Within family law, two competing interests are often pitted against each other: (1) Ensuring children have a healthy relationship with each of their parents; and (2) Protecting those children from abuse. Recently, the Utah Legislature demonstrated their desire to promote the interests of protecting children from abuse through the amendments made to Utah’s laws regarding family violence and child abuse.
First, under amended Utah Code §§ 81-9-205(2)(a) and 81-9-206(3) the court now MUST consider (rather than “may consider”) physical abuse, sexual abuse, and domestic violence towards a child, co-parent, or other household member in determining any form of custody. The court must also consider whether parent-time would endanger a child’s health or physical or psychological safety. Interestingly, when considering the best interests of the child, a court may also now consider “psychological maltreatment” (eliminating the terms “neglect” and “emotional abuse”). Utah Code § 81-9-204(4)(a). “Psychological maltreatment” is defined as:
“[A] repeated pattern or extreme incident of caretaker behavior that: (a) intentionally thwarts a minor child’s basic psychological needs, including physical and psychological safety, cognitive stimulation, and respect; (b) conveys that a minor child is worthless, defective, or expendable; and (c) may terrorize a minor child.” Utah Code § 81-9-101(9).
What is left unknown is how the courts will interpret “psychological maltreatment.” What constitutes a “repeated pattern” or “extreme incident” of bad behavior sufficient to trigger the statute? Do caregivers need to engage in all or just a single bad behavior listed in (a), (b), and (c) to constitute “psychological maltreatment?” Ultimately, these questions can only be answered as Utah family law attorneys raise these issues to the commissioners and judges.
Secondly, the legislature also amended Utah Code § 81-9-207 to include a presumption of professional supervision in situations where “evidence of domestic violence, child abuse or ongoing risk to the child” exist. Only if a professional supervisor is not “available or practicable under the circumstances” shall the court give preference to an individual who is “(a) capable and willing to provide physical and psychological safety and security to the minor child, and to assist in the avoidance and prevention of domestic and family violence; and (b) is trained in child abuse reporting laws, the developmental needs of a child, and the dynamics of domestic violence, child abuse, sexual abuse, and substance abuse.” Utah Code § 81-9-207(3).
While the intention behind this amendment is noble, it remains unclear who beyond a professional supervision provider would qualify under Utah Code § 81-9-207(3). Further, the application of this presumption for professional supervision is likely to be burdensome on parties outside of Utah’s metropolitan areas, where there may not be any professional supervision resources. And the presumption for professional supervision providers could be particularly onerous for families with limited financial resources. Thus, the practical application of this amendment is again unknown.
We can help you or someone you know navigate the intricacies of these new amendments to achieve the best possible child custody outcome.
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