Thoughts on Divorce, Custody and Rights of the Parties - Melvin
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Thoughts on Divorce, Custody and Rights of the Parties

by Melvin Cook

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We hear a lot of attorneys advertising that they advocate for father’s rights. This is indeed a very catchy and appropriate advertising slogan. In my opinion, however, it is important to remember that both fathers and mothers have constitutionally protected rights with respect to their children. And, perhaps even more importantly, it is critical to keep in mind the best interests of the children themselves, who are often the forgotten parties most affected by divorce. Children need both parents, even after divorce, maybe especially after divorce.

There used to be a commonly used legal doctrine known as the “tender years” doctrine in determining custody. It favored a presumption of awarding full custody of very young children to their mother, while maintaining at least the appearance that the children’s best interest was primary. That legal presumption has long since been abolished; appropriately so, in my opinion. The Courts now attempt to focus on what is truly in the children’s best interests in making custody and parent-time awards, without artificial presumptions favoring one parent over the other. This is not always an easy determination.

Often the parties themselves are in the best position to work together in determining the best parent-
time arrangement for the children. This approach, when it works, is often preferable to a solution imposed by the Court. That is why I like Utah’s mediation requirement before a divorce case can proceed to trial.

Trials are necessary at times, however. The Courts, if called upon to make a custody or parent-time determination, sometimes require the assistance of an expert child custody evaluator, a neutral third party with extensive training and knowledge of child psychology. This neutral third party can perform a detailed evaluation and assist the Court in making the decision that will be in the children’s best interests, while at the same time respecting the rights of both parents.

I like the fact that Utah has a mandatory Divorce Education and Orientation class requirement for divorcing parents with children. The classes take a little less than three hours, but I believe are well worth the time. We all need to be constantly reminded of the impact of divorce on children.

In law school, I remember my family law professor cautioning his students to avoid the temptation to view oneself merely as “hired gun”, especially in divorce cases involving children. Attorneys are ethically bound to have an undivided loyalty to their clients and to zealously represent only their client’s interests. But I have found that considering the best interests of the children is not inconsistent with this ethical obligation.

Contact me today if you wish to speak with a Divorce Attorney in Salt Lake City!

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