Grant Durtschi told The Senate Judiciary, law Enforcement, and Criminal Justice Committee of being a father with joint legal and physical custody of his children who faces the prospect of his children moving to Texas, in compliance with the court's decision, with his ex-wife.
For Durtschi, that move would mean drastically less time with the children. His weekly visits will perhaps be reduced to one or two yearly visits, even though his “children have stated that they do not want to go to Texas” when they have extensive relations of grandparents, cousins, and aunts and uncles in Utah.
“This is where everybody in our family has established," Durtschi said. "They [the children] do not have any family in Texas.”
S.B. 139 Child Custody Proceedings, sponsored by Senator Luz Robles (D), would give the opinions of children fourteen years old weight in deciding future custody. If passed, this bill could favorably change situations like Durtschi's.
In divorce cases, the court commissions a custody evaluator to examine the finance, health, and parental practices of both parents upon awarding child custody. Children, regardless of age, may tell the judges which parent they would like to live with, but under the Utah law, only the opinions of those sixteen or older are taken into consideration. For example, a judge cannot include the wish of an eleven year old who expresses a desire to live with his or her dad in the decision-making process.
Jackie Warren spoke about how relocating to Utah has helped distance her and the children from an abusive ex-husband and father. Neither Warren nor Durtschi have children who are sixteen or older. In compliance to the current statue, Jackie's children must travel to Maryland to see their abusive father, while Grant's children have no input in the decision to move to Texas with their mother.
Senator Lyle Hillyard and Senator Stephen Urquhart contended that letting young children express their parental preferences will put them under tremendous pressure in a divorce, especially when they are told to make the choice about their future. As long time family law attorneys, both senators have witnessed divorce cases where parents “lobby” their son or daughter with new things and privileges in order to become the child's preference. The situation could be reversed with the child demanding things in exchange for his coming to live with one parent over the other.
If a child decides to reveal his or her parental preference to the judge, he or she must do it on camera. According to Senator Hillyard, the judge sometime does not have the power to protect that child's opinion from being heard by the parents, and the parent-child relationship could be damaged.
Even though Sen. Hillyard and Sen. Urquhart's concerns are legitimate, passing S.B. 139 will bring more positive changes than negative ones. The primary motivation behind the proposal is, as Sen. Robles said, to “give voices to the children” during a a heartbreaking process that is largely beyond their control.
The language of S.B. 139 makes it clear that children only need to express their preferences if they wish to. Even if a child chooses to state a preference, the current statute dictates that a judge cannot award custody to one parent solely upon that child's preference. He or she must include other factors such as financial stability, parental practices, and physical and mental health and decide which parent will serve the child's best interest.
In a way, a child's preference can work as a checking device on the judge's thought process. For example, during a divorce case, if a judge believed that it is best if the child stay with the dad; but, the child expresses a desire to live with his or her mom, the judge can use the child's preference to double-check his or her decision, re-examining whether awarding custody to dad is truly the best choice.
Madelyn Meyer, a fifteen year old teen whose parents are divorced, testified during a committe that “Lowering the age... is probably a wise choice. A child understands that her parents or his parents are going to get a divorce. If that is what's happening then a child understands that. They may not like it, but they understand that.”
Both children and parents are equally important parts of a family. During divorce cases, it is wrong to only consider the opinions of the parents and the conflicts between them, leaving out the opinions of the children simply because of the belief that children cannot and should not be involved.
By being a part of a family, children are already more involved than a judge or a custody evaluator. Sometimes, it is the children who actually grasp the situation of their homes better than any outsider, and they should be given the chance to express their views.
The argument from Hillyard and Urquhart should be invalid if you are only looking at it from a debate stand point. Giving the children equal rights to both parents from the start would eliminate them having to pick sides. That would then only come into play if they specifically did not want to be with one parent. The current law does not start with equal rights for all and spells out that one parent (almost always the mother) will become the primary parent. Other states, such as Texas, requires both parents to be able to exchange the children at school if they wish to have equal parenting. Then, if either parent leaves the area, they also generally lose the ability to be an equal parent. This is how it should be. A parent that chooses to leave the area should not be able to force the children to follow and force the other parent to follow if they want to remain a parent. If you move away, you get minimum visitation for an out of state situation unless you work something else out with the other parent.
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