Powell case raises questions about custody laws

SALT LAKE CITY -- In custody battles, where emotions run high and personalities clash, experts are aware of the dangers at hand. But Josh Powell's act Sunday took the list of such possibilities to an extreme not thought of before.

The flames had barely started when questions began flying about the situation. One, in particular stood out: why, if a man was suspected of murder, did they allow him to see his kids? From a legal perspective, the sanctity of parental rights makes it impossible to eliminate risk without solid evidence.

"It's really rare that kids are totally removed from their parents unless there is very clear evidence that the children are in danger," said Julie Hanks, director of Wasatch Family Therapy and a licensed social worker.

In the case of Powell, no evidence had come forth that could remove his sons from him entirely. Susanne Gustin, a Criminal Defense Attorney who specializes in sex offenses says that because of the circumstantial state of the case, investigators have had to proceed with delicacy.

"They have one shot at this," Gustin said. "If they try him and he is acquitted, they cannot go back and do this again. I'm sure they're working with prosecutors to see, ‘okay, this is enough, we can go forward.' "

The dilemma is that the law enshrines parents' rights. Visitation rights are not only important for parents though, they're critical for children.

According to Child Psychologist Doug Goldsmith, denying parents visitation rights and stopping those visits can be psychologically unhealthy for the children. Decisions must be made on a case-by-case basis, and they must be based on clear evidence.

"I think we're going to always have to be aware that we're making very difficult decisions to protect parents' rights, and also to protect the best interests of the child," Goldsmith said.

The judge in Powell's case recognized there was some risk and ordered supervised visits and ordered him to take a psycho sexual evaluation. But when the supervisor was locked out, the control was back in Powell's hands.

"We have about half a million children in foster care on any given day. Of all of those cases, most of them have had some time period of concern, some indications of harm," said Jini Roby a lawyer and associate professor in Brigham Young University's Social Work department. "For this to happen absolutely out of the blue like this is very, very unusual."

Goldsmith said that raises another question: should supervised visits be at a parent's home?

"By going to neutral ground, it's going to be a much safer place," he said. "We don't know what booby traps parents have set up in their homes."

Psychologist and Clinical Director at Renaissance Child Visitation Service Carol Gage supervises such visits every day in custody cases referred to her by the courts. Typically parents are under a protective order, which implies risk.

"Because somebody is sitting, intervening, taking notes, we have not seen actual physical abuse of any child," she said.

She said she always starts supervised visits on neutral ground in her office. But she thinks Powell's crime could have happened anywhere.

"I don't see any huge major error," she said. "There was just no way to predict what he had been planning."

Gage said she sees cases nearly every day in which emotions run high and bitterness runs deep, just like the Powell-Cox battle, but what Josh Powell did was an extreme anomaly.

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