Legal Question in Constitutional Law in Utah

Re: Constitutional question of child custody

You need to raise the constitutional question in the district court along with each of your other arguments which are critical to your case. You will lose in district court, and even if you should win, the other attorney would appeal. The law does not change unless a higher court rules against it.

Your rights of custody/visitation are subject to the best interests of the child, as it should be. You will want to appoint a guardian ad litem for your children who agrees with your position. Your attorney argues for your rights; the guardian ad litem argues for the rights of the children.

Up to now courts believe that a child is better off living in a stable environment, with school, friends, church etc primarily from one house. Shuttling the child between two residences is considered detrimental to the child. If you propose a plan where your residence is in the same neighborhood as the child (or where the child stays in the house and the parents shuttle) your chances will increase. The only way you will win is to get a ruling based on a factual basis that shows that all of the best interests of the child are met.

The basic problem arises that rarely are both parents equally competent and interested in the best interests of the child. As a rule, but not always, mother is more motivated to sacrifice for the child. Fathers are usually more committed to career and have less time for the child. Your challenge will be to come up with a legal theory that considers your constitutional issues and also creates a legal solution that retains the best interests of the child. Not impossible, but may be a challenge.

I am frankly sympathetic to your position. (I am also a guardian ad litem.) However the cost to bring this through the courts is tremendous. Generally one parent or the other gives in because of the cost to maintain attorneys on all 3 sides through court and appeals processes.

To do the job right in the courts would be very expensive. You other option is to change the guidelines in the law. Either way it will be time consuming and difficult.