Sen. Todd Weiler, R-Woods Cross, believes Utah's current laws are not sufficient to protect children in such situations, and he wants to draft legislation modeled after the Braden and Charlie Powell Act now pending before Washington's state Legislature.
"It's ludicrous that right now we have children in this state that have to sleep with weapons under their pillows" because they live with a parent who they believe murdered their mother, Weiler said at the Judiciary Interim Committee's May meeting a reference to von Schwedler's children. "I believe our justice system is failing them."
Committee members voted to place the issue on their top 10 priority list for study during the interim session, though some lawmakers said existing laws should suffice and others expressed concern about the impact the proposal would have on someone who is never charged with a crime.
"Are we going to remove the kids from the parent just because the police can't come up with a better suspect or can't come up with a suspect at all, and this person is just left hanging on the hook?" asked Sen. Mark Madsen, R-Lehi.
In Washington state, lawmakers during the 2013 session debated the Braden and Charlie Powell Act, which would bar a suspect in an active murder investigation from having custody of children. The Washington Senate approved the measure, but the session ended before it came up in the House. The measure is on the calendar for reconsideration during a special session, which ends June 11.
That act amends current law to allow a judge to review police evidence and bar children from the custody of a parent suspected of murder; a judge also could limit visitation with that parent. The act also requires law enforcement to share investigative material with the Washington Department of Social and Health Services for use in child-custody proceedings and requires the department to reassess visitation when a parent is ordered to undergo a psychosexual evaluation.
Josh Powell was considered a person of interest in his wife's disappearance, but West Valley City police never named him a murder suspect. He moved with his sons to Washington state about a month after Susan Powell disappeared.
Chuck and Judy Cox, Susan's parents, were given temporary custody of their grandsons in September 2011 after police arrested Steve Powell, their paternal grandfather, on voyeurism charges. The boys died during what was supposed to be a supervised visit with Josh Powell at a home he had rented; four days before the murder/suicide, a judge had ordered him to undergo a psychosexual evaluation and extended the Coxes' custody of the boys.
Weiler said von Schwedler's three minor children remained with their father for 18 months before his arrest despite suspicions of an older sibling, other relatives and friends that Wall had killed his ex-wife.
"It's been very distressful to them that this individual, who they all believe was responsible for murdering the wife, has had custody of the children," said Weiler, who met with the family in March.
The children were removed from their father's custody in June 2012 after Pelle Wall, 19, sought custody of his younger siblings. But, two months later, a juvenile judge ordered them returned; the children stayed with Wall untilhe was arrested and charged with first-degree felony counts of murder and aggravated burglaryabout eight months later.
Pelle Wall said Wednesday that he supports Weiler's efforts to amend Utah law to protect children in the "dangerous situation which resulted in the deaths of Charlie and Braden Powell."
"If such legal provisions were in effect at the time of my own mother's murder," Wall said, "I would not have had to spend the inheritance she left to me trying to protect my minor siblings from our father."
Weiler said Washington's act goes too far by making removal of children mandatory.
"What I would like to do is craft some legislation that would give the judge the option to have a hearing and consider the best interests of the children and whether those children should be removed during the pendency or the outcome of that [investigation] in order to protect the children," Weiler said during the committee hearing. It would apply, he said, only in murder investigations.
Rep. Brian M. Greene, R-Pleasant Grove, said courts already have ways to remove children from dangerous situations.
"I see this being applied whether or not there is justification," Greene said. "I think that is a very troubling road to start down. ... In both examples, it was a year or two after the fact and there had been no charges filed against these individuals. So there is not sufficient evidence, probable cause, to file charges, but we're going to create a standard much less than that for violating those parental/child relationships?"
Greene also said that in a missing-person or suspicious-death investigation, police typically look at family members first as persons of interest.
"It's going to take a lot of convincing to get me on board," he said.
Rep. LaVar Christensen, R-Draper, told Weiler the best route might be to amend existing statutes to cover cases in which a parent is suspected of foul play, though he believes current laws are adequate to get children removed from a parent's custody if they are at risk.
"Sadly," Christensen said, "the children are vulnerable because they are dependent on an adult to act on their behalf and nobody acted in their behalf."
But in both cases cited by Weiler, relatives did try to act to protect the children.
In Utah, the "way the law is structured right now you have to have neglect or abuse," said attorney Rebecca Skordas, who represents von Schwedler's family. "We struggled to find a way to take our fact scenario and fit it into existing law. We ended up having to call it emotional abuse, which is much more difficult to argue and prove. ... I've always thought that if there is not some change in legislation, the Josh Powell tragedy could happen all over again."