Category: Abandonment and Desertion

The Father of My Child Told Me He Can Unilaterally Give Up His Parental Rights. Can He? He Thinks This Way He Will Get Out of Child Support. Can He Do This?

There is more than one question to answer here.

First, does a parent have the unilateral power simply to “give up” his or her parental rights (and accompanying obligations)? No. The only way to terminate a parent’s parental rights and obligations is by court order after a petition to terminate that parent’s parental rights has been filed and granted.

Can a parent have his/her parental rights terminated? Yes. By court order after a petition to terminate that parent’s parental rights has been filed (either by that parent himself or herself) and granted by the court.

Does the termination of parental rights (not to be confused with merely the desire or intent to have one’s parental rights terminated) also terminate a parent’s obligations to support that child? Yes.

Utah Family Law, LC | | 801-466-9277

(8) The father of my child told me he is giving up his parental rights. He thinks this way he will get out of child support. Can he do this? – Quora

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The Father of My Child Has Visitation Rights Ordered by Court, Yet He Will Be in a Different State During His Visitation Time, but Wants His Aunt to Take Over. Do I Have to Allow His Aunt Visitation While He’s on Vacation?

This is a good question and one that arises frequently in one form or another; a parent either can’t or won’t provide personal care and supervision of the parties’ children his/her scheduled parent-time or custody yet does not want the other parent to care for the children in his/her absence.

Some parents try to pull this stunt because either 1) they are territorial about “my time” with the children and thus can’t stand the idea of the other parent caring for the children during “my time”; or 2) they maliciously want to deny the other parent the opportunity to provide this care for the children. Others try to pull this stunt because they are afraid they will lose the child custody or parent-time they were awarded if they allow the other parent the opportunity to provide care for the children (yet believe that if someone else provides the care that somehow makes retaining custody and parent-time more “secure”). This is wrong, and is something you can take to the court to complain about and seek new court orders to remedy.

But sometimes a parent occasionally wants to leave the children in the care of someone else for perfectly reasonable, even laudable reasons, such as wanting the kids to enjoy time with grandma and grandpa or with the cousins, a sleepover at a friend’s house, and things like that. Clearly, it’s not defensible if it is the rule and not the exception, but there is nothing wrong with this on occasion. Indeed, refusing to be flexible and to allow a parent to do this for your kids is unfair to your kids.

Utah Family Law, LC | | 801-466-9277

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In Re J.E. 2023 UT App 3, Voluntary Declaration of Paternity

2023 UT App 3




D.E., Appellant, v. STATE OF UTAH, Appellee.


No. 20210921-CA

Filed January 20, 2023

Third District Juvenile Court, Salt Lake Department

The Honorable Annette Jan No. 1198329

D.E., Appellant Pro Se

Sean D. Reyes, Carol L.C. Verdoia, and John M.

Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

Julie J. Nelson, Debra M. Nelson, Alexandra

Mareschal, and Kirstin Norman, Attorneys for

Amicus Curiae Utah Indigent Appellate Defense Division


HARRIS, Judge:

¶1 D.E. (Father) obtained—at least for a while—parental rights regarding J.E. (Child) when he and Child’s mother (Mother) duly signed and filed a voluntary declaration of paternity (the VDP). Later, however, genetic testing revealed that Father is not Child’s biological father. Based on those test results, the guardian ad litem (the GAL) appointed to represent Child raised a challenge to the VDP, which the juvenile court sustained, later issuing an order invalidating the VDP and declaring it “void.”

¶2 Father now challenges that order, asserting that the GAL (on behalf of Child) had no right under applicable law to challenge the VDP. We first determine that we have jurisdiction to consider Father’s appeal. And on the merits, we conclude that the juvenile court correctly determined that, under the circumstances presented here, Child has statutory standing to challenge the VDP. On that basis, we affirm the court’s decision to reach the merits of Child’s challenge and to sustain that challenge. But the court should not have declared the VDP “void,” and we remand for correction of the language used in the court’s order and for such other proceedings as might be appropriate.


¶3 In 2021, Father and Mother were residing together—but not married—with three children: then-one-year-old Child and his two older siblings. All three children are Mother’s biological children, and Father’s paternity had been established as to the older two children. At the time, both Mother and Father were uncertain whether Father was the biological father of Child, because they were both aware that Mother had engaged in sexual activity with both Father and another man in 2019, around the time Child had been conceived. But neither Father nor any other man had established paternity with regard to Child.

¶4 In early 2021, Father was arrested and charged with aggravated assault involving domestic violence, as well as commission of domestic violence in front of a child, related to an incident in which Mother accused him of attempting to smother her with a pillow in front of the children. The charging document labeled Father a “habitual violent offender,” explaining that he had previously been convicted of domestic violence against Mother in connection with a 2019 incident. Father remained incarcerated on these new charges for several weeks. Mother also obtained a civil protective order against Father, which remained in effect for several months, until she asked for it to be dismissed.

¶5 A few weeks after Father’s arrest, Mother was arrested and incarcerated on charges of drug possession. Mother later admitted that she had been using methamphetamine. At that point, the Department of Child and Family Services (DCFS) filed a petition seeking custody of the children, and the court granted that request at a subsequent shelter hearing.

¶6 A month later, in May 2021, Mother remained incarcerated—she was eventually released in August—but Father had been released from jail after the criminal charges against him were dismissed. The record before us does not disclose the reasons for the dismissal of the criminal case, but the dismissal occurred on the date set for preliminary hearing, and it was entered without prejudice. Neither the State nor the juvenile court viewed the dismissal of the criminal charges as an exoneration of Father; indeed, the court eventually scheduled an evidentiary hearing to consider whether Father had committed domestic violence against Mother and, at the conclusion of that hearing, found that all three children were “neglected by” Father.

¶7 After his release from jail, Father requested that the children be returned to his custody. The court denied that request, but did order that Father be allowed supervised visitation with at least some of the children.

¶8 At another hearing a couple of weeks later, the GAL first raised the issue of Child’s paternity, and asked that the court order genetic testing to determine whether Father was indeed Child’s biological father. Neither Father nor Mother opposed this request, and the court therefore ordered that genetic testing take place, an order that necessarily required that Father, Mother, and Child all separately submit to genetic testing.

¶9 On August 5, 2021, Father submitted a biological sample for genetic testing. Mother and Child, however, did not submit biological samples until August 19. On August 18, the day before Mother and Child submitted their samples, Father and Mother signed and filed the VDP. On that form, they both swore that they “believe[d]” that Father was Child’s biological father. And Father answered “no” to a question asking whether “the birth mother, child, and biological father” had “submitted to genetic testing.” The Utah Office of Vital Records and Statistics accepted the VDP as valid, and that same day issued an amended birth certificate for Child, listing Father as Child’s father.

¶10 Following the filing of the VDP, Father (through counsel) filed a motion seeking visitation with Child, alleging that DCFS had been “not allowing” him to have visitation because the GAL “is opposed to the visits.” The GAL filed a response that asked the court to postpone its decision on visitation with Child until the results of the genetic testing were known. In that same opposition memorandum, the GAL raised a challenge to the VDP, specifically invoking sections 78B-15-302 and -307 of the Utah Code. In particular, the GAL asserted that Father had fraudulently answered some of the questions on the VDP, and asserted that, if the pending genetic testing excluded Father as Child’s biological father, the VDP could also be challenged on the ground that there had been a material mistake of fact. In reply, Father asserted that the VDP, which had been accepted by the Office of Vital Records and Statistics, gave him parental rights as Child’s father, and that he was therefore entitled to visitation. He also requested a hearing regarding the GAL’s challenge to the VDP.

¶11 In late September 2021, while Father’s motion for visitation was pending, the genetic test results came back and demonstrated that Father is not Child’s biological father.

¶12 Eventually, the court held an evidentiary hearing to consider Father’s motion for visitation. At that hearing, the court heard brief testimony, under oath, from both Father and Mother. After their testimony, the GAL asserted that Father should be denied visitation because, among other reasons, Father was not Child’s biological father. In connection with that argument, the GAL pressed the challenge to the VDP that she had raised in her opposition brief and asked for the VDP to “be declared void and be rescinded,” specifically asking for that relief to be “entered pursuant to [section] 78B-15-623” of the Utah Code (referred to herein as “Section 623”), a statutory provision the GAL had not mentioned in her opposition brief. Section 623 provides, in relevant part, that “[a] child is not bound by a determination of parentage” unless “the determination was based on an unrescinded declaration of paternity and the declaration is consistent with the results of genetic testing.” See Utah Code Ann. § 78B-15-623 (LexisNexis 2018). The GAL asserted that the VDP was subject to a challenge by Child because the results of the genetic testing indicated that Father was not Child’s biological father. In addition, the GAL pressed the arguments that had been raised in her brief, asserting that the VDP was fraudulent because Father had allegedly been less than candid when he stated that he “believe[d]” that he was Child’s father and when he answered “no” to the question on the form about genetic testing.

¶13 At the conclusion of the hearing, and after a brief recess, the court in an oral ruling granted the GAL’s request to invalidate the VDP, relying on Section 623 and on the fact that the genetic testing had conclusively determined that there was no biological relationship between Father and Child. Addressing Father, the court stated, “[Y]ou are not the father of [Child] at this point.” And the court declined Father’s invitation to order that he receive visitation with Child but, given Father’s established biological relationship with the other two children and given the fact that Father was “probably the only parental figure on the male side that [Child] has know[n],” the court nevertheless left the door open for DCFS to “allow” Father to have visitation with Child if DCFS believed that visitation would serve Child’s best interest. The court later signed a minute entry reflecting its oral ruling, therein declaring that the VDP “is void.”


¶14 Father appeals the juvenile court’s decision to invalidate the VDP and to declare it void. At the center of Father’s challenge is his assertion that Child, by and through the GAL, does not possess statutory standing to challenge the VDP. This question is one of statutory interpretation, and on such matters we afford no deference to trial courts’ decisions. See State v. Outzen, 2017 UT 30, ¶ 5, 408 P.3d 334 (“We review questions of statutory interpretation for correctness, affording no deference to the [trial] court’s legal conclusions.” (quotation simplified)).

¶15 But before reaching the merits of Father’s appeal, we must first determine whether we have jurisdiction to adjudicate it.[2]

“Questions about appellate jurisdiction are questions of law” that, by definition, arise for the first time in the appellate setting. See Zion Village Resort LLC v. Pro Curb U.S.A. LLC, 2020 UT App 167,

¶ 21, 480 P.3d 1055 (quotation simplified); see also Powell v. Cannon, 2008 UT 19, ¶ 9, 179 P.3d 799 (“The question of whether an order is final and appealable is a question of law.” (quotation simplified)).


I. Jurisdiction

¶16 Before we may reach the merits of Father’s appeal, we must first assess whether we have jurisdiction to adjudicate it. For the reasons discussed, we conclude that we do.

¶17 “As a general rule, an appellate court does not have jurisdiction to consider an appeal unless the appeal is taken from a final order or judgment that ends the controversy between the litigants.” Copper Hills Custom Homes LLC v. Countrywide Bank, FSB, 2018 UT 56, ¶ 10, 428 P.3d 1133 (quotation simplified); see also Williams v. State, 716 P.2d 806, 807 (Utah 1986) (noting that one of the “traditional principles of appellate review” is “the final judgment rule,” which generally (subject to a few exceptions) prevents appellate courts from reviewing an appeal unless it comes “from a final judgment concluding all of the issues in the case”). The final judgment rule promotes efficiency by preventing the piecemeal litigation and seriatim appeals that would result if litigants were permitted, by right, to immediately appeal any adverse ruling by a trial court.

¶18 Conceptually, “the finality of an order in juvenile proceedings is determined the same way as the finality of an order in other courts.” In re A.F.,2007 UT 69, ¶ 3, 167 P.3d 1070 (quotation simplified). Indeed, in juvenile courts, as in other courts, a “final order is one that ends the current . . . proceedings, leaving no question open for further judicial action.” Id. (quotation simplified). Certainly, an order in a juvenile court case that completely resolved all matters as to all parties would be a final order, just as a similar order would be in a district court case.

¶19 But it is fair to say that, in appeals from juvenile court, finality is viewed somewhat more flexibly than in the district court context. “In the child welfare arena, the determining factor in deciding if an order is final and appealable is whether it effects a change in the permanent status of the child.” Id. Because a child’s status can change more than once, and because a “juvenile court frequently retains jurisdiction over cases [even] after some of the issues have been finally resolved,” see In re K.F., 2009 UT 4, ¶ 36, 201 P.3d 985 (quotation simplified), “in child welfare proceedings, unlike traditional civil cases, appeals may be heard from more than one final judgment,” In re A.F.,2006 UT App 200, ¶ 8, 138 P.3d 65, aff’d, 2007 UT 69, 167 P.3d 1070 (quotation simplified). Therefore, a determination of whether a juvenile court order is final and appealable “requires pragmatic analysis of the order itself.” Id. ¶ 9.

¶20 Under this “pragmatic analysis,” “it is the substance, not the form, of the . . . order that matters . . . because the determination whether an order is final and appealable turns on the substance and effect of the order.” Id. (quotation simplified). Any order that effects a “permanent change in the child’s status vis-à-vis the child’s parent” is considered final. See In re K.F., 2009 UT 4, ¶ 36. Particular types of orders that are considered final include those “entered upon disposition of an adjudicated petition of abuse, neglect, or dependency” and those “terminating parental rights,” see id. (quotation simplified), as well as “orders that otherwise relieve a party from further litigation,” see In re A.F., 2006 UT App 200, ¶ 10. On the other hand, shelter orders and orders that “merely terminate reunification services and change the child’s permanency goal to adoption” are not considered final because they contemplate “further judicial action” regarding the parent and the child. See In re K.F., 2009 UT 4, ¶ 37.

¶21 Father asserts that the juvenile court’s order declaring the VDP void is final and appealable because it “effectively terminated the parental rights statutorily conferred upon him” through the VDP. We agree with Father, as does the State. From a finality perspective, the court’s order declaring the VDP void is analogous to an order terminating parental rights, because the order canceled theretofore-valid parental rights that Father had (at least temporarily) acquired by virtue of filing a voluntary declaration of paternity that was accepted by the Office of Vital Records and Statistics. See Scott v. Benson, 2021 UT App 110, ¶ 22 n.4, 501 P.3d 1148 (“A [voluntary declaration of paternity] is valid and effective if it meets all the basic statutory requirements and is accepted by the Office of Vital Records.”), cert. granted, 509 P.3d 196 (2022). In analogous contexts, we have determined that similar orders are final and appealable. See In re A.S., 2007 UT App 72U, para. 1 (per curiam) (holding that an order dismissing a putative father “from the termination case and denying a motion for genetic testing” was final and appealable because it “dismissed [the putative father] as a party and relieved him from further litigation”); see also In re A.F., 2006 UT App 200, ¶ 10 (stating that “orders that otherwise relieve a party from further litigation” are appealable).

¶22 The fact that litigation regarding Child continues in the juvenile court is not dispositive of the question of appealability of the subject order. See In re E.L.F., 2011 UT App 244, ¶ 5, 262 P.3d 1196 (recognizing that a “juvenile court’s retention of jurisdiction over a child does not necessarily defeat finality”); see also In re K.F., 2009 UT 4, ¶ 36 (stating that a “juvenile court frequently retains jurisdiction over cases [even] after some of the issues have been finally resolved” (quotation simplified)). The fact that the juvenile court left the visitation door slightly ajar for Father likewise does not defeat finality, under the unique circumstances presented here; the court’s order deprived Father of all parental rights, leaving DCFS with sole discretion to determine whether, and to what extent, Father may visit Child.

¶23 Applying a pragmatic analysis here, we conclude that the subject order, by eliminating all of Father’s claimed parental rights, effected a “permanent change in the child’s status vis-à-vis” Father, see In re K.F., 2009 UT 4, ¶ 36, and effectively ended Father’s involvement in the case. Under these circumstances, the order from which Father appeals must be considered final, and we therefore have jurisdiction to consider the merits of his appellate challenge.

II. The Merits of Father’s Appeal

¶24 We begin our analysis of the merits of Father’s appeal with a discussion of voluntary declarations of paternity, and by explaining how Father did—at least for a time—secure valid parental rights regarding Child. We then list some of the ways in which voluntary declarations of paternity can be challenged, and conclude that Child (through the GAL) had standing to raise one such challenge, and that Child’s challenge has merit. Accordingly, we conclude that the juvenile court correctly sustained Child’s challenge to the VDP, but should not have referred to it as “void.”


¶25 There are a number of ways for a parent to establish a legally valid parent-child relationship, many of which are “based on the notion that parents should generally have parental rights regarding their biological children.” See Scott v. Benson, 2021 UT App 110, ¶ 18, 501 P.3d 1148, cert. granted, 509 P.3d 196 (2022); see also Lehr v. Robertson, 463 U.S. 248, 256–57 (1983) (recognizing “[t]he intangible fibers that connect parent and child”); Stanley v. Illinois, 405 U.S. 645, 651 (1972) (holding that a biological father’s interest “in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest,” constitutional protection). “In most cases, parental status is established, based on an assumed biological connection, simply by presumption of circumstance.” Scott, 2021 UT App 110, ¶ 19. For example, in the absence of a valid gestational agreement, a mother establishes a parental relationship with any child to whom she gives birth. See Utah Code Ann. § 78B-15-201(1)(a)(i) (LexisNexis 2018).

¶26 Some fathers also obtain parental rights by presumption of circumstance. For instance, a father-child relationship is established when a man “and the mother of the child are married to each other” when the child is born. Id. §§ 78B-15-201(2)(a), -204(1)(a). But a father who is not married to the mother of the child must take additional steps to establish his paternity.

¶27 One avenue open to unmarried biological fathers is to establish paternity by declaration, an option that—crucially— requires the written consent of the child’s mother. See id. §§ 78B15-301, -302. A successful declaration of paternity, “duly signed and filed, has the same effect as a judicial determination of paternity.” In re S.H., 2005 UT App 324, ¶ 15, 119 P.3d 309. To be effective, both the mother and declarant father must sign the declaration “in the presence of two witnesses” and make several statements “under penalty of perjury.” See Utah Code Ann§ 78B15-302(1). Of particular relevance here, the parties must also attest that the child “whose paternity is being declared” does not have a presumed, adjudicated, or declarant father, and they must “state whether there has been genetic testing and, if so, that the declarant man’s paternity is consistent with the results of the testing.” See id. § 78B-15-302(1)(d), (e). “A declaration of paternity shall be considered effective when filed and entered into a database established and maintained by the Office of Vital Records.” Id. § 78B-15-302(9).

¶28 Father chose this avenue; he and Mother jointly signed and filed the VDP on August 18, 2021, after answering several written questions under penalty of perjury. As already noted, they both averred that they “believe[d]” Father to be Child’s biological father, and Father answered “no” to a question asking whether “the birth mother, child, and biological father [had] submitted to genetic testing.” The Office of Vital Records and Statistics accepted the VDP as valid, and that same day issued an amended birth certificate for Child, listing Father as Child’s father. At that point, Father’s parental rights regarding Child were definitively established. See id. § 78B-15-305(1) (LexisNexis 2018) (stating that “a valid declaration of paternity filed with the Office of Vital Records is equivalent to a legal finding of paternity of a child and confers upon the declarant father all of the rights and duties of a parent”); see also Scott, 2021 UT App 110, ¶ 22 n.4 (“A declaration is valid and effective if it meets all the basic statutory requirements and is accepted by the Office of Vital Records.”); In re S.H., 2005 UT App 324, ¶ 15 (stating that a declaration of paternity “duly signed and filed, has the same effect as a judicial determination of paternity”).


¶29 Declarations can, however, be challenged after they have been accepted by the Office of Vital Records and Statistics. See Scott, 2021 UT App 110, ¶ 23 (“Voluntary declarations of paternity are, however, subject to challenge.”). Applicable statutes permit several different types of challenges to validly filed declarations. For example, a declaration may be challenged as “void” if it fails to meet certain threshold criteria regarding the existence of another potential father. See Utah Code Ann. § 78B15-302(3) (referred to herein as “Section 302”). Alternatively, a “signatory” of a declaration may rescind it within sixty days, without specifying any reason. Id. § 78B-15-306(1) (referred to herein as “Section 306”). Further, after the rescission period has expired, a declaration may be challenged by certain parties “on the basis of fraud, duress, or material mistake of fact.” See id. § 78B-15-307 (referred to herein as “Section 307”). And as relevant here, Section 623 provides that “[a] child is not bound by a determination of parentage . . . unless . . . the determination was based on an unrescinded declaration of paternity and the declaration is consistent with genetic testing.” See id. § 78B-15-623(2).

¶30 Before the juvenile court, the GAL raised a challenge to the VDP and, by the time of the hearing, had elected to ground that challenge largely in Section 623.[3] The court accepted the GAL’s Section 623 argument, and Father challenges that decision here on appeal. For the reasons that follow, we conclude that the juvenile court correctly found merit in the GAL’s Section 623 challenge.

¶31 Section 623 begins by stating that “a determination of parentage is binding on . . . all signatories to a declaration . . . of paternity . . . and . . . all parties to an adjudication [of parentage] by a tribunal.” Id. § 78B-15-623(1). The next section of the statute provides as follows:

(2) A child is not bound by a determination of parentage under this chapter unless:

(a) the determination was based on an unrescinded declaration of paternity and the declaration is consistent with the results of genetic testing;

(b) the adjudication of parentage was based on a finding consistent with the results of genetic testing and the consistency is declared in the determination or is otherwise shown; or

(c) the child was a party or was represented in the proceeding determining parentage by a guardian ad litem.

Id. § 78B-15-623(2). The precise question presented is whether Section 623 gives a child the right to challenge a putative father’s duly filed declaration of paternity on the basis that the declaration is inconsistent with genetic testing results. We hold that it does.

¶32 The question before us is, at root, one of statutory interpretation. “When interpreting a statute, our primary objective is to ascertain the intent of the legislature, the best evidence of which is the plain language of the statute itself.” Taylor v. Taylor, 2022 UT 35, ¶ 28, 517 P.3d 380 (quotation simplified). In examining the language of a statute, “we do not view individual words and subsections in isolation; instead, our statutory interpretation requires that each part or section be construed in connection with every other part or section so as to produce a harmonious whole.” Penunuri v. Sundance Partners Ltd., 2013 UT 22, ¶ 15, 301 P.3d 984 (quotation simplified); see also State v. Bess, 2019 UT 70, ¶ 25, 473 P.3d 157 (“We read the plain language of the statute as a whole and interpret its provisions in harmony with other statutes in the same chapter and related chapters.” (quotation simplified)). And if this exercise “provides a workable result, we need not resort to other interpretive tools, and our analysis ends.” Torrie v. Weber County, 2013 UT 48, ¶ 11, 309 P.3d 216 (quotation simplified). In accordance with these principles, we begin our analysis with an overview of the relevant statute’s structure.

¶33 The statute in question is the Utah Uniform Parentage Act (the Act), codified at Title 78B, Chapter 15 of the Utah Code. See Utah Code Ann. §§ 78B-15-101 to -902 (LexisNexis 2018). Section 623’s reference to “a determination of parentage under this chapter,” then, refers to any determination of parentage made under any of the various parts of the Act. See id. § 78B-15-623(2) (emphasis added). Part 3 of the Act governs voluntary declarations of paternity, see id. §§ 78B-15-301 to -313, and Part 6 of the Act governs judicial adjudications of parentage, see id. §§ 78B-15-601 to -623. Indeed, the term “determination of parentage,” as used in Section 623, has a specific statutory definition: our legislature has provided that a “determination of parentage” means either (a) “the establishment of the parent-child relationship by the signing of a valid declaration of paternity under Part 3,” or (b) “adjudication [of parentage] by a tribunal” under Part 6. See id. § 78B-15-102(9).

¶34 In this case, any parental rights claimed by Father are derived not from any judicial adjudication of paternity but, rather, from the VDP. Indeed, the Act is clear with regard to the effect of a properly filed declaration of paternity: “a valid declaration of paternity filed with the Office of Vital Records is equivalent to a legal finding of paternity of a child and confers upon the declarant father all of the rights and duties of a parent,” without the necessity of initiating judicial proceedings or obtaining a court order. See id. § 78B-15-305(1); see also In re S.H., 2005 UT App 324, ¶ 15 (stating that a declaration of paternity “duly signed and filed, has the same effect as a judicial determination of paternity”). Phrased in the language of Section 623, then, the “determination of parentage” at issue here took place pursuant to Part 3, not Part 6, and it occurred not in any courtroom but at the front counter (or its metaphorical online equivalent) at the Office of Vital Records and Statistics.

¶35 As noted, Section 623 provides that “[a] child is not bound by a determination of parentage” unless at least one of three criteria are met. See Utah Code Ann. § 78B-15-623(2). With regard to the specific “determination of parentage” at issue here, none of the three listed criteria are met.

¶36 First, the “determination of parentage” at issue in this case was not “based on an unrescinded declaration of paternity” that is “consistent with genetic testing.” See id. § 78B-15-623(2)(a). To be sure, the determination of parentage here was based on an “unrescinded declaration of paternity”; after all, Father’s only claim to paternity was made through the VDP, and neither Father nor Mother had exercised any rights they had, pursuant to Section 306, to rescind the VDP within sixty days of signing it. See id. § 78B-15-306. But the unrescinded VDP at the heart of Father’s paternity claim turned out to be entirely inconsistent with the genetic test results that came back in September 2021. For this reason, the “determination of parentage” at issue here was not based on a declaration of paternity that was “consistent with the results of genetic testing.” Id. § 78B-15-623(2)(a) (emphasis added). Thus, the first criterion is inapplicable.

¶37 The second criterion is likewise inapplicable, for two reasons. First, this criterion applies only to an “adjudication of parentage,” see id. § 78B-15-623(2)(b), and no such adjudication occurred here, where Father’s parental rights, if any, are derived under Part 3, from the VDP, rather than through a judicial process. And second, this criterion also depends upon “genetic testing” being “consistent with” the adjudication of parentage and, as already noted, the genetic testing in this case excluded Father from any biological relationship with Child. See id.

¶38     Finally, the third criterion has no application either. That criterion applies if “the child was a party or was represented in the proceeding determining parentage by a guardian ad litem.” Id. § 78B-15-623(2)(c). To be sure, Child was represented by the GAL in the proceedings before the juvenile court, and is represented by the GAL in this appeal. But Child was not involved, in any way, in the “proceeding determining parentage” at issue here. Again, that “proceeding” occurred on August 18, 2021, when Father and Mother appeared at the Office of Vital Records and Statistics to fill out the VDP, and when that office accepted the VDP they filed. That proceeding took place entirely outside of court, and Child had no voice or representation therein. Accordingly, the third criterion is likewise inapplicable.

¶39 Because none of the three exceptional criteria apply here, Section 623 provides that Child is “not bound by [the] determination of parentage” in this case. See id. § 78B-15-623(2) (emphasis added). In our view, this language must necessarily mean that Child has the right to challenge the VDP.[4]

¶40 The words “not bound by” are not defined in the Act. In such a situation, we “interpret the statutory language according to the plain meaning of its text.” See O’Hearon v. Hansen, 2017 UT App 214, ¶ 24, 409 P.3d 85 (quotation simplified). And in doing so, we give the words the meaning they are given in ordinary daily usage. See State v. Rincon, 2012 UT App 372, ¶ 10, 293 P.3d 1142 (“When construing a statute, words that are used in common, daily, nontechnical speech, should, in the absence of evidence of a contrary intent, be given the meaning which they have for laymen in such daily usage.” (quotation simplified)).

¶41 In our view, the words “not bound by” must include a right to challenge the determination of parentage. A child who has no right to challenge the determination in question, even in a case where none of the three statutory criteria applied, would effectively be bound by it. Stated another way, in order to be “not bound by” something, there must exist a way to get out from under its obligations. After all, the words “not bound by” would be deprived of all effective meaning if a child had no right to challenge the determination of parentage at issue. Even Father and the amicus curiae both acknowledge, in recently filed briefs, that Child has statutory standing to challenge the VDP under Part 6. For these reasons, we conclude that Section 623 provides Child the right to challenge the VDP—an unrescinded declaration of paternity upon which Father’s claim to paternity is based—on the ground that the declaration is inconsistent with “the results of genetic testing.” See Utah Code Ann. § 78B-15-623(2)(a).

¶42 Once it is established that Child has the right to mount a challenge to the VDP, we must turn to the merits of that challenge. And Father, here on appeal, does not seriously contest the merits of Child’s attack on the VDP. Father instead acknowledges, as he must, that the genetic testing excluded him as Child’s biological father, and that the genetic testing is, therefore, inconsistent with his claims to paternity under the VDP. Accordingly, the juvenile court correctly determined that Child’s Section 623 challenge to the VDP was meritorious.

¶43 But while the juvenile court’s ruling is correct on its merits, the court used incorrect nomenclature to describe the effect of its ruling. The court ruled that the VDP “is void,” thereby apparently purporting to invalidate it ab initio and render it without force or effect from the date it was filed. This was incorrect. A challenge to a declaration of paternity based on inconsistency with genetic testing is a challenge alleging “a material mistake of fact.” See id. § 78B-15-307(5) (stating that “genetic test results that exclude a declarant father . . . constitute a material mistake of fact”). And as we explained in Scott, the effect of a successful challenge on this basis—as opposed to a challenge grounded in Section 302 or Section 306—is “not that the declaration of paternity is rendered void from its inception” but, instead, that the “declaration will be set aside, on a going-forward basis.” See 2021 UT App 110, ¶ 40.

¶44 In our view, a challenge brought by a child under Section 623 alleging that genetic testing is inconsistent with a declarant father’s declaration is substantively similar to the type of challenge we examined in Scott. Neither challenge is grounded in Sections 302 or 306, statutory provisions that expressly provide that voidness will result from a successful challenge. And both challenges arise from the same set of circumstances, namely, genetic testing that does not match a putative father’s claims to paternity. We therefore hold that, where a child makes a successful Section 623 challenge to a declaration of paternity, the result is that the declaration “will be set aside, on a going-forward basis,” and will not be declared void from the date of its inception. See id. As applied to this case, these principles dictate that Father had legal parental rights for some three months, from August 18 through November 16, 2021, but that his parental rights ended, prospectively, with entry of the court’s order sustaining Child’s Section 623 challenge.

¶45 Finally, both Father and the amicus curiae—in recently filed supplemental briefs—raise the potential applicability of section 78B-15-608 of the Utah Code (referred to herein as “Section 608”), a statutory section that allows a court, under certain conditions, to “disregard genetic test results that exclude the . . . declarant father.” Father asserts, for the first time in his supplemental brief, that he should be entitled to a hearing to determine whether the genetic test results eliminating him as Child’s biological father should be “disregarded” pursuant to Section 608. But Father makes this request for the first time in this recent brief; he did not raise a Section 608 defense to the GAL’s challenge before the juvenile court, nor did he mention Section 608 in either his opening or reply brief on appeal. Under these circumstances, Father has raised this legal theory far too late for us to consider it in the context of this appeal. Cf. Viertel v. Body Firm Aerobics LLC, 2022 UT App 96, ¶ 11, 516 P.3d 791 (“Appellants are not permitted to raise matters for the first time in a reply brief.” (quotation simplified)).

¶46 The amicus curiae, for its part, asserts that it was “mandatory” for the juvenile court to have conducted a Section 608 inquiry, including a “best interest of the child” analysis, even in the absence of a request by Father for it to do so; in this vein, the amicus curiae argues that the juvenile court committed plain error by not engaging in that analysis sua sponte. In particular, the amicus curiae rests its argument on statutory language stating that the court “shall consider the best interest of the child.” See Utah Code Ann. § 78B-15-608(2) (emphasis added). But in our view, the amicus curiae overreads the statute.

¶47 As we interpret it, Section 608 does not compel a juvenile court, in every instance in which any challenge to a VDP is sustained, to undertake a Section 608 analysis even if none of the parties request it. Litigants are entitled to select the specific defenses they raise to an opponent’s claim. The general rule, applicable in both district and juvenile courts, is that parties must request specific relief in order for a court to award it. Our judicial process ordinarily does not require courts to step in and examine legal theories that the parties have not themselves raised. See State v. Johnson, 2017 UT 76, ¶ 14, 416 P.3d 443 (“Under our adversarial system, the parties have the duty to identify legal issues and bring arguments before an impartial tribunal to adjudicate their respective rights and obligations.”). In this case, Father—who was represented by counsel at the time—elected to defend against the GAL’s challenge to the VDP by calling into question the GAL’s (or

Child’s) right to even mount the challenge. Father did not raise Section 608 as a possible defense, and he did not ask the juvenile court—in the event it concluded that the GAL had standing to challenge the VDP—to disregard the results of the genetic testing pursuant to Section 608.

¶48 We take the amicus curiae’s point that, whenever a party does specifically invoke Section 608 and ask a court to disregard genetic test results, that court must “consider the best interest of the child” in determining whether to do so. See Utah Code Ann. § 78B-15-608(2). But courts do not have an obligation to sua sponte raise Section 608, and undertake its concomitant best-interest analysis, in every case in which they are asked to consider a challenge to a VDP.[5] See Utah Stream Access Coal. v. VR Acquisitions, LLC, 2019 UT 7, ¶ 41, 439 P.3d 593 (stating that “judges are neutral arbiters—not advocates,” and that judges “keep [themselves] out of the business of second-guessing the pleading decisions of the parties”); cf. Scott, 2021 UT App 110, ¶ 43 (noting that the lower court, in that case, turned to a Section 608 analysis only at the “request” of one of the parties). If a putative parent wants a court to take the rather drastic and unusual step of disregarding the results of genetic testing, it will ordinarily be the parent’s responsibility to raise the issue.

¶49 And even assuming, for the purposes of the discussion, that plain error review is available here, see Kelly v. Timber Lakes Prop. Owners Ass’n, 2022 UT App 23, ¶ 42 n.10, 507 P.3d 357 (suggesting that plain error review may be available in certain types of civil cases, including termination of parental rights cases), we reject the amicus curiae’s assertion that, on the record before us, the juvenile court committed plain error by not invoking Section 608 sua sponte. Plain error occurs only when a court commits an obvious prejudicial error. See Johnson, 2017 UT 76, ¶ 20. Here, the juvenile court committed no obvious error. Nothing in Section 608 indicates that it is to be applied in every case, even sua sponte, regardless of whether any party ever invokes it. And the amicus curiae cites no appellate court case that so indicates. Where the law is not clear, a court does not commit obvious error. See State v. Dean, 2004 UT 63, ¶ 16, 95 P.3d 276 (“To establish that the error should have been obvious to the trial court, [a litigant] must show that the law governing the error was clear at the time the alleged error was made.”).

¶50 For these reasons, the juvenile court did not plainly err by not sua sponte undertaking an analysis pursuant to Section 608. And because Father did not raise that issue either before the juvenile court or in his initial brief, we decline to address Father’s argument that the court should have conducted such an analysis. We offer no opinion, however, regarding whether the issue could properly be raised after remand, especially given the fact that the juvenile court left the door open to Father’s involvement in the case going forward.


¶51 We have jurisdiction to consider the merits of Father’s appeal, because the juvenile court’s order canceled the parental rights that Father had temporarily acquired by filing the VDP and thereby effected a permanent change in Child’s status regarding Father. But on the merits of that appeal, we conclude that the juvenile court correctly sustained the GAL’s Section 623 challenge to the VDP, even if the court should not have used the word “void” to describe the result of its ruling. We therefore affirm the juvenile court’s decision to sustain the GAL’s challenge to the VDP, but remand with instructions for the court to modify its order to indicate that it has prospective effect only, and for such other proceedings as may be appropriate.


Utah Family Law, LC | | 801-466-9277

[1] “We recite the facts in a light most favorable to the juvenile court findings.” In re K.J., 2013 UT App 237, ¶ 2 n.2, 327 P.3d 1203 (quotation simplified).

[2] After recognizing this jurisdictional question, we issued a Sua Sponte Motion for Summary Disposition, explaining that this appeal was being considered for summary disposition “on the basis that this court lacks jurisdiction because the order appealed from was not a final, appealable order.” We then ordered the parties to submit briefing on the jurisdictional question, which they did. Later, we also provided the parties the opportunity to submit supplemental briefing on the statutory standing question. Father and the GAL submitted supplemental briefs, and an amicus curiae submitted a brief on this topic as well. We appreciate the assistance of the parties and the amicus curiae in submitting supplemental briefing.

[3] As noted already, the GAL’s pre-hearing briefing before the juvenile court invoked Sections 302 and 307, but not Section 623. In their briefing on appeal, the parties include some discussion of other potential avenues for challenge. No party invokes Section 306, and both the State and the GAL appear to concede that the GAL—apparently because Child is not a “signatory” to the VDP—does not have statutory standing to challenge the VDP under Section 307. But the State does appear to invoke Section 302 in connection with its argument that the VDP was “fraudulently executed,” and on that basis appears to ask us to affirm the juvenile court’s ruling on this alternative ground. We have serious doubts about the merits of this argument, primarily because none of the three criteria for voidness set forth in Section 302 are present here, but also because any evidence of fraud on the part of Father or Mother is thin at best: they were not sure whether Father was Child’s biological parent, but had a basis to “believe” that he was, and Father’s answer about the state of genetic testing was technically correct, because on August 18 neither Mother nor Child had yet submitted samples for genetic testing. But we need not delve deeper into the State’s alternative argument, because we affirm the substance of the court’s ruling under Section 623.

[4] After all, Part 6 of the Act expressly provides that “the child” may maintain “a proceeding to adjudicate parentage,” and thereby challenge a parent’s paternity. See Utah Code Ann. § 78B-15-602(1). All parties to this appeal agree that a child has statutory standing under Part 6 to challenge a parent’s paternity.

[5] The amicus curiae runs into the same problem with its other best-interest related argument. It points out that guardians ad litem have authority created by statute, and that they are appointed “to represent the best interest of a minor.” See Utah Code Ann. § 78A-2-803(1)(a)(i) (LexisNexis Supp. 2022). It asserts that the GAL in this case, by challenging Father’s paternity, acted outside Child’s best interest, pointing out that Child has no other father figure in his life, and offering its view that “it is difficult to see how it can be in a child’s best interest to challenge the paternity of the only father figure participating in the case.” We acknowledge this argument, and agree with the amicus curiae that guardians ad litem have a statutory obligation to carefully consider whether the actions they take on a child’s behalf are in the child’s best interest. But ordinarily any challenge to a guardian ad litem’s actions as being outside a child’s best interest must come from one of the parties rather than from a court sua sponte, and must be raised in the first instance in the district or juvenile court. No such challenge was levied here by any party before the juvenile court, rendering the merits of any such challenge inappropriate for appellate review.

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How Do You Get a Divorce That Involves No Children and No Property or Money if You Haven’t Been Able to Find Your Spouse for Almost 10 Years, and Without Having to Hire a Lawyer?

You probably worry that hiring a lawyer will bankrupt you, and so you’re afraid to get the help a good divorce lawyer could be to you.

Before you resolve not to hire an attorney to represent you, find out what it will cost you to get a good divorce attorney’s help in your situation. You may be surprised that it’s not ruinously expensive.

I won’t lie: sometimes the cost of what it would cost you to have an attorney represent you is ruinously expensive, but find out if that’s true in your case. Don’t deny yourself the benefits of good legal representation because you foolishly refused to find out if you can afford it.

In the situation you described (no children to fight over, no property to fight over, and your spouse has been AWOL for ten years), getting your divorce case filed, service of process completed, and your decree of divorce issued by the court may not take long or cost much, if you end up getting a divorce by default.

Even if you ultimately decide not to hire an attorney, meeting for an initial consultation with an attorney or two is still a good way to get informed about certain aspects of the divorce process.

If, after you consult with an attorney, you determine that you cannot afford an attorney’s services or you prefer not to spend the money on the attorney’s services, there are do-it-yourself options available, but frankly, do it yourself divorce is a risky proposition.

To find out what do-it-yourself options are available to you for your jurisdiction, visit the local courthouse and the law school nearest you; they may have forms and even clinics that offer help and guidance in the DIY process. You can (and should) read about divorce online to educate yourself about what divorce is and how the law applies and functions, but before you order a set of DIY divorce forms online, talk with the people at the courthouse and law schools to get your bearings.

Utah Family Law, LC | | 801-466-9277

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If your life partner has a low IQ, is divorce an option?

Yes, but not for the reason you may think.

In the age of no-fault divorce, you don’t really need to persuade the court to grant you a divorce. Divorce is essentially available on demand. Your spouse’s IQ need not have anything to do with it.

Some people think “no-fault divorce” means that “you can’t divorce me if I’m not at fault.” Not true.

No-fault divorce means that if you want to get a divorce, you don’t have to prove, as the reason for seeking a divorce, that your spouse has committed some kind of fault entitling you to a divorce. All you have to do is claim that there are “irreconcilable differences” between you and your spouse that have caused an irreparable breakdown in the marriage.

Before no-fault divorce was made the law in every state in the United States of America, one could not obtain a divorce unless his/her spouse had committed a “marital fault”. What constitutes marital fault? Each state has its own list, but generally speaking, marital fault includes:

  • adultery
  • impotency of the respondent at the time of marriage
  • cruelty
  • abandonment, desertion, neglect (failure of the spouse to provide necessary financial/temporal support)
  • insanity or severe mental illness
  • certain criminal convictions (usually a felony or those resulting in long-term imprisonment)
  • alcohol and drug abuse
  • contracting a “loathsome disease” (i.e., a sexually transmitted disease)

With no-fault divorce the law now, fault on the part of your need not exist to qualify you to file for divorce

Utah Family Law, LC | | 801-466-9277

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When are my ex’s things deemed abandoned?

I was awarded the house in the divorce. My ex’s things are still here and he/she won’t pick them up. When are they deemed abandoned? 

Utah Code § 67-4a-201 provides, in pertinent part that property is presumed abandoned if the property is unclaimed by the apparent owner “the earlier of three years after the owner first has a right to demand the property or the obligation to pay or distribute the property arises.” 

Utah Code § 67-4a-208 (Indication of apparent owner interest in property) provides, in pertinent part: 

(1) The period after which property is presumed abandoned is measured from the later of: 

(a) the date the property is presumed abandoned under this part; or 

(b) the latest indication of interest by the apparent owner in the property. 

(2) Under this chapter, an indication of an apparent owner’s interest in property includes: 

(a) a record communicated by the apparent owner to the holder or agent of the holder concerning the property or the account in which the property is held; 

(b) an oral communication by the apparent owner to the holder or agent of the holder concerning the property or the account in which the property is held, if the holder or the holder’s agent contemporaneously makes and preserves a record of the fact of the apparent owner’s communication; 

(c) presentment of a check or other instrument of payment of a dividend, interest payment, or other distribution, or evidence of receipt of a distribution made by electronic or similar means, with respect to an account, underlying security, or interest in a business association; 

(d) activity directed by an apparent owner in the account in which the property is held, including accessing the account or information concerning the account, or a direction by the apparent owner to increase, decrease, or otherwise change the amount or type of property held in the account; 

(e) a deposit into or withdrawal from an account at a banking organization or financial organization, including an automatic deposit or withdrawal previously authorized by the apparent owner other than an automatic reinvestment of dividends or interest; 

(f) any other action by the apparent owner which reasonably demonstrates to the holder that the apparent owner knows that the account exists; and 

(g) subject to Subsection (5), payment of a premium on an insurance policy. 

(3) An action by an agent or other representative of an apparent owner, other than the holder acting as the apparent owner’s agent, is presumed to be an action on behalf of the apparent owner. 

(4) A communication with an apparent owner by a person other than the holder or the holder’s representative is not an indication of interest in the property by the apparent owner unless a record of the communication evidences the apparent owner’s knowledge of a right to the property. 

(5) If the insured dies or the insured or beneficiary of an insurance policy otherwise becomes entitled to the proceeds before depletion of the cash surrender value of the policy by operation of an automatic premium loan provision or other nonforfeiture provision contained in the policy, the operation does not prevent the policy from maturing or terminating. 

Utah Family Law, LC | | 801-466-9277  

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How do I pursue child visitation when I don’t know where the child is?

I’m preparing to begin pursuing child visitation. However, the child’s mother has moved and never told me where, and has cut off contact with me. How can I find out where she is now, or would getting a lawyer to find her address be better? 

Make sure that you conduct the search in a way that is legal and that does not constitute harassment or stalking. 

If a Google (and other search engines) search hasn’t uncovered the mother’s address, 

then I would move on to one or two of the online services that charge a fee to locate such information. Here’s a list of some: 

If that doesn’t work, hire a good private investigator. Note: private investigator quality varies widely. Make sure you don’t waste your money on a lousy P.I. 

You asked if hiring a lawyer is a good way to find your child’s mother’s address and other contact information. No. Lawyers generally have no such skills. When lawyers want to find this kind of information they . . . hire private investigators. But it would be wise to consult an attorney when you start this process of seeking a court order for visitation to ensure that you don’t violate any laws in searching for the mother and in seeking a court order of visitation. 

Utah Family Law, LC | | 801-466-9277  

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In re A.B. – 2021 UT App 91



S.T. AND T.T., 


No. 20200342-CA 

Filed August 26, 2021 

Third District Juvenile Court, Salt Lake Department 

The Honorable Julie V. Lund 

No. 1174795 

Steve S. Christensen and Clinton Brimhall, Attorneys 
for Appellant 

Sheleigh A. Harding, Attorney for Appellee 
Martha Pierce, Guardian ad Litem 



¶1 Each summer for nearly a decade, Annabelle1—with the permission of her mother, K.T. (Mother)—went to visit and stay with welcoming relatives. Eventually, and on agreement, summer turned into a whole year. When the hosting family then sought custody, the juvenile court characterized the situation as “neglect” and granted the request. Mother now appeals, and we reverse. 


¶2 Like many parents returning to work, Mother utilized the assistance of family and friends to help care for Annabelle after giving birth to her in 2008. But as the years went by, Mother’s use of family and friends to help with childcare went beyond mere “babysitting.” As Annabelle grew older, Mother established a pattern of leaving Annabelle with a welcoming relative every summer; often, Annabelle spent the summer at the home of Mother’s aunt, S.T. (Aunt), and uncle, T.T. (Uncle). Finally, in 2018, Mother—who at the time was struggling with parenting Annabelle—agreed to allow Annabelle to spend not just the summer but the entire 2018–2019 school year with Aunt and Uncle in Utah. 

¶3 In the years leading up to Annabelle’s yearlong residence with Aunt and Uncle, Mother and Annabelle had moved to New Mexico. There, Annabelle demonstrated behavioral problems including throwing chairs, hitting, screaming, kicking, “‘thrashing out,’ and expressing rage and hatred toward Mother.” Annabelle even “claimed to want to die,” a sentiment that, purportedly based on the advice of Annabelle’s counselor, Mother thought “was not abnormal” for a person of Annabelle’s age. Eventually, this crisis led Mother to reach out to Aunt and tell her, “I’m depressed, my daughter is depressed. All we do is cry some days.” Not long after, Mother asked Aunt to meet with her and take Annabelle because “[s]he’s out of control, grumpy, [and] thrashing out.” Aunt and Uncle agreed. So, Annabelle’s annual summer migration to Utah started early that year when Mother left Annabelle with Aunt and Uncle in May 2018 and moved to North Carolina with her boyfriend. 

¶4 About Annabelle’s year with Aunt and Uncle, the juvenile court heard conflicting testimony. On the one hand, the juvenile court heard that Mother monitored Annabelle’s progress in school, that Mother purchased clothes for Annabelle even though Aunt and Uncle “never asked [her] for financial support,” that Mother engaged in “several” phone calls with Annabelle over that time period, and that Mother gave Aunt and Uncle specific requests, including that they “put [Annabelle] into counseling.” On the other hand, Mother admitted that she did not visit Annabelle for over six months from October 2018 to May 2019, and the court heard testimony that Mother declined to participate when offered “extra opportunities . . . to contact [Annabelle] on the phone more frequently, extra opportunities to participate with [Annabelle] in activities, and the opportunity to attend an eye doctor appointment.” Aunt and Uncle also testified that Mother provided no financial support for Annabelle’s needs and refused to assist Aunt and Uncle with costs associated with medical co-pays, fixing Annabelle’s eyeglasses, or purchasing school clothes and supplies. Aunt and Uncle claimed that Mother told them, “She’s your responsibility. I don’t need to take care of anything, it’s your responsibility.” Aunt and Uncle further maintained that, at their home, Annabelle transformed from “reserved,” “quiet,” and fearful, to “thriving and happy.” 

¶5 A week before that school year’s end, in May 2019, Mother unexpectedly checked Annabelle out of school, planning to drive her back to North Carolina. Aunt and Uncle “retrieved [Annabelle] by way of an ex parte protective order” and filed a petition requesting custody, which the juvenile court granted temporarily. In addition to the testimony about the time at Aunt and Uncle’s home, the court heard testimony that Mother’s “parenting style lack[ed] affection,” “nurturing,” and “comforting behavior”—for example there was “no hugging”— and that Mother often peppered Annabelle with various insults. Aunt and Uncle also described that during one of Annabelle’s unsupervised visits with Mother, they received an accidental dial from Annabelle and, after answering the call, overheard Mother “yelling at [Annabelle] that she ‘needed to go . . . tell [Aunt and Uncle] that she needed to come home right now’” and to tell Aunt and Uncle to call Annabelle’s guardian ad litem to relay the same message. If she did not, Mother said, “a lot of people [would] get hurt.” Aunt and Uncle terminated this visit, but in their view more generally, Annabelle “was very depressed and sad after visits with” Mother, and only “[a]fter lots of support and kindness from [Aunt and Uncle]” would Annabelle “return to her normal, happy self.” And Mother did testify “that if custody were returned to her, she would cut off all contact between [Annabelle] and [Aunt and Uncle].” 

¶6 Ultimately, the juvenile court determined that although “[M]other loves [Annabelle],” “love alone is not enough for a child,” and that Mother’s conduct “demonstrates a complete disregard for the best interests of [Annabelle] and further demonstrates a pattern of [Mother] consistently placing her own best interests before those of [Annabelle].” Further, the court determined that Mother had “been unwilling or unable to provide [necessary] stability, and ha[d] therefore asked other family members to care for [Annabelle] for protracted lengths of time.” The court made findings and concluded that Mother “neglected” Annabelle and therefore granted Aunt and Uncle permanent custody and guardianship. 

¶7 Specifically, the court entered conclusions of law that: 

[Annabelle] has been neglected by [Mother] in the form of emotional maltreatment, which has caused [Annabelle] to be insecure, afraid and emotionally disturbed. 

[Annabelle] has been neglected by [Mother] by being placed with relatives for extended and regular periods of time without support from [Mother]. 

. . . . 

[Mother] has neglected [Annabelle] in not assisting in paying for her support or providing items for [Annabelle’s] care. . . . 

It is in [Annabelle’s] best interests to be placed in the permanent custody and guardianship of [Aunt and Uncle]. 

¶8 Mother appeals the juvenile court’s neglect determination.  


¶9 Mother raises one issue we address here: whether the juvenile court improperly determined that Mother’s conduct amounted to “neglect.” “We apply differing standards of review to findings of fact, conclusions of law, and determinations of mixed questions of law and fact.” In re E.R., 2021 UT 36, ¶ 14. Here, Mother does not dispute the juvenile court’s relevant findings of fact but instead contends that the juvenile court improperly applied the governing law. “This is a mixed determination of law and fact—in which the abstract law is applied to a given set of facts.” Id. ¶ 17. And, 

the standard of review for mixed questions depends on the nature of the issue. Law-like mixed questions are reviewed de novo, while fact-like mixed questions are reviewed deferentially. To determine whether a mixed question should be deemed law-like or fact-like, we evaluate the marginal costs and benefits of conducting either a searching de novo review or a deferential review of a lower tribunal’s resolution of the mixed question. 

De novo review of mixed questions is appropriate where a fresh appellate reconsideration of the issues presents little downside and significant upside. Issues that are law-like are matters that lend themselves to consistent resolution by uniform precedent. Appellate courts are in a preferred position on such issues. They can establish a uniform body of precedent establishing consistent rules that litigants and lower courts can rely on. And a need to establish such rules cuts against a standard of deference to lower courts. 

Id. ¶¶ 18–19 (cleaned up). We distinguish law-like questions from fact-like questions based on 

(1) the degree of variety and complexity in the facts to which the legal rule is to be applied; (2) the degree to which a trial court’s application of the legal rule relies on facts observed by the trial judge, such as a witness’s appearance and demeanor, relevant to the application of the law that cannot be adequately reflected in the record available to appellate courts; and (3) other policy reasons that weigh for or against granting discretion to trial courts. 

Id. ¶ 21 (cleaned up). 

¶10 As to the first two factors, where Mother does not dispute the relevant facts as found by the juvenile court, the facts before us are set and clear, and, having been entered by the juvenile court, are not dependent on disputed subjective factors observed by the juvenile court. As to the third factor, where the application of a statute to the facts lies in the vein of statutory interpretation—which is reviewed for correctness, see State v. Soules, 2012 UT App 238, ¶ 2, 286 P.3d 25—sound policy dictates that application of statute be reviewed de novo, giving no deference to the juvenile court. We view the question presented here as law-like because it concerns whether the facts as constituted meet the legal standard of the statute. De novo review here presents little downside and allows this court to establish precedent on which future litigants and lower courts can rely. Accordingly, we review the issue presented here giving no deference to the juvenile court. 


¶11 In contending that the juvenile court misapplied the statutory definition of “neglect,” Mother argues that “the juvenile court’s reasons for determining that [Annabelle] is a neglected child do not fall under the neglect statute or relate to that statute” or, at most, “bear only a passing relation.” Upon reviewing the juvenile court’s conclusions of law alongside the relevant statute, we conclude that the juvenile court failed to properly link its findings of fact and conclusions of law to the statute defining “neglect” in these situations. 

¶12 Initially, while we are sensitive to the challenging circumstances Annabelle has experienced in this case, we nevertheless must acknowledge the presumption in the law that generally parents have a right to the custody of their children. See In re C.Z., 2021 UT App 28, ¶ 16, 484 P.3d 431. Speaking about a related area of law, termination of parental rights, our supreme court has said that “[n]o parent could be deprived of his or her parental rights without a prior showing of unfitness, abandonment, or substantial neglect,” and that “[s]o long as a parent’s conduct remain[s] within those broad bounds, the state [is] not empowered to terminate the parent-child relationship.” See In re J.P., 648 P.2d 1364, 1367 (Utah 1982). Our supreme court has further stated, 

It is rooted in the common experience of [humankind], which teaches that parent and child normally share a strong attachment or bond for each other, that a natural parent will normally sacrifice personal interest and welfare for the child’s benefit, and that a natural parent is normally more sympathetic and understanding and better able to win the confidence and love of the child than anyone else. 

The parental presumption is not conclusive, but it cannot be rebutted merely by demonstrating that the opposing party possesses superior qualifications, has established a deeper bond with the child, or is able to provide more desirable circumstances. If the presumption could be rebutted merely by evidence that a nonparent would be a superior custodian, the parent’s natural right to custody could be rendered illusory and with it the child’s natural right to be reared, where possible, by his or her natural parent. 

Hutchison v. Hutchison, 649 P.2d 38, 40–41 (Utah 1982) (cleaned up). We recognize that this is not a termination of parental rights case, and we do not apply the presumption here, but this is all to emphasize the importance of the natural parent-child relationship and clarify that before a juvenile court removes a child from a natural parent based on the presence of “neglect,” that court must find facts that meet the statutory definition of neglect, which definition the legislature has deemed substantial enough to warrant the drastic consequence of removing a child from that child’s natural parent. 

¶13 Utah law provides six bases on which a juvenile court may determine that a situation amounts to “neglect.” Utah Code Ann. § 78A-6-105(40)(a) (LexisNexis Supp. 2020).2 Specifically, 

“Neglect” means action or inaction causing: 

abandonment of a child . . . ; 

lack of proper parental care of a child by reason of the fault or habits of the parent, guardian, or custodian; 

failure or refusal of a parent, guardian, or custodian to provide proper or necessary subsistence or medical care, or any other care necessary for the child’s health, safety, morals, or well-being; 

a child to be at risk of being neglected or abused because another child in the same home is neglected or abused; 

abandonment of a child through an unregulated custody transfer; or 

educational neglect. 

Id. However, as far as we can tell, the court did not base its ruling on any of these statutory grounds. Instead, the court found that Annabelle had “been neglected by [Mother] in the form of emotional maltreatment,” that Anabelle had “been neglected by [Mother] by being placed with relatives for extended periods of time,” and that “Mother ha[d] neglected [Annabelle] in not assisting in paying for her support or providing items for [Annabelle’s] care.” 

¶14 We do not see the required relation between these explanations—as expressed in the court’s conclusions of law— and the statutory text. As to the conclusion that Annabelle had “been neglected by [Mother] in the form of emotional maltreatment,” Aunt and Uncle concede that “emotional maltreatment is . . . not neglect”; and, indeed, this concession aligns with our own caselaw as provided in K.Y. v. Division of Child & Family Services, 2010 UT App 335, 244 P.3d 399, which clarified that “the statutory definition of neglect cannot be construed to include emotional maltreatment.”3 See id. ¶ 20. 

Similarly, the court’s statements that Annabelle has “been neglected by [Mother] by being placed with relatives for extended periods of time” and that “Mother has neglected [Annabelle] in not assisting in paying for her support or providing items for [Annabelle’s] care” do not clearly fall within the statute’s language. See infra ¶¶ 15–21. 

¶15 After reviewing the actual statutory grounds found in Utah Code section 78A-6-105(40)(a), we come no closer to seeing a connection between the court’s findings and conclusions and the statutory language. Of the statute’s six grounds for neglect, none apply to this case under the facts as found by the juvenile court. 

¶16 First, Annabelle cannot have been subject to “educational neglect,” Utah Code Ann. § 78A-6-105(40)(a)(vi), because “educational neglect” occurs only when a parent “fails to make a good faith effort to ensure that the child receives an appropriate education” after “receiving a notice of [a] compulsory education violation,” id. § 78A-6-105(20). The juvenile court made no findings in this regard. 

¶17 Second, Annabelle cannot have been abandoned through an “unregulated custody transfer,” id. § 78A-6-105(40)(a)(v), because an “[u]nregulated custody transfer” occurs only when the child is left with someone other than statutorily specified family members or an adult friend of the family—and no party challenges whether Aunt and Uncle fit in this category, id. § 78A6-105(64)(a). 

¶18 Third, Annabelle cannot have been “at risk of being neglected . . . because another child in the same home is neglected,” as no other child is identified in the juvenile court’s findings of fact. Id. § 78A-6-105(40)(a)(iv). 

¶19 Fourth, although appearing closer to the mark, Annabelle cannot have been subject to the “failure or refusal of a parent, guardian, or custodian to provide proper or necessary subsistence or medical care, or any other care necessary for the child’s health, safety, morals, or well-being.” Id. § 78A-6-105(40)(a)(iii). To be sure, Mother did refuse to pay Aunt and Uncle for various aspects of Annabelle’s care. However, in interpreting a statute, “we look first to the statute’s plain language and presume that the legislature used each word advisedly and read each term according to its ordinary and accepted meaning.” In re J.M.S., 2011 UT 75, ¶ 13, 280 P.3d 410 (cleaned up). And here, the statute’s plain language relates only to a parent’s refusal to provide care—it says nothing about a parent’s refusal to reimburse another caretaker for providing the care. If a non-parent party, retaining custody of a child, contends that a parent should pay for that child’s care, the non-parent party’s remedy is to return the child to the parent’s custody, where the parent would bear the monetary burden of providing for the child’s necessary care. On the facts before us, Mother never refused to provide care but refused only to reimburse Aunt and Uncle for providing that care. Thus, because the statute does not discuss money at all, the fact that Mother refused to repay Aunt and Uncle is neither here nor there for purposes of applying the statute to this situation and does not support a finding of neglect. 

¶20 Fifth, again, although apparently more applicable than other alternatives, Annabelle cannot have been subject to a “lack of proper parental care . . . by reason of the fault or habits of the parent, guardian, or custodian.” Utah Code Ann. § 78A-6-105(40)(a)(ii). While it would be inaccurate and insensitive to suggest that the interactions between Mother and Annabelle approached ideal, the record before us suggests that Annabelle received proper parental care, even if not always at Mother’s hand. And while Aunt and Uncle identify certain facts that they allege suggest a lack of proper parental care, the juvenile court did not rely on these facts in identifying the situation as neglect, and we are skeptical that such facts could have amounted to neglect in any event. 

¶21 Sixth, under the facts as applied by the juvenile court, we cannot determine whether Annabelle faced “abandonment.” Id. § 78A-6-105(40)(a)(i). The juvenile court did not analyze whether a parent who leaves a child temporarily with relatives could be considered to have abandoned the child; indeed, the juvenile court made no findings that it connected to abandonment, and its conclusions of law contain no language that suggests to us that the neglect determination rested on a finding of abandonment under section 78A-6-105(40)(a)(i). In short, the findings of fact and conclusions of law set forth by the juvenile court do not bear a connection to the governing statute sufficient to remove Annabelle from the custody of her natural parent on the basis of “neglect.” 


¶22 In declaring that Mother neglected Annabelle, the juvenile court made insufficient connection between its findings of fact and conclusions of law and the actual statutory grounds governing findings of “neglect.” The facts as found by the juvenile court do not meet the statutory definition of “neglect.” Therefore, we reverse the court’s order of permanent custody and guardianship issued in favor of Aunt and Uncle. 

Utah Family Law, LC | | 801-466-9277  

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How does a divorce and separation from one parent affect children’s future relationships? Can this cause trust issues or commitment issues in the kids’ future relationship?  

Can this cause trust issues or commitment issues in the kids’ future relationship? Yes, of course.  

How? When the children have witnessed and experienced the destruction of their parents’ relationship—a relationship that is not only part and parcel of their own relationships with those parents, but a relationship that shapes all other relationships between themselves and other people—it has adverse effects. Those adverse effects can—in the even of a separation and/or divorce—(and usually will) include difficulty with trust and commitment in the children’s future relationships. 

Utah Family Law, LC | | 801-466-9277  

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What happens to child support if the parent paying moves out of the country?

Assuming that you are asking whether a parent who is, in the course of a United States divorce or child custody proceeding, ordered to pay child support, moving out of the country would not change that parent’s legal obligation to pay child support, but moving out of the country could make it difficult, even impossible to enforce that child support order. Moving out of the country might make it impossible to locate that parent and the source of that parent’s income. If a parent moves to a country that doesn’t recognize and enforce court orders from the United States, that too would make it impossible to enforce child support orders. 

Utah Family Law, LC | | 801-466-9277  

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If my child’s father puts in writing he would never ask for custody of our daughter, would that weight in if later he changed his mind for court? 

Would it have any weight? Yes. Would it, on its own, have weight sufficient to bar him from seeking sole or joint custody of the child in the future? No. Just because a parent may, at one point in time, state that he/she does not now want and would not want/seek sole or joint custody of the child in the future does not and cannot bar that parent from changing his/her mind in the future.  

Utah Family Law, LC | | 801-466-9277  

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What are the grounds for filing for a divorce in Utah?

First, you need to understand that Utah, like every other state in the U.S. has what are known as a “no-fault divorce law”. No-fault divorce means that you don’t have to plead or show that your spouse committed any kind of marital “fault” to obtain a divorce. Previous to the creation of no-fault divorce laws, you could not get a divorce unless you could prove your spouse had committed one or more of the recognized faults constituting grounds for divorce.  

Utah’s no-fault ground for divorce is the “irreconcilable differences of the marriage” basis (Utah Code § 30-3-1(h)). If you assert irreconcilable differences as your ground for divorce, you do not have to prove any kind of fault to obtain a divorce on that ground. Because it doesn’t matter whether your spouse wants a divorce too– you can prove that there are irreconcilable differences of the marriage by simply saying that you subjectively feel that there are irreconcilable differences. Sometimes a court might ask you to explain in more detail what the irreconcilable differences in your marriage are, but courts will accept something as simple and ambiguous statements like “we are not compatible anymore” or “our differences prevent the marriage from continuing” or “our differences have rendered the marriage unsalvageable”.  

Fault-based grounds for divorce still exist, which means that one can still assert one or more of these faults as grounds for divorce, but it’s not necessary to assert fault-based grounds to obtain a divorce. 

I have provided for you below Section 30-3-1 of the Utah Code, which articulates both the no-fault ground and all the other legally recognized grounds for divorce in Utah. 

Utah Code § 30-3-1.  Procedure — Residence — Grounds. 

(1) Proceedings in divorce are commenced and conducted as provided by law for proceedings in civil causes, except as provided in this chapter. 

(2) The court may decree a dissolution of the marriage contract between the petitioner and respondent on the grounds specified in Subsection (3) in all cases where the petitioner or respondent has been an actual and bona fide resident of this state and of the county where the action is brought, or if members of the armed forces of the United States who are not legal residents of this state, where the petitioner has been stationed in this state under military orders, for three months next prior to the commencement of the action. 

(3) Grounds for divorce: 

(a) impotency of the respondent at the time of marriage; 

(b) adultery committed by the respondent subsequent to marriage; 

(c) willful desertion of the petitioner by the respondent for more than one year; 

(d) willful neglect of the respondent to provide for the petitioner the common necessaries of life; 

(e) habitual drunkenness of the respondent; 

(f) conviction of the respondent for a felony; 

(g) cruel treatment of the petitioner by the respondent to the extent of causing bodily injury or great mental distress to the petitioner; 

(h) irreconcilable differences of the marriage; 

(i) incurable insanity; or 

(j) when the husband and wife have lived separately under a decree of separate maintenance of any state for three consecutive years without cohabitation. 

Utah Family Law, LC | | 801-466-9277  

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Why should I pay child support if the other parent isn’t asking for it (and doesn’t need it)?

This question doesn’t come up very often, but it does come up.

I will answer this question according to the law of Utah, which is the jurisdiction where I practice divorce and family law (which includes the issue of child support, of course):

Even if it could be proven that there is no real need for a parent to pay child support, the fact that this parent would try to avoid that responsibility is so offensive to most people that the question of whether the parent should pay child support gets overshadowed by that parent’s desire or efforts to avoid paying the support.

If your question is whether it can be ordered that a parent pay no child support when the other parent has so much money that it is clear the other parent has no need of any kind of financial contribution from the other parent for the support of the child, the answer is: yes, but only if the court were to find that there is some compelling reason why only one parent should provide financial support for the child instead of both parents providing financial support.

Even in situations where one parent has more than enough money to support himself or herself and the child sufficiently and beyond, it would be rare for a court to relieve the other parent of having to make some financial contribution to the child support, even if that contribution were just a nominal or token or symbolic amount. An amount that, at the very least, is meant to signify that the parent recognizes and fulfills the obligation to be financially responsible for the child.

That stated, however, in the jurisdiction where I practice family law (Utah), whether a parent pays child support isn’t a matter left to the pure discretion of the court.

In Utah, child support is based upon a statutory mathematical formula that factors in the number of children, the gross monthly income of each of the parents, and the number of overnights the children spend with each parent to determine each parent’s financial obligation to the children on a monthly basis. Whether one parent has so much money so as to have no need for child support is not one of the statutory factors.

But as I said from the beginning, it is possible (though highly unlikely) that one could persuade a judge that he or she should not pay child support if that parent could prove 1) that paying child support in any amount would work an undue hardship on that parent and 2) that the other parent has more than enough financial resources to support the child exclusively and without contribution from the parent who is trying to avoid being ordered to pay child support.

Finally, there is nothing to prevent the parents from agreeing that one parent will not pay child support to the other, so long as they can convince the court that such an arrangement won’t be harmful to the child.

Utah Family Law, LC | | 801-466-9277

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How exactly does shared custody work? Does the child end up being like that kid from Jacqueline Wilson’s “The Suitcase Kid”?

How exactly does shared custody work? Does the child end up being like that kid from Jacqueline Wilson’s “The Suitcase Kid”?

The child certainly can be like the child (Andrea) from Jacqueline Wilson’s “The Suitcase Kid,” if under a shared parenting arrangement 1) the child divides his/her time living with both the father and mother and 2) each parent wants the child to live only with him/her and tries to persuade the child to do so.

But shared custody (also known as joint custody or—when the child spends equal time with both parents—joint equal or 50/50 custody) does not inexorably condemn the child to have a “Suitcase Kid” experience, as long as the parents place the happiness and mental and emotional health of the child above the parents’ respective self-interest. Treat your child the way you would want to be treated, were you in the child’s shoes!

It’s not popular these days to state what we all know: the best thing a fit parent can do for a child is to rear that child in a family in which that parent is married happily to the child’s other parent. Short of that, the next best thing a fit parent can do for a child is to ensure the child is reared as much as possible by both parents. Children of fit parents love both parents and want to be loved and cared for by both parents as much as possible (duh). Do it for them! They deserve it. It’s the least that divorced or separated parents can do for their children.

Utah Family Law, LC | | 801-466-9277

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What will a judge do if a mother gives up her full custody right to the father of her kids, wants nothing to do with them, refuses to pay child support, and is willing to quit her job to avoid paying child support?

What will a judge do if a mother gives up her full custody right to the father of her kids, wants nothing to do with them, refuses to pay child support, and is willing to quit her job to avoid paying child support?

Short and general (and thus not applicable in every jurisdiction) answer is that if mom:-+













refuses to pay; and
if mom has no job and thus no wages that the court can order garnished, no tax refunds that can be intercepted; and
no money in the bank that the court can order garnished; and
no property that can be attached and sold, so that the proceeds of sale go to you,
you just don’t get paid.

Many states (Utah included—this is the jurisdiction in which I practice divorce and family law) have laws that can subject a parent who fails or refuses to pay support to jail for “criminal nonsupport”. Sometimes, the prospect of going to prison for not paying child support motivates a parent who otherwise isn’t meeting his/her child support obligations to pay them.

Utah Code Section 76-7-201. Criminal nonsupport.

Utah Code Section 76-7-202. Orders for support in criminal nonsupport proceedings.

Utah Family Law, LC | | 801-466-9277

If a parent disappears for five years, what are his/her chances of winning child custody?

If a parent disappears for five years, what are his/her chances of winning child custody? 

As long as 1) Dad’s story/situation isn’t worse than Mom’s, and 2) Dad’s not responsible for Mom being out of the picture for 5 years, then Mom’s chances (due to her child abandonment) are likely pretty slim, regardless of what state the child custody case is being contested.

Utah Family Law, LC | | 801-466-9277  

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What if you don’t get divorced and just move away?

What if you don’t get divorced and just move away?

The risks and dangers in just up and moving away from (abandoning) your spouse are manifold. Here are a few that come to mind:

  • If you disappear and your spouse files for divorce and you cannot be found to be served with a copy of 1) the summons and 2) complaint for divorce, you could have default judgment entered against you without your knowledge and without you having appeared in the action to defend yourself.
    • you may lose most or all of the marital assets (even your premarital assets) by having them awarded to your spouse;
    • you may be ordered to pay most or all of the marital debts and obligations; and
    • you may be ordered to pay unfair amounts of child and/or spousal support
  • You are still responsible to care for your spouse, which means (at least in the jurisdiction where I practice divorce and family law) that if your spouse incurs debts and obligations for what are known as “necessaries”:

Morrison v. Federico, 232 P.2d 374 (Utah 1951):

The statute making “expenses of the family” chargeable upon the property of both spouses and permitting them to be sued jointly and separately, places liability upon both parties only where expenses incurred are necessary for the family benefit including expenditures proper to support the family and necessary to promote the well-being of its members and does not include attorney’s fees for legal services performed in a contemplated divorce action where reconciliation occurs.

  • 30-2-9. Family expenses–Joint and several liability:

(1) The expenses of the family and the education of the children are chargeable upon the property of both spouses or of either of them separately, for which expenses they may be sued jointly or separately.

(2) For the expenses described in Subsection (1), where there is a written agreement signed by either spouse that allows for the recovery of agreed upon amounts, a creditor or an assignee or successor in interest of the creditor is entitled to recover the contractually allowed amounts against both spouses, jointly and severally.

(3) Subsection (2) applies to all contracts and agreements under this section entered into by either spouse during the time the parties are married and living together.

(4) For the purposes of this section, family expenses are considered expenses incurred that benefit and promote the family unit. Items purchased pursuant to a written contract or agreement during the marriage that do not relate to family expenses are not covered by this section.

(5) The provisions of Subsections (2) and (3) do not create a right to attorney’s fees or collection fees as to the nonsigning spouse for purchases of:

(a) food or clothing; or

(b) home improvements or repairs over $5,000.


Utah Family Law, LC | | 801-466-9277

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