As we all know, Washington state authorities were unable to protect two boys in a custody battle earlier this month. The family's social worker stood helplessly outside the locked doorway while the boys were inside with their father, who had been granted supervised visitation by the court. She called 911, but it was too late. The boys' father doused his house with gasoline and set it on fire, killing everyone inside. In the wake of this horrible tragedy, many states are now questioning their ability to protect children's rights and ensure their safety during custody disputes.
Because judges are given discretion in custody decisions, most states lack laws that specifically address custody issues such as supervised visitation. The judge's assessment of whether a child is in danger primarily determines whether a troubled parent is allowed access to his or her child. The current standard for custody decisions is to make arrangements that are in the best interest of the child.
The threshold for denying custody, or taking away the right of a parent to have a child in his or her home, is very high. Usually such cases involve evidence of substance abuse, sexual abuse or violence. Judges can provide specific instruction regarding how and where visits occur, but it does not usually come to that extreme.
In the Washington case described above, a judge had granted custody of the two boys to their maternal grandparents. The boys' father was allowed twice-weekly supervised visits with his sons, including Sunday visits at the house in which they ultimately died.
Judges can specify that visits happen in secure places, even courthouses or police stations, if there is a concern for the safety of the child in a custody case. However, if the judge in a case does not mandate details of the visits, children are most likely to visit a parent in his or her home. In the Washington case, the judge did not foresee that this arrangement could turn out to be tragic. And, many have said that the judge simply could not have predicted such a horrific end.
Although many scholars generally agree that judges are effective in case-by-case decisions, some advocates are now requesting that states consider legislation to address custody disputes.
Source: USA Today, "Powell tragedy sparks questions about child custody," Yamiche Alcindor, Feb. 7, 2012