Child Custody in Utah



Child Custody in UtahEnglish 2010Gina Saltzgiver3/8/2013In 2010 there were a total of 10,146 divorces in Utah, and just over half of those involved dependent children (Utah’s Vital Statistics..., 2012, pg. R10-26). With the breakup of so many families, parents are often left in a struggle over who will get custody of their children. When parents are unable to come to a custody agreement on their own, a judge is left to decide with whom the children will live. Under the current law there are two types of custody. Legal custody gives a parent the right to make major decisions about the child, such as medical decisions, where they will go to school, and what church they will attend. Physical custody refers to where the child will actually reside. The parent with physical custody is referred to as the custodial parent and the parent with visitation is referred to as the noncustodial parent. Each state has its own guidelines which courts use to help make their decision. According to Utah Codes 30-3-34 and 30-3-35, there is a rebuttable presumption that a custody situation involving a noncustodial parent, or a sole custody situation, is in the best interests of the child (Best interests, 2008, pa. 2; Minimum schedule, 2010, pa. 2). Rebuttable means that a judge can use discretion and order a different custody arrangement if he feels necessary. The fact that Utah law presumes a sole physical custody situation, where the mother is the sole custody provider, is best for children of divorce is a problem because fathers are not given equal parental rights, and it hinders the ability of children to form healthy relationships with their fathers. This can be resolved by changing Utah law to presume a joint physical custody situation is best for children of divorce, and making stricter enforcement of current custodial interference laws.The first main problem is that Utah fathers are not given equal parental rights. The first way that fathers are treated unequally is that they are almost never granted physical custody of their children. Because of the way the law is structured, a judge ultimately has to decide whom is the better parent, even when both the mother and father are capable of providing the needs of their children. According to an article published in The Anniston Star, an Alabama newspaper, “[N]ationally, courts grant mothers primary custody more than 82 percent of the time” (Steele, 2011, pa. 20). This is evidence that there is a strong bias toward women in the court systems. According to a study done in 36 Western countries on joint physical custody and communication with parents, traditional roles of women as home-makers and men as providers may contribute to the belief that women have a maternal instinct and are better capable of taking care of children (Bjarnason, 2011, pg. 871). But, in modern times traditional roles are shifting with more women working outside the home, and men spending more time taking care of their children. The reason fathers not being awarded physical custody of their children poses such a problem is that they know time with their children will be drastically reduced.The second way fathers are treated unfairly is that they are not given as much time with their children as mothers are. This is because as the noncustodial parent they are subject to minimum parent-time guidelines. In Utah, for children between the ages of 5 and 18 years, the guidelines are one weekday evening, alternating weekends, and alternating holidays (Minimum schedule…, 2010, pa.2). For children under the age of 5 years the time is even less. This means that mothers are given at least 3x more time with their children than fathers are. One startling statistic shows that “Nationally, 40 percent of children whose fathers live outside the home have no contact with them and the other 60 percent only saw their fathers about 70 days a year” (Steele, 2011, pa. 39). While this may be interpreted to mean that fathers just don’t care enough to see their children, other factors may be to blame. One possibility is that the father may miss his visitation due to working extra hours in order to maintain a household and pay child support. Another possibility is that the children may no longer be living in the same state, limiting his ability to exercise his visitation. The last and most troublesome possibility is that the mother blatantly denies the father his visitation rights.The last problem with equal rights is that fathers are not in control of their own visitation. Because mothers have physical possession of the child, she has the ability to refuse the father his right to visitation, commonly known as custodial interference. According to an article written by Daniel Turkat, PH.D., on custodial interference, “50% of divorced fathers relate that their ex-wife has interfered with visitation with their offspring. Similarly, approximately 40% of custodial mothers admit denying their ex-husband visitation in order to punish him” (1994, pg. 737). To make matters worse, fathers feel powerless to do anything about it. Although there are laws to protect against custodial interference, most cannot afford the cost of pursuing a case in court. Those that do are disappointed to find that “this does not really amount to much more than merely ‘slapping her wrists’” (Turkat, 1994, pg. 741). Custodial interference continues to be a common occurrence because those who are guilty know there will be little or no consequence.The second main problem is that the law makes it difficult for fathers to form healthy relationships with their children. The fact that the father is no longer involved in a child’s day to day activities, such as helping with homework or tucking them into bed, may make the child feel less connected with the father. In turn, the child will be less likely come to him when they want to talk about something important. One study found that children in sole custody situations had more problems communicating with their parents than those in joint physical custody or intact families (Bjarnason, 2011, pg. 885). The main cause is that minimum parent time gives the father and child so little time to maintain the relationship they had before the divorce. This time constraint also makes it difficult for fathers to perform their parental duties.The last problem when it comes to the father child relationship is that noncustodial fathers have problems establishing their role as parent. Fathers who have joint legal custody but no physical custody technically have the right to be involved in major decisions made in regard to their child, “but actual residence nevertheless limits the possibilities of exercising such rights” (Bjarnason, 2011, pg. 872). This means that rather than be involved in decision making, they are usually just informed of the decision after the fact. Another difficulty that noncustodial fathers face is that they are “more in the role of entertaining their children” and perform less parental responsibilities (Bjarnason, 2011, pg. 885). This may result in children seeing their fathers as a friend instead of an authoritative figure.One solution to these problems is to change the law so that there is less bias. One suggestion by J. Crowley, in an article featured in Women’s Studies Quarterly, is to adopt the primary caregiver model (Crowley, 2009, pg.236-237). This basically says that whoever the primary caregiver of the child was before the divorce should be granted sole custody after the divorce. This would mean that the primary caregiver could be either the mother or the father. Realistically, the outcome would still strongly favor women. Also, this doesn’t eliminate the fact that one parent would still have sole custody and therefore would still subject one parent to unequal rights. The only way to really ensure equal rights would be a joint physical custody situation.Utah should change its law to a rebuttable presumption that a joint physical custody situation is in the best interest of children of divorce. The outcome would be that parents would initially be seen as equally fit and judges would make an effort to grant joint physical custody whenever possible. This would also mean more even distribution of time with the child. Because it is rebuttable a judge would still be able to order sole custody in circumstances where one parent was proven unfit. Not only does joint custody solve the problem of equal rights, but both parents and children benefit from this living situation.One outcome of joint custody is that the parents better communicate because of the common goal and responsibilities of raising the child (Bjarnsason, 2011, pg. 885). If the child sees the good communication between parents, he in turn may be more comfortable communicating with each parent. This could reflect positively on the child’s emotional well being. According to a study done by L. Berger on the stability of child physical placements, “[C]hildren with joint legal or shared physical custody orders score better on measures of the quality of family relationships, self-esteem, and emotional and behavioral adjustment” (2008, pg. 274). Another outcome is that with more equally divided time each parent is responsible for providing the financial needs of the child while in their care. Studies have shown that the more time fathers spend with their child the more money they contribute to the child’s care (Berger, 2008, pg. 282). Last but not least, joint custody results in the mother having more time to do things for herself. The likely impact of this would be a better relationship between her and her child (Bjarnason, 2011 pg. 885).The second solution to these problems is stricter enforcement of current custodial interference laws. Under Utah Code 76-5-303, custodial interference is when a “person takes, entices, conceals, detains, or withholds the child…with the intent to interfere with the visitation of the child” (Custodial interference, 2010, pa. 2). Someone who has committed custodial interference may be charged with a class B misdemeanor. If the person has been convicted twice within the previous two years they may be charged with a class A misdemeanor. If the person removes the child from the state they may be charged with a third degree felony. The conviction of any of these charges could result in fines, jail time, and driver’s license suspension. Unfortunately, rarely are those guilty given any such consequences (Turkat, 1994, pg. 741). This is because law enforcement regards custodial interference more a civil matter than a crime. In the Child Custody Investigations article on the official website of the Unified Police of Greater Salt Lake, they refer to these situations as “complicated” and “time consuming”. They also suggest that “Resolution through civil court proceedings is preferred and all attempts to gain compliance through this remedy should be exhausted” (Child Custody, 2010). The message they are sending is that they really don’t want to bother with these types of disputes and will avoid them whenever possible. This is a problem that needs to be addressed.There has been some attempt to find a way to better enforce these laws, but to no avail. According to a Deseret News article by J. Thalman, one solution that was approved by Utah law makers was to form a state agency that tracks parent time violations similar to the way the ORS tracks child support, but there was never any funding to support it (2010, pa. 10). An alternative to this solution would be to better inform existing law enforcement about custodial interference, stressing that this is, in fact, a crime. They also need to come up with strict policies for documenting and citing incidences, and filing paperwork with the prosecuting agent. While this may initially mean a large amount of police enforcement’s time dealing with these issues, it would send the message that are real consequences for interfering with the other parent’s visitation. With that knowledge, violators would be less likely to repeat this crime, and incidences would eventually decline.With the dissolution of so many families with children in Utah, it has long been common practice for courts to grant mothers sole custody of their children after divorce. Due to state laws that presume a sole custody situation is best for children of divorce, many capable, loving fathers are subject to unequal parental rights and diminishing relationships with their children. The best way to fix these un-justices is to adopt child custody laws in which there is a rebuttable presumption that a joint physical custody situation is best for children of divorce. This would essentially even the playing field, because a judge would only grant sole custody in certain circumstances, such as one parent being proven unfit. In order to change current law, sponsors will need to apply for a statewide petition, supported widely by the signatures of private residents. Only then can an initiative of change be entered into the state legislature. If there is no initiative, laws will remain unchanged, and fathers and children alike will continue to suffer the detrimental effects of the sole custody situation. ReferencesBerger, L. M., Brown, P. R., Joung, E., Melli, M. S., & Wimer, L. (2008). The Stability of Child Physical Placements following Divorce: Descriptive Evidence from Wisconsin. Journal Of Marriage And Family, 70(2), 273-283. Retrieved from , 02/16/2013.Best interests--Rebuttable presumption. (2008). Utah Code 30-3-34. Retrieved from , 02/20/13.Bjarnason, T., & Arnarsson, A. M. (2011). Joint Physical Custody and Communication with Parents: A Cross-National Study of Children in 36 Western Countries. Journal Of Comparative Family Studies, 42(6), 871-890. Retrieved from , 02/16/2013.Child Custody Investigations. (2010). Unified Police of Greater Salt Lake. Retrieved from , 02/20/13.CROWLEY, J. (2009). TAKING CUSTODY OF MOTHERHOOD: FATHERS' RIGHTS ACTIVISTS AND THE POLITICS OF PARENTING. Women's Studies Quarterly, 37(3/4), 223-240. Retrieved from , 02/09/2013.Custodial Interference. (2010). Utah Code 76-5-303. Retrieved from , 02/20/13.Minimum schedule for parent-time for children 5 to 18 years of age. (2010). Utah Code 30-3-35. Retrieved from , 02/20/13.Steele, C. (2011, June 12). Bill to change child custody laws tabled, but the issues are still very much alive. Anniston Star, The (AL). Retrieved from , 02/16/2013.Thalman, J. (2010). Utah Legislature: Child custody bill draws emotional debate. Deseret News. Retrieved from , 02/16/2013.Turkat, I. D. (1994). CHILD VISITATION INTERFERENCE IN DIVORCE. CLINICAL PSYCHOLOGY REVIEW, 14(8), 737-742. Retrieved from , 03/01/2013.Utah’s Vital Statistics, Marriages and Divorces 2009 and 2010. (2012). Office of Vital Records and Statistics. Retrieved from , 2/20/2013. ................
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