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Doing Away With Discrimination in Child Custody Cases

Posted by J. Benjamin Stevens | Feb 05, 2012 | 0 Comments

A recent bill before the Utah legislature, HB88, would add a statement to Utah's divorce statute saying that courts, when making a custody determination, may not discriminate against a parent based on age, race, color, national origin, religious preference, or gender.

The bill's sponsor, Representative Ryan Wilcox, R-Ogden, said he intends for the bill to ensure that judges consider both parents when deciding issues of custody, giving a complete look to both instead of the antiquated notion that the mother is a better choice in all circumstances.

One family who recently lost a young child after the drug addicted mother who won custody of her failed to prevent her death said that they were told, “unless the mother was in a hospital or a coffin there was nothing they could do.” Dan Deuel, of the American Parental Action League, said that “In my mind, no discrimination is a no brainer.”

While the committee unanimously endorsed HB88, some lawmakers expressed their displeasure at having to remind judges to be fair in the first place. Representative Curtis Oda said that, “The court is supposed to be balanced. It seems to be going in the other direction.” Another lawmaker, Representative Jennifer Seelig, said she supported the legislation because it addresses the long-held notion that mothers are better parents than fathers. “I think it has potential not only for changing the system but for changing hearts and minds,” she said.

Thankfully South Carolina has made a similar change when it abolished the “tender years” doctrine. What this means is that there is no automatic preference by the judge for the mother over the father – even when a child is very young. Rather, the preference is now the party that has been the “primary caretaker” of the child. In many cases, this preference results in the mother being awarded primary physical custody of the child and the father standard visitation. However, the South Carolina courts will certainly award a father custody in appropriate cases.

If you find yourself facing the prospect of a custody fight, you need the help of an experiencedSouth Carolina family law attorney to guide you through the stressful process.

Source: “Bill would add nondiscrimination statement to child custody statute,” by Marjorie Cotez, published at

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J. Benjamin Stevens

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