Bill could change kids’ custody status in murder cases

Posted at 5:51 PM, Nov 28, 2013
and last updated 2013-11-28 19:51:31-05

SALT LAKE CITY -- After Susan Cox Powell vanished, her family fought with her husband, Josh, for custody of the couple's children.

Police had labeled Josh Powell a "person of interest" in his wife's 2009 disappearance, but he was never publicly declared a suspect.

Pelle Wall fought for custody of his siblings after accusing his father, Dr. Johnny Wall, of killing his mother, Uta Von Schwedler. Dr. Wall is now facing a murder charge.

These high profile cases -- and their related custody battles -- have prompted a Sen. Todd Weiler, R-Woods Cross, to propose a bill that would make it easier for relatives to pursue child custody in murder cases.

"What Pelle's case showed me, at least, is the burdens are too high right now in Utah for these very unique and rare circumstances," he said in an interview with FOX 13.

Weiler's bill is similar to one proposed in Washington state after Josh Powell killed himself and his children in a house explosion and fire in February 2012. Unlike the bill still being considered by the Washington State Legislature, Weiler said his bill would not demand that child removal be automatic. Instead, a juvenile court judge would decide.

The bill would make it easier for relatives to petition the courts to consider removing children when one spouse is suspected of killing another.

"I think the threshold would be the spouse being murdered, under not clear circumstances," Weiler said.

Jennifer Graves, the sister-in-law of Susan Cox Powell, said she supports the idea of the legislation, but worried about unintended consequences. She wondered how low the burden would be -- if someone is labeled a "person of interest" or a "suspect."

"Josh was never listed as a suspect," she said of her brother. "He was only a 'person of interest.'"

Graves told FOX 13 she worried that the bill may force police to accelerate their investigations when they are not ripe, or that people who truly are innocent would lose their children while they wait for police to clear them.

"In the case of Elizabeth Smart... Ed Smart was a 'person of interest' the whole time," Graves said. "What would have happened to his other children? He wasn't the one who did it."

Graves said the ambiguous terminology police use to label someone they may consider looking at under a cloud of suspicion, could lead to them unfairly losing their children. She said she supports the bill if it goes after people clearly labeled "suspects."

"Obviously, if someone's accused of murder they shouldn't have their children," Graves said.

Lawyers have also expressed concerns about the impact of the bill.

"Someone is innocent until proven guilty," said criminal defense attorney Clayton Simms. "The other concern is, what if you have a list of three or four suspects in a particular case? Do all of them... they can't see their children?"

The proposed legislation is getting the support from Pelle Wall, whom Weiler said sought him out after burning through his inheritance in an effort to win custody of his siblings.

"I stand in full support of the proposed legislation. I think it has great potential to protect children in these special situations where the law simply falls short," Wall said in a statement to FOX 13.

"Kids' safety should not rely upon whether or not some member of their family has the resources to pursue extensive legal action, not to mention the time and willingness. I strongly believe a child's life is worth special considerations under the law."

Weiler said he is still crafting the bill, which he intends to unveil in the upcoming session of the Utah State Legislature. He said it has the potential to help in situations he said are "very unique."

"I'd like a judge with a toolbox of tools to decide what's appropriate for an individual circumstances," he said.