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Category: Alienation of Affection

How Long Will It Take for the Court to Adjust Custody in a Parental Alienation Situation?

You need to ask some other questions first before you get to the answer to the question of how long it will take.

First, can you prove parental alienation to the satisfaction of the judge? If you can’t, then the court won’t even consider modifying the child custody and/or parent-time awards.

Second, if you can prove parental alienation to the satisfaction of the judge, then can you convince the judge that the level of parental alienation is sufficient to warrant a modification of the child custody and/or parent-time awards? If you can’t, then the court won’t modify the child custody and/or parent-time awards.

Third, even if you can prove parental alienation to the satisfaction of the judge and then convince the judge that the level of parental alienation is sufficient to warrant a modification of the child custody and/or parent-time awards, how hard will that be and how long will it take to accomplish that?

For example, if an alienating parent has engaged in excessive and egregious alienating behaviors and has made no secret of his/her alienating behaviors, then the time it will take prove it will likely be less than what it would take to expose the alienating parent if the alienating parent has done a careful and thorough job of concealing or disguising his/her alienating behaviors.

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

https://www.quora.com/How-long-will-it-take-for-the-court-to-adjust-custody-in-a-parental-alienation-situation

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When an Order of Protection Gets Dismissed, Then Legally, There’s Nothing in Place Stating How We Will Share Our Son. What Do I Do Now?

Generally speaking (you will need to confer with an attorney who knows the law governing this question in the jurisdiction where you, the other parent, and the child reside), if there are no other court orders in place that govern the custodial rights of you and the other parent, then:

  • You and the other parent have co-equal custodial rights to the child, but that does not mean that there is any “default” custody schedule or custody sharing schedule that takes effect if you and the other parent cannot agree upon a schedule.
  • That means that (unless a law on the books in your jurisdiction provides otherwise) a parent can withhold contact with the child from the other parent without that constituting any kind of crime. Otherwise stated, it’s legal for a parent to do so. It’s not kind. It’s not fair, but it’s not illegal. You could call the police (as many people do) and tell them (honestly), “The other parent is refusing to let me spend any time with our child” and there is nothing that the police could do for you. Many parents are stunned to learn this when they call the police requesting and expecting help with obtaining time with their children.

o    If you and the other parent are married: you can file for a separation order or for a decree of divorce to request child custody and parent-time orders.

o    If you and the other parent are not married: you can file a child custody action or a paternity (also known as a “parentage”) action to request child custody and parent-time orders, and once the court issues those orders, you and the other parent are bound to comply with them. Failure or refusal to comply can result in A) being held in contempt of court and sanctioned for that contempt and/or B) criminal charges for custodial interference, even child kidnapping.

  • Once the court issues those orders, you and the other parent are bound to comply with them. Failure or refusal to comply can result in A) being held in contempt of court and sanctioned for that contempt and/or B) criminal charges for custodial interference, even child kidnapping.

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

https://www.quora.com/When-an-order-of-protection-gets-dismissed-then-legally-theres-nothing-in-place-stating-how-we-will-share-our-son-What-do-I-do

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From Pro Publica: Barricaded Siblings Turn to TikTok While Defying Court Order to Return to Father They Say Abused Them

There is far more to this story than the headline reveals.

From Pro Publica: Barricaded Siblings Turn to TikTok While Defying Court Order to Return to Father They Say Abused Them

https://www.propublica.org/article/parental-alienation-utah-livestream-siblings#:~:text=Two%20siblings%20in%20Utah%20have,had%20sexually%20abused%20the%20children

Is there any question whether the court would benefit from hearing testimony from these kids? Even if, arguendo, the court were to discover these kids are liars?

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

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How Do I Handle a Narcissist Ex-husband in the Visitation of Children if I Have the Primary Custody? He Is Very Manipulative to Our Kids.

I generally wouldn’t recommend trying to get the assistance of the court to remedy this problem. The legal system is not designed to address this problem well, if at all. And even when it can do something worthwhile, the legal system does not generally address this problem well, if at all.

Let’s assume that if you were just given the opportunity to prove that your ex-spouse (and I’m going to approach this question as applying to a manipulative father OR mother) is manipulating your children, you could prove it in spades. With that in mind:

  1. If you ask the judge to interview the kids, odds are that the court will refuse to do so, coming up with all kinds of lame excuses as to why the judge “can’t” or “shouldn’t”. Most of these excuses stem from a belief that a judge interviewing the child will “traumatize” the children, yet these same judges seem to see nothing traumatizing about a guardian ad litem, custody evaluator, social worker, counselor, or therapist interviewing the children.
  2. But even if the judge were to agree to interview the children, by the time the court gets around to conducting the interviews, weeks—even months—may have passed from the day you made the request of the judge to interview the children. In that time in between, the manipulative parent could coach, bribe, and/or coerce the children into saying to the judge anything but the truth. And if the manipulative parent is the one requesting that the judge interview the children, the coaching, bribing, and/or coercion of the children could have been going on for weeks, months, even years before. These are often two of the excuses judges will cite as their basis for refusing to interview children. There is some merit to these excuses, but the solution is not refusing to interview the children, the solution lies in mitigating child manipulation.
  3. But even if you could somehow overcome the first two previously described obstacles and the judge eventually interviews the children, you may find the judge’s reception and analysis of the children’s testimony to be rather obtuse. Not always, but more often than you’d expect. Responses like, “The children tell me that Mom/Dad is regularly disparaging and telling the children lies about the other parent when the children are with Mom/Dad, but now that I’m aware of it, I trust that Mom/Dad will stop doing it, so I’m not going to make any changes” or “The children tell me that Mom/Dad is regularly disparaging and telling the children lies about the other parent when the children are with Mom/Dad, so I’m going to order Mom/Dad to stop doing it and take a parenting class. That ought to fix it.” I’m not sure judges who do this kind of thing believe it themselves but just do it to create the impression the matter has been addressed and “dealt with”.

If you are a parent with an ex-spouse who manipulates the children in an effort to alienate them from you, I have yet to find a quick, simple, easy, reliable way to combat and overcome parental alienation. If I did find it, I’d be a multimillionaire. There are many people out there who will tell you how to deal with and defeat alienation. A lot of this advice is appealing psychobabble. A lot of this advice is pandering to your fears, heartbreak, and anger. There must be some good advice out there as well. There are some common sense actions to be taken. There is value in meeting with a truly competent child psychologist to better understand the dynamics of parental alienation. But other than that, I’d be lying if I told you I could tell the difference between the wheat and the chaff.

What I can tell is that trying to beat parental alienation through the courts is, for the most part, a major waste of time, money, emotional energy, and effort. Sometimes the alienator’s behavior is so over the top that it can easily be identified and there are some remedies that the court can and should/must take in response. Otherwise, the best things you can do to mitigate and overcome parental alienation are those things within your legal, lawful, moral, and ethical control.

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

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Is There a Way to Get Legal Action on Child Support for Free?

That does not bode well for you, if in fact the child will be in the courtroom at the same time you and the judge assigned to your case are in the courtroom (although it is not a common occurrence for children to be in the courtroom with a parent during child custody proceedings).

If a child is 3 years old and doesn’t recognize his/her parent, that raises the question of why?

Even if your explanation is “because the other parent hid/kept the child away from me!” and the explanation is in fact true, that’s a tough sell. Unless you have extremely good evidence proof to back your explanation, the court is likely to treat such a claim with skepticism (and can you blame it?). Be prepared to show that you bent over backward and moved heaven and earth trying to find, stay in contact with, and to care for your child (easier said than done, I get it, but that’s the way the system works); otherwise, the court is likely to conclude you are a flaky, absentee parent.

And if you are found to be a flaky, absentee parent, your odds of winning sole custody are slim to none, and your odds of winning joint custody aren’t much better.

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

 

https://www.quora.com/What-if-my-3-year-old-does-not-recognize-me-in-court-during-a-child-custody-case/answer/Eric-Johnson-311

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What Happens in a Custody Case Where Both Parents Try to Alienate the Child From the Other Parent and the Rest of Their Family?

My guess is that this question applies in two distinct contexts: 1) what does the court do in a child custody case where both parents try to alienate the child from the other parent and the rest of their family?; and 2) what happens to a child in a custody case where both parents try to alienate the child from the other parent and the rest of their family?

1) What does the court do in a child custody case where both parents try to alienate the child from the other parent and the rest of their family?;

It’s hard when a court has two lousy parents fighting over custody. Neither is bad enough to have his/her parental rights terminated and custody of the child awarded to the other parent, so the court finds itself having to make all kinds of compromises that the court knows are not likely to work.

Rarely can a court do much to help the child effectively. That’s not the court’s fault. Even the most conscientious court cannot compel bad actors to do good (or at least to do good consistently). . .

. . . but that doesn’t mean some courts think themselves an exception. Some judges believe the black robe and gavel magically imbues them with supernatural wisdom and power to make the horse drink. Such orders issued by such judges are rarely obeyed and rarely benefit the child. Indeed, they tend to generate a lot of litigation between the parents over “enforcement” of largely unenforceable orders, and the child often suffers collateral damage.

Other judges don’t want to live with the guilt of wondering, “Did I fail to do everything I could to protect the child from its lousy parents?,” and so they assuage their fears by issuing orders that appear to make the judges look good without those orders doing the child (or his lousy parents) much, if any good, i.e., ordering the parents to read books and watch videos, take “parenting” courses, and/or ordering the parents and children to engage in therapy and counseling.* In fairness, some judges issue such orders not because they believe they will work, not because they want to look compassionate and wise, but because they conclude that it can’t hurt and that such orders may cause the occasional parent to see the light. Fair enough.

2) What happens to a child in a custody case where both parents try to alienate the child from the other parent and the rest of their family?

First, remember that it’s not “parental alienation” if one parent acts shield a child from the harm that a dysfunctional and/or abusive parent would, in the absence of the protection, inflict on a child. Unfit, unrepentant parents forfeit (either legally or practicably) their hopes of and rights to a “relationship” with the children they neglect and/or abuse. Don’t misunderstand me: the ends do not necessarily justify any means, and one cannot be a law unto oneself, but fulfilling parental responsibility is not parental alienation.

So the question really is: what happens in a custody case where both parents who know better try to alienate the child from the other parent and the rest of their family? And the answer to that question is: the child is emotionally and psychologically abused grossly. All but the most exceptional children suffer the consequences of this heinous emotional and psychological abuse throughout the rest of their lives. Many (frankly most) who reach adulthood and have children of their own will end up being dysfunctional, neglectful, abusive spouses (if they ever marry) and parents themselves. Even the children who seemingly “overcome” or adjust for this abuse and who manage to live a normal life will, by and large, still suffer from and bear the burdens of the damage and pain.

—————

*Counseling and therapy can do some people some, even a lot, of good, but forcing counseling and therapy on parents is not nearly as effective as the courts seem to believe.

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

(10) Eric Johnson’s answer to What happens in a custody case where both parents try to alienate the child from the other parent and the rest of their family? – Quora

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How Do You Prove Parental Alienation in a Child Custody Case?

Usually rarely and with great effort and difficulty.

Why? I have written other responses to this question and questions like it, so my answer here will be more concise than past answers, but I will still try to ensure that I touch upon all the important points as to why:

1. Parental alienation is hard to identify and define. Sure, there are some actions and inactions of a parent that are clearly and unmistakably intended to manipulate the child to fear or hate the other parent, to poison a child’s relationship with the other parent. But we don’t see that that often (either because, thankfully, most parents aren’t that malevolent or because the alienating parent is so good at evading detection and exposure).

  1. There are other forms of parental alienation that are milder or susceptible to more than one interpretation. There are actions that could or could not be instances of parental alienation. I cite just a few illustrative examples below:
  2. Is telling the child the truth about a parent’s flaws and failings parental alienation?
    1. Is it an instance of parental alienation to tell the child—truthfully (not falsely at all)—that the reason Dad didn’t pick the child up to celebrate the child’s birthday is because Dad’s a substance abuser and was passed out on the floor?
    2.  Is it an instance of parental alienation to tell the child repeatedly—(but without malice) and truthfully (not falsely at all)—that the reason Dad doesn’t spend scheduled time with the is because Dad’s a substance abuser and is always passed out on the floor?
    3. Is it better to tell the child the hard truths about a parent’s flaws so that the child can accept them or adjust to them sooner than later, or is it better to tell the child lies about the other parent’s flaws with the intent of protecting the child’s self-esteem? Or is there some middle course that must be taken in such a situation?
  3. Is “one person’s parental alienation another person’s mere freedom of thought and expression”? Is it parental alienation for a parent to criticize and mock the other parent’s political and religious beliefs (not criticizing or mocking the parent, but criticizing and/or mocking the beliefs)?
  4. Is it parental alienation to encourage a child to form a loving relationship with a stepparent?
  5. Is it parental alienation to refuse to send a child to spend time alone with an abusive parent when you know (not mere suspicion, you know) the parent is abusive but have no verifiable proof? Imagine the agony of having to choose between being punished (potentially cut off from your child and thus exposing the child to even more abuse) for disobeying court orders and causing your child to be abused by obeying court orders.
  6. You get the idea.

2. Parental alienation is hard to prove. See above. Parental alienation is not something courts like to address. See above. In some respects, parental alienation is hard to prove because parental alienation is not something courts like to address, and parental alienation is not something courts like to address because parental alienation is hard to prove. You see?

  1. And if and when some courts are lazy and apathetic, you can see how such courts would rather dismiss claims of parental alienation than wrestle with them.

3. False claims of parental alienation are so often made that it’s hard to determine whether the claims are sincere and easy to presume they are not. See above.

4. Parental alienation is hard to prevent or manage.

  1. So, let’s say you’ve proven to the court’s satisfaction that the other parent is engaging in parental alienation. Now what?
  2. Do we cut off the other parent from the child to protect the child from further parental alienation? Or would that do the child more harm than good?
  3. Do we try to grant the other parent access to the child under controlled/supervised conditions to ensure the child has as good and has healthful a relationship with the other parent as possible while simultaneously protecting the child from further parental alienation? Or would that do the child more harm than good? Or would that be so expensive as to be unsustainable?
  4. What if the other parent comes to the court and claims, “I see the error of my ways and I’ve changed?” Do we tell the other parent, “Too little too late” or “We can’t take the risk you’re not cured”? Do we reintroduce the other parent to the child? Relax or terminate the restrictions on the other parent’s contact with the child?
  5. Is trying to prevent or manage parental alienation a situation where court intervention makes a bad situation worse? Where the prescribed cure is worse than the disease?
  6. It’s tempting for a court to “conclude” that parental alienation has not been proven so that the court need not deal with it in crafting the court’s orders of legal custody and of physical custody and visitation/parent-time. See paragraph 2 above.

 

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

(10) Eric Johnson’s answer to How do you prove parental alienation in a child custody case? – Quora

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

2023 UT App 3

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF J.E.,

A PERSON UNDER EIGHTEEN YEARS OF AGE.

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

Opinion

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

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN FORSTER concurred.

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.

BACKGROUND[1]

¶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.”

ISSUES AND STANDARDS OF REVIEW

¶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)).

ANALYSIS

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.”

A

¶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”).

B

¶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.

CONCLUSION

¶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 | divorceutah.com | 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 Does One Prove False Allegations of Parental Alienation?

With great difficulty, in most (not all) cases.

“It used to be a fashion amongst men that when a charge was made some sort of proof was brought forward to establish it, and if no proof was found to exist, the charge was dropped.” – Abraham Lincoln

Few courts are slaves to such fashion when it comes to allegations of child abuse (and parental alienation is a form of child abuse; even if the term “parental alienation” is not codified, manipulating a child to fear and hate a parent is emotionally and psychologically abusive in anyone’s book).

Many courts treat evidence differently when dealing with matters of child custody. It’s as though they feel, when it comes to matters involving children, that the preponderance of evidence standard is not good enough, not “safe” enough. If an allegation of child neglect or abuse is made, many courts get scared. Not necessarily scared for the health and safety of the child, however, but for the safety of their own careers. This article on domestic violence restraining and protective orders (click here to access it) explains the problem and its adverse consequences. In a nutshell, many judges and other judicial officers analyze claims of child abuse this way: “If I make findings and enter orders that treat the accused parent as abusive, then nobody can fault me for ‘failing to protect the child,’ (‘better safe than sorry’), but if I don’t (because I find that the accusing parent failed to meet his/her burden of proof) and then later the accused parent is caught committing child abuse or new evidence comes to light proving he/she was abusive in the past, then I look like I wasn’t paying close enough attention, that I am incompetent or worse, that I did not care about child safety and welfare. Better to nip that problem (for me) in the bud and just err on the side of caution.”

Can you see the damage done when judges think and act this way? “Protecting” a child from a parent who has done no harm results in three victims: 1) the innocent parent 2) the innocent child whose relationship with that parent is now seriously damaged, if not destroyed, and 3) the child’s, the parent’s, and the public trust in the judiciary and faith in the impartial administration of justice. What kind of respect for law and order are parents and children who were victimized by a self-serving, cowardly judge going to have? James Madison put it perfectly:

We are to look upon it as more beneficial, that many guilty persons should escape unpunished, than one innocent person should suffer. The reason is, because it’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished; for guilt and crimes are so frequent in the world, that all of them cannot be punished; and many times they happen in such a manner, that it is not of much consequence to the public, whether they are punished or not. But when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me, whether I behave well or ill; for virtue itself, is no security. And if such a sentiment as this, should take place in the mind of the subject, there would be an end to all security what so ever.

 

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

(8) Eric Johnson’s answer to How does one prove false allegations of parental alienation? – Quora

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What Happens in a Custody Case Where Both Parents Try to Alienate the Child From the Other Parent and the Rest of Their Family?

My guess is that this question applies in two distinct contexts: 1) what does the court do in a child custody case where both parents try to alienate the child from the other parent and the rest of their family?; and 2) what happens to a child in a custody case where both parents try to alienate the child from the other parent and the rest of their family?

1) What does the court do in a child custody case where both parents try to alienate the child from the other parent and the rest of their family?;

It’s hard when a court has two lousy parents fighting over custody. Neither is bad enough to have his/her parental rights terminated and custody of the child awarded to the other parent, so the court finds itself having to make all kinds of compromises that the court knows are not likely to work.

Rarely can a court do much to help the child effectively. That’s not the court’s fault. Even the most conscientious court cannot compel bad actors to do good (or at least to do good consistently). . .

. . . but that doesn’t mean some courts think themselves an exception. Some judges believe the black robe and gavel magically imbues them with supernatural wisdom and power to make the horse drink. Such orders issued by such judges are rarely obeyed and rarely benefit the child. Indeed, they tend to generate a lot of litigation between the parents over “enforcement” of largely unenforceable orders, and the child often suffers collateral damage.

Other judges don’t want to live with the guilt of wondering, “Did I fail to do everything I could to protect the child from its lousy parents?,” and so they assuage their fears by issuing orders that appear to make the judges look good without those orders doing the child (or his lousy parents) much, if any good, i.e., ordering the parents to read books and watch videos, take “parenting” courses, and/or ordering the parents and children to engage in therapy and counseling.* In fairness, some judges issue such orders not because they believe they will work, not because they want to look compassionate and wise, but because they conclude that it can’t hurt and that such orders may cause the occasional parent to see the light. Fair enough.

2) What happens to a child in a custody case where both parents try to alienate the child from the other parent and the rest of their family?

First, remember that it’s not “parental alienation” if one parent acts shield a child from the harm that a dysfunctional and/or abusive parent would, in the absence of the protection, inflict on a child. Unfit, unrepentant parents forfeit (either legally or practicably) their hopes of and rights to a “relationship” with the children they neglect and/or abuse. Don’t misunderstand me: the ends do not necessarily justify any means, and one cannot be a law unto oneself, but fulfilling parental responsibility is not parental alienation.

So the question really is: what happens in a custody case where both parents who know better try to alienate the child from the other parent and the rest of their family? And the answer to that question is: the child is emotionally and psychologically abused grossly. All but the most exceptional children suffer the consequences of this heinous emotional and psychological abuse throughout the rest of their lives. Many (frankly most) who reach adulthood and have children of their own will end up being dysfunctional, neglectful, abusive spouses (if they ever marry) and parents themselves. Even the children who seemingly “overcome” or adjust for this abuse and who manage to live a normal life will, by and large, still suffer from and bear the burdens of the damage and pain.

—————

*Counseling and therapy can do some people some, even a lot, of good, but forcing counseling and therapy on parents is not nearly as effective as the courts seem to believe.

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

(8) Eric Johnson’s answer to What happens in a custody case where both parents try to alienate the child from the other parent and the rest of their family? – Quora

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How Do You Prove Parental Alienation in a Child Custody Case?

Usually rarely and with great effort and difficulty.

Why? I have written other responses to this question and questions like it, so my answer here will be more concise than past answers, but I will still try to ensure that I touch upon all the important points as to why:

  1. Parental alienation is hard to identify and define. Sure, there are some actions and inactions of a parent that are clearly and unmistakably intended to manipulate the child to fear or hate the other parent, to poison a child’s relationship with the other parent. But we don’t see that that often (either because, thankfully, most parents aren’t that malevolent or because the alienating parent is so good at evading detection and exposure).
    • There are other forms of parental alienation that are milder or susceptible to more than one interpretation. There are actions that could or could not be instances of parental alienation. I cite just a few illustrative examples below:
    • Is telling the child the truth about a parent’s flaws and failings parental alienation?
      • Is it an instance of parental alienation to tell the child—truthfully (not falsely at all)—that the reason Dad didn’t pick the child up to celebrate the child’s birthday is because Dad’s a substance abuser and was passed out on the floor?
      • Is it an instance of parental alienation to tell the child repeatedly—(but without malice) and truthfully (not falsely at all)—that the reason Dad doesn’t spend scheduled time with the is because Dad’s a substance abuser and is always passed out on the floor?
      • Is it better to tell the child the hard truths about a parent’s flaws so that the child can accept them or adjust to them sooner than later, or is it better to tell the child lies about the other parent’s flaws with the intent of protecting the child’s self-esteem? Or is there some middle course that must be taken in such a situation?
    • Is “one person’s parental alienation another person’s mere freedom of thought and expression”? Is it parental alienation for a parent to criticize and mock the other parent’s political and religious beliefs (not criticizing or mocking the parent, but criticizing and/or mocking the beliefs)?
    • Is it parental alienation to encourage a child to form a loving relationship with a stepparent?
    • Is it parental alienation to refuse to send a child to spend time alone with an abusive parent when you know (not mere suspicion, you know) the parent is abusive but have no verifiable proof? Imagine the agony of having to choose between being punished (potentially cut off from your child and thus exposing the child to even more abuse) for disobeying court orders and causing your child to be abused by obeying court orders.
    • You get the idea.
  1. Parental alienation is hard to prove. See above. Parental alienation is not something courts like to address. See above. In some respects, parental alienation is hard to prove because parental alienation is not something courts like to address, and parental alienation is not something courts like to address because parental alienation is hard to prove. You see?
    • And if and when some courts are lazy and apathetic, you can see how such courts would rather dismiss claims of parental alienation than wrestle with them.
  2. False claims of parental alienation are so often made that it’s hard to determine whether the claims are sincere and easy to presume they are not. See above.
  3. Parental alienation is hard to prevent or manage.
    • So, let’s say you’ve proven to the court’s satisfaction that the other parent is engaging in parental alienation. Now what?
    • Do we cut off the other parent from the child to protect the child from further parental alienation? Or would that do the child more harm than good?
    • Do we try to grant the other parent access to the child under controlled/supervised conditions to ensure the child has as good and has healthful a relationship with the other parent as possible while simultaneously protecting the child from further parental alienation? Or would that do the child more harm than good? Or would that be so expensive as to be unsustainable?
    • What if the other parent comes to the court and claims, “I see the error of my ways and I’ve changed?” Do we tell the other parent, “Too little too late” or “We can’t take the risk you’re not cured”? Do we reintroduce the other parent to the child? Relax or terminate the restrictions on the other parent’s contact with the child?
    • Is trying to prevent or manage parental alienation a situation where court intervention makes a bad situation worse? Where the prescribed cure is worse than the disease?
    • It’s tempting for a court to “conclude” that parental alienation has not been proven so that the court need not deal with it in crafting the court’s orders of legal custody and of physical custody and visitation/parent-time. See paragraph 2 above.

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

(8) Eric Johnson’s answer to How do you prove parental alienation in a child custody case? – Quora

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How Does One Prove False Allegations of Parental Alienation?

With great difficulty, in most (not all) cases.

“It used to be a fashion amongst men that when a charge was made some sort of proof was brought forward to establish it, and if no proof was found to exist, the charge was dropped.” – Abraham Lincoln

Few courts are slaves to such fashion when it comes to allegations of child abuse (and parental alienation is a form of child abuse; even if the term “parental alienation” is not codified, manipulating a child to fear and hate a parent is emotionally and psychologically abusive in anyone’s book).

Many courts treat evidence differently when dealing with matters of child custody. It’s as though they feel, when it comes to matters involving children, that the preponderance of evidence standard is not good enough, not “safe” enough. If an allegation of child neglect or abuse is made, many courts get scared. Not necessarily scared for the health and safety of the child, however, but for the safety of their own careers. This article on domestic violence restraining and protective orders (click here to access it) explains the problem and its adverse consequences. In a nutshell, many judges and other judicial officers analyze claims of child abuse this way: “If I make findings and enter orders that treat the accused parent as abusive, then nobody can fault me for ‘failing to protect the child,’ (‘better safe than sorry’), but if I don’t (because I find that the accusing parent failed to meet his/her burden of proof) and then later the accused parent is caught committing child abuse or new evidence comes to light proving he/she was abusive in the past, then I look like I wasn’t paying close enough attention, that I am incompetent or worse, that I did not care about child safety and welfare. Better to nip that problem (for me) in the bud and just err on the side of caution.”

Can you see the damage done when judges think and act this way? “Protecting” a child from a parent who has done no harm results in three victims: 1) the innocent parent 2) the innocent child whose relationship with that parent is now seriously damaged, if not destroyed, and 3) the child’s, the parent’s, and the public trust in the judiciary and faith in the impartial administration of justice. What kind of respect for law and order are parents and children who were victimized by a self-serving, cowardly judge going to have? James Madison put it perfectly:

We are to look upon it as more beneficial, that many guilty persons should escape unpunished, than one innocent person should suffer. The reason is, because it’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished; for guilt and crimes are so frequent in the world, that all of them cannot be punished; and many times they happen in such a manner, that it is not of much consequence to the public, whether they are punished or not. But when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me, whether I behave well or ill; for virtue itself, is no security. And if such a sentiment as this, should take place in the mind of the subject, there would be an end to all security what so ever.

(emphasis mine)

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

(4) Eric Johnson’s answer to How does one prove false allegations of parental alienation? – Quora

 

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What Can a Judge Do When The 13-Year-Old Child in a Custody Case Who Was a Victim of Parental Alienation Says They Want to Live in a Foster Home?

Your question presumes that the judge heard from the child. In many cases (frankly most), even though the child has the greatest stake in the child custody award dispute, the child is “protected” from being heard on the subject (don’t get me started on why this is all kinds of foolishness). 

But if the court has heard from the child as to his experiences and desires and the reasons for those desires, the next question is whether the court believes the child’s testimony. If the court does not believe the child, then the judge will not do anything in response to what the child desires. 

But if the court believes the child’s testimony, that the child’s desires are sensible and worthwhile, and that the child needs the court’s help to achieve the child’s desires, then the court can issue orders designed to achieve those ends. 

The degree of parental alienation caused by one or both of the child’s parents would, however, have to be hellish for a court to find that it is preferable to subject a child to all the risks of physical and psychological harm associated with the general hell of foster care, rather than to keep the child in the custody of one or both of the child’s own parents. 

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

https://www.quora.com/What-can-a-judge-do-when-the-13-year-old-child-in-a-custody-case-who-was-a-victim-of-parental-alienation-says-they-want-to-live-in-a-foster-home/answer/Eric-Johnson-311  

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My estranged father keeps asking me for money, what do I do?

My parents are divorced, my father has no savings, he didn’t work for the entire period of their marriage, we were estranged for a while and now we are back, but now he keeps asking me for money, what do I do? 

Do unto others as you would have them do unto you. I fully acknowledge that is easier said than done, but that doesn’t excuse any of us from doing the right thing.  

If your father is a moocher, he has not right to mooch and you have no obligation to enable him in his mooching, just as you have no right to mooch. 

If your father is in real need and you have the ability to help him, help him. He is your father, and we are commanded by God to honor our parents, and that commandment is not qualified to apply only to good parents. I can’t claim to understand why this is (just as I can’t always understand the “reason” behind every one of God’s commandments in every situation), but I believe it. Honoring our parents does not mean turning a blind eye to their faults and misconduct. 

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

https://www.quora.com/My-parents-are-divorced-my-father-has-no-savings-he-didnt-work-for-the-entire-period-of-their-marriage-we-were-estranged-for-a-while-and-now-we-are-back-but-now-he-keeps-asking-me-for-money-what-do-I-do/answer/Eric-Johnson-311

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Are there experts who can evaluate parental alienation for a custody case?

There are “expert” witnesses for virtually any and every issue in legal actions. 

Can judges be bamboozled by pseudo-scientific expert witnesses? Without question. 

Do some judges who know that the so-called expert witness’s testimony is pseudo-scientific bunk (or at least know that the opinion has dubious scientific grounding) yet justify the ruling the judge wants to make by citing to those pseudo-scientific opinions? Without question. 

So your question really should be, “Are there competent expert witnesses who can objectively prove my spouse/the other parent is alienating our child(ren) from me?” The answer to that question is, in my opinion, “no.” 

Other questions you should ask (and their answers, in my opinion): 

  • “Are there competent expert witnesses who can make a persuasive case for the argument that my spouse/the other parent is alienating our child(ren) from me?” The answer to that question is “yes.” 
  • “Are there incompetent expert witnesses who can make a persuasive case for the argument that my spouse/the other parent is alienating our child(ren) from me?” The answer to that question is “yes.” 
  • “Are judges generally receptive to the concept (much less the actual occurrence) of parental alienation, and are they generally willing to hold a parental alienator accountable?” The answer to that question is “Some judges will acknowledge that parental alienation exists, but even then the amount and quality of evidence needed to persuade a judge that parental alienation occurred or is occurring is very high, in many cases unobtainably high.” 
  • “Will proving the occurrence of parental alienation help me obtain court orders to protect my children from further alienation and psychological/emotional abuse?” The answer to that question is “maybe.” Some judges take a bizarre approach to proof of parental alienation, i.e., it is clear that [parent] has alienated the child(ren) from [other parent], but if I were to take the children away from the alienator or impose sanctions/restriction/monitoring/supervision on the alienator, then the alienated kids (who side with the alienator because they have been exploited and manipulated and abused) would suffer (i.e., suffer in the process of treating and reversing the alienation brainwashing and being restored to reality), so I am going to leave things be “for the sake of the children.” 

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

https://www.quora.com/Are-there-experts-who-can-evaluate-parental-alienation-for-a-custody-case/answer/Eric-Johnson-311 

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Can an adult child be sued for helping one parent divorce the other?

Taking your question literally: 

Can? Yes. 

You can file a lawsuit for any “reason” or no reason at all. Crazy and/or malicious people file crazy/malicious/frivolous/unintelligible lawsuits all the time. 

Just because you can file a lawsuit does not mean, however, that you will prevail in court on your claim(s) made in your lawsuit. 

So is it possible to find some plausible legal basis for a cause of action by one adult child against a sibling who helps one of their parents divorce the other? I’m sure it is. 

Is it likely to succeed? No. 

But could it? Possibly, depending upon the legal solidity of the bases for the claim(s), the skill with which the pleadings are drafted and the legal arguments are made, how persuasively you or your attorney argue the matter, and how receptive your judge and/or jury are to your arguments. 

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

https://www.quora.com/Can-an-adult-child-be-sued-for-helping-one-parent-divorce-the-other/answer/Eric-Johnson-311 

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Why isn’t 50/50 custody the default resolution in child custody cases?

I have studied this question throughout my career, and I’ve been a divorce and family lawyer for 25 years. If there is one family law question to which I know the answer, it is this one. 

Eventually, a rebuttable presumption of 50–50 custody will become the norm. That change is happening now, although I am appalled at how slowly. 

There are many reasons why a 50-50 custody award is not the presumptive/default physical child custody award. I will list those reasons in the order of what I believe to be the strongest to the weakest. I do not mean that the strength of an argument depends upon how intellectually rigorous and honest the reason is. I mean how entrenched the reason is in society and in the legal culture. 

#1. Nothing else comes close: sexism. Any knowledgeable and experienced divorce and family law attorney will tell you that although sexism is not as strong as it once was a generation or two ago, it is still alive and kicking the butts of fit fathers who are denied the joint equal physical custody of their children. It is as shocking as it is terrifying as it is disgusting to see mothers and their lawyers make sexist arguments that the court’s still accept. Such as? 

  • Children, especially young children, need to spend more time with their mother than with their fathers. 
  • Women are born nurturers, more naturally competent parents than are men. 
  • Children are more strongly bonded to their mothers than to their fathers. 
  • (This one is particularly insulting) men who want more than minimal custody and parent time with their children do so to avoid having to pay child support. 
    • While it is true that some men don’t really want to be that involved in their children’s lives, yet seek sole or joint custody simply to reduce the amount of child support they have to pay without having any intention of engaging in the level of responsibility that a joint equal physical custodian should, to suggest that men in general want joint custody solely or primarily to save money is a pretty damn cynical view of men, not to mention a pretty damn false one. Think about it. If men wanting joint custody are motivated by greed, does that mean that women wanting sole or primary physical custody of their children are motivated by greed as well? 
    • We all know plenty of women who oppose a joint custody award and seek a sole or primary custody award precisely for the financial benefits primary or sole custody confers. It is unfair to presume that either mothers or fathers inherently seek a child custody award that is the most financially advantageous at the expense of their children’s emotional and physical well-being. 

#2. Unscientific and pseudoscientific principles (that are usually, though not always, invoked to mask the blatant sexism). Such as? 

  • Children should not be going back and forth like ping-pong balls between their parents’ respective homes 
    • There is some truth to this, but only under certain circumstances. The way I explain it to my clients and to legal professionals with open minds (few though there are currently) is that joint equal custody doesn’t benefit children if the parents live so far away from each other that the children don’t have access to the same group of friends and other familiar surroundings and resources. 
    • If mom and dad live many miles apart, the kids end up having no friends in either mom’s neighborhood or dad’s neighborhood. Here’s why: they are only in mom’s neighborhood half the time and only in dad’s neighborhood half the time. that makes it hard to make friends in either neighborhood. And so the kids often end up with no friends in either neighborhood. Certainly no close friends. They don’t go to church with the same kids on the weekends. While they may go to one school, if that school is in one parent’s neighborhood, then the kids don’t do anything with their friends after school on the days and weeks when they are with the other parent. 
      • Some parents and lawyers and judges think that the solution to this problem is having the children go to a school centrally located between moms and dads house. this almost never works well. the kids may have friends at school, but because they do not live in the neighborhood without school is located, their friendship is limited to the time they spend at school. 
    • Joint equal physical custody works best for children when the parents live within walking distance of each other, when the parents reside in the same neighborhood and school district and parish. Yet even when these circumstances exist, I’ve seen courts that still refuse to award of joint equal custody claiming that going back and forth between moms and dads house is a problem in itself, not a symptom of parents who live too far apart. 
  • joint equal custody makes it hard for kids to follow two different sets of rules in each parent’s home. What utter bilge. Sure, if the environments and rules in each parent’s home are so radically and catastrophically different from one another as to do the children harm, then perhaps joint equal custody can’t work. But such a scenario just doesn’t arise often enough to dismiss the idea of joint equal custody out of hand on this basis. The majority of parents are going to agree upon things like diet and bedtimes, and those parents who aren’t in total agreement will likely have rules and routines that don’t differ enough to do the children harm (such as bedtime at mom’s being 8:30 p.m. and bedtime at dad’s being 9:00 p.m., or mom may eat out with the kids more often than dad does— these are differences that are going to do the children long-term damage, if any damage at all). 

There is one legitimate reason why every child should not be in a 50–50 physical custody arrangement: when the circumstances of the parents and children are not conducive to a joint equal physical custody (50-50″) award. 

  • Sometimes the circumstances of one or both parents makes joint equal physical custody more trouble than it’s worth, of no benefit to the child, or even deleterious to the child. 
    • Work schedules and distance between the parents’ respective homes may not be conducive to the exercise of joint equal physical custody.

If a parent is unfit to exercise custody of a child, then that’s not really a problem with joint equal physical custody, but a matter of the parent’s incompetence. Holding father to a burden of proof that presumes them to be unfit until proven otherwise, is patently irrational, unconstitutional, and fundamentally unfair and gratuitously harmful to children and fathers alike. 

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

https://www.quora.com/Why-isnt-50-50-custody-the-default-resolution-in-child-custody-cases/answer/Eric-Johnson-311?__nsrc__=4&__snid3__=31406040166 

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Our agreement says no child support, can my ex ask for it anyway?

Can my ex ask for child support? I have a 50/50 custody and no child support divorce agreement, but his mother alienated him against me and now he refuses to visit me. The kid is 16 years old. 

I cannot speak for all jurisdictions, obviously, because 1) I do not know the law in every jurisdiction and 2) I am not licensed to practice law in every jurisdiction, but I can tell you what I know and what I’ve experienced in the jurisdiction where I practice divorce and family law (Utah). 

SHORT ANSWER: Possibly. Likely. 

LONG, MORE EXPLANATORY ANSWER: The scenario is as follows: 

  • the court has made a certain child custody and parent-time award 
  • but the child refuses too comply with the court-ordered child custody and parent time schedule, and spends all of his/her time living with one parent and refuses to spend any time in the care and custody of the other parent 

The questions are : 1) can the fact that the child has, in essence, create a de facto sole custody arrangement, and if so, 2) can that de facto sole custody arrangement result in the de facto noncustodial parent being forced to pay child support to the de facto custodial parent, even though that parent’s de facto noncustodial status is in no way that parent’s fault? 

The answer is: 1) yes, it can (it’s not inevitable, but it can happen), and 2) yes, it can (it’s not inevitable, but it can happen).  

Why? Before I address that question, let’s discuss a bit of child support policy. 

  • Some would argue that the purpose of the child support payment obligation is to ensure that each parent has sufficient funds to provide for the child’s financial needs and maintain a lifestyle commensurate with the parents combined earnings.  
    • So if one parent has a lower income than the other parent, the court will order the more affluent parent to pay the other parent some money to help the less affluent parent maintain the lifestyle that the child ostensibly enjoys when in the care and custody of the more affluent parent. It’s not the only way to craft child support policy, but it’s a reasonable way.  
    • Courts that subscribe to this way of thinking then argue that if a child refuses to comply with, say, a joint physical custody award (resulting in only one parent being burdened with fully or primarily having to shelter, feed, clothe, educate, and entertain the child), it would thus be unfair to burden the de facto primary or sole custodial parent with all the financial burdens associated with the child’s needs.  
    • The other parent, so the thinking goes, needs to pay his/her “fair share” of the child’s financial support needs. When children spend time in the care and custody of both parents, then the financial support burdens are divided between both parents. That make sense. That’s patently fair.  
    • When the child spends all of his/her time in the care and custody of just one parent, then it would be unfair for that parent to be solely responsible for the child’s financial support. If courts followed such a policy, then it is feared that as a means of avoiding the financial obligations of child support, parents would fight to ensure that only one parent has sole or primary custody of the child. 

So even when a court-ordered joint custodial parent has, through no fault of his/her own, been rendered a de facto noncustodial parent by the child refusing to comply with the court’s custody order, many courts (many, not all) might react to this situation by 1) modifying the child custody order to reflect the de facto situation; and 2) consequently modifying the child support award.  

Some courts may take a different approach in such a situation, although such an approach is, in my experience less common. That approach would be based on the idea that children don’t have the power to dictate child custody and parent time schedules to the court; therefore, if a child refuses to comply with the court’s child custody and parent time orders, the court is not going to punish the innocent de facto noncustodial parent. But you can see why such an approach leaves a bad taste in the mouths of many people, not leastwise the de facto custodial parent. 

If the parent in the de facto custodial parent position can prove that he/she did not compel or induce the child to refuse to comply with the court’s custody and parent time orders, that parent could certainly argue that he/she is innocent too, and should not be punished for the circumstances created by a noncompliant child.  

Which raises the next question (and brings the discussion full circle): why not have the court compel the child to comply with its child custody and parent time orders? I have addressed that question on Quora.com many times, but most recently in response to these two questions here:  

https://www.quora.com/Teenager-Child-16-refuses-to-see-me-after-spending-a-month-with-my-ex-I-have-50-custody-What-can-I-do-about-it-Im-a-stricter-parent-unlinke-my-ex-who-lets-him-play-computer-games-all-day-and-night 

and here:  

https://www.quora.com/What-will-happen-if-the-court-ruled-in-favor-of-a-mother-to-have-the-custody-of-her-child-but-the-child-refuses-to-go-with-her-and-she-prefers-to-stay-with-the-father 

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

https://www.quora.com/Can-my-ex-ask-for-child-support-I-have-a-50-50-custody-and-no-child-support-divorce-agreement-but-his-mother-alienated-him-against-me-and-now-he-refuses-to-visit-me-The-kid-is-16-years-old/answer/Eric-Johnson-311

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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 | divorceutah.com | 801-466-9277  

https://www.quora.com/20M-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/answer/Eric-Johnson-311  

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Parental alienation

I just read the following comment made by a viewer of my UFLTV parental alienation interview with Kelly Peterson. This viewer wrote, “So basically, parental alienation is proved by documenting the instances of alienation over a long period of time, so that by the time it’s proved, the alienation has achieved it’s end and irrevocably damaged the poor child. Seems about right for the joke that is family court. No wonder defense attorneys mock the hell out of it.” His frustration is understandable. Most people are hesitant to take immediate, decisive action, and courts are no exception (far from it). There is, of course, value in resisting the temptation to act hastily and rashly, but too often courts will try to justify plain old inaction with “restraint” and “deliberation”, especially in parental alienation settings. 

Parental Alienation with Kelly Peterson, Child Welfare Lawyer, Private Guardian ad Litem 

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

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