Parental rights vs. child safety: Should boys have been visiting Josh Powell?

Should Josh Powell have had visitation rights with his two young children – whom he allegedly killed on Sunday in an apparent murder-suicide?

It’s easy to second-guess the decisions made in the Powell case, now that the unthinkable has happened.

How could the authorities have given supervised visitation to a parent who was a “person of interest” in his wife’s disappearance? Should it have been at his house, as opposed to a neutral spot? Why was no one aware of how troubled Mr. Powell apparently was?

But it’s not always clear in such cases what precautions are necessary – and a parent’s right to see his or her children is a powerful one in family court.

Joy Silberg, a psychologist who specializes in child protection and abuse cases, says courts often place more value on parental rights than a child’s safety – or see them as equal concerns, when in her view, the parental rights should be secondary.

“I have situations where the child has disclosed very clear disclosures about a parent, or terror at being near a parent … and the judge still orders a child to go [to visitation] because the parental right is seen as having so much more power,” says Dr. Silberg.

While she doesn’t know all the facts of the Powell case, she adds, “it’s hard for me to believe that this was completely out of the blue and that no one knew he was this destructive. People usually leave clues.”

In fact, Powell was named a “person of interest” by the authorities when his wife, Susan Cox-Powell, disappeared two years ago. But he was never officially charged with any crime, and no details have ever been made public linking him with the case.

For nearly two years after Ms. Cox-Powell disappeared from their Utah home, Powell retained custody of the couple’s two young boys, Charlie and Braden, and moved with them to Washington state shortly afterward.

He only lost custody when authorities discovered that Powell’s father – with whom Powell and the boys were living at the time – had child pornography in the house and arrested him.

Since then, the boys had been living with their mother’s parents, and Powell was granted twice-weekly supervised visitation. Powell and his attorney argued it wasn’t fair for him to be punished for his father’s crimes, and said that he had proved himself in the visitations to be a fit parent.

But on Sunday, he sent his attorney a three-word message: “I’m sorry. Goodbye.”

When the court-appointed social worker brought the boys to his home that afternoon, Powell was waiting for them outside. He locked the social worker out once the children were inside. Minutes later, the house exploded.

“If there had been any indication of suicidal thoughts, or anything that we would have thought there was an intent to harm the children, we would have taken immediate action,” Sherry Hill, a spokeswoman for the Children's Administration at the Department of Social and Health Services, told the Associated Press. “If we had thought that, we would have done what we could. I don't think there's anything else we could have done.”

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.

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.”