There is a powerful argument for caution in family court, and it deserves to be taken seriously. When a judge or commissioner is confronted with an allegation that a parent poses a danger to a child, the consequences of underreacting can be terrible. If the allegation turns out to be true, an erroneous decision to allow unrestricted contact could expose a child to harm that cannot simply be undone later.
That asymmetry helps explain why courts sometimes say, expressly or implicitly, that they will “err on the side of caution.” In some procedural settings, the law itself permits precautionary action before the facts can be fully tested. Utah Code § 78B-7-603(1)(a), for example, permits a court to issue an ex parte cohabitant abuse protective order without notice when it appears from the petition that abuse or domestic violence has occurred or is substantially likely to occur. The statute deliberately distinguishes that emergency procedure from a protective order issued “upon notice” and “after a hearing.”
The problem arises when emergency caution survives into the adjudicative stage and quietly substitutes for the burden of proof.
That problem is particularly important in child custody disputes. Utah Code § 81-9-204(2) provides that a court determines whether a custody or parent-time order is in the child’s best interests by a preponderance of the evidence. Even more pointedly, subsection (11) provides that, absent a showing by a preponderance of real harm or substantiated potential harm, frequent, meaningful, and continuing access to each parent is presumed to be in the child’s best interest.
That is not merely a preference for careful judging. It tells the court what to do when uncertainty remains.
Consider a simple example. A child has a bruise on his arm after a parent-time exchange. Mother says Father became angry, grabbed the child hard, and caused it. Father says the child stumbled off a curb and he caught him by the arm to keep him from falling. Both stories are plausible, and neither witness is obviously lying.
Now suppose the child’s school nurse photographed the same bruise that morning, before the exchange occurred. The apparent choice between Story A and Story B was false. Neither explanation caused the bruise.
Litigation tends to make reality look binary: petitioner or respondent, accusation or denial, abuse or fabrication. Real life is not obliged to conform to those choices. There may be a third explanation, or several, and sometimes neither party understands exactly what happened.
That is why a credibility determination is not quite the same thing as applying the burden of proof. A judge may reasonably distrust one witness without thereby proving the opposing witness’s account. Disbelieving Father’s explanation does not, by itself, establish Mother’s allegation by a preponderance.
The preponderance standard does not demand certainty. If the court concludes that a proposition is more likely true than not, the burden has been met even though reasonable doubt remains. But if the court genuinely cannot determine which account is more likely, the party bearing the burden has not prevailed. The burden of proof is, among other things, a rule for allocating the consequence of unresolved uncertainty.
That is where “better safe than sorry” becomes dangerous as a judicial principle. Suppose the court says, “I cannot tell whether this parent actually presents the alleged danger, but I do not want to take the chance, so I will impose supervised parent-time.” The court has then converted uncertainty into evidence against the restricted parent.
The burden has effectively shifted. Instead of requiring the proponent of the restriction to establish the danger the law requires, the responding parent must demonstrate that the danger does not exist. In many cases, that amounts to requiring someone to prove a negative.
The stakes make that especially troubling. The Supreme Court has described the interest of parents in the care, custody, and control of their children as “perhaps the oldest of the fundamental liberty interests” it recognizes. Troxel v. Granville, 530 U.S. 57, 65 (2000). That does not make parental rights absolute, and it certainly does not disable courts from protecting children. It means serious interference with the parent-child relationship deserves serious fact-finding rather than speculation dressed up as caution.
Nor should the word “temporary” make us complacent. Six months of severely restricted parent-time is six months of childhood, six months of stigma, and temporary arrangements have an inconvenient habit of becoming the status quo from which later decisions are made.
A useful discipline for lawyers and judges alike is what I call the third-story test. When the parties present two incompatible accounts, ask whether there is another reasonable explanation and, more importantly, what evidence actually distinguishes among them. That does not prevent credibility findings; it makes them more rigorous.
Utah appellate law likewise requires findings adequate to disclose the reasoning that connects the evidence to the ultimate decision. See Shuman v. Shuman, 2017 UT App 192. A restriction should therefore rest on findings showing why the evidence satisfies the governing legal standard, not merely on the observation that the court remains concerned.
Courts cannot eliminate all risk. Underprotection can harm children, but unnecessary restrictions on a safe and loving parent can harm children too. The law does not ask judges and commissioners to pretend those risks do not exist; it gives them burdens and standards of proof precisely because certainty often does not exist.
When the evidence establishes danger, courts should act. When it establishes real or substantiated potential harm by the required standard, Utah law authorizes the consequences that follow. But when the court is left saying, “I simply cannot tell which story is true,” that uncertainty cannot itself supply the missing proof.
“Better safe than sorry” may be excellent advice for deciding whether to carry an umbrella. It is not a substitute for a burden of proof.Utah Family Law, LC | divorceutah.com | 801-466-9277