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What are the biases shown in family law?

What are the biases shown in family law?

Every human bias imaginable can affect a family law case, but the ones that I find most common and most troubling are (in no particular order):

  1. Women are better parents than men (this opinion is changing slowly).
  2. Sole custody is better for children than joint custody (this is rapidly changing and soon people will wonder why we ever presumed sole custody to be better[1])
  3. Children need time with their mothers more than they do with their fathers (this opinion is changing slowly).
  4. Women can’t survive without support from their husbands, regardless of whether the woman is the cause of the divorce.
  5. Men, by virtue of being men (by virtue of women being women), are better able to absorb and pay off debt than are women.
  6. Husbands commit more domestic violence than do wives, and women rarely, if ever, lie about domestic violence.
  7. Claimed expenses of operating a business are almost always grossly inflated.
  8. Legitimate expenses of operating a business are almost always presumed to be grossly inflated.
  9. Claimed living expenses are almost always grossly inflated (although it is often true that living expenses are grossly inflated).
  10. Joint custody cannot work for children unless the parents agree to it.

I used to say that men are the cause of more divorces than women are. While that may still be true, women are quickly reaching parity with men on this.

My biggest knock on men generally in divorce (and I know this isn’t politically correct, but it’s my honest, opinion as objectively stated as I can make it):
  • they tend to lie about their income more easily and more often than do women.
  • they lie about the level of involvement they had with their children pre-divorce filing because they are terrified that the court will think they were absentee parents.
My biggest knock on women generally in divorce(again, I know this isn’t politically correct, but it’s my honest, opinion as objectively stated as I can make it):
  • Women lie more easily and more often than do men in divorce because people are more willing to believe women than men about divorce issues, especially child custody issues.

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[1] There was a good reason for this belief back when women were primarily full-time, stay-at-home parents and men were primarily the breadwinners working outside the home.

Utah Family Law, LC | divorceutah.com | 801-466-9277

Can the guardian ad litem (GAL) decide that my ex can order drug test in custody case?

Can GAL decide that my ex can order drug test in custody case?

While only your judge or commissioner can make orders, sometimes guardians ad item, or GAL’s, as they are called, would like to think that they have a judicial powers, but they do not. However, you should know that quite often lazy and/or apathetic judges and commissioners like to defer to GAL’s more than they should. And so if a guardian ad litem were to recommend a drug test, and could give some minimally valid reason for it, the court will likely do as the GAL desires and recommends. But if a GAL “demands” that you submit to a drug test, you are under no obligation to submit without either a court order to do so or a court order that empowers the GAL to make you submit to testing upon his/her demand.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Can-GAL-Decide-that-my-ex-can-order-drug-test-in-custody-case/answer/Eric-Johnson-311

Remarriage Affecting Child Support?

QUESTION: Does remarriage affect child support?

My ex-wife remarried a man who makes about 4x more than I do annually. Because of this she doesn’t have to work anymore.

I have continued to pay child support knowing that the step-parents income cannot be included in child support calculations. I may have misunderstood but I thought one of the purposes of child support was to provide similar living conditions for the children. This is obviously not the case for us.

It seems a bit silly to be paying child support every month to them when they don’t really need it. Even paying a little bit less would help me financially. What would you do in this case, if anything?

ANSWER: There may be one argument I can think of, and it is likely a long shot:

Utah Code § 78B-12-210 (Application of guidelines — Use of ordered child support) provides, in pertinent parts:

(9)(a)   A parent, legal guardian, or the office may at any time petition the court to adjust the amount of a child support order if there has been a substantial change in circumstances.

*****

(b)        For purposes of this Subsection (9), a substantial change in circumstances may include:

(i)         material changes in custody;

(ii)        material changes in the relative wealth or assets of the parties;

(iii)       material changes of 30% or more in the income of a parent;

(iv)       material changes in the employment potential and ability of a parent to earn;

(v)        material changes in the medical needs of the child; or

(vi)       material changes in the legal responsibilities of either parent for the support of others.

(emphasis added)

If your ex-wife’s new husband makes four times your income AND the amount he earns is by any reasonable standard “more than enough” (i.e., they have all the money they need to survive, plus plenty to spare for the care of stepchildren), then in light of the provisions of Utah Code § 78B-12-210(9)(a) and (9)(b)(ii), one could argue that your ex-wife’s re-marriage to a spouse constitutes a material change in the relative wealth and assets of you and your ex-wife. The argument, as you hinted at, would be something like this: when in the custody of their mother and her new husband the children enjoy a material lifestyle that is not as good as my lifestyle, it’s superior to mine. She now enjoys wealth and assets that are 4 times greater than mine, so why am I paying child support to her? She does not need my child support money to maintain her the lifestyle her husband provides her and the children.

The problem you will likely face with such an argument, however, is this:

1) Your ex-wife and her husband will claim (falsely, but there is no way for you to prove it) that the stepfather absolutely, positively does not contribute to the financial support of his stepchildren, so without you paying child support the children would be destitute during the periods when the ex-wife and kids are living with her new husband. So unless you had proof that the stepfather was voluntarily taking care of the children financially and/or that the child support money you were paying to your ex-wife was not being spent on the support of your children, you’d have a hard time with this issue.

2) it could and likely would be argued (correctly) that stepparents have no legal obligation to support stepchildren, even indirectly. By arguing for a reduction in your child support obligation you are conceding that you are asking the court to make the stepfather responsible for your children’s support, and that tends to make you look like a deadbeat.

So your thought of seeking not a complete termination of child support, but a reduction may be your most likely path to success, if there is any hope of successfully reducing your child support obligation to begin with.

Thanks for your question. It’s a good question.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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How do I find a family lawyer specifically dedicated to helping out?

How do I find a family lawyer specifically dedicated to helping out?

Easy (-er said that done, but still easy to give you the sure-fire directions to seek out a lawyer dedicated, helpful lawyer).
In my opinion, after more than 20 years in practice:

1. Be reasonable, be decent. If you are mentally ill or so self-absorbed that you expect the world to revolve around you, if you refuse to acknowledge and suffer the faults and culpability of you and your fellow man, if you are so bitter that you cannot even remember—let alone believe in—this, you can never be satisfied, you can never accept reality. “To argue with a man who has renounced the use and authority of reason, and whose philosophy consists in holding humanity in contempt, is like administering medicine to the dead, or endeavoring to convert an atheist by scripture.” Thomas Paine

2. Be prepared generally to pay high prices for high quality. There may be a brilliant, skilled, tenacious lawyer out there who works for free or cheap, but that’s highly unlikely. To do well your lawyer must be paid well.

3. Since you almost certainly glossed over #2, I’ll reiterate it because it’s “an inconvenient truth,” but an inescapable truth: Be prepared to pay a high price for high quality. There may be a brilliant, skilled, tenacious lawyer out there who works for free or cheap, but that’s highly unlikely. To do well your lawyer must be paid well. There really are no shortcuts. You almost certainly cannot escape paying through the nose for high-quality legal services. The effort it takes to find the independently wealthy family lawyer who practices law out of the goodness of his/her heart is not worth the wasted effort and time. You’ll have an easier time finding Sasquatch. THAT STATE, HOWEVER, high fees aren’t synonymous with good. Plenty of attorneys have learned that trick—charge high fees to give the impression you’re good—and plenty of people fall for it. Don’t you be one of them. Remember: buy cheap, pay twice, and you never regret paying for quality. Once you have come to terms with the fact that high-quality legal services require a high price (or at least a higher price than you first expected to pay):

4. Educate yourself on what makes a good lawyer a good lawyer. To learn this accurately, find and speak with a retired lawyer or judge or two or three or four whom you can trust. Once you know what to look for in a great lawyer, you won’t waste your time and effort searching in the wrong places. Finally, ask these trusted retired lawyers and judges who the lawyer are that they trust.

a. Good lawyers are smart.

b. Good lawyers are usually experienced.

c. Good lawyers are tough. They don’t take any crap from anyone, including their clients.

d. Good lawyers are fearless.

e. Good lawyers are honest with you and with the court.

f. Good lawyers care about justice and equity.

g. Good lawyers exercise good judgment.

h. Good lawyers are resourceful.

i. Good lawyers know their limits and the limits of the legal system (see #9 below).

j. Good lawyers have the courage to level with their clients about their chances of obtaining what their clients desire.

5. Unscrupulous lawyers can be surprisingly—even shockingly—effective, but they cannot be trusted in the long run. He who will lie for you will lie to you (old Bosnian proverb). Don’t give in to the temptation to hire an unscrupulous lawyer. There is more to life than winning your case and losing your soul in the bargain.

6. Interview not two, not 5, but at least 10 different attorneys to find the right one. Old ones, young ones, expensive ones, less expensive ones. Men, women, vets, non-vets. Democrats, Republicans. Mexicans, Vietnamese, Lebanese. Sample a lot. The biggest problem people have in finding the right lawyer for them is that they fail to search enough for the right lawyer.

7. Do not lie to your lawyer. Lying to your lawyer in the belief that somehow the lawyer can “launder” your lies into believable ideas or even facts is not merely wrong, it’s a fantasy, and a fantasy that does you harm.

8. Know going in that even after you hire a good lawyer, your case will require a substantial amount of your own blood, sweat, and tears to ensure your lawyer is as effective as he/she can be.

9. Acquire and accept realistic expectations of your lawyer and the legal system. The legal system is, by and large, well-designed but poorly implemented. The justice system is not all that just. I wish this weren’t true, but it is. Even the best lawyer cannot compensate for the mass and volume of mediocrity of the system. There may be nothing the law can do for you. If so, accept it and then spend your time, effort, and resources making the best of things despite the injustices—real and imagined—that you suffer in life. All happy people in this imperfect world have learned to do this, and you can too. There is more than one way to skin a cat.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/How-do-I-find-a-family-lawyer-specifically-dedicated-to-helping-out-military-veterans/answer/Eric-Johnson-311

How does one lose custody at a hospital?

How does one lose custody at a hospital?

Very generally speaking, a parent or parents can “lose custody” of their children at a hospital (or clinic or doctor’s office) if the doctor(s) or staff at a hospital who examine a child believe there is cause for notifying the authorities that the child is abused and/or neglected, which can then lead to law enforcement and/or child protective services being summoned. If law enforcement and/or child protective services agents believe there is sufficient evidence to conclude the child(ren) are abused and/or neglected, the child can be taken from the parents and into state custody while an investigation is conducted to determine whether the parents should be deprived of custody on a temporary or permanent basis. If it is determined that the parents should be deprived of custody on a temporary or permanent basis, the state will commence proceedings in court against the parent(s).

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/How-does-one-lose-custody-at-a-hospital/answer/Eric-Johnson-311

What advice do you have for a mother who is forced to share custody of a 13 year son with covert narcissist?

What advice do you have for a mother who is forced to share custody of a 13 year son with covert narcissist?

The longer I practice the more I come to understand how hard this is. I don’t claim to have “the” answer, but from a lawyer’s perspective the problem lies in getting enough high-quantity and high-quality evidence (both are needed) to prove to the court that the other parent’s behavior is having a harmful effect on the child. This is difficult with narcissists because in isolation one or two instances of their bad behaviors may appear aberrant or even innocent.

It’s only when you have a long history of “death by a thousand cuts” that you can show the court the harm being done. So that means playing the long game: keeping records of everything, every e-mail, text message, and phone call (its legal to record phone calls in Utah without notifying the party with whom you are speaking that you are recording) and video recording (as the law allows) every interaction you want the court to know about. This means keeping your own nose clean during this period as well. Then it means compiling the evidence in a form that is so easy to review that the court cannot refuse.

Warning: most courts are not receptive to the idea that someone can be a such a chronic jerk as to harm a child on a permanent or irreparable basis, so you’ll likely also benefit from the support of competent, well-spoken, respected, non-agenda-driven experts in the field of mental health to back your arguments too. This process is time-consuming, strenuous, and expensive. If you can’t afford the time, effort, and financial cost of going about this in the courts as described above, you will want to consider other options outside of court.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-advice-do-you-have-for-a-mother-who-is-forced-to-share-custody-of-a-13-year-son-with-covert-narcissist/answer/Eric-Johnson-311

Islamic Divorce – can an Islamic marriage contract be enforced in Utah?

Regarding Islamic divorce: Can an Islamic marriage contract be enforced in Utah?

Question detail: In a Bangladeshi Muslim marriage contract, a man can unilaterally divorce the wife, but the wife can only do so under exceptional circumstances. Also, during divorce the woman only gets the dower money and each spouse keeps their own property. Can such be enforced?

Answer: If your marriage is recognized in the State of Utah, you cannot divorce your wife without obtaining a decree of divorce from a Utah state district court. You cannot dissolve a marriage extra-judicially. Utah would almost surely not follow the principles you described that characterize Bangladeshi Muslim divorce practices, as Utah courts would adhere to Utah law, which does not parallel Bangladeshi Muslim divorce practices.

Click here to access the main provisions of the Utah Code governing divorce

Utah Family Law, LC | divorceutah.com | 801-466-9277

Is it legal for the custodial parents to use child support money on themselves?

Is it legal for the custodial parents to use child support money on themselves?

This is a superb and a brave question. Here is my answer (for the State of Utah, where I practice law): I don’t know. Even after researching the question I can’t find any Utah cases that address this question. I was able to find information for other jurisdictions:

Fornatora v. Fornatora, 256 App. Div. 161, 9 N.Y.S.2d 244 (1st Dep’t 1939) (ex-husband granted a reduction in payments to wife because of her misuse of funds intended as child support).

Rosenblatt v. Birnbaum, 20 A.D.2d 556, 559 245 N.Y.S.2d 72:

While not strictly within the scope of the basic issue arising on this appeal, it may be observed that a husband who believes that his wife or former spouse is diverting alimony intended solely for the support and maintenance of their infant issue is not without adequate remedy where a factual basis for relief exists. If his obligation rests upon an underlying separation agreement, he *559 may sue to reform such agreement so as to make it declare expressly that the wife holds property received thereunder in trust for the benefit of the children. (Cf. Ebenstein v. Pritch, 275 App.Div. 256, 89 N.Y.S.2d 282 [1st Dept.]; Baird v. Baird, 23 Misc.2d 427, 196 N.Y.S.2d 333). If his obligation rests upon a foreign decree of divorce, he may to similar ends invoke the jurisdiction of such tribunal (Rehill v. Rehill, 306 N.Y. 126, 116 N.E.2d 281). If his obligation **78 rests upon a domestic decree, he may apply ‘for a modification of the decree as to future payments’ (Parkinson v. Parkinson, 222 App.Div. 838, 226 N.Y.S. 454 [2d Dept.]). In this State, on an appropriate showing, the court may reduce the alimony previously awarded to the extent of the claimed diversion, and allow the husband to pay directly some of the infants’ expenses (Fornatora v. Fornatora, 256 App.Div. 161, 162, 9 N.Y.S.2d 244, 245).

In Utah, child support can be adjusted upon a showing of substantial change of circumstances warranting adjustment (Utah Code § 78B-12-210(9).

And Utah has a statute that provides for the court to order the parent who receives child support payments to provide an accounting under certain circumstances:

https://le.utah.gov/xcode/Title78…

78B-12-218. Accountability of support provided to benefit child — Accounting.

(1) The court or administrative agency which issues the initial or modified order for child support may, upon the petition of the obligor, order prospectively the obligee to furnish an accounting of amounts provided for the child’s benefit to the obligor, including an accounting or receipts.

(2) The court or administrative agency may prescribe the frequency and the form of the accounting which shall include receipts and an accounting.

(3) The obligor may petition for the accounting only if current on all child support that has been ordered.

Kansas formerly had a statute (Sec. 2. K.S.A. 60-1616, which has since been repealed) that provided:

(f) Repeated child support misuse, effect. Repeated child support misuse may be considered a material change of circumstances which justifies modification of a prior order of child custody.

You may find this article helpful too: WHOSE MONEY IS IT, ANYWAY? A CUSTODIAL PARENT’S (NON) DUTY TO ACCOUNT FOR CHILD SUPPORT, Divorce Litigation, April 2000, 12 No. 4, Divorce Litig. 57

 

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Is-it-legal-for-the-custodial-parent-to-use-child-support-money-on-themselves/answer/Eric-Johnson-311

Did I make a mistake hiring a lawyer outside of my county to handle my child custody case?

Did I make a mistake hiring a lawyer outside of my county to handle my child custody case?

The question is whether the attorney you hired is experienced in the county in which your case is pending. For example, I live in Salt Lake County, Utah, but routinely handle cases in bordering and even distant counties, as do many other attorneys like I.

So hiring an attorney “outside of my county” is only a problem if that attorney has no idea what he or she is doing with your case, no idea how things are handled in the local courts. Ask your attorney how “comfortable” he or she is working in your county, how familiar with the judges and customs, etc. Ask other attorneys whom you know reside and work in your county if they know anything about your attorney.

Finally, sometimes an outsider is a benefit, not a detriment. The “good old boy” network can sometimes result in the client’s interests being subordinate to getting along; an outsider who isn’t beholden to the network or ensuring he or she is popular with the regulars can often mean you get superior legal representation. Analyze your situation and determine whether your attorney is doing the best job for the money. Where your attorney lives is rarely a deciding factor.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Did-I-make-a-mistake-hiring-a-lawyer-outside-of-my-county-to-handle-my-child-custody-case/answer/Eric-Johnson-311

How keeping a child from the other parent affects the child custody decision

How will a custodial parent keeping a child from the non custodial parent affect custody arrangements?

Know up front that I am not a father’s rights advocate. I am not a divorced father (I am a father and a divorce lawyer who represents both men and women without discriminating between the two). While father’s rights advocates have many valid arguments, they come across as so overwhelmingly strident, bitter, and misogynistic in far too many instances that they do their cause more harm than good. That stated:

In principle: keeping a child from a parent should affect the child custody arrangements (award) by the court taking dim view of the other parent’s infringement of your parental rights and the alienation of the child from his/her parent. It should result in the court finding that the other parent places his/her self-interest above the best interest of the child(ren). It should result in the court issuing orders that protect the child from the other parent’s deleterious actions. It may result in the court monitoring, supervising, and/or curtailing that parent’s contact with the child temporarily or permanently, depending upon the circumstances.

In actual practice: unless 1) you can either lie so persuasively as to overwhelm the lies being told about you, to the point that you have the court eating out of your hand (and please don’t do that (Mark 8:36); or 2) you have boatloads of politically correct, irrefutable, undeniable, unavoidable, and unmistakable evidence (and it helps if you are not the father—see the supposedly abrogated “tender years presumption”), then the other parent’s interference will probably be acknowledged by the court with a facile (unsupported) conclusion that both parents are engaging in the same kind of behavior, followed by an admonition that the parents “get along for the sake of the child” (as if you can cause both parents to get along by sheer force of your individual will or martyrdom) and an award of primary physical custody to the parent who tells the best story (it helps if that parent is also the mother) and/or whose spirit is last/least likely to be broken by the legal process.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/How-will-a-custodial-parent-keeping-a-child-from-the-non-custodial-parent-affect-custody-arrangements/answer/Eric-Johnson-311

Collection of unpaid child support (child support arrearages)

Collection of unpaid child support (child support arrearages)

Question:

If a child support obligor is in arrears, but so much in arrears that it is likely ORS won’t be able to recover enough money to bring payment current before the child turns 18, can and will ORS continue to collect after the child turns 18 until the arrears are brought current?

Answer:

Utah Code § 78B-5-202(6) allows for a child support order or sum certain judgment for past due support to be enforced until the youngest child in the order reaches 22 years of age or until eight years from the date the sum certain judgment was entered.  The longer duration would apply.

(6)(a) A child support order or a sum certain judgment for past due support may be enforced:

(i) within four years after the date the youngest child reaches majority; or

(ii) eight years from the date of entry of the sum certain judgment entered by a tribunal.

(b) The longer period of duration shall apply in every order.

(c) A sum certain judgment may be renewed to extend the duration.

With that said, there are instances when the time frame to collect past due support may be different.  For example, if Utah is enforcing another state’s order, then the other state’s statute of limitations may apply.

Utah Family Law, LC | divorceutah.com | 801-466-9277

How can I get a restraining order on my daughter’s father? Will it affect our joint custody? He has been stalking and harassing me.

How can I get a restraining order on my daughter’s father? Will it affect our joint custody? He has been stalking and harassing me.

My baby’s father has been stalking and harassing myself and anyone who is around me. They like to create drama even if the baby is present. Which makes me feel like he may be doing that with others when he has our daughter which makes me feel like she is in an unsafe environment.

If you have tangible proof of being stalked and/or harassed, it should be fairly easy to get an order from a court. Some people have strange ideas about what constitutes stalking or harassing, so first make sure that what your ex is doing is actually stalking or harassing

Here is where to find the law on civil stalking injunctions in Utah:

https://le.utah.gov/xcode/Title77…

Here is where to find the law on protective orders for adults and for children in Utah:

https://le.utah.gov/xcode/Title78…

Here is where you can learn the process for and the forms to request a Utah civil stalking injunction:

Civil Stalking Injunction

And here is where you can learn the process and the forms to request Utah adult and child protective orders:

Online Court Assistance Program –

But remember: sheets of paper don’t stop bullets or fists, and they don’t double as invisibility cloaks. So just because you have an order that does not mean you are protected very well. Yes, you can call the police to have your ex arrested if he violates the order, but that presumes that 1) you are safe enough to call the police; 2) that the police will believe your complaint about violation of the order; 3) that the police are willing to arrest or cite your ex; and 4) that the police find your ex.

So where the system that is designed to protect you fails to protect you, I like the advice I read here:

“Extricate yourself from the system, don’t try to vindicate yourself within it.” —@peretzp https://medium.com/human-parts/9f53ef6a1c10 …

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/How-can-I-get-a-restraining-order-on-my-daughter’s-father-Will-it-affect-our-joint-custody-Him-and-his-party-have-been-stalking-and-harassing-me

Can I Use Home Equity to Finance My Divorce Case?

Can I Use Home Equity to Finance My Divorce Case?

Question: If I don’t have a lot of money but have substantial home equity[1], and really need a good attorney, can I somehow leverage my home equity to afford a good attorney?

Answer: In Utah, it is possible to leverage your home equity to help you cover the costs of your attorney and divorce litigation costs. Possible, but not an absolute right.

If, after moving the court for permission, you can show the court:

  • that there is equity,
  • that a portion of it clearly should be awarded to you,
  • that tapping the equity for your benefit won’t unduly harm your spouse, and
  • that you have a need (or a compelling reason) to utilize the home equity to help you cover the costs of your attorney and/or other divorce litigation costs, your chances of having your request granted are very good.

[1] equity is the difference between the value of your home and what you owe on any mortgages or other encumbrances on the house

https://www.quora.com/If-I-dont-have-a-lot-of-money-but-have-substantial-home-equity-and-really-need-a-good-attorney-can-I-somehow-leverage-this-to-get-an-attorney

Utah Family Law, LC | divorceutah.com | 801-466-9277

My ex has the children this year over the July 4th holiday, but what does that mean?

My ex has the children this year over the July 4th holiday according to statutory guidelines. I’ve read the statute, but I don’t understand what it means. Can you explain it to me? Utah Code Section 30-3-35(f)(iv) provides: “July 4 beginning 6 p.m. the day before the holiday until 11 p.m. or no later than 6 p.m. on the day following the holiday, at the option of the parent exercising the holiday.”

Does this mean that your ex gets July 3rd or 5th? Both? This is confusing to me.

Thanks for your question. Here’s the answer:

Utah Code Section 30-3-35(f)(iv) provides that the July 4th holiday can be exercised, at your ex’s option, either of two ways:

beginning 6 p.m. on July 3, until 11 p.m. on July 4th;

or

beginning 6 p.m. on July 3, until 6 p.m. July 5th.

Utah Family Law, LC | divorceutah.com | 801-466-9277

I don’t like what I named my son anymore. What should I do? He’s about to turn 2 years old.

I don’t like what I named my son anymore. What should I do? He’s about to be 2 years old.

Eric Johnson, Attorney at Utah Family Law, LC

https://www.quora.com/I-dont-like-what-I-named-my-son-anymore-What-should-I-do-Hes-about-to-be-2-years-old/answer/Eric-Johnson-311

In Utah, where I practice, the parents can petition the court to change the child’s name. It’s rather easy, as far as court proceedings go. You can hire an attorney to ensure you get through the process correctly, or try to take care of the process on your own pro se (meaning without an attorney).

Here are the applicable code sections (bear in mind that, if you are divorced or unmarried without a court order determining custody of the child, you likely cannot unilaterally seek a name change without giving notice to the other parent of your intentions to seek a name change):

Utah Code Section 42-1-1. By petition to district court — Contents.

Any natural person, desiring to change his name, may file a petition therefor in the district court of the county where he resides, setting forth:

(1) The cause for which the change of name is sought.

(2) The name proposed.

(3) That he has been a bona fide resident of the county for the year immediately prior to the filing of the petition.

Utah Code Section 42-1-2. Notice of hearing — Order of change.

The court shall order what, if any, notice shall be given of the hearing, and after the giving of such notice, if any, may order the change of name as requested, upon proof in open court of the allegations of the petition and that there exists proper cause for granting the same.

Utah Code Section 42-1-3. Effect of proceedings.

Such proceedings shall in no manner affect any legal action or proceeding then pending, or any right, title or interest whatsoever.

————————————

Even though this is all that the Utah Code provides, the Utah Courts website contains some other “requirements” that, although they are not required by the Utah Code, a court may ask about or require as a condition of obtaining the name change. Here is that website link:

Instructions for Filing for a Name Change – Minor.

Forms for a child name change through the Utah courts can also be found on the website.

Utah Family Law, LC | divorceutah.com | 801-466-9277

How does joint custody of a child work?

How does joint custody of a child work?

When non-lawyers think of joint custody, I get the impression that they think of it this way:

The children live half the time with Mom and half the time with Dad.

This is certainly a joint custody arrangement that many divorced and unmarried parents follow, but it is not the only definition of joint custody.

I practice in Utah, so here is how Utah defines “joint custody.” There are two forms joint custody: joint physical custody and joint legal custody. This is long, but worth reading to understand how Utah defines joint custody.

30-3-10.1. Definitions — Joint legal custody — Joint physical custody.

As used in this chapter:

(1)(a) “Custodial responsibility” includes all powers and duties relating to caretaking authority and decision-making authority for a child.

(b) “Custodial responsibility” includes physical custody, legal custody, parenting time, right to access, visitation, and authority to grant limited contact with a child.

(2) “Joint legal custody”:

(a) means the sharing of the rights, privileges, duties, and powers of a parent by both parents, where specified;

(b) may include an award of exclusive authority by the court to one parent to make specific decisions;

(c) does not affect the physical custody of the child except as specified in the order of joint legal custody;

(d) is not based on awarding equal or nearly equal periods of physical custody of and access to the child to each of the parents, as the best interest of the child often requires that a primary physical residence for the child be designated; and

(e) does not prohibit the court from specifying one parent as the primary caretaker and one home as the primary residence of the child.

(3) “Joint physical custody”:

(a) means the child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support;

(b) can mean equal or nearly equal periods of physical custody of and access to the child by each of the parents, as required to meet the best interest of the child;

(c) may require that a primary physical residence for the child be designated; and

(d) does not prohibit the court from specifying one parent as the primary caretaker and one home as the primary residence of the child.

JOINT PHYSICAL CUSTODY

30-3-10. Custody of children in case of separation or divorce — Custody consideration.

(1) If a married couple having one or more minor children are separated, or their marriage is declared void or dissolved, the court shall make an order for the future care and custody of the minor children as it considers appropriate.

(a) In determining any form of custody, including a change in custody, the court shall consider the best interests of the child without preference for either parent solely because of the biological sex of the parent and, among other factors the court finds relevant, the following:

(i) the past conduct and demonstrated moral standards of each of the parties;

(ii) which parent is most likely to act in the best interest of the child, including allowing the child frequent and continuing contact with the noncustodial parent;

(iii) the extent of bonding between the parent and child, meaning the depth, quality, and nature of the relationship between a parent and child;

(iv) whether the parent has intentionally exposed the child to pornography or material harmful to a minor, as defined in Section 76-10-1201; and

(v) those factors outlined in Section 30-3-10.2.

(b) There is a rebuttable presumption that joint legal custody, as defined in Section 30-3-10.1, is in the best interest of the child, except in cases where there is:

(i) domestic violence in the home or in the presence of the child;

(ii) special physical or mental needs of a parent or child, making joint legal custody unreasonable;

(iii) physical distance between the residences of the parents, making joint decision making impractical in certain circumstances; or

(iv) any other factor the court considers relevant including those listed in this section and Section 30-3-10.2.

(c) The person who desires joint legal custody shall file a proposed parenting plan in accordance with Sections 30-3-10.8 and 30-3-10.9. A presumption for joint legal custody may be rebutted by a showing by a preponderance of the evidence that it is not in the best interest of the child.

(d) A child may not be required by either party to testify unless the trier of fact determines that extenuating circumstances exist that would necessitate the testimony of the child be heard and there is no other reasonable method to present the child’s testimony.

(e) The court may inquire of a child and take into consideration the child’s desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the child’s custody or parent-time otherwise. The desires of a child 14 years of age or older shall be given added weight, but is not the single controlling factor.

(f) If an interview with a child is conducted by the court pursuant to Subsection (1)(e), the interview shall be conducted by the judge in camera. The prior consent of the parties may be obtained but is not necessary if the court finds that an interview with a child is the only method to ascertain the child’s desires regarding custody.

(2) In awarding custody, the court shall consider, among other factors the court finds relevant, which parent is most likely to act in the best interests of the child, including allowing the child frequent and continuing contact with the noncustodial parent as the court finds appropriate.

(3) If the court finds that one parent does not desire custody of the child, the court shall take that evidence into consideration in determining whether to award custody to the other parent.

(4) (a) Except as provided in Subsection (4)(b), a court may not discriminate against a parent due to a disability, as defined in Section 57-21-2, in awarding custody or determining whether a substantial change has occurred for the purpose of modifying an award of custody.

(b) The court may not consider the disability of a parent as a factor in awarding custody or modifying an award of custody based on a determination of a substantial change in circumstances, unless the court makes specific findings that:

(i) the disability significantly or substantially inhibits the parent’s ability to provide for the physical and emotional needs of the child at issue; and

(ii) the parent with a disability lacks sufficient human, monetary, or other resources available to supplement the parent’s ability to provide for the physical and emotional needs of the child at issue.

(c) Nothing in this section may be construed to apply to adoption proceedings under Title 78B, Chapter 6, Part 1, Utah Adoption Act.

(5) This section establishes neither a preference nor a presumption for or against joint physical custody or sole physical custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.

(6) When an issue before the court involves custodial responsibility in the event of a deployment of one or both parents who are servicemembers, and the servicemember has not yet been notified of deployment, the court shall resolve the issue based on the standards in Sections 78B-20-306 through 78B-20-309.

Utah Family Law, LC | divorceutah.com | 801-466-9277

Originally published on Quora at: https://www.quora.com/How-does-joint-custody-of-a-child-work/answer/Eric-Johnson-311

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Can I Use Home Equity to Finance My Divorce?

Question: If I don’t have a lot of money but have substantial home equity[1], and really need a good attorney, can I somehow leverage this to get an attorney?

Answer: In Utah, it is possible to leverage your home equity to help you cover the costs of your attorney and divorce litigation costs. Possible, but not an absolute right.

If, after moving the court for permission, you can show the court:

  • that there is equity,
  • that a portion of it clearly should be awarded to you,
  • that tapping the equity for your benefit won’t unduly harm your spouse, and
  • that you have a need (or a compelling reason) to utilize the home equity to help you cover the costs of your attorney and/or other divorce litigation costs, your chances of having your request granted are very good.

[1] equity is the difference between the value of your home and what you owe on any mortgages or other encumbrances on the house

https://www.quora.com/If-I-dont-have-a-lot-of-money-but-have-substantial-home-equity-and-really-need-a-good-attorney-can-I-somehow-leverage-this-to-get-an-attorney

Utah Family Law, LC | divorceutah.com | 801-466-9277

Collection of unpaid child support (child support arrearages)

Question:

If a child support obligor is in arrears, but so much in arrears that it is likely ORS won’t be able to recover enough money to bring payment current before the child turns 18, can and will ORS continue to collect after the child turns 18 until the arrears are brought current?

Answer:

Utah Code § 78B-5-202(6) allows for a child support order or sum certain judgment for past due support to be enforced until the youngest child in the order reaches 22 years of age or until eight years from the date the sum certain judgment was entered.  The longer duration would apply.

(6)(a) A child support order or a sum certain judgment for past due support may be enforced:

(i) within four years after the date the youngest child reaches majority; or

(ii) eight years from the date of entry of the sum certain judgment entered by a tribunal.

(b) The longer period of duration shall apply in every order.

(c) A sum certain judgment may be renewed to extend the duration.

With that said, there are instances when the time frame to collect past due support may be different.  For example, if Utah is enforcing another states order, then the other state’s statute of limitations may apply.

Utah Family Law, LC | divorceutah.com | 801-466-9277

How long does it take to get a court order for child support?

How long does it take to get a court order for child support?

Eric Johnson, Attorney at Utah Family Law, LC

https://www.quora.com/How-long-does-it-take-to-get-a-court-order-for-child-support/answer/Eric-Johnson-311

My answer is based upon Utah law because I practice divorce and family law in Utah.

Currently in Utah about the fastest period of time in which to obtain a court order for child support on a temporary orders basis while waiting on the court to issue a final permanent order is about a month, if you play your cards right. Now remember, this is the fastest, not the usual, period of time one could expect in Utah. The average period of time, if you’re doing your best to move the process along and you have a cooperative court? I’d say about 2–3 months, depending upon how antagonistic the opposing party and his/her lawyer (if any) are. If you want me to go into the procedural details as to how and why, just ask me on Quora, and I’ll happily answer that separate question.

If you’re interested in how to obtain an administrative child support order through Utah’s Office of Recovery Services, you may find this helpful: Establishing a Child Support Order Through the ORS Administrative Process

Utah Family Law, LC | divorceutah.com | 801-466-9277

Am I required to hire a lawyer for divorce mediation?

Question:

Can I hire an attorney after to review the documents from mediation before I sign anything?

What if I hire an attorney before we meet mediation? Do I have to tell the mediator that I have an attorney?

Will my attorney want to be at mediation?

I’m just trying to figure out what will be the best plan. My husband claims he doesn’t want an attorney. He said if I get an attorney he will get one too. I don’t want this to be a drawn out pissing match. He’s hurt, sad, and angry and I just want things to be fair, yet have my kids and my best interests protected.

Answer:

Yes, you can go to mediation without a lawyer

(and if you do, I would recommend you notify everyone in advance of this; it’s the decent thing to do, and it preserves your credibility).

You do not have to tell the mediator or your spouse that you have an attorney, if you elect to attend mediation without an attorney. The rules for what the Utah Code requires of you for divorce mediation are short and sweet, and you can read them by clicking here.

Sometimes a court will order parties to attend mediation with their attorneys (I don’t see the point in this, as courts really ought not be telling people to mediate with the aid of an attorney when there is no authority for them to do so; technically, a party could, in response to being ordered to bring his/her lawyer, simply fire his lawyer before mediation, go to mediation, and then re-hire his/her lawyer).

Should You Go to Mediation Without an Attorney?

If you choose to attend mediation without an attorney, notify your spouse that you will come to mediation in good faith to discuss and negotiate the issues and reach agreement, but that you will not sign any final, binding agreement unless and until you have reviewed any proposed written settlement agreement with an attorney. If you go to mediation without an attorney, this is the way I’d recommend you do it.

Sometimes when you tell your spouse that you will not sign any final, binding agreement unless and until you have reviewed it with an attorney your spouse your spouse (or even the mediator) may accuse of stalling the mediation process. You may be warned of dire consequences if you don’t sign an agreement reached the day of mediation. Look, any proposed or tentative agreement that can’t survive being slept on is an agreement that would likely never have worked or worked fairly. So have the courage to do as you say.

That stated, I would recommend that you attend mediation with an attorney, as opposed to going to mediation without a lawyer and then planning to review any proposed written settlement agreement with an attorney. Telling your spouse you won’t reach agreement without first taking more time to review a proposed settlement with an attorney can chill the attitude of compromise and settlement.

Your attorney should, in my opinion, want to be at the mediation settlement conference to help you negotiate and negotiate quickly, effectively, and fairly to a settlement.

Your spouse claims he/she doesn’t want an attorney? No surprise there. Nobody really wants a divorce attorney (unless perhaps the attorney is free of charge or considered to be so amazing you’d be a fool not to hire him). My feelings aren’t hurt; attorneys have come to be viewed—accurately—as providing too little value for the money they charge. But this is not true of all attorneys. You can find an attorney whose ROI (return on investment) is well worth it, and that kind of attorney is worth seeking and hiring.

I think people get it all wrong when they see “if you get an attorney, then I will too!” as an antagonistic sentiment. Both parties having good (meaning skilled, knowledgeable, sensible, values and purposes aligned with yours) helps the negotiation process work better, faster, and inexpensively. Both parties make far better informed decisions. Bringing a lawyer to mediation should not have the same effect as would bringing a gun—and if it does, you and your lawyer are doing more harm than good to the settlement process.

Mediations aren’t a time to negotiate by threat, although there is nothing wrong with standing one’s ground and taking the position of “this is my bottom line: if this isn’t acceptable to you, I believe I will do at least this well, if not better, if the case goes to trial.” Just make sure you really mean it; don’t use it as an idle threat because bluffs are easy to call.

If you and/or your spouse see hiring a lawyer as a threat, as a purely defensive move, then you are not wanting a mutual “win” by settlement, you want to “beat” the other in settlement. That is sure to result in anger, frustration, stalemate, wasted time, and wasted money. Think through your objectives. Know what matters to you most. Think through the various ways to achieve your objectives; the more creatively you think the more likely you will be to find a way. Be honest. Be fair. Be flexible. Be realistic. Start with a wish list, then pare it down to what’s likely to happen if you go to trial. A lawyer is essential to that process.

Then prepare a comprehensive settlement proposal well in advance of mediation and send it to you husband or his attorney, if he has one. Negotiation by ambush will likely result in a tremendous waste of time and money, and reduces the efficacy and likelihood of success in mediation and negotiation process.

Utah Family Law, LC | (801) 466-9277 | eric@divorceutah.com

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