Category: Child Protective Order

The Problem with Private Guardians ad Litem. Part 2 of 3

As any attorney can do with any client, a PGAL clearly has the right to argue on a child client’s behalf, and the Utah Code makes clear that a PGAL can express a child client’s “intentions and desires”. (See Utah Code Section 78A-2-705(13)(d))

When a PGAL tells a court, “I’ve spoken to my client, and based upon those discussions, I can tell you that his/her intentions and desires are . . .” is hearsay or, at the very least, inferential hearsay. It can’t be anything else. Such a hearsay declarant is at least subject to cross examination (URE 806).

There is a pervasive belief among Utah family law attorneys and judicial officers that a child represented by a PGAL cannot even be cross-examined. There is no legal authority for this. Indeed, all legal authority is to the contrary.

Children testify in Utah juvenile court proceedings, and when they do, they often do under various circumstances (regarding child custody and parent-time) that are substantively indistinguishable from testifying in a child custody and parent-time in a divorce or district court child custody case. When district courts try to make a distinction between testifying in juvenile court and barring testimony in district court, they fail. They must. It is a distinction without difference.

I really do not understand why everyone frames (or tries to frame) asking questions of children who are the subject of a child custody and/or parent-time dispute as inherently harmful to children. One can ask certain questions that harm, or elicit answers that harm, but all forms of questioning are not innately harmful to children. Moreover, there is a level of harm that is, frankly, justified when the value of the testimonial evidence elicited is greater than the harm caused or that may be caused (it’s why we jail witnesses who are afraid to testify against the mob, yet put them in witness protection). Where there’s a will, there’s a way.

Unless they are very young, children are not so ignorant as to have no idea what is happening in a child custody dispute case. They know that if there is a dispute over custody that one parent will be unhappy. The children aren’t surprised when one parent or both parents try to lobby to support their candidacy for “best parent” or “custodial parent”. They aren’t surprised if a court wants to know what the children have experienced, how children feel, and what the children want on the subject of the child custody and parent-time awards.

There are clearly ways to obtain valuable evidence that children and only children are uniquely able to provide (in the form of their about their experiences, observations, feelings, opinions, preferences, and desires on the subject without it harming or unduly harming them.

Utah Family Law, LC | | 801-466-9277

Tags: , , , , , ,

In re A.S.G.-R. – 2023 UT App 126 – permanent custody and guardianship

In re A.S.G.-R. – 2023 UT App 126









Opinion No. 20220645-CA

Filed October 19, 2023

Fourth District Juvenile Court, Provo Department

The Honorable D. Scott Davis

No. 1196726

Alexandra Mareschal and Julie J. Nelson,

Attorneys for Appellant

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

Peterson, Attorneys for Appellee State of Utah

Neil D. Skousen, Attorney for Appellee E.G.

Martha Pierce, Guardian ad Litem



HARRIS, Judge:

¶1        G.R. (Mother) became convinced that E.G. (Father) was sexually abusing their daughter, A.S.G.-R. (Child). Over a nearly two-year period, Mother made or sparked some thirty reports of sexual abuse to Utah’s Division of Child and Family Services (DCFS). After investigation, however, DCFS was unable to discover any credible evidence supporting Mother’s allegations, and therefore did not substantiate any of them. And given the number and repeated nature of the reports, DCFS became concerned that Child was being harmed by the allegations and ensuing investigations, some of which had included invasive physical examinations of Child.

¶2        Eventually, the State filed a petition for protective supervision and obtained an order removing Child from Mother’s custody and placing her with Father. After affording Mother fifteen months of reunification services, including a psychological evaluation and therapy, the juvenile court determined that the services had not resulted in sufficient change to the situation and that Child would be placed at substantial risk if she were returned to Mother, and therefore terminated reunification services. And after a four-day permanency hearing, the court entered a permanent custody and guardianship order in favor of Father.

¶3        Mother now appeals, arguing that the court erred in its decisions to not extend reunification services and to award permanent custody and guardianship to Father. We discern no reversible error in those decisions, and therefore affirm.


¶4        Child was born in January 2017. Mother and Father separated shortly before Child’s birth, and about two years later they finalized their divorce. In the decree of divorce, Mother and Father were awarded joint legal custody of Child, but Mother was awarded primary physical custody with Father having statutory parent-time.

¶5        Child welfare officials first became involved with this family in November 2018, when DCFS made a supported finding of domestic violence with Father as the perpetrator and Child as the victim. At some point during this same time frame, Mother obtained a protective order against Father, based on allegations that he committed domestic violence against her also.

¶6        Beginning in May 2019, Mother began to make accusations that Father was sexually abusing Child. Over the course of the next two years, Mother made at least eight direct reports to DCFS of alleged sexual abuse. In addition, Mother reported her allegations to various medical and mental health professionals, some of whom also made reports to DCFS based on Mother’s representations. In total, between May 2019 and February 2021, some thirty separate reports were made to DCFS that Father was sexually abusing Child. DCFS investigated these reports and could not substantiate any of them. In connection with some of these reports, Mother took Child to the hospital. During two of these visits, Child—approximately three years old at the time— was subjected to invasive physical examinations, including one “code-R” rape examination.[2] The examinations yielded no evidence of abuse, and in January 2020 DCFS representatives spoke with Mother about the potential harm that could result to Child from repeated unfounded allegations and needless forensic medical examinations. In addition, in April 2020 the “medical director of Utah’s [Center for] Safe and Healthy Families” program advised Mother that subjecting Child to “any further sexual assault examinations could result in an allegation of abuse for [Mother] due to the harm that unnecessary examinations can cause a child.”

¶7        During this time frame, and in an effort to expand Mother’s understanding of the relevant issues, DCFS opened a “voluntary services case” to provide Mother the opportunity to take advantage of certain services, and Mother agreed to work with DCFS to try to improve the situation.

¶8        During the pendency of the voluntary services case, however, Mother hired a private investigator to investigate the possibility of sexual abuse by Father, and she did not tell DCFS that she had done so. This investigator interviewed Child, using techniques the juvenile court later found to “violate[] nearly every guideline for child forensic interviewing,” including “ask[ing] leading questions, [making] promises to [Child] that could not be kept, and offer[ing Child] ice cream if she would tell the interviewer what ‘daddy’s secret’ is.”

¶9        Despite DCFS’s efforts to assist Mother, the voluntary services case did not have its desired effect. Mother proved unable or unwilling to follow the plan DCFS outlined, and she stopped communicating with the DCFS caseworker.[3] Eventually, DCFS closed the voluntary services case.

¶10 Sometime after that case was closed, Mother—in a continuing effort to present evidence that Father was sexually abusing Child—took a video recording of Child in an incident the juvenile court described as follows: Mother “videotaped [Child], naked on a bed, having her point to where [Father] touches her. On the video, [Mother] touches [Child’s] genitals and has her spread her legs and moves the camera angle close-up to [Child’s] genitals.” Mother provided a copy of this recording to DCFS, but caseworkers declined to view it “based on concerns that it may potentially contain child pornography.” Mother then provided the video recording to law enforcement.

¶11      In January 2021, Mother again brought Child to a hospital, alleging that Child “disclosed that [Father] had put his mouth on [Child’s] vagina just hours prior.” Another invasive physical examination was performed on Child, yet “no male DNA was found on [Child’s] genitals.” DCFS was informed about this incident, presumably from hospital personnel, and investigated it; the investigation included interviewing Child at the Children’s Justice Center. After completing its investigation, DCFS found “no corroborating evidence” and concluded that Child’s “disclosure was coached” and “not credible.”

¶12      The present case was initiated in March 2021 when Mother sought a protective order barring Father from having contact with Child, and the State responded by not only intervening in the protective order case but also by filing this action: a petition for protective supervision services in which the State asked the court to “discontinue” the protective order, conclude that Child was “abused, dependent, and/or neglected,” award DCFS protective supervision of Child, and allow DCFS to place Child in Father’s custody during the pendency of the case.

¶13      At a shelter hearing held about a week later, the juvenile court ordered Child removed from Mother’s custody and placed in the temporary custody of DCFS, which then placed Child, on a preliminary basis, with Father. Child has remained in Father’s care ever since.

¶14      Later, at a subsequent hearing, the court found, based on stipulation, that Child was dependent as to Father. With regard to Father, the court indicated that the primary permanency goal was “Reunification/REMAIN HOME,” and that the concurrent goal was “Remain Home with non-custodial parent.”

¶15      The court held an adjudication hearing as to Mother; at that hearing, Father and the guardian ad litem (the GAL) asserted that Mother’s conduct—making repeated false claims of sexual abuse, thereby subjecting Child to interviews, investigations, and physical examinations—constituted abuse, but the State argued only for a finding of neglect. After the hearing, the court found “no specific evidence” of harm to Child that could support a finding of abuse, but instead determined that Child “is neglected” as to Mother because Child “lacks proper care by reason of the fault or habits of [Mother].” For Mother, the court set a primary permanency goal of “RETURN HOME” and a concurrent permanency goal of “Permanent Custody and Guardianship with a Relative.” The court explained that it was setting “different permanency goals for each parent,” and that for Father, “the primary goal will be” for Child to “remain[] home with him,” with “the concurrent goal of reunification if she is removed from his care.” For Mother, the primary goal was “reunification, with the concurrent goal of guardianship with [a] relative.”

¶16 In connection with setting these permanency goals, the court adopted a Child and Family Plan (the Plan). Under the terms of the Plan, Mother was required to, among other things, “complete a psychological evaluation and follow through with all recommendations”; “participate in individual therapy”; participate in a “parenting class”; and “maintain stable and appropriate housing” for herself and Child. The Plan also required Mother to be “open and honest” in connection with the psychological evaluation, as well as with therapists and other mental health professionals. The Plan provided that its objectives would “be achieved when [Child] is living at [Mother’s] home” and when Mother “is providing a healthy, stable, and age-appropriate environment . . . that supports a strong co-parenting relationship with” Father. No party lodged any objection to the terms of the Plan or to the permanency goals the court set.[4]

¶17 Thereafter, Mother completed a parenting class as well as—after some delay that may or may not have been attributable to her—the required psychological evaluation. The psychologist who conducted the evaluation (Evaluator) diagnosed Mother with “unspecified personality disorder” characterized by “symptoms indicative of borderline, histrionic, and narcissistic personality disorders as well as paranoid-like features.” In particular, Evaluator noted that Mother has “a belief that she can only be understood by a few people,” a “sense of entitlement,” a “lack of empathy,” and a “pervasive distrust and suspiciousness of others” that leads her to sometimes “suspect[], without sufficient basis, that others are harming and deceiving her.” Evaluator offered his view that, “unless [Mother] overcomes her psychopathological features,” she “cannot act in [Child’s] best interest.” He noted that the “obvious recommendation” for Mother would be for her to “pursue an effective treatment program,” but he was doubtful that such a program would succeed in Mother’s case, because Mother “is convinced that she is not the problem” and because, “given her personality disorder features, . . . it would be hard for [Mother] to develop an effective psychotherapeutic alliance with her psychotherapist.”

¶18 Thereafter, DCFS sent Mother a list of recommended therapists, and Mother attended therapy sessions with at least three different mental health professionals. DCFS expressed concern that Mother “was seeking out multiple providers,” some of whom reported that Mother was attempting to “get a second opinion on the psychological evaluation,” and DCFS was worried that Mother was “continu[ing] to report” to these therapists “that [Child] was being sexually abused.” Because of this, DCFS harbored a “concern that there is no clear progress in therapy, due to minimal communication from providers, multiple providers involved and regular changes in therapy.” Mother maintains, however, that she “engaged in all recommended therapy,” an assertion no party apparently contests, although the record is far from clear about what the specific recommendations were and exactly how Mother complied with them.

¶19 After the psychological evaluation was completed, the parties appeared for a review hearing before the court. At that hearing, the results of the evaluation were discussed, and the court commented that, “if the case were closed today and things returned to how they were before the case, [Child] would be at risk of harm by” Mother. The court ordered that Child remain in DCFS custody and placed with Father, with whom the court stated it had “no safety concerns.”

¶20 As the twelve-month permanency hearing approached, Mother moved for an extension of reunification services for “at least 90 days.” Mother argued that she had complied with the Plan, in that she had completed the parenting class and the psychological evaluation and had engaged in therapy. In this motion, Mother also argued that the juvenile court could not enter an order of permanent custody and guardianship with Father, because the district court had already entered a custody order, in connection with the parties’ divorce case, and in Mother’s view the district court should be the court to enter and modify custody orders between the parents. Father opposed Mother’s motion for extended services, but the State did not register opposition. The court scheduled an evidentiary hearing to consider the matter. But due to problems with witness subpoenas, the evidentiary hearing needed to be postponed, which resulted in Mother’s motion for an extension of services being de facto granted: services were then extended for another ninety days, and the postponed evidentiary hearing was turned into a permanency hearing.

¶21      After these delays, the permanency hearing was held, over four nonconsecutive trial days, in April and June 2022. Child’s DCFS caseworker testified that she believed that Mother had been “coaching [Child] into telling people certain things.” And Child’s psychologist testified that she “did not observe significant behaviors or concerns, [or] emotions concerning expressions that would signal to [her] that [Child] has experienced sexual abuse.”

¶22      Evaluator testified at length during the trial, and discussed the specifics of his evaluation of Mother. He discussed his diagnosis that Mother had an “unspecified personality disorder.” He testified that the evaluation took longer than anticipated because Mother “did not involve herself in the evaluation in a forthright manner,” “withheld relevant information that was requested of her,” and “intentionally distorted information.” In his view, Mother did not think that she was the problem or that she had done anything wrong. Evaluator reiterated his view that unless Mother “overcomes her psychopathological features, [she] cannot act in [Child’s] best interest.”

¶23 During her own testimony, Mother continued to cling to her viewpoint that Father had been sexually abusing Child. She testified that “she does not agree with a doctor’s opinion that there was no evidence of sexual abuse.” When asked whether she “still believe[d]” that Father had sexually abused Child, she answered that she did not know, but that some “part of [her]” still believed that abuse took place, and that she still had “a suspicion” in that regard. She did not recognize any impropriety in her multiple reports of sexual abuse to DCFS and other authorities, testifying that she did not “think [she] was doing anything incorrectly” regarding the parenting of Child. And she did not agree that her behavior constituted neglect of Child.

¶24      In this same vein, Mother also called her ongoing therapist to testify at the trial. The therapist testified that he had spent some thirty hours of therapy with Mother and that she had been cooperative. The therapist opined, to the extent he was able to as a fact witness, that Evaluator’s diagnosis of an “unspecified personality disorder” was incorrect, that Mother had not neglected Child by reporting sexual abuse to the authorities, and that Father had indeed sexually abused Child.

¶25      At the conclusion of the trial, the juvenile court took the matter under advisement. A few weeks later, the court issued a written decision containing several different rulings. First, the court declined Mother’s invitation to further extend reunification services, and it terminated those services. Important to the court’s decision in this regard were its findings that—although Mother had taken certain steps, including completing parenting classes, engaging in therapy, and completing the psychological evaluation—Mother had not fully complied with the terms of the Plan, because even after all of these services, Mother “accepted virtually no responsibility for [Child] being in DCFS custody for more than one year,” “demonstrated virtually no insight regarding the harm she has caused” to Child, and offered “varied and conflicted” testimony “regarding whether she still believed” that Father had sexually abused Child, “despite there being no credible evidence that he has.” The court also determined that reunification between Mother and Child was not “probable or likely within the next 90 days” and that the extension of services was not in Child’s best interest.

¶26 Second, the court awarded “permanent custody and guardianship” of Child to Father. Important to the court’s decision in this regard were its findings that “return of [Child] to [Mother’s] care would create a substantial risk of detriment to [Child’s] physical or emotional well-being,” that there is “no credible evidence” that Father has ever sexually abused Child, and that Child “seems to be thriving and well-adjusted [and] well cared for” in Father’s care.

¶27 Finally, after denying Mother’s request for additional reunification services and granting permanent custody and guardianship in favor of Father, the court terminated its jurisdiction in the case.


¶28 Mother now appeals, and she raises two issues for our consideration. First, she challenges the juvenile court’s decision to terminate reunification services. The juvenile court is “in the best position to evaluate the credibility of witnesses, the parent’s level of participation in reunification services, and whether services were appropriately tailored to remedy the problems that led to the child’s removal.” In re D.R., 2022 UT App 124, ¶ 9, 521 P.3d 545 (quotation simplified), cert. denied, 525 P.3d 1264 (Utah 2023). Accordingly, “absent a demonstration that the determination was clearly in error, we will not disturb the determination” to terminate reunification services. See id. (quotation simplified).

¶29      Second, Mother challenges the juvenile court’s decision to award permanent custody and guardianship to Father, her fellow parent. As part of this challenge, she takes issue with the court setting slightly different permanency goals for each parent, and with the court accomplishing two separate objectives—namely, choosing among those goals and awarding permanent custody to Father—all in connection with the same hearing. In the main, Mother’s challenges in this regard involve questions of statutory interpretation, which “are questions of law that we review for correctness.” In re S.Y.T., 2011 UT App 407, ¶ 9, 267 P.3d 930 (quotation simplified). But to the extent that Mother here challenges the court’s underlying factual findings, we adopt a more deferential standard of review. See In re L.M., 2013 UT App 191, ¶ 6, 308 P.3d 553 (“We review the juvenile court’s factual findings for clear error . . . .” (quotation simplified)), cert. denied, 320 P.3d 676 (Utah 2014).[5]



¶30      Mother first challenges the juvenile court’s decision to terminate reunification services. For the reasons discussed, we discern no clear error in the court’s decision.

¶31 When a juvenile court removes a child from a parent’s custody, it may afford the parent the opportunity to take advantage of certain services—e.g., mental health counseling or parenting classes—designed to address the problems that led to removal and aimed at facilitating reunification between parent and child. See Utah Code § 80-3-406. However, due to the need for swift permanence in child welfare cases, the duration of reunification services may not ordinarily “exceed 12 months” from the date of removal. See id. § 80-3-406(13)(a); see also id. § 80­3-409(6). A juvenile court may, however, extend reunification services by an additional “90 days”—for a total of fifteen months—if the court finds, by a preponderance of the evidence, “that (i) there has been substantial compliance with the child and family plan; (ii) reunification is probable within that 90-day period; and (iii) the extension is in the best interest of the minor.” Id. § 80-3­409(7)(a). And in exceptional cases, the court may extend services for a second ninety-day period—for a total of eighteen months— but only if the court can make those same three findings by clear and convincing evidenceId. § 80-3-409(7)(c).

¶32      In this case, Child was removed from Mother’s custody at a shelter hearing in March 2021. Thus, reunification services were to presumptively end in March 2022, unless the court made findings sufficient to support an extension. In early April 2022, the court commenced an evidentiary hearing for the purpose of determining whether reunification services should be terminated or extended but, due to problems with witness subpoenas, the evidentiary hearing needed to be postponed, which resulted in a de facto extension of reunification services for another three months, into June 2022. Finally, at the conclusion of the four-day hearing that same month, the court ordered that reunification services be terminated. In its order, the court—presumably out of an abundance of caution given the timing of the hearing—stated that it was “not able to find by a preponderance of the evidence, and certainly not by clear and convincing evidence, that [Mother] is in substantial compliance with [the Plan], that reunification . . . is probable or likely within the next 90 days, or that extension of services for [Mother] is in [Child’s] best interest.”

¶33 Mother challenges this decision, asserting that it goes against the clear weight of the evidence because, she asserts, she at least substantially complied with the Plan. We acknowledge that Mother did take certain actions that the Plan required, such as completing the psychological evaluation and participating in parenting classes and individual therapy, and we therefore agree with Mother’s assertion that she complied with many—if not necessarily all[6]—of the Plan’s individual requirements.

¶34      But even taking Mother’s assertion—that she completed all of the Plan’s individual subsidiary tasks—at face value, that does not necessarily compel the conclusion that Mother substantially complied with the Plan, because in this case Mother’s efforts did not bear fruit. That is, at the end of fifteen months of reunification services, Mother had not rectified the problem that led to the removal of Child from her custody. The Plan explicitly stated that its goals would be “achieved when [Child] is living at [Mother’s] home [and] where Mother is providing a healthy, stable, and age-appropriate environment . . . that supports a strong co-parenting relationship with [Father].” Child was removed from Mother’s custody because Child lacked “proper care by reason of the fault or habits of [Mother]” due to Mother’s continued unsupported reports to authorities that Father was sexually abusing Child. After fifteen months of services, the court—based at least in part on Mother’s own testimony at the evidentiary hearing— determined that the original problem still existed, and that Child could not therefore safely be returned to Mother’s custody. It is far from clear error for a juvenile court to determine that a parent who has completed many of a child and family plan’s individual requirements, but who has still not meaningfully addressed the underlying problem the plan was designed to solve, has not substantially complied with the plan.

¶35      Moreover, even if we were to assume, for the purposes of the discussion, that Mother’s actions constituted substantial compliance with the Plan, Mother must also grapple with the juvenile court’s findings that reunification was not probable within the next ninety days, and that another extension of reunification services was not in Child’s best interest. See Utah Code § 80-3-409(7)(a)(ii), (iii); see also In re H.C., 2022 UT App 146, ¶ 54, 523 P.3d 736 (“Although [the mother] subsequently complied with the child and family plan, the court nonetheless determined that [the child] could not safely be returned to her care because it found that the return posed a substantial risk of detriment to [the child’s] physical or emotional well-being.”), cert. denied, 527 P.3d 1106 (Utah 2023). While Mother spends many pages in her brief contesting the court’s “substantial compliance” finding, she does not directly engage with the court’s findings that, given her lack of progress on solving the underlying problem, she had not shown—by either evidentiary standard— that reunification was probable in the next ninety days or that reunification was in Child’s best interest. And based on our review of the record, we discern no clear error in these findings.

¶36      Accordingly, we discern no error, let alone reversible error, in the juvenile court’s decision to terminate reunification services.


¶37 Next, Mother challenges the juvenile court’s decision to award permanent custody and guardianship to Father. Her challenge in this regard is multi-faceted. First, she challenges the substance of the court’s decision, and asserts that the court—by considering its options limited to those set forth in section 80-3­409(4)(b) of the Utah Code—erred in its interpretation of the governing statute. And in connection with this argument, Mother asks us to overrule one of our recent opinions. Second, Mother challenges the procedure the court used in reaching its decision. For the reasons discussed, we reject Mother’s arguments.


¶38      Under our law, in any case in which reunification services are ordered, “the juvenile court shall, at the permanency hearing, determine . . . whether the minor may safely be returned to the custody of the minor’s parent.” See Utah Code § 80-3-409(2)(a). And “[i]f the juvenile court finds, by a preponderance of the evidence, that return of the minor to the minor’s parent would create a substantial risk of detriment to the minor’s physical or emotional well-being, the minor may not be returned to the custody of the minor’s parent.” Id. § 80-3-409(2)(b).

¶39      In this case, as already discussed, the juvenile court ordered reunification services for Mother, and therefore needed to confront, at the permanency hearing, the question of whether Child faced “substantial risk of detriment to her physical and emotional well-being if returned to [Mother’s] care.” In its findings and conclusions entered following that hearing, the court specifically found, by “both a preponderance of the evidence” and by “clear and convincing evidence, that return of [Child] to [Mother’s] care would create a substantial risk of detriment to [Child’s] physical or emotional well-being.” Mother does not directly challenge that finding on appeal.[7]

¶40      In situations where a juvenile court makes a finding of risk and therefore determines that a child cannot be returned to the parent’s custody, our law then requires the court to do certain things: “(a) order termination of reunification services to the parent; (b) make a final determination regarding whether termination of parental rights, adoption, or permanent custody and guardianship is the most appropriate final plan for the minor . . . ; and (c) . . . establish a concurrent permanency plan that identifies the second most appropriate final plan for the minor, if appropriate.” Id. § 80-3-409(4). As discussed above, the court terminated reunification services, and did not err by so doing.

¶41      The court then considered the three options presented by the second part of the governing statute: termination of parental rights, adoption, or permanent custody and guardianship.[8] See id. § 80-3-409(4)(b). The court determined that permanent custody and guardianship with Father was the most appropriate of those three options.

¶42      Mother challenges the substance of this determination, and she makes two specific arguments. First, she asserts that the statutory subsection the court believed governed the situation— section 80-3-409(4) of the Utah Code—doesn’t actually govern, because in Mother’s view Child was “returned to” a parent (Father) after the permanency hearing. Second, and relatedly, Mother acknowledges that one of our recent decisions—In re H.C., 2022 UT App 146, 523 P.3d 736, cert. denied, 527 P.3d 1106 (Utah 2023)—interpreted the governing statute in a manner unfavorable to her, and she asks us to overrule that recent case. We find neither of Mother’s arguments persuasive.


¶43 Mother’s first argument challenges the juvenile court’s interpretation of statutory text. In particular, she notes that a threshold requirement of the governing statute is that the minor not be “returned to the minor’s parent or guardian at the permanency hearing.” See Utah Code § 80-3-409(4). Only if a child is not “returned to the minor’s parent” at the permanency hearing does a court need to choose from one of the three options set forth in subsection (4)(b): termination, adoption, or permanent custody and guardianship. See id. If a child is “returned to the minor’s parent,” then a court presumably could select some other option not listed in subsection (4)(b). As Mother sees it, the statutory reference to “the minor’s parent” includes not only the parent from whom the child was removed and with regard to whom the “substantial risk” determination is being made, but also the child’s other parent. And she asserts that, because Child was placed in the custody of Father—Child’s other parent—after the permanency hearing, the court erred by considering itself limited to the three options set out in subsection (4)(b).

¶44      Our “overarching goal” in interpreting a statute is “to implement the intent of the legislature.” See State v. Rushton, 2017 UT 21, ¶ 11, 395 P.3d 92. In attempting to ascertain that intent, we start with “the language and structure of the statute.” Id. “Often, statutory text may not be plain when read in isolation, but may become so in light of its linguistic, structural, and statutory context.” Id. (quotation simplified). “The reverse is equally true: words or phrases may appear unambiguous when read in isolation, but become ambiguous when read in context.” Id. For this reason, “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, avoiding any interpretation which renders parts or words in a statute inoperative or superfluous in order to give effect to every word in the statute.” Id. (quotation simplified).

¶45 In our view, the phrase “the minor’s parent,” as used in section 80-3-409(4), refers only to the parent from whom the child was removed, who was offered reunification services, and to whom return of the child “would create a substantial risk of detriment” to the child. It does not refer to another parent with whom the child is currently placed, who has not been ordered to complete any reunification services, and with regard to whom the court has not made any “substantial risk” determination. Indeed, the thrust of this entire statutory section has to do with whether a child will be reunited with a parent from whom the child has been removed and who has received reunification services. See Utah Code § 80-3-409. As already noted, subsection (2) requires a court to make a threshold determination about whether the “minor may safely be returned to the custody of the minor’s parent,” something that may not occur if “return of the minor to the minor’s parent would create a substantial risk of detriment” to the minor. Id. § 80-3-409(2)(a), (b). The verb “returned” is meaningful here: one does not “return” to a situation in which one has never been in the first place. See Return,    Merriam-Webster,            []
(defining “return” as “to go back or come back again”). In the subsection (2) context, the phrase “the minor’s parent” clearly refers to the parent from whom the minor was removed, who received reunification services, and with regard to whom the “substantial risk” determination is being made; indeed, the statute instructs juvenile courts that are making the subsection (2) threshold determination to consider, among other things, whether the parent in question has demonstrated “progress” and whether the parent has “cooperated and used the services provided.” See Utah Code § 80-3-409(3)(a)(iv), (v). In our view, it would be nonsensical to apply this phrase to the minor’s other parent in a situation where the child was already in the custody of that parent at the time of the permanency hearing, where that parent did not receive reunification services, and where the court made no “substantial risk” determination concerning that parent at that hearing. Indeed, at oral argument before this court, Mother conceded that the phrase “the minor’s parent,” as used in subsection (2), must refer solely to the parent who received reunification services and with regard to whom the “substantial risk” determination is being made.

¶46 That same phrase—“the minor’s parent”—used two subsections later means the same thing. As noted, we read statutes as a whole, including all of their subsections, and “interpret [their] provisions in harmony with other statutes in the same chapter and related chapters.” See Rushton, 2017 UT 21, ¶ 11 (quotation simplified). Under “the canon of consistent meaning,” there is a “presumption that the established meaning of a word in a given body of law carries over to other uses of the same term used elsewhere within that same law.” In re Childers-Gray, 2021 UT 13, ¶ 142, 487 P.3d 96 (Lee, J., dissenting). And the “canon of consistent meaning is at its strongest when it is applied to a term used in neighboring subparts of the same statutory provision.” Irving Place Assocs. v. 628 Park Ave, LLC, 2015 UT 91, ¶ 21, 362 P.3d 1241; see also Barneck v. Utah Dep’t of Transp., 2015 UT 50, ¶ 31, 353 P.3d 140 (determining that a term “cannot properly mean one thing as applied to two of the objects in a series . . . but something else as applied to the other object in the same series”). Thus, when assessing the meaning of the phrase “the minor’s parent” in subsection (4), it is highly relevant how that phrase is used in subsection (2). And we conclude that, interpreted in its proper context, the phrase—as used in subsection (4) as well as subsection (2)—refers only to the parent from whom the child was removed, who received reunification services, and with regard to whom the court is making the “substantial risk” determination, and not to another parent who does not fit those criteria.

¶47      Accordingly, we reject Mother’s argument that subsection 409(4) has no application to her situation. By the plain terms of that statutory section, the juvenile court—as soon as it determined that Child could not safely be returned to Mother—was obligated to apply that statutory subsection according to its text.


¶48      Under the text of that statutory subsection, a court that has made a “substantial risk” determination must terminate reunification services. See Utah Code § 80-3-409(4)(a). At that point, the statute requires the court to “make a final determination regarding whether termination of parental rights, adoption, or permanent custody and guardianship is the most appropriate final plan for the minor.” Id. § 80-3-409(4)(b). The language of this statutory subsection therefore speaks of only three options, and requires the court in this situation to choose one of them. And we have recently interpreted this language according to its text, even as applied to disputes between parents. See In re H.C., 2022 UT App 146, 523 P.3d 736, cert. denied, 527 P.3d 1106 (Utah 2023).

¶49      Yet here, Mother nevertheless asserts that, at least in cases involving disputes between two parents, juvenile courts ought to be allowed to choose a different option: entry of a simple custody order that is controlled by the usual standards governing entry and modification of custody orders in divorce court. Mother asserts that awarding a parent the status of “guardian” makes no sense, given that a parent already has all the rights that a guardian has. And she asserts that entering orders of permanent guardianship as between parents has the effect—one she posits was unintended—of preventing one parent from being able to seek modification of the custody order.

¶50      To her credit, Mother recognizes that our recent holding in In re H.C. forecloses her argument for a fourth option. In that case, the parents of a child were divorced, with a parenting plan that gave primary custody to the mother. Id. ¶ 2. But later, the juvenile court determined that the child had been neglected by the mother, and the child was placed in the care of the father. Id. ¶¶ 4, 8. After the permanency hearing, the juvenile court determined that the child would be at substantial risk if returned to the mother’s custody, and the court placed the child with the father under an order of permanent custody and guardianship. Id. ¶¶ 28, 38. On appeal, we affirmed the juvenile court’s decision, and we interpreted subsection 409(4)(b) as limiting the juvenile court to the three options set forth therein. Id. ¶ 58. We held that subsection 409(4)(b) “leaves a juvenile court judge with no discretion” to do anything else, and we specifically stated that the statute “does not vest the juvenile court with the authority to defer to the district court” with regard to custody of the adjudicated child. Id. (quotation simplified).

¶51      In an effort to get around this roadblock, Mother asks us to overrule In re H.C. We do possess the authority to overrule our own precedent in appropriate cases. See State v. Legg, 2018 UT 12, ¶ 11, 417 P.3d 592 (stating that one panel of this court “retains the right to overrule another panel’s decision if the appropriate standard is met”). “But we do not do so lightly,” given our respect for the principle of stare decisis, which ordinarily requires us to defer to “the first decision by a court on a particular question.” See State v. Garcia-Lorenzo, 2022 UT App 101, ¶¶ 42, 44, 517 P.3d 424 (quotation simplified), cert. granted, 525 P.3d 1263 (Utah 2022).

¶52      “Before we may overrule one of our precedents, we must engage in the two-part exercise required by our supreme court in such situations.” Id. ¶ 45. “First, we must assess the correctness of the precedent, and specifically examine the persuasiveness of the authority and reasoning on which the precedent was originally based.” Id. (quotation simplified). “Second, we must assess the practical effect of the precedent, including considerations such as the age of the precedent, how well it has worked in practice, its consistency with other legal principles, and the extent to which people’s reliance on the precedent would create injustice or hardship if it were overturned.” Id. (quotation simplified). Both parts of the test must be satisfied before we may overrule a precedent. See id. In this case, we need not discuss the second part because, in our view, the first one is not satisfied.

¶53 With regard to the first part—the correctness of the precedent—Mother asserts that our decision in In re H.C. “upends the district court’s jurisdiction over custody matters and imposes an unnecessarily restrictive scheme on custody between two parents.” She points out that, when a child is placed with the other parent after a permanency hearing, “the child isn’t in ‘legal limbo’” and “all that is left to determine is what [the] custody [arrangement] between the parents will look like.” And she maintains that, if subsection 409(4)(b) is interpreted to require courts to order permanent custody and guardianship in favor of one of the parents, that result would serve to “override[] district court custody orders” and would create a “super sole custody” arrangement in which “the non-guardian parent can never modify the terms of the guardianship.” She asserts that this is an “absurd result” that “cannot be what the legislature intended.”

¶54 But in our view, the panel’s reasoning in In re H.C. was sound. There, the court analyzed the text of subsection 409(4)(b) and concluded that the language used by the legislature limited juvenile courts in this situation to the three options set forth in the text of the statute. See In re H.C., 2022 UT App 146, ¶¶ 58–59. Our analysis of that same text leads us to the same conclusion.

¶55      Moreover, Mother overlooks the fact that the panel in In re H.C. considered many of the same arguments that Mother is advancing here. In that case, the appellant asserted that “juvenile courts should not be deciding custody between two fit parents.” Id. ¶ 52 (quotation simplified). And the appellant complained that an order of permanent custody and guardianship in favor of the other parent may prevent her “from petitioning for custodial change in the future.” Id. ¶ 53. We rejected these arguments, in part, by noting that, given the court’s adjudication rulings, “this was not merely a custody proceeding ‘between two fit parents.’” Id. ¶ 54. And we acknowledged the remainder of these arguments in a footnote, editorializing that “it seems odd that, in a situation such as this with two parents vying for custody of a minor child, the statute authorizes the award of permanent guardianship to one parent over the other, where both enjoy parental rights in the minor child.” Id. ¶ 59 n.13. But we found these arguments nevertheless unpersuasive in light of the text of the “statutory regimen that we [were] called upon to interpret and apply.” Id.

¶56      We share the sentiment of the panel in In re H.C. that the text of the governing statute compels the interpretation described there. The text selected and enacted by our legislature limits juvenile courts to just three options in this situation. See id. ¶¶ 58– 59 & n.13 (stating that “permanent custody and guardianship is one of only three options available by the terms of the controlling statute when parental neglect has triggered the juvenile court’s jurisdiction and the case progresses to a permanency hearing at which parental neglect is found and reunification services are terminated”). If our legislature intended a different result, it can always amend the statute to provide for additional options—for instance, entry of a simple custody order awarding primary physical custody to the other parent, and allowing the district court to manage things from there—that a juvenile court might be able to apply in cases involving disputes between two parents. But for now, the text of the governing statute speaks of only three options, applicable in all cases, and we must apply the statute as written, Mother’s policy arguments notwithstanding.[9]

¶57 For all of these reasons, we decline Mother’s invitation to overrule In re H.C. That case—and the statutory text interpreted therein—compels the conclusion that the juvenile court, in this case, had only three options after concluding that it could not return Child to Mother’s custody: it had to either (a) terminate Mother’s parental rights, (b) work toward adoption, or (c) enter an order of permanent custody and guardianship with someone other than the parent at issue. See Utah Code § 80-3-409(4)(b); see also In re H.C., 2022 UT App 146, ¶¶ 58–59. The juvenile court, by selecting permanent custody and guardianship in favor of Father, chose one of the available options.[10] In so doing, the court properly followed the governing statute, and did not misinterpret it. We therefore reject Mother’s second substantive argument.


¶58      Finally, Mother makes two challenges to the procedure the juvenile court employed in arriving at its conclusion to award permanent custody and guardianship to Father. We reject both challenges.

¶59 First, Mother claims that the court acted inappropriately when it took the following two actions in the same ruling and after the same hearing: (a) it changed Child’s final permanency goal to permanent custody and guardianship and (b) it entered an order effectuating the permanent custody and guardianship. As Mother sees it, the court was required “to first change the permanency goals . . . and then hold a review hearing (possibly another evidentiary hearing) to determine whether the final permanency goal is established.” Mother notes that “nothing in section 409 permits a juvenile court to” accomplish both things in the same ruling and after the same hearing. But Mother cites no statute or appellate opinion forbidding the court from doing so and, in this situation, we see no reason why the court could not have proceeded as it did.

¶60 Had the court chosen “adoption” as the primary permanency goal following the permanency hearing, then perhaps Mother would have a point: as a practical matter, setting adoption as the goal entails a fair bit of extra work. To facilitate an adoption, the parent’s rights would need to be terminated, and to make that happen, the State (or another petitioner) would need to file a petition for termination of parental rights, which would need to be litigated. And the juvenile court would also need to concern itself, in the event the parent’s rights were terminated, with finding an appropriate adoptive placement for the child.

¶61 But where the court selects permanent custody and guardianship as the primary permanency goal, and the child is already placed with the person to whom custody and guardianship is to be given, there are not necessarily any additional steps that the court needs to take before making that goal a reality. Certainly, in this case Mother doesn’t identify any additional work that needed to be done in the interim. And as noted, Mother points to no statute or governing case forbidding the juvenile court, in cases like this one, from proceeding efficiently and entering the order of guardianship in the same order as it selects the primary permanency goal. Mother has therefore not carried her burden of demonstrating error.

¶62 Second, Mother takes issue with the juvenile court’s decision, earlier in the case, to set different permanency goals for each parent. As noted above, after adjudicating Child dependent as to Father, the court initially set the primary permanency goal, as to Father, as “Reunification/REMAIN HOME,” and the concurrent permanency goal as “Remain Home with non­custodial parent.” Later, after adjudicating Child neglected as to Mother, the court set a primary permanency goal, as to Mother, of “RETURN HOME” and a concurrent permanency goal of “Permanent Custody and Guardianship with a Relative.” The court explained that it was setting “different permanency goals for each parent,” and that for Father, “the primary goal will be” for Child to “remain[] home with him,” with “the concurrent goal of reunification if she is removed from his care.” For Mother, the primary permanency goal was “reunification, with the concurrent goal of guardianship with [a] relative.” Mother challenges this procedure as improper, asserting that this choice made “it additionally difficult for any parent to determine what the effect of abandoning one of the primary plans would be.” But Mother cites no statute or governing case forbidding the court from engaging in this procedure, and she overlooks the fact that she did not object to these goals when they were set. In addition, Mother does not articulate how the court’s decision to set slightly different permanency goals vis-à-vis each parent resulted in any harm to her at the end of the case. Accordingly, Mother has not carried her burden of demonstrating reversible error.[11]


¶63 We discern no clear error in the juvenile court’s decision to terminate reunification services. And we reject Mother’s challenges—both substantive and procedural—to the court’s award of permanent custody and guardianship to Father.

¶64 Affirmed.

Utah Family Law, LC | | 801-466-9277

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

What Must the Juvenile Court Consider on a Petition to Terminate a Parent’s Parental Rights?

Before terminating a parent’s rights, the court must find that termination is “strictly necessary to promote the child’s best interest.” This analysis must be undertaken from the child’s point of view. Utah law provides that termination is strictly necessary only when, after exploring possible placements for the child, the juvenile court concludes that no other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights. If the child can be equally protected and benefited by an option other than termination (such as permanent custody and guardianship awarded to someone other than the parent or parents), termination is thus not strictly necessary. The strictly necessary analysis is designed to ensure that the court pause long enough to thoughtfully consider the range of available options that could promote the child’s welfare and best interest. If a court has complied with its statutory obligations, its resultant best interest determination is entitled to deference by an appellate court. Long-term guardianship arrangements are typically only in a child’s best interest where the guardians and the parent have a working, relatively healthy relationship in which they are both willing to work together to preserve the parent-child relationship and where the child has a healthy relationship with both the guardian and the parent. Thus, when a parent and potential guardian have little to no relationship, the particular circumstances of the case may indicate that permanent custody and guardianship will not meet the children’s needs as well as termination of parental rights. This post is a summary of the law as stated in the recent Utah Court of Appeals opinion in the case of  In re K.R. – 2023 UT App 75 (filed July 13, 2023).

Tags: , , , , , ,

As a Joint Legal and Physical Custodial Parent, Can I Legally Prevent the Other Parent From Going on a Vacation (Either Out of State or Out of the Country) With Our Child or Children?

Unless a court were to order that a parent was barred from traveling out of state or out of the country with the children on vacation, a joint legal and custodial parent has an unfettered right to travel with the children out of state or out of the country on vacation, even if the other parent objects. Of course, if a parent wanted to travel somewhere that is clearly dangerous for anyone or clearly dangerous or deleterious to the children given their age or other relevant factors, a parent could object to traveling there with the children on that basis, but you’ll notice that the basis of the objection wouldn’t be “I don’t want the children traveling there with you” but an objection based upon placing the children in harm’s way. Otherwise stated, if the other parent simply doesn’t like the idea of you traveling out of state or out of the country with the children, that alone would not be a sufficient basis to prevent the children from traveling there.

Now at the beginning of this post I stated that unless a court were to order that a parent was barred from traveling out of state or out of the country with the children, a joint legal and custodial parent has an unfettered right to travel with the children out of state or out of the country, even if the other parent objects. Such an order would be very hard to come by.

Parents have a constitutional right to travel freely, and thus a constitutional right to travel freely with their children if they have sole or joint custody of those children. For a court’s order barring or restricting travel to survive and appeal and be legally enforceable, the court would have to have very good reasons for restricting a parent’s right to travel with the children, such as a parent having abducted or attempted to abduct the children in the past, that parent’s effort to abscond with and conceal the children from the other parent, whether the parent is a flight risk, the parent’s history of interfering with parent-time or visitation, and failure to provide required notices in advance of travel with the children.

Utah Family Law, LC | | 801-466-9277

Tags: , , , , ,

How Do I Inform a School About Divorce and That Their Father Is Not Allowed to Pick Them Up?

Great question. There are many ways to do this wrong, so let’s start with those.

Just tell the teachers and principal and expect them to take your word for it; bring an uncertified copy of the applicable court order(s) or just the “relevant pages” of the order(s) and leave it at the front desk with Francine and tell her that you expect the school to comply. The right way to notify the school and the teachers:

  • make an appointment with the principal (or assistant principal, whoever is responsible for such matters) for the purpose of notifying the school and teachers;
  • bring a certified copy of the applicable court order(s) to the appointment and personally hand it to the principal/assistant principal;
  • then send a courteously worded (not a dictatorial) e-mail a PDF copy of the order(s) to the principal/assistant principal, so that you have dated and time-stamped proof of having e-mailed it. Include in the email:

o   a statement of the date and time you met with the principal/assistant principal and gave him/her a printed certified copy of the order(s);

o   a request in the email a) that a copy of the order(s) be added to the child’s file; b) that the child’s teachers be notified of the provision in the orders that your ex is not permitted to pick up the child from school;

o   a statement that you expect the school to ensure that it does what it reasonably and legally can to protect the children from being picked up the children from school;

o   a request that the principal/assistant principal verify receipt of the email and the attached PDF copy of the order(s);

o   an invitation to ask any clarifying questions; and

o   a statement that you appreciate the school’s and the teachers’ and other staff members’ understanding and cooperation.


Utah Family Law, LC | | 801-466-9277


Eric Johnson’s answer to How do I inform a school about divorce and that their father is not allowed to pick them up? – Quora

Tags: , , ,

Can I File for an Order of Protection Against My Daughter’s Father for Myself, Even if She Is Living With Him?

If he poses a danger to you, then yes. The fact that a child you share lives with him will not prevent you from obtaining a protective order against him for your protection. If you are wondering whether a protective order against him might prevent you and him from interacting for the purpose of conducting child custody and parent-time/visitation exchanges, the court can structure the protective order to permit contact between you and him for that limited purpose.

Utah Family Law, LC | | 801-466-9277

Tags: , ,

How do you win a case against your ex for false accusations?

If you find an attorney who knows a sure-fire, fail-safe way to defend an ex-spouse or an ex-boyfriend/ex-girlfriend against “false accusations,” that attorney is likely a multimillionaire because possessing such a skill/power would be superhuman/miraculous. 

False accusations exist because they often work. They often work because judges are not infallible and undeceivable.

False allegations calculated to exploit a judge’s compassion, pity, vanity, fears, self-interest, and biases are easy to “prove” or at least hard to persuade a judge to reject, even if the judge is skeptical of the merits of the allegations. Such as? Allegations of domestic violence, spouse abuse, child abuse, and stalking. No judge wants to respond to such allegations by denying “relief” in response to such allegations on the grounds that the applicant has failed to carry her (it’s almost always a woman; that may not be politically correct, but it’s true) burden of proof, only to have the respondent put her in the hospital or morgue later, so judges knowingly and deliberately err on the side of caution, taking a “better safe than sorry” approach. That way, they don’t end up in the news and taking flak for “failing” hapless victims. Sure, recklessly issued restraining and protective orders ruin the lives of innocent guys, but so what? That doesn’t make the news and the judge doesn’t have to worry about losing his/her job over it.  

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

Tags: , , , , , , , , ,

T.W. v. S.A. – 2021 UT App 132 – child custody

2021 UT App 132 




No. 20200397-CA 

Filed November 26, 2021 

Third District Court, West Jordan Department 

The Honorable Dianna Gibson 

No. 134401457 

David Pedrazas, Attorney for Appellant
Laja K. M. Thompson, Attorney for Appellee 

JUDGE DIANA HAGEN authored this Opinion, in which

HAGEN, Judge: 

¶1 T. W. (Father) appeals the district court’s custody order awarding S. A. (Mother) primary physical custody of their son (Child). In so doing, the court rejected the custody evaluator’s recommendation that Father be awarded primary physical custody. The court also scheduled parent-time in accordance with the minimum parent-time schedule in Utah Code section 30-3-35, as opposed to the optional increased parent-time schedule in section 30-3-35.1. Father argues each of these rulings was made in error. Because the court sufficiently supported the parent-time schedule it ordered as well as its rejection of the custody evaluator’s recommendation, we affirm. 


¶2 Father and Mother ended their relationship before Child’s birth. The following year, Father petitioned for custody. Father later moved to Grantsville, Utah to live with his now-wife and her children, along with Father’s other child from a prior relationship. Grantsville is approximately fifty miles from Sandy, Utah where Mother resides. 

¶3 Shortly after his move, Father requested a custody evaluation. The court-appointed custody evaluator initially recommended Mother be awarded primary physical custody, but at a trial on that issue, the parties stipulated to joint legal and physical custody, with each parent enjoying alternating weeks of equal parent-time. The stipulated terms were then set forth by the court in its parentage decree. At the time, the logistics of complying with an alternating week schedule were relatively easy because Child was not yet attending school. 

¶4 Around the time Child was to begin kindergarten, a dispute arose over whether Child would attend school near Mother’s home in Sandy or near Father’s home in Grantsville. Father moved for a temporary restraining order that would specify where Child would attend school. After a telephonic hearing, the court commissioner recommended that, for the time being, Child would attend school in Sandy pending an evidentiary hearing. 

¶5 Child had been attending school for several months when the evidentiary hearing was held in December. After conferring with counsel off the record, the court expressed “some concerns about the workability of [Child] residing in Grantsville and going to school in Sandy or residing in Sandy and going to . . . school in Grantsville.” The court reasoned that the alternating week schedule was unworkable, and the parties agreed that now that Child was in school “continuing the commute [was] not in [his] best interest.” The court ultimately found that “the commute from Sandy to Grantsville is approximately 50 miles and can take approximately 50 minutes, and sometimes more, in the morning” and, “[f]or various reasons, including road/weather conditions, [Child had] been late to or missed school.” Because the long commute was unworkable, the court recognized that the issue before it was “a much larger issue than just determining where [Child] goes to school”—it would require “a change in the parent-time arrangement” as well. To resolve both the parent-time arrangement and where Child would attend school in the future, the court set the matter for trial. 

¶6 Before trial, the custody evaluator submitted an updated report. The evaluator recommended that Father and Mother be awarded joint legal custody but that Child’s primary physical residence be with Father. The evaluator made this recommendation based on two considerations. First, he opined that Father was “in a more stable physical situation” than Mother because he owned his house and was “not likely to move,” whereas Mother “rent[ed] an apartment and ha[d] a history that raise[d] concern about her ability to maintain a consistent residence.” Second, he noted that Child had developed “positive and reciprocal relationship[s] with his [half-sibling and step-]siblings,” who resided with Father, and Child would “attend school with them as well as receive guidance and support from them academically, socially and emotionally.” 

¶7 During trial, Father introduced a letter from Child’s therapist explaining that Child had been diagnosed with an adjustment disorder caused by “a stressor in [his] life.” That letter further stated that Child was experiencing “significant impairment in social, occupational or other areas of functioning.” 

¶8 Mother testified about Child’s emotional and social challenges as well. She explained that Child’s school counselor had been helping him to make and keep friends and to learn “what’s acceptable social behavior” and “how to control [his] emotions in school.” Mother testified that although Child was “struggling with focus and attention in school” as well as “emotional outbursts,” he had “improved.” She recounted that Child “struggled with making friends in the beginning,” but was “finally making more” and by that time had friends at the school. Because Child “knows the school now” and “knows the people,” Mother did not “feel that [it would be] right” to “rip [him] away from [the progress he had made] and have him start all over in a new school.” Given that Child was “in therapy for adjustment disorder,” she believed that “[h]aving him switch schools would just exacerbate that [condition]. He again would have to adjust to a huge change in his life.” 

¶9 Mother also testified about her work schedule. She described how she had started her own business so her schedule would be “flexible” for Child, that she “make[s her] own schedule,” and that the reason she did this was “to be available to [Child] and his school needs and his extracurricular needs . . . so that [she could] revolve [her] work around [her] son.” Mother testified that she and Child have a regular daily routine with a set schedule for school, homework, extracurricular activities, playtime, and sleep when Child is residing at her home in Sandy. Mother asserted that requiring Child to commute to school from Grantsville “probably has at least something to do with [Child’s] activity in school,” that “he hates [the commute],” and that he is sometimes late to school because of “the weather” or “accidents on the freeways.” 

¶10 After considering the original evaluation, the updated evaluation, and the other evidence presented at trial, the court issued its custody order. It found that because of Child’s “current emotional and behavioral issues which [had] been diagnosed as an Adjustment Disorder with disturbance of conduct,” his “psychological and emotional” needs were the deciding factor and those needs would benefit from residing primarily with one parent. In support, the court found that Child “struggles in social settings” and has “behavioral issues,” “emotional outbursts,” and “difficulty making friends.” Moreover, “the commute is hard on [Child]” as he was “tired in school,” had “been late on several occasions,” and had even “missed school” because of the long commute. 

¶11 Having decided that it was in Child’s best interest to reside primarily with one parent, the court ruled that it was in Child’s best interest for Mother to be the primary custodial parent because Mother’s testimony was “credible and persuasive” regarding the negative impact a change in school would have on Child. The court found changing schools would require Child to “start all over—start at a new school, make new friends and re-adjust,” negatively affecting the progress he had made establishing friends. Moreover, Mother had the ability to provide the “maximum amount of parent-time with the maximum amount of flexibility,” and Mother had “established routines in the morning, evening, and with regard to homework and playtime.” 

¶12 In keeping with its custody determination, the court also ruled that, “solely” because of “the 100-mile round-trip commute,” the parent-time schedule of “every other week for five days in a row, was not in [Child’s] best interest,” and that the parent-time schedule would be altered in accordance with Utah Code section 30-3-35—Utah’s minimum parent-time schedule. The court ruled that “on alternating weekends, [Father] shall have parent-time from the time [Child’s] school is regularly dismissed on Friday until Sunday at 7 p.m.” Additionally, Father was awarded a mid-week overnight during which Father “pick[s] up [Child] after school, and [Mother] pick[s] up [Child] the next morning.” The court explained, “The new parent-time schedule is in the best interest of [Child]” because “it allows [him] to maximize his time with [Father] while eliminating the constant, back-to-back days of commuting.” 

¶13 After the court filed its custody order, Father filed a motion for new trial as well as a motion to amend the court’s findings. The court denied both motions. Father now appeals. 


¶14 Father challenges the district court’s custody order on two grounds. First, he alleges the court failed to articulate sufficient reasons for rejecting the custody evaluator’s recommendation to award him primary physical custody and that the court based its custody determination on an erroneous fact. Second, he alleges the court failed to make sufficient findings about why it did not award increased parent-time pursuant to Utah Code section 303-35.1. 

¶15 On appeal, we review the district court’s custody and parent-time determination for abuse of discretion. LeFevre v. Mackelprang, 2019 UT App 42, ¶ 17, 440 P.3d 874. This discretion is broad; indeed, as long as the court exercises it “within the confines of the legal standards we have set, and the facts and reasons for the decision are set forth fully in appropriate findings and conclusions, we will not disturb the resulting award.” Davis v. Davis, 749 P.2d 647, 648 (Utah 1988) (cleaned up). We review the court’s “underlying factual findings for clear error.” LeFevre, 2019 UT App 42, ¶ 17. “A finding is clearly erroneous only if the finding is without adequate evidentiary support or induced by an erroneous view of the law.” Id. (cleaned up). 


  1. The Rejection of the Evaluator’s Recommendation

¶16 Father first challenges the district court’s decision to award primary physical custody to Mother. When determining custody, the court considers many statutorily defined factors, including “the parent’s demonstrated understanding of, responsiveness to, and ability to meet the developmental needs of the child, including the child’s . . . physical needs; . . . emotional needs; . . . [and] any other factor the court finds relevant.” Utah Code Ann. § 30-3-10(2) (LexisNexis 2019).24 But the factors the court considers are “not on equal footing.” See Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. “Generally, it is within the trial court’s discretion to determine, based on the facts before it and within the confines set by the appellate courts, where a particular factor falls within the spectrum of relative importance and to accord each factor its appropriate weight.” Id. 

¶17 Although the district court has broad discretion to make custody determinations, it “must set forth written findings of fact and conclusions of law which specify the reasons for its custody decision.” Tucker v. Tucker, 910 P.2d 1209, 1215 (Utah 1996). The findings “must be sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.” K.P.S. v. E.J.P., 2018 UT App 5, ¶ 27, 414 P.3d 933 (cleaned up). The district court’s conclusions must demonstrate how the decree “follows logically from, and is supported by, the evidence,” Andrus v. Andrus, 2007 UT App 291, ¶ 17, 169 P.3d 754 (cleaned up), “link[ing] the evidence presented at trial to the child’s best interest and the ability of each parent to meet the child’s needs” whenever “custody is contested,” K.P.S., 2018 UT App 5, ¶ 27. 

¶18 Father contends that the court failed to “articulate sufficient reasons as to why it rejected [the custody evaluator’s] recommendation[]” that Child should primarily reside with Father. “[A] district court is not bound to accept a custody evaluator’s recommendation,” but if it rejects such a “recommendation, the court is expected to articulate some reason for” doing so. R.B. v. L.B., 2014 UT App 270, ¶ 18, 339 P.3d 137. 

¶19 Here, the court sufficiently supported its rejection of the custody evaluator’s recommendation. The custody evaluator recommended that the court award primary physical custody of Child to Father for two reasons: (1) Father was in “a more stable physical situation” and “not likely to move,” and (2) Child had a “positive and reciprocal relationship with his siblings and [would] be able to attend school with them as well as receive guidance and support from them academically, socially and emotionally.” The court found the evaluation “very helpful” but did “not agree with the ultimate recommendation.” 

¶20 The court based its rejection of the custody evaluator’s recommendation on several factors. First, the court disagreed that Mother’s rental apartment was less stable than Father’s living situation because both Mother and Father had relocated multiple times in the last few years and both testified that they intended to stay in their current homes. Second, although the court agreed that keeping the siblings together “would be beneficial” to Child, the court did not “give this factor quite the weight” that the custody evaluator did, because Child had never “lived exclusively with his siblings” and their relationship was not the same as a relationship “between siblings who have been reared together prior to the separation between the parents.” 

¶21 The court also detailed how physical custody with Mother would better serve Child’s “psychological and emotional needs.” It found that Mother had “established routines” with Child “in the morning, evening, and with regard to homework and playtime.” She “lived a one[-]child-centered life” and indeed had “built her life around her son”; whereas, Father’s attention was divided among several children. Mother also enjoyed “flexible” self-employment that allowed her to personally provide care for Child, whereas Father’s work schedule was “less flexible” and would require surrogate care. 

¶22 The court further determined that it was not in Child’s best interest to change schools, which would be required if Father were awarded primary physical custody. The court emphasized the need for “consistency” and “routine” for Child, as he was exhibiting signs of being “under stress,” “struggle[d] in social settings,” and had “behavioral issues,” “emotional outbursts,” and “difficulty making friends.” In light of these factors, the court determined that “making too many changes all at once” would not be in Child’s best interest. Most notably, the court found Mother’s “testimony credible and persuasive regarding the impact a change of school would have on [Child], given his current condition and the Adjustment Disorder diagnosis.” Because Child had made significant progress “adjusting” to his current school and establishing friendships, the court found that requiring Child to “start all over—start at a new school, make new friends and re-adjust”—would “impact the progress” he had made and would not be in his best interest. Consequently, granting Father primary physical custody, which in turn would require Child to transfer to a school in Grantsville, was not in Child’s best interest. 

¶23 Father contends that the court erred because it rejected the custody evaluator’s “recommendation solely based on [an] ‘Adjustment Disorder with disturbance of conduct’ diagnosis” even though “at no[] time was there any testimony as to how [the diagnosis] affected the Child, and/or how it related to the Child’s relationship with each parent.” But the court did not rest its decision solely on the fact that Child had been diagnosed with adjustment disorder. Instead, it considered evidence that the disorder was caused by stress, that it manifested as behavioral and social impairments, and that introducing a change such as transferring schools would exacerbate these problems. Specifically, Father introduced a letter from Child’s therapist explaining that Child had been diagnosed with adjustment disorder caused by “a stressor in [his] life” and that he experienced “significant impairment in social, occupational or other areas of functioning.” Mother also gave extensive testimony regarding Child’s struggles with “focus,” “emotional outbursts,” and “making friends,” and she detailed the improvements he had made in those areas. She further testified that, in light of Child’s adjustment disorder diagnosis, “having him switch schools would just exacerbate that” condition and undo the progress he had made because it would require him to “start all over.” 

¶24 In sum, the evidence presented at trial sufficiently supports the court’s ruling that Child’s best interests, i.e., his “psychological, physical, and emotional” needs, were best met by Mother being awarded primary physical custody, “outweigh[ing] the factors favoring” a custody award in favor of Father. And the court’s careful evaluation of that evidence certainly “articulate[s] some reason” for rejecting the custody evaluator’s recommendation. See R.B. v. L.B., 2014 UT App 270, ¶ 18, 339 P.3d 137. Thus, the court acted within its discretion in rejecting the custody evaluator’s recommendation and awarding Mother primary physical custody. 

  1. The Parent-Time Schedule under Utah Code Section 30-3-35

¶25 Father also contends that the district court erred because it did not adopt the optional increased parent time schedule set forth under Utah Code section 30-3-35.1 without making sufficient findings. We disagree. 

¶26 “[D]istrict courts are generally afforded broad discretion to establish parent-time.” Lay v. Lay, 2018 UT App 137, ¶ 16, 427 P.3d 1221 (cleaned up). When parents do not agree to a parent-time schedule, Utah Code section 30-3-35 prescribes a “default minimum amount” of “parent-time for the noncustodial parent,” unless “‘the court determines that Section 30-3-35.1 should apply’ or a parent can establish ‘that more or less parent-time should be awarded.’” Id. ¶¶ 5–6 (quoting Utah Code Ann. § 303-34(2) (LexisNexis Supp. 2017)); see also Utah Code Ann. § 30-335(2) (LexisNexis Supp. 2021)). Under that default minimum parent-time schedule, the noncustodial parent is entitled to time with the child on “one weekday evening and on alternating weekends, which include Friday and Saturday overnights.” Lay, 2018 UT App 137, ¶ 6. Thus, the noncustodial parent, at minimum, enjoys “two overnights in a typical two-week period.” LeFevre v. Mackelprang, 2019 UT App 42, ¶ 20, 440 P.3d 874. 

¶27 The court “may consider” an “optional parent-time schedule” set forth in Utah Code section 30-3-35.1(1)–(2), (6), which increases parent-time from two overnights to five overnights in every two-week period “by extending weekend overnights by one night, and affording one weeknight overnight each week.” See Id. ¶ 21; see also Utah Code Ann. § 30-3-35.1(6) (LexisNexis 2019). The court may adopt the optional parent-time schedule when either (a) “the parties agree” or (b) “the noncustodial parent can demonstrate the presence of at least four factual circumstances.” LeFevre, 2019 UT App 42, ¶ 22 (cleaned up); see also Utah Code Ann. § 30-3-35.1(2). 

¶28 But even if either of these two prerequisites is satisfied, the district court is not obligated to adopt the increased parent-time schedule.25 Under Utah Code section 30-3-35.1, the court “is authorized, but not required, to consider the optional increased parent-time schedule as described in the statute.” Lay, 2018 UT App 137, ¶ 13. The statute “provides legislatively established standards for the district court to apply in evaluating whether increased parent-time is warranted, and it eliminates the need for a district court to independently fashion an increased parent-time schedule by providing a detailed schedule for the court to modify or adopt.” Id. ¶ 16. But by providing “the district court with some guidance and tools for adopting increased parent-time schedules,” the legislature did not eliminate “the court’s discretion to apply those tools in the best interest of the child.” Id. To the contrary, the statutory language plainly indicates that the adoption of the increased schedule is permissive rather than mandatory. See id. 

29 Nonetheless, Father argues that once the court “considered” section 30-3-35.1, it was obligated to make findings articulating why it rejected the increased parent-time schedule suggested by the statute. In setting the parent-time schedule, the court largely adopted the minimum schedule set forth in section 30-3-35, except that it increased the weekday evening parent-time to a mid-week overnight. As a result, the only difference between the increased parent-time schedule under section 30-3-35.1 and the schedule actually ordered is an additional weekly Sunday overnight. Father contends that “the trial court should have addressed how it was in the best interest for [Child] to be returned home on Sunday as opposed to Monday morning for school.” 

¶30 But Father misunderstands the statutory scheme. When parents cannot agree to a parent-time schedule, section 30-3-35 provides a presumptive minimum, but the district court still retains discretion to award more time than the statute provides. See Utah Code Ann. § 30-3-34(1)–(2) (“[T]he court may . . . establish a parent-time schedule” but “the parent-time schedule as provided in Section[] 30-3-35 . . . shall be considered the minimum parent-time to which the noncustodial parent and the child shall be entitled.”). If the court orders more parent-time than the presumptive minimum, it may “independently fashion an increased parent-time schedule” under section 30-3-35, or it may adopt the “detailed schedule” set forth in section 30-3-35.1. See Lay, 2018 UT App 137, ¶ 16. In any event, in awarding parent-time, the court is simply required to “enter the reasons underlying [its] order.” See Utah Code Ann. § 30-3-34(3). The statute does not require the court to articulate specific reasons for rejecting all other alternatives, such as an additional Sunday overnight that would necessitate another long commute to school every other Monday. 

¶31 In keeping with the statutory requirements, the court entered sufficient findings to support its parent-time award under section 30-3-35. The court ordered that “[Father] shall have parent-time pursuant to the guidelines established in Utah Code Ann. § 30-3-35” and articulated its reasons for customizing that schedule to allow Father an additional mid-week overnight. The court explained that it was 

interested in maximizing [Father’s] time (along with his family) with [Child]. Section 30-3-35 permits a mid-week visit. It is in [Child’s] best interest to have a mid-week visit at [Father’s] home. [Child] will benefit from doing homework with [Father], [his stepmother,] and his siblings. And, because it is only one day a week, the impact of the commute will be minimized. The parties can determine which day works best for them and [Child]. 

The court concluded that “[t]he new parent-time schedule is in the best interest of [Child]—it allows [him] to maximize his time with [Father] while eliminating the constant, back-to-back days of commuting.” These findings adequately support the ordered parent-time schedule. 


¶32 Custody and parent-time determinations “may frequently and of necessity require a choice between good and better.” Hogge v. Hogge, 649 P.2d 51, 55 (Utah 1982). The broad discretion we accord the district court “stems from the reality that in some cases the court must choose one custodian from two excellent parents.” Tucker v. Tucker, 910 P.2d 1209, 1214 (Utah 1996). That is precisely the situation the district court faced here. And “where analysis reveals that the best interests of the child would be served equally well with either parent,” we cannot say the “court has abused its discretion in awarding custody to one parent over another.” See id. at 1216. Because the district court sufficiently supported its rejection of the custody evaluator’s recommendation for primary custody and articulated the reasons for the parent-time schedule it adopted, we defer to the court’s sound judgment. Affirmed. 

Click to access T.W.%20v.%20S.A.20211126_20200397_132.pdf

Tags: , , , , , , ,

The Protective Order Deception

We all know that a protective order provides little to no substantive protection for the purported victim. The joke around the legal profession is that when a bullet, blade, bat, or fist is headed your way, just hold up the sheet of paper on which the order is printed to stop it.  

We also know that while many real victims of abuse seek protective orders for legitimate purposes, many protective orders are often sought (in my opinion most protective orders are sought) in bad faith by people to gain an ill-gotten, unfair advantage over another through a bogus protective order application. 

So if someone is truly afraid for his or her life or safety, why not have the would be protective order applicant get a gun, instead? Some real protection. Not invincibility, not even 24/7 protection, but far, far better than mere sheet of paper.  

Besides, anyone who’s truly fearing for his or her life or safety isn’t going to find any protection in a court order. As they say, “When seconds count, the police are just minutes away.” 

Indeed, if the stories that protective order applicants told were always true (i.e., in fact every protective order applicant has already been abused, or abuse against them is/was being attempted and/or threatened), then shouldn’t the number of people stopped by a mere sheet of paper be remarkably low (i.e., why doesn’t alleged the abuser keep trying to abuse, in spite of a mere sheet of paper telling him/her not to abuse)?  

 It’s not as though a perpetrator reads the protective order after being served with it and says, “Well, as long as this piece of paper tells me I can’t kill or injure, then I have no choice but to respect the court order.” Murderers and determined abusers won’t be stopped by pieces of paper any more than they are stopped by laws already on the books that prohibit murder and abuse.[1] 

I had a client who claims that a bogus protective order was entered against him. I have no reason to doubt what he said (there was no verifiable evidence that any of his wife’s self-serving allegations—made in advance of her filing for divorce, of course—were true). There was no history of violence or abuse in his past (the only thing the wife could use against him when she made her original request for protective wardrobe is that he had received combat training when in the due course of his military service 20 years before she applied for the protective order). The protective order had been in place for 12 years when his daughter, who at that point was now an adult, engaged to be married. He wanted to attend the wedding and the reception. Utah law required that he make a request that the protective order be dismissed. His ex-wife opposed the motions, claiming that she was “still afraid” of him, even though her affidavit stated that she had had no contact or communication with him in 12 years (in other words, he had obeyed the protective order without exception).  

No contact with him in 12 years. No incidents of violence or attempted violence or even threats of violence. In 12 years. But all it took was her claim she was “still afraid”. No evidence he had in fact committed, attempted to commit, or threatened to commit any abuse. No evidence he was in fact a threat to her in any way. Indeed, all evidence was to the contrary. She said she was still scared, couldn’t explain why, but that’s all the judge needed. The protective order stayed in place (not even amended to make it possible for him to attend the ceremony or reception), and this man missed his daughter’s wedding. That’s real abuse.  

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

[1] Indeed, something can be said for the idea that falsely accusing someone of being an abuser and then ejecting him from his home and subjecting him to public ridicule and scorned maybe one of the best ways to foster abuse in situations where, but for the issuance of the ill-gotten protective order, no abuse would have ever occurred. Being falsely accused and falsely slapped with a protective order is humiliating and destroys an innocent’s faith in the legal system. Falsely-obtained protective orders create a sense of betrayal and anxiety that causes many an innocent person to reason that if innocence isn’t a protection against false allegations that kill reputations and careers and separate loving parents from children, then I might as well become what I’ve been accused of being. “The way you see people is the way you treat them, and the way you treat them is what they become.” — Johann Wolfgang von Goethe

Tags: , , , , , ,

How can I get an emergency hearing for custody and child support?

I will answer this question based upon the law of the jurisdiction where I practice family law (Utah).

So the question is: How can I get an emergency hearing for custody and child support?

The answer: Have a good reason.

A very good reason. A reason that would justify asking the court to address the issue on an emergency basis.

Do such reasons exist? Yes. Are such good reasons easy to establish? Generally, no, unless one tries to obtain emergency child custody through a protective order proceeding (more on why below).

Is it easy to lie about having good reasons for an emergency child custody order and obtain an emergency child custody order under false pretenses? Yes, especially if one tries to obtain emergency child custody through a protective order proceeding (more on why below).

Here are some ways to obtain an order of child custody (and possibly for child support too) in not particular order (with links to the statutes that govern them):

1. By protective order.

Cohabitant Abuse Act protective order

Child protective order (see also Utah Rules of Juvenile Procedure Rule 37)

2. Divorce or parentage action

motion for TRO (ex parte motion for child custody (and child support))

3. Guardianship action

4. “Custody and Visitation for Individuals Other than Parents Act” action

5. “Utah Uniform Child Custody Jurisdiction and Enforcement Act” action

6. Termination of parental rights action

7. “Abuse, Neglect, and Dependency Proceedings” action


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

Tags: , , , , , ,

How do I fight a DUI without a lawyer?

How do I fight a DUI without a lawyer?

You don’t. Too much at stake. Too hard to do on your own. I’m a lawyer (a divorce and family law attorney), and although I don’t drink, if I were charged with DUI (even if I knew I was innocent), I wouldn’t try to defend myself without the help of a skilled and experienced criminal defense attorney who knows DUI law and defense backward and forward.

It’s a shame that lawyers are so expensive. I get it. But a DUI can cripple you for years, even for life, sometimes. You have to defend yourself hard because no one else in the system will go to bat for you. The prosecutors and judge aren’t interested in your story (they’ve heard them all and they’re jaded beyond belief).

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

Tags: , , , , , , , , , , , , , , , , , , , , ,

Can I petition the courts for custody of a child who is homeless?

Yes. In the jurisdiction where I practice family law, there are several ways to seek and obtain custody of child who is not your biological offspring:

  • petition for guardianship
  • petition to terminate parental rights/petition for adoption
  • request for child protective order

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

Tags: , , , ,

Can I petition the courts for custody of a homeless child?

Yes. In the jurisdiction where I practice family law, there are several ways to seek and obtain custody of child who is not your biological offspring:
  • petition for guardianship
  • petition to terminate parental rights/petition for adoption
  • request for child protective order

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

Tags: , , , , , , , , , , ,
Click to listen highlighted text!