impeach the other side’s testimony about it. That costs attorney time, judicial time, expert fees, and emotional energy. It also gives each parent an incentive to recast ordinary differences as proof that the other parent deserves less.
Utah has already run a version of this experiment on legal custody. When the legislature first authorized joint legal custody in 1988, the statute conditioned it on the parents’ agreement. A court could order joint legal custody over one parent’s objection if it found that was in the child’s best interest. By 2003 the statute told courts to consider joint custody in every case. Whether to award it became a question to litigate in every case. H.B. 107 (2012) replaced that discretion with a rebuttable presumption of joint legal custody, now Utah Code § 81-9-205(2), which put the burden on the parent seeking something different. In my practice, fights over legal custody dropped sharply once the presumption took effect. The first change created the dispute, and the default took most of it away.[1]
Now consider physical custody. Utah already uses a harm-based standard for access: absent real harm or substantiated potential harm, each child benefits from frequent, meaningful, and continuing access to both parents, § 81-9-204(11). But the code disclaims any preference for or against joint physical custody, § 81-9-204(7)(b), and lets a court order the equal parent-time schedule only if it finds, among other things, that equal time serves the child’s best interest and each parent can effectively facilitate it, § 81-9-305(1)(a). Consider a simpler starting point: fit parents remain equal parents unless the evidence shows equality would harm the child. Under that approach, the court would not need to decide which parent is marginally better at homework, dental appointments, or dinner. Reducing the number of facts that can change the outcome reduces the number of facts worth fighting about.
A presumption like that does not make litigation disappear. It moves the fight to what rebuts the presumption, and a standard like “harm to the child” has its own surface area. The honest case for it is narrower than a promise of simplicity. It narrows the range of facts that matter, and it puts the burden on the parent who wants to depart from equality. The legal custody experience suggests the trade can be worth it. Whether it holds for physical custody is the kind of question an audit should answer with data, not instinct.
Reversing the presumption
Legal institutions tend to treat added process as responsible and subtraction as reckless, especially when someone else runs the process and the family pays for it. The working assumption is that more process means more fairness. It does not always. Every procedure consumes resources. Every discretionary factor makes outcomes less predictable. Every added issue expands what lawyers must investigate. Every requirement creates another chance for noncompliance and another potential motion. Every new layer also puts more distance between the case and the judge who is supposed to decide it.
Before adding complexity, we should ask what measurable problem it solves, how often it solves it, what it costs, and whether a simpler rule could capture most of the benefit. Do we need this filing? This hearing? This disclosure? Does this issue require an expert? Could a clear default rule accomplish most of what an elaborate discretionary inquiry does?
Family law has spent decades adding Lego pieces. Some are load-bearing. Others are there because, when lawyers, judges, legislators, and rulemakers faced a problem, they did what people naturally do and asked what else they could add. The audit’s job is to tell the difference.
What can we stop doing?
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] The caveats matter. The presumption is soft: it can be rebutted by “any other factor the court considers relevant,” including the full factor lists, § 81-9-205(2)(a)(iv), so the evidence can come back in through the rebuttal. And the reform came packaged with a parenting-plan filing requirement and a dispute-resolution requirement. Even the subtraction that worked arrived with additions.