The Josh Powell Custody Case: What Went Wrong?

A Tragic End to a Custody Battle

On February 5, 2012, Josh Powell brutally attacked his two sons, Charlie, age 5, and Braden, age 7, with a hatchet. He then ignited a fiery explosion, taking his own life.

In the years preceding the double-murder suicide, Powell was suspected of murdering his wife and was found in possession of more than 400 incestuous, voyeuristic and/or pornographic images.

Powell was ordered to submit to a psychological evaluation, which revealed an obsessive vendetta against the LDS Church and his in-laws. Powell was diagnosed with Adjustment Disorder and Narcissistic Personality Disorder.

Powell’s psychological issues were also manifest in the behavior of his children.

On one occasion, Charlie explained to classmates how to hide a dead animal so it would never be discovered. On several occasions, both Charlie and Braden attributed their mother’s disappearance to their maternal grandparents, Chuck and Judy Cox. The boys explained that their mother was hiding from her parents, because they had abused her. Both boys were observed making hateful comments toward Mormons, Jews and Christians.

Despite the accusations against him, Powell maintained sole custody of Charlie and Braden for two years after his wife’s disappearance. Thereafter, he was awarded supervised visitation at his private residence.

Following the February 5 tragedy, Washington fell under heavy criticism with regard to perceived weaknesses in the state’s child custody laws. The Cox family, in particular, voiced frustration over what they have described as a “lack of strong custody guidelines.” Chuck and Judy Cox are currently pushing for more rights for grandparents and less focus on reuniting children with their biological parents.

Parental Rights

Could stricter regulations or a different system have prevented the untimely deaths of two young children? Perhaps – but at what cost?

Family courts have long struggled to define appropriate factors for adjudicating child custody.

Part of the difficulty lies in the Constitution of the United States. The right of parents to have custody and control of their children is included in the list of fundamental liberties, guaranteed by the Fourteenth Amendment. The Supreme Court has further explained the importance of parental rights as follows:

“The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for making life’s difficult decisions.” Simply “because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state.” Parham v. J.R., 442 U.S. 584, 602-603 (1979).

When a custody case is initiated between two parents, both parents begin with equal custody rights. Accordingly, Utah law requires family law judges to consider joint custody in all cases. However, even in joint custody arrangements, one parent is generally deemed the primary custodial parent and is given more custody and/or decision-making authority than the other parent.

The court must balance the liberty interests of both parents, as well as the needs of the children, in designating a primary custodial parent. Every state has a system of custody laws, policies and guidelines aimed at achieving results that are in the “best interests of the child.”

Custody Modification

Once a judge adjudicates child custody, modifying the judge’s order is difficult. In Utah, courts are required to preserve an existing order, so long as the kids are “thriving, happy, and well adjusted,” unless there is admissible evidence establishing that there has been a “significant and material change in circumstances.”

Grandparents’ Rights

It is significantly more difficult to change a custody order when the party seeking modification is not a biological parent of the minor children. Grandparents and other third parties do not have the same Fourth Amendment rights as parents. Pursuant to the Fourteenth Amendment, there is a presumption that parents are better equipped than any third party to make good decisions for their children.

Parental rights, however, “may be subject to limitation if it appears that parental decisions will jeopardize the health or safety of the child.” Prince v. Massachusetts, 321 U.S. 158, 166–67 (1944). Grandparents may have a case for custody when a parent is deemed unfit or has abandoned a child. The grandparents would have the burden of proving that it is not in a child’s best interests to remain in the care of his biological parents.

So why did Josh Powell have custody?

Where children are concerned, emotions run wild – and so do allegations. Criminal and protective order investigations are often initiated on the basis of erroneous or highly-exaggerated allegations.Without actual evidence, family court judges are left to determine the credibility of he-said, she-said accusations. Judges often call upon third parties to assist in the process. A Guardian ad Litem may be appointed to interview and speak on behalf of the children in court. The judge may order that the parties submit to psychological evaluations, and supervisors or custody evaluators may be appointed to observe a parent’s interaction with his children.

A major issue in the Josh Powell custody case was lack of evidence. Chuck and Judy Cox had the burden of proving that Powell was an unfit parent. The couple focused largely on the 2009 disappearance of Powell’s wife. However, Powell was never charged in connection with the disappearance, and maintained custody of his sons until 2011.

There was no evidence that Powell had abused or neglected his sons, and Powell was not ordered to submit to a psychological evaluation until November, 2011.

In November 2011, Powell’s father was arrested on child pornography charges. Thereafter, Utah authorities disclosed that they had discovered 400 questionable images on Powell’s computer in 2009. However, authorities again failed to charge Powell in connection with the pornography investigation.

The social workers assigned to supervise Powell’s visits reported that Charlie and Braden were excited and happy when in the care of their father. The Huffington Post reported that, during Powell’s last supervised visit, both children “were affectionate with Dad and frequently hugged him and stood close to him.” Powell told them he “loved them very much and would see them as soon as he could.” (See http://huff.to/yewlsk.)

Removing custody from a biological parent is an extreme measure, which requires proof that the parent is unfit. The Powell case is a tragic example of a custody case gone wrong. However, I would hesitate to support the position that grandparents or other third parties should have more rights in custody cases.

The lack of evidence in the Powell case appears to be, in part, due to the failure of Washington and Utah authorities to communicate with regards to vital pieces of evidence. It also appears that the Washington court failed to utilize resources that are already available in family law cases. The judge needed to be more proactive in ordering custody evaluations and psychological evaluations where there was uncertainty with regard to the best interests of the Powell children.

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