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Parental rights vs. child safety: Should boys have been visiting Josh Powell? (+video)

Josh Powell, a 'person of interest' in his wife's disappearance two years ago, died with his two young boys in an apparent murder-suicide. Should he have had visitation rights?

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But New Jersey attorney Toby Kleinman, an associate editor of the Journal of Child Custody, says there’s almost always more the court could have done.

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For starters, visitation should have been ordered to take place at a neutral location. And the court in the beginning could have taken into account Powell’s status as a suspect in his wife’s disappearance when granting custody.

“The courts should always err on the side of safety,” Ms. Kleinman says, noting that custody cases aren’t the same as a criminal case where the defendant’s guilt needs to be proved beyond all doubt.

Too often, Kleinman adds, courts view custody and visitation issues through the lens of how to preserve a parent’s right if at all possible, rather than using the filter she believes they should use: how to guarantee the child’s right to be safe.

“Children cannot advocate on their own behalf,” says Ms. Kleinman, noting that the judge has to act as their parent instead – essentially asking themselves, “would you put your child at that risk?”

In the Powell case, the Washington judge did immediately remove the boys from a home with child pornography, ordered a psycho-sexual evaluation to be done before they could be returned to Powell’s custody, and granted Powell only supervised visitation, albeit at his house.

“At least the judge was trying to put the brakes on this guy,” Silberg says, unlike many cases she’s seen. She cites a Baltimore case several years ago, in which a father involved in a custody dispute drowned his three young children in a hotel bathtub during a court-ordered visitation. Their mother had detailed numerous death threats he had made against her and the children, but was denied the protective order she sought.

In the Powell case, on the other hand, even Susan Cox-Powell’s parents, as devastated as they are, don’t seem to blame the state for putting their children in danger.

“They knew that legally he would probably have supervised visitation,” Susan’s attorney, Steve Downing, told the Associated Press. “It was their belief he had something to do with Susan's disappearance, and that ultimately he could harm the children. But they believed the state had listened to them and had taken appropriate measures to protect them. They don’t know what more the state could have done.”

On Monday, however, in an interview with the Salt Lake Tribune, Chuck Cox, the boys’ grandfather, sad that although he thought the supervised visits would be safe, he thought that all visitation should have stopped until Powell had finished the psychosexual evaluation and polygraph test the state had ordered.

"We were very afraid something like this could happen, as were the social workers and police. There were too many warning signs that were known, but due to the legal limits [the signs] couldn’t be acted on,” Mr. Cox told the paper.

In fact, family-law judges can act if the think there is sufficient reason – it’s just that they often don’t.

Silberg says she and others are working with judges to train them on safety issues, and to encourage them to seriously assess risk factors – often using a “lethality assessment” scale – when deciding custody and visitation. 

“There is a resistance among family court judges to assess those types of factors in cases that are considered family cases and not criminal cases,” says Silberg. “But criminals have families.”

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