Fathers' custody rights getting attention in Legislature

Grant Durtschi wrestles with his sons Xane, top right and Taj, in Draper, Monday, Feb. 20, 2012.

(Ravell Call, Deseret News)

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SALT LAKE CITY — After a 3-year-old girl was killed in a single-car accident in 2011, her grandparents came to Rep. Ryan Wilcox asking for his help.

The girl's mother had been driving the car and was later found to have Oxycontin and marijuana in her system. Even though she had a known drug addiction, a court had given her custody of the girl instead of the father, the grandparents told the Ogden lawmaker. The father had a clean record, a job, owned a home and was a loving father.

"It happens a lot," Wilcox said. "Utah has a particular reputation for having a gender bias."

Wilcox's solution is HB88, which says that in custody decisions, courts may not discriminate against a parent "due to gender, race, color, national origin, religious preference, or age."

The proposal is one of at least five bills winding their way through the 2012 Utah Legislature that could tip the legal scales toward a more balanced approach in awarding custody to mothers and fathers.


Wilcox said that when he proposed his bill, he was not aware of similar efforts.

"It just shows the level of angst that's out there," over father rights issues, he said.

HB107, sponsored by Rep. Gage Froer, R-Huntsville, would give greater weight in court proceedings to joint custody arrangements. The proposal passed the House Judiciary Committee unanimously and is now before the full House.

Such a law would have been welcome news to Grant Durtschi, who won joint custody of his children, but only after spending thousands and thousands of dollars trying to win the right following a divorce.

"You could say it's devastating not having your children around ... when that's all you really want to have happen," Durtschi said Monday, as he spent the day with his four sons.

The bill starts with the presumption that "joint legal and physical custody of children in a divorce or separation is in the best interest of the child" and then would allow a parent to rebut that presumption in court.

"I know that psychologists all agree that joint custody is what's best for the children. That's the second best option for children, other than a happy marriage, Durtschi said.

In divorce cases Utah courts often award custody based on a traditional belief that mothers should nearly always keep the children, Wilcox believes. That prompted HB88.


In the 1800s when fathers owned the family property, courts gave them custody more often, he said. Then, as women got the vote and more political power, in the 1920s courts began to see them as the more appropriate caregivers in custody disputes.

The bill received unanimous support both in House committee and on the floor.

Fingers of blame should not be pointed at courts or other individuals in such cases, said Rep. Jennifer Seelig, D-Salt Lake City.

"The truth is that our institutions in this situation have reflected biases that for whatever reason are out in our country and out in our culture."

One of those proposals would require that the custodial parent give notice before moving more than 75 miles away or out of state.

Another bill would give greater consideration to men who father children out of wedlock.

"I think there's a clear bias against the rights of unmarried fathers," said Salt Lake City family law attorney Russell Monahan. The current law is confusing and acts as a barrier to many such fathers, he said.

"We need to get with the times," agreed Rep. Christine Watkins, D-Price, the sponsor of HB308, which would require an unmarried woman to notify the biological father if she decides to put the child up for adoption.

That bill and a similar one, SB55, are motivated by a Utah Supreme Court decision last month that a Colorado father was improperly denied a say in his infant daughter's adoption.

Salt Lake adoption attorney Wes Hutchins said Utah's laws invite "forum shopping" among single pregnant women looking a favorable place for an adoption and allow women to hide from out-of-state birth fathers. The state's current laws are confusing, and HB308 would bring them in compliance with recent court decisions, he added.

But such notification measure would only apply to about 1 percent of unmarried biological fathers, said Fred Riley, a former commissioner of LDS Family Services, who has 30 years experience handling adoptions. And the letter of notification could invade their privacy by potentially revealing their sexual activities to their wives or families, Riley said. Not all men who father children by an unmarried partner are not married themselves.

"Notification and all those rules are a slippery slope," he said. "This law currently works." Riley said he was speaking as a private citizen.

Kevin Broderick, president-elect of the Utah Adoption Council, said some unmarried biological fathers sincerely want to be a part of their child's life, but others are not as motivated.

On Friday, the House Health and Human Services Committee voted to hold off action on Watkins' bill a third time, and it may be unlikely to go to the full House this session.

Broderick said he supports SB55, sponsored by Sen. Todd Weiler, R-Woods Cross.

The bill is essentially similar to Watkins' proposal, except that notification would be a voluntary option for the birth mother. Under both proposals, the father would have 30 days to take several steps to take responsibility for the child after notice is served.

But Weiler's voluntary notification version received unanimous approval of the full Senate on Friday and now moves to the House.

Another bill that could affect custody arrangements is HB448, sponsored by Rep. Greg Hughes, R-Draper. It would require a court to decide if a move of more than 75 miles, or out of state, by the custodial parent is in the best interest of the child, if the non-custodial parent objects to the move.

A 'move-away,' Dan Deuel of the American Parental Rights Action League, called it.

"That's a tactic that's often used to get rid of one parent," he said.

The House Law Enforcement Committee is scheduled to consider the bill on Tuesday.

A family law attorney and 31-year veteran of the Legislature, Sen. Lyle Hillyard, R-Logan, said various proposals to alter family law or custody rules come to the Legislature from year to year.

"One year the moms come up wanting more child support, and one year the dads come up wanting more visitation," Hillyard said. "It's a good thing they don't come up at the same time."

But in 2012 the issues of fathers' rights in paternity and custody are getting particular emphasis, Hillyard said.



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