Powell tragedy sparks questions about child custody
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By Ted S. Warren, AP Investigator Don Easton examines the rubble Tuesday of the home where Josh Powell and his two sons were killed in Graham, Wash.
Most states do not have specific laws regarding child custody, supervised visitation or how visits are conducted, several legal experts say.
Instead, judges empowered with a high degree of discretion determine who gets custody, what losing custody means and where and when supervised visits occur.
"The trend has been for every state to give judges broad discretion to protect children," said Randall Kessler, chairman of the American Bar Association's family law section. "I can't imagine that the judge had any concern that the father would do this or the judge wouldn't have allowed the children to see him."
While most legal scholars agree that judges need leeway to consider the facts of each case individually, at least one group is asking for more concrete laws in governing custody battles.
"The current standard — 'in the best interest of the child' — we believe is very vague and subjective," said Sheila Peltzer, president of the Charlotte, N.C.-based Kids Need 2 Parents advocacy group. "Judges have too much discretion."
Powell was a suspect in the disappearance of his wife, Susan Powell, 28, in 2009. Her body has not been found. Police said he intentionally set his Washington state home on fire Sunday with his two young sons inside. The boys also had "chop injuries" from a hatchet, in addition to dying of smoke inhalation.
On Tuesday police released 911 calls that revealed a social worker's frantic attempts to alert authorities that Powell had locked himself in his home with his two sons, moments before he set off a huge fire that killed all inside.
"He exploded the house!" the social worker tells a dispatcher at one point.
Before the fire erupted, the woman, who was supposed to monitor a supervised visit between Powell and his children, said he grabbed them and wouldn't let her in the door.
"What should I do?" she asks the dispatcher. "Nothing like this has ever happened before at these visitations. … I could hear one of the kids crying, and he still wouldn't let me in."
Many in the legal community say judges could not have predicted such a violent end.
Custody in Powell's case was handled much like many cases — the goal was to remedy the situation that caused the loss of custody while maintaining the relationship of the father and sons. Powell lost custody after his father, Steven Powell, who they were living with, was arrested on child pornography charges in September, police said.
Powell's in-laws, the children's maternal grandparents, Charles and Judy Cox, had custody of the boys at the time of the killings. Powell had been granted visits twice a week with his sons, including Sunday visits in his rental house, the scene of the blaze, The Seattle Times reported.
A day after the blaze, Charles and Judy Cox told the newspaper they wished the visits had happened away from Powell's "own turf."
However, without evidence that a parent puts the children in danger, loss of custody usually means the child temporarily no longer lives with the parent, but that visitation, most often in that parent's home, can still happen, Kessler said.
In cases such as Powell's where supervision is ordered, courts are often not specific about where they take place and visits will be at the parent's home, Kessler said.
The supervised visits between Powell and his sons had initially taken place at the offices of the Washington Department of Social and Health Services, Thomas Shapley, senior director of public affairs for the agency, told The Salt Lake Tribune. They were later moved to Powell's home after Nov. 2, he told the newspaper.
What may be the more common understanding of losing custody — namely, losing the ability to have a child in one's home — is usually reserved for cases where clear evidence of violence or substance abuse is presented in court, said Norman Heller, head of the law firm Blank Rome's New York-based matrimonial practice group.
In the worst cases, visitation can take place at a courthouse or a police station, he said, adding that such treatment is "reserved for very serious violence where you need extensive protection."
"To terminate a parent's rights is very hard in America," Kessler said. "We want to preserve a parent's right to know their children and vice versa."
Police on Tuesday searched a storage unit Powell rented as they tried to determine why he committed the murder-suicide, and questions remained about the status of the investigation into his wife's 2009 Utah disappearance.
For at least six months, Utah authorities have investigated the disappearance of Susan Powell as a murder case. But without a body, they publicly held out hope that she would be found alive.
Josh Powell claimed that on the night Susan Powell vanished, he took his sons from their home in West Valley City, Utah, on a late-night camping trip. Authorities eventually searched the central Utah desert but found nothing.
Susan Powell's father said that when police went to the family home after she was reported missing, they found a wet spot in the house being dried by two fans. Police have not commented further on what they found.
West Valley, Utah, Police Chief Buzz Nielsen said authorities needed concrete evidence to move forward.
"When you charge on criminal cases, especially if it ends up being a homicide … without a body, it's just more difficult. You have to have a stronger case to make those arguments in court," Nielsen said. "We have circumstantial evidence that I'm not allowed to talk about it.
Contributing: Associated Press.