How Courts Can (and often do) Ensure a Father Can’t Prove Joint Equal Custody Can Work.
Here is an example of an important gotcha factor to be on guard against, if you are a good father being forced by the legal system to fight for joint equal custody (I do know that there are also mothers who find themselves in an unfair fight for child custody, but fathers are overwhelmingly at a disadvantage). First, many Utah courts (most that I’ve encountered) will straight-faced swear up and down that "temporary orders of custody and parent-time are not binding on the court with respect to final orders on custody or parent-time” and that they "don't treat temporary custody and parent-time orders as having any kind of precedential or prejudicial effect on the final child custody and parent-time award." Then these same courts make rulings that incorporate language like this: "There is no compelling evidence that an increase in time with father from the current [i.e., temporary orders] custody and parent-time arrangement would benefit the minor child” and/or “There is no evidence that the child is not currently thriving under the current arrangement” and/or "I do not believe it would be in the child's best interest to increase the father's parent time with the child based purely on speculation” and/or “To change the custody and parent-time schedule from what it is currently under the temporary orders, there needs to be evidence that something in the temporary custody and parent-time arrangement needs to change for the benefit of the child, to change in the best interest of the child” and finally, "I am not persuaded, and I do not think it would be in the child's best interest to increase the father's parent time with the child [from what is ordered in the temporary orders] based purely on speculation that if his parent time were increased he would spend more time with the child, or that his engagement with the minor child would be more meaningful, or the bond would increase, or that the child would have the benefit of some interaction with Dad or some opportunities he is not otherwise being provided." Do you see the trick in these statements? As of the date this blog post is written, with extraordinarily rare exception the Utah courts refuse to try any proposed custody and parent-time schedules but one during the pendente lite and discovery phases of the case (meaning that the courts impose one and only one custody and parent-time schedule on the parties and their children during the year or two that the case is pending). Then, after ensuring that there is evidence of how only one custody and parent-time schedule works, such courts claim that there is "no evidence" that any other schedule would be better for the child(ren) imposed by the court via so-called "temporary" orders. Otherwise stated, there is “no evidence” because the court ensured there is none.
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