Open Letter regarding House Bill 272 – Kayden’s Law in Utah
I previously reached out expressing concern with the wording of HB272. While expressing support for the basic premise of the Bill – keeping children safe from harm – I discussed why the specific wording of the Bill would lead to unintended consequences for families in crisis. I am aware other family law attorneys and professionals have also reached out to the Committee expressing similar concerns.
I am aware that in speaking out against this Bill I seem to have ruffled the feathers of certain national activist groups behind this Bill who have proclaimed I must have some kind of agenda in favor of abusive parents because years ago I had limited involvement in a case where the father later killed his son. How dare the attorney who represented that awful person have the nerve to speak out against a child safety Bill! He must support child abuse! Because we all know any attorney who represented someone who later did a bad thing must support evil, right? And pay no heed to other attorneys who agree with what he had to say.
The Committee can judge for itself what to make of all this. My arguments stand on their own merits. The views I have expressed are my own. I do not speak for any organization or client, past or present. I most certainly do not speak for nor condone the reprehensible behavior of my former client. Nor do I have anything against Ms. Moses. What her former husband did was inexcusably evil. She has every right to grieve. I mourn for the loss of her son and commend her noble desire to help lawmakers find a way to protect children from harm.
If I thought HB272 would achieve that goal, I would support it. But I cannot in good conscience do so. To be sure, the Sponsors have been delightful to work with and receptive to constructive feedback. The 2nd Substitute is a significant improvement from the initial draft, and I am grateful for the collaborative work they have put into it. But there are still significant issues that need to be fixed. But if the changes listed below are adopted, I would encourage the Committee to vote in favor of HB272 as amended.
Tracking the lines in the 2nd Substitute of HB272:
210 (7) “Psychological maltreatment” means a repeated pattern or extreme incident of
211 caretaker behavior that:
212 (a) intentionally thwarts a child’s basic psychological needs, including physical and
213 psychological safety, cognitive stimulation, and respect;
214 (b) conveys that a child is worthless, defective, or expendable; and
215 (c) may terrorize a child.
The inclusion of a definition for psychological maltreatment/abuse is a welcome addition. We should share the goal of protecting children from abuse in all its evil forms: physical, sexual, and psychological. But this particular definition is unduly narrow and unworkable for several reasons.
The end of line 214 improperly uses “and” instead of “or.” As written, a parent could intentionally thwart their child’s basic psychological needs, tell their children s/he is worthless, defective, expendable, etc. but as long as they stop short of “terrorizing” the child they legally have not committed psychological maltreatment because this Bill says they have to satisfy (a), (b), and (c). Or, a parent could terrorize their child and thwart the child’s basic psychological needs, but as long as they do not make the child feel worthless, defective, expendable, etc. they can get away with psychological child abuse.
Simply change the “and” at the end of line 214 to “or” and that problem is fixed.
Another troubling omission is this definition does not include psychologically abusive parental alienating behaviors as a form of emotional abuse. This is unfortunately not an oversight. It is a deliberate policy choice by the national activist group supporting this legislation. But it is not the Utah way. We are a family state, and we want children to grow up feeling loved and cared for by both parents whenever it is safe to do so. It is an unfortunate reality that in the emotionally charged atmosphere of separation and divorce, some parents try to force their children to reject the other parent for reasons other than protecting the child’s safety.
That, in itself, is a form of psychological child abuse. It tells the child that half of them is bad and unworthy of being loved. It leads to depression and with it a host of physical ailments. It teaches children unhealthy ways to cope with loss and disappointment in ways that may bleed over and harm them in future relationships with others. I have personally witnessed custody cases where a parent engaged in such extreme acts of psychologically abusive alienating behaviors it led their child to attempt suicide.
I acknowledge the criticism that claims of parental alienation are sometimes weaponized by parents who are bad actors themselves. That is true. But bad actor parents – both male and female – weaponize false allegations of various sorts, be it alienation, abuse, substance misuse, mental illness, bad parenting, etc. And sometimes both sides are bad actors levying false claims against each other to gain a leg up in their dispute. These are messy to sort out. But Judges do the best they can to discern the truth with the goal of protecting children from abuse in all its forms. Saying we should not consider X because a parent may levy a false allegation about X is not a persuasive reason to ignore it.
Existing Utah Code 30-3-32(2) reflects the public policy of Utah that:
(a) A court shall consider as primary the safety and well-being of the child and the parent who experiences domestic or family violence.
(b) Absent a showing by a preponderance of evidence of real harm or substantiated potential harm to the child:
(i) it is in the best interests of the child of divorcing, divorced, or adjudicated parents to have frequent, meaningful, and continuing access to each parent following separation or divorce;
(ii) each divorcing, separating, or adjudicated parent is entitled to and responsible for frequent, meaningful, and continuing access with the parent’s child consistent with the child’s best interests; and
(iii) it is in the best interests of the child to have both parents actively involved in parenting the child.
Similarly, Utah Code 30-3-10.2(2)(c)(iii) directs Courts to consider each parent’s “willingness to allow frequent and continuous contact between the child and the other parent, except that, if the court determines that the parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration.”
The language in lines 210-215 appears to be a modified version of APSAC’s position on what constitutes “psychological maltreatment.” Their full recommended definition is:
“a repeated pattern or extreme incident(s) of caretaker behavior that thwart the child’s basic psychological needs (e.g., safety, socialization, emotional and social support, cognitive stimulation, respect) and convey that the child is worthless, defective, damaged, unloved, unwanted, endangered, primarily useful in meeting another’s needs, and/or expendable.”
APSAC goes on to list spurning, terrorizing, exploiting/corrupting, emotional unresponsiveness, and isolating behaviors, and neglect as forms of psychological maltreatment along with examples of such behaviors. However I am troubled APSAC has taken inconsistent positions over the years. Initially they listed various examples of parental alienating behaviors as falling within their broad definition of “terrorizing” and “exploiting and corrupting” behaviors. They subsequently pared this back, eliminating references to exposing a child to harmful parental conflict, misleading a child to think the other parent does not love him, and/or placing the child in frightening loyalty conflicts, etc. as a form of emotional maltreatment. In essence, APSAC tried taking the position parental alienation does not exist. But then they concede it does exist; they just feel “the conclusion is too often made without careful evaluation of allegations of allegations of child maltreatment, intimate partner violence, and other parental bad acts, especially in custody disputes.” Then they concede psychological abuse in the form of parental alienation may be found when a parent engages “in an effort to interfere with that child’s relationship with the other parent” demonstrated by:
“direct evidence of that parent’s behavior such as significant denigration, efforts to undermine the relationship of that child with the other parent, efforts to get the child to make false allegations of abuse or other extremely damaging behavior by the parent. A child’s avoidance of a parent is not sufficient evidence of psychological abuse by the other parent.”
I do agree with APSAC – as does the National Council of Juvenile and Family Court Judges and Association of Family and Conciliation Courts per their position statement – that we should not jump to conclusions just because a child resists contact with a parent. There may be many causes besides physical, sexual, or psychological abuse by a parent. Per APSAC’s position statements, if there are allegations of intimate partner violence the “best practice is to screen for severity (e.g. potential lethality), frequency, patterns of violence and coercive control, and primary perpetrator of the violence” and appropriate safeguards that could be implemented. But as APSAC writes, “if interpersonal violence is determined unlikely, one possible explanation for the false allegation may be an attempt to alienate the child.”
For that reason, I recommend adding a subsection (d) to the definition of psychological maltreatment whereby:
“Psychological maltreatment means a repeated pattern or extreme incident of caretaker behavior that:
(d) interferes with a child’s relationship with the other parent demonstrated by direct evidence of that parent’s behavior such as significant denigration, efforts to undermine the relationship of that child with the other parent, or efforts to get the child to make false allegations of abuse or other extremely damaging behavior by the parent. A child’s avoidance of a parent is not sufficient evidence of psychological abuse by the other parent. If the court determines that a parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration.”
360 (b) “Forensic” means professional activities undertaken pursuant to a court order or for
361 use in litigation, including the evaluation or treatment of a parent, child, or other individual
362 who is involved in a child custody proceeding
This definition is problematic because it conflates treating and investigative experts in the same broad category. As written, a parent’s individual therapist who has never met with the child or the other parent would suddenly become a “forensic” expert due to the liberal sprinkling of “or” throughout this definition. But the fundamental purpose of a forensic investigation in family court is to investigate issues and offer recommendations; not provide treatment.
The fix would be to strike “or treatment” from line 361 and include an express disclaimer that “forensic” does not encompass professional activities undertaken for the primary purpose of providing treatment to a parent, child, or other individual involved in a child custody proceeding.
363 (c) “Reunification treatment” means a treatment or therapy aimed at reuniting or
364 reestablishing a relationship between a child and an estranged or rejected parent or other family
365 member of the child.
This definition seems straightforward and innocent enough. At first glance, the reader is probably thinking ordinary therapy to repair a rift between a non-abusive parent and estranged child is a good thing. Only later in the Bill do we learn any such treatment is disfavored and practically banned even in cases where the rejected parent has done nothing wrong and does not seek to take away custody from the other parent.
My understanding is this broad definition is based on the concern of the Senate Sponsor that Courts are too quick on the trigger to order so-called “reunification camps” in cases of extreme psychologically abusive alienating behavior even when the Court process has ruled out abuse by the rejected parent as the cause. I do not disagree with the Senator that, being an extreme remedy reserved for the truly worst of the psychologically abusive cases out there, Courts should not impose it lightly unless absolutely necessary and supported by reliable expert testimony.
But most parent-child contact problems are not severe and can be remedied through reunification treatments such as family systems therapy. This process involves the entire family and is based on the notion the family is an emotional unit of interdependent individuals who affect each other, and in order to effectively treat family problems it is necessary to involve everyone (though not necessarily with everyone meeting at the same time, and subject to appropriate safeguards if there are domestic violence issues). Courts use it as the legal equivalent of an antibiotic to address the root causes of family problems and provide both parents and child with the emotional skills they need to have a safe, positive co-parenting relationship. And much like using an antibiotic, the Court’s goal is to avoid amputating either parent from their child’s life unless they pose a genuine threat to the child’s safety.
I am at a loss why we would want to disfavor or ban family therapy even in cases where the rejected parent is not violent or abusive. If the Senate Sponsor wants to ban reunification camps, this definition should refer to camps explicitly. As written, however, it broadly encompasses even normal family therapy that does not involve any kind of custody change.
366 (2) In a child custody proceeding, if a parent is alleged to have committed domestic
367 violence or abuse, including sexual abuse:
368 (a) the court may admit expert evidence from a court-appointed or outside professional
369 relating to alleged domestic violence or abuse only if the professional possesses demonstrated
370 expertise and adequate experience in working with victims of domestic violence or abuse,
371 including sexual abuse, that is not solely of a forensic nature; …
The problematic way this provision is worded would preclude a parent defending against a domestic violence accusation from calling an expert in their defense unless that expert also happened to work “with” victims of domestic violence and not in a way that was “solely of a forensic nature.” This is tantamount to passing a law saying defendants charged with a crime can only call defense experts who work “with” crime victims. It does not matter that the defense expert is otherwise qualified, educated about all the dynamics of domestic violence and child abuse issues, and followed proper methodology to uncover evidence the defendant is innocent. If they do not work with victims, their testimony gets excluded.
That does not pass the due process nor equal protection smell test.
So too, banning forensic experts makes no sense. These are exactly the kind of experts we want to hear from in deciding whether domestic violence or abuse took place. The whole purpose of a forensic investigation is fact finding. They typically meet with both parties and the child, including collateral sources of information such as doctors, police officers, school teachers, DCFS caseworkers, etc. Conversely, treating therapists are not as helpful in this context because they typically only meet with one side and take whatever they are told at face value. Inevitably the “expert reports” we get from non-forensic experts goes along the lines of: “I am so-and-so’s personal therapist. They told me their ex is crazy. If everything they told me is true, and even though I have never met their ex or witnessed their parenting in action, I am diagnosing the ex as a psychopath narcissist who should have his or her parental rights terminated. I recommend you give my patient full custody and never let their ex see the kids again.” Not very helpful, is it?
To fix this section, on line 370 replace “victims” with “issues.” And on line 371 strike “that is not solely of a forensic nature.” This is even handed and ensures the Court is hearing from experts who will actually help them make an accurate call.
381 (4) As part of a child custody proceeding, a court may not, solely in order to improve a
382 deficient relationship between the other parent and a child:
383 (a) remove the child from a parent or litigating party:
384 (i) who is competent and not physically or sexually abusive; and
385 (ii) with whom the child is bonded; or
386 (b) restrict reasonable contact between the child and a parent or litigating party:
387 (i) who is competent and not physically or sexually abusive; and
388 (ii) with whom the child is bonded.
This section addresses situations where a child is resistant to going with a parent. Although this Bill is touted as a measure to prevent abusive parents from obtaining custody, this section does not even ask if the estranged parent has been abusive or violent so as to cause any resistance.
In reading the statements put out by national sponsors of this provision, it appears the intent is to ban Court from considering changing custody or banning parents who engaged in psychologically abusive behavior, often in the form of extreme parental alienating behaviors, from having contact with their children. That is why this section only asks if the other parent is “not physically or sexually abusive.”
Even if the noncustodial parent has never done anything abusive or violent, so long as the custodial parent is not starving, sexually molesting, or hitting their child he or she can get away with psychologically abusing their child even to the point of causing the child to reject contact with the other parent. And if this Bill passes as is, the Court would be prohibited from doing anything about it. That is not the Utah way.
I note the irony of line 403 which instructs Courts to “prioritize the child’s physical and psychological safety and psychological needs.” If a child’s psychological well-being is a priority, why then are we not including it in lines 381-389?
The fix to this problem is simple: add “psychologically” to lines 384, 387, and 395 and clarify elsewhere psychological abuse encompasses a repeated pattern or extreme incident of behavior supported by direct evidence of a parent intentionally causing their child to unjustifiably reject the other parent.
389 (5) As part of a child custody proceeding:
390 (a) a court may not order a reunification treatment unless there is generally accepted
391 proof of the physical and psychological safety, effectiveness, and therapeutic value of the
392 reunification treatment;
Again, we have another section addressing situations where a child is resistant to going with a parent. But again the Bill does not ask if the estranged parent has been abusive or violent so as to cause such resistance. Even if the Court finds the estranged parent is completely innocent, this Bill presumes reunification treatment is inappropriate. To have any hope of seeing their child again, the rejected parent would have to incur the expense of hiring an expert to come in and prove that any such treatment is safe, effective, and of sufficient therapeutic value. This would require additional expense for families who are probably already in financial distress and additional court hearings at the expense of Utah taxpayers.
By now I expect the Committee has heard from several Utah experts who have confirmed that family systems therapy is generally accepted as safe, effective, and therapeutically valuable for helping resolve parent-child contact problems. We do not need to prolong these court proceedings or impose additional financial burdens on Utah families.
The Committee is being told this Bill is to protect children from abuse. Yet here we are reading sections that seek to bar parents from reuniting with their children even if the Court finds that parent has done nothing wrong. This is an overreach and runs counter to the public policy of Utah as reflected in Utah Code 30-3-32(2), 30-3-10.2(2)(c)(iii), and various other sections.
In conclusion, while I realize this statement may seem critical overall of amended HB272, I still commend the Sponsors for their noble intentions and receptiveness to constructive feedback. The 2nd Substitute Bill is a significant step in the right direction. But I cannot lend my voice in support of it yet without additional changes. If the Sponsors and/or this Committee are willing to make the changes requested in this letter, you may then count me among the supporters of this revised HB272. Otherwise, I recommend voting no.