Article Co-parenting with a Non-cooperative Parent; Potential Alternatives to Reduce Conflict, 0617 UTBJ, Vol. 30, No. 3. 18

• Author: David R. Hartwig, J.

Article Co-parenting with a Non-cooperative Parent; Potential Alternatives to Reduce Conflict

Vol. 30 No. 3 Pg. 18

Utah Bar Journal

June, 2017

May, 2017

David R. Hartwig, J.

Co-parenting is the de facto parenting status in Utah. But, problems do exist with the system and many participants experience ongoing conflict. Alexa N. Joyce, High-conflict Divorce: A Form of Child Neglect, 54 Fam. Ct. Rev. 642 (2016). The conflict adversely affects not only the parties but also the children. Whatever the cause of the conflict, very little is known about parents involved in the process and whether the options available to them are effective. Kelly Mandarino et al., Co-parenting in a Highly Conflicted Separation / Divorce: Learning About Parents and Their Experiences of Parenting Coordination, Legal, and Mental Health Interactions, 54 Fam. Ct. Rev. 564 (2016). This article reviews co-parenting in Utah, problems associated therewith, and available corrective resources.

GENERAL PREFERENCE FOR CO-PARENTING

In Utah, and numerous other states, courts are embracing joint, or co-parenting, custody orders as a general standard. Evidence exists to support co-parenting as the best solution for children in divorce. University of New Hampshire Cooperative Extension, Co-Parenting After Divorce, umassmed.edu/uploadedFiles/ eap2/resources/Families_and_Parenting/Coparenting%20 After%20Divorce.pdf (last visited April 1, 2016); Men’s Divorce, Parallel Parenting: A High-Conflict Co-Parenting Model, mensdivorce.com/parallel-parenting-high-conflict/ (last visited April 1, 2016).

Co-parenting works, and is a great solution for, children of divorce where the parents are capable of working together with relatively equal power. However, when one parent is more controlling, or feels more entitled, difficulties do arise and conflict increases. Joyce, supra, at 644; see also Laurie S. Kohn, The False Promise of Custody in Domestic Violence Protection Orders, 65 Depaul L. Rev. 1001, 1051–52 (2016). And, this problem is not limited to narcissistic or obviously controlling parents; it involves parents who may simply feel vulnerable or attacked. See Mandarino, supra, at 571; Joyce,

supra, at 644. This conflict is probably part of the reason for the divorce. Joyce, supra, at 644–45. The conflict continues, and escalates, during the divorce process, id; it also continues and increases as the controlling parent feels justified by the court’s apparent support of his or her claim of joint physical custody and co-parenting. See, Kohn, supra; Men’s Divorce, supra; and Vicky Campagna, Special Masters: One Way to Deal With Difficult, Chronic Post-Divorce Conflict, available at http://winattrial.com/ Special%20Masters.htm (last visited April 1, 2016).

Utah has a presumption for joint legal custody. Utah Code Ann. § 30-3-10(1)(b). Joint physical custody is defined as occurring when a child is with a parent more than 30% of the year. Id. § 30-3-10.1(2)(a). Under Utah’s statutory minimum parent-time, the so-called non-custodial parent has the child for approximately eighty-seven overnights, or 24% of the time. Id. § 30-3-35. That means that a push to the 30% line is not difficult, and grants a parent more time, and lower child support. Both are an impetus for a parent to push for joint physical custody and co-parenting. Additionally, Utah’s optional schedule for parent-time, Utah Code section 30-3-35.1, provides the non-custodial parent with 145 overnights, or 40% of the year, thereby creating joint physical custody. Id. § 30-3-35.1(1).

EFFECT OF PRESUMPTION

Despite Utah Code Section 30-3-10(1)(b), there is no presumption for joint physical custody or co-parenting. Utah Code Ann. § 30-3-10(5). But, as noted above, joint physical custody is specifically defined as having the child with a parent 30% of the time. Id § 30-3-10.1(2)(a). Knowing that definition provides a controlling parent impetus to push to meet that 30% level for joint physical custody by either granting a few extra days of visitation or ordering Utah’s optional schedule for parent-time. Id. § 30-3-35.1.

Plus, there is a certain judicial economy and safety in a judge ordering the presumptive joint legal custody along with joint physical custody, through the optional parent-time schedule or through slightly altering the statutory minimum schedule. See Maritza Karmely, Presumption Law in Action: Why States Should not be Seduced Into Adopting a Joint Custody Presumption, 30 notre dame J.L., ethics & pub. pol’y 321 (2016), available at http://heinonline.org/HOL/LandingPage?handle=hein.journals/ ndlep30&div=17&id=&page= (last visited April 1, 2016). Following those presumptions, any judicial decision is relatively safe from appellate reversal. And, variance from those presumptions will require additional detailed findings of fact to justify the variance or risk reversal on appeal. As such, most counsel, and most informed litigants, know that asking for joint physical custody, or co-parenting is the best, and safest request to make. The other party will be required to carry an additional burden to rebut that preference, and custody evaluators...