Fathers' rights in custody, adoption get lawmakers' focus

Published: Monday, Feb. 20 2012 6:18 p.m. MST

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

Ravell Call, Deseret News

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 Froerer, 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.