“Err on the side of caution” sounds sensible in divorce and child custody disputes. Who wants to be accused of taking chances with someone’s safety? But before accepting that explanation, ask what the precaution accomplishes—and who pays when it is unnecessary.
Seth Godin’s “Addressing fear” distinguishes safety from the feeling of safety. Familiar practices and reassuring performances can make us feel protected without actually protecting us. Family law needs to examine that distinction. Calling an order protective does not establish that it protects.
Safe for Thanksgiving, but not equal parenting?
Consider a parent trusted with unsupervised weekends, holidays, and extended school breaks. That parent handles meals, medication, transportation, discipline, emergencies, and bedtime. Yet a request for equal physical custody produces a generalized concern about safety.
What additional danger would equal time create? There may be an answer. School responsibilities differ from holiday responsibilities. A demonstrated impairment may become more consequential over longer periods. Distance and work schedules matter. Being fit does not settle every scheduling question.
But substantial unsupervised care demands an explanation of the difference. Identify the deficiency or additional risk and support the explanation. “We should be cautious” does neither.
Apply the same scrutiny to both parents. If comparable shortcomings are excused in a mother but treated as disqualifying in a father, explain that difference too. The language of protection should not shield discrimination from examination.
Our precautions can help create the problem
Godin identifies familiarity as one response to fear. Family law can work in the opposite direction: restrict contact, allow unfamiliarity to develop, then invoke that unfamiliarity as a reason to continue restricting contact.
An emergency order may initially be justified. Months later, however, the relationship may have suffered from reduced contact. Restoring ordinary parenting now requires adjustment. That adjustment becomes another reason to proceed slowly.
The original restriction is not necessarily wrong. But we must examine what continuing it does. Preserving the status quo cannot justify itself without considering how that status quo arose and whom it harms.
What will another professional accomplish?
An evaluation may be necessary because we do not know enough. But identify the question, what the evaluator can reliably contribute, and what happens to the family while everyone waits. Appointing another professional can also postpone a decision and multiply expenses without clarifying responsibility.
Compelled therapy deserves similar scrutiny. Is this pathological behavior that requires treatment? Why this provider and approach? How will we assess progress? An objection may obstruct necessary care—or identify a genuine problem. Examine it before treating it as another symptom.
Professional concerns also need traceable foundations. A parent reports that a child is afraid. A therapist records it. An evaluator cites it. A witness repeats that professionals are worried. What independent (and verifiable) information does each person add?
Utah Rule of Evidence 703 permits certain expert reliance on otherwise inadmissible information. Rule 803(4) permits qualifying statements made for medical diagnosis or treatment. Neither turns one account into several independent confirmations. Admissibility and corroboration are different questions.
Write orders people can understand and follow
Mutual restraining orders can add an enforcement mechanism. Harassment and assault carry criminal penalties; defamation can support civil liability. What useful protection does the additional order provide? Ordering both parties to behave does not establish that either has misbehaved, much less that both have.
Additional orders should serve an identifiable purpose, and nobody should misrepresent their existence as proof of wrongdoing.
Then there is the command that parents “shall not discuss the divorce or divorce litigation with the minor children.” If the concern is accusations, coaching, or litigation strategy, say that. Children still need answers about where they will live and reassurance that the divorce is not their fault. Pediatric guidance supports appropriate conversations.
Clear drafting is more than good manners. Rule 65A(e) requires injunctions to explain their issuance and describe prohibited acts specifically. Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988), requires knowledge, ability to comply, and intentional failure for contempt based on disobedience. Write the distinction rather than expecting parents to guess it.
Who pays for our caution?
The person seeking reassurance may not bear the principal burden of supplying it. Parents and children pay through lost time together, depleted finances, diminished privacy, and damaged relationships.
Fear also enters settlement advice. “Anything can happen in court” should begin an analysis of evidence, plausible outcomes, and tradeoffs. It should not replace that analysis.
Before imposing a precaution:
- Identify the specific danger.
- Examine the supporting evidence.
- Explain how the measure will help.
- Count the harms and burdens it may create.
- For temporary measures, establish review and conditions for ending them.
These questions do not prevent necessary protection. They demand a reasoned explanation for it. We cannot call a decision cautious while refusing to count the harm it may itself cause.
Utah Family Law, LC | divorceutah.com | 801-466-9277