I think I know why you think it’s weird. Why have the children live with one parent instead both parents on an equal custody basis? In other words, “I’ll bear the financial costs of taking care of the children when they are with me, and you bear the financial costs of taking care of the children when they are with you.” That makes, sense. But there is more than one way to view this situation. Most jurisdictions in the U.S.A. see it this way:
If the children spend more time in the care and custody of one parent than the other, then that parent will bear greater financial burden in the form of having to pay for at least the food the children eat, the laundry detergent they use in the washing of their clothes, the extra utilities expenses they represent (using more water and electricity than if the parent lived alone) and the soap, shampoo, and toilet paper the children use.
In Utah (where I practice divorce and family law), child support is intended to cover not only these expenses of the children, but their clothing and bedding, school fees, and extracurricular activities too.
This is why most jurisdictions order the parent who exercises less care and custody than the other parent (the noncustodial parent) to pay what is called “child support” to the custodial parent.
But what if the parents share equal physical custody of the children? Does that mean that neither parent will pay child support to the other? Not necessarily.
In Utah, even if the parents were awarded equal custody of the children, one parent can end up still paying child support to the other, if one parent has a higher income than the other. The reason for this is the idea that the children’s lifestyle should be the same regardless of which parent they are residing with at the time. To ensure the parent whose income is lower can afford to provide the same lifestyle for the children as their other parent, many courts (including Utah’s) will still order the richer parent to pay child support to the poorer parent for this purpose.
If I understand your question correctly, you’re wondering if the court will fault for your ex-spouse’s claims that you are failing to act responsibly when it comes to making and keeping doctor appointments for the child, and perhaps also criticizing your judgment when it comes to matters of the child’s health care.
Many judges are suckers generally for claims of child abuse and neglect. What do I mean? None of them want to be blamed for failing to notice and failing to protect. And so when faced with allegations of child abuse or neglect or parental misconduct toward a child, many of them are on the side of caution, claiming that they are simply looking out for the best interest of the child, when in far too many cases they’re simply looking out for their own best interests (that’s usually what erring on the side of caution does and means in family law—abusing a parent’s reputation and parental rights, so that a court doesn’t have to risk making “the wrong choice” when deciding on allegations of child abuse and neglect).
If instead, your ex is accusing you of misconduct by scheduling doctor appointments for your children without conferring and agreeing with the co-parent before the doctor appointments are scheduled and attended, then if your question is whether your ex will prevail, then if the law and/or court order requires you and your ex/co-parent to confer with each other before you can exercise your “final say” authority to schedule the appointments over your ex’s/co-parent’s objection, then you are likely in the wrong and likely to be found to be in the wrong.
Now, don’t confuse “he has every right to ask for receipts” with “he has every right to receipts”.
If a child support payor (known in some jurisdictions as the child support obligor) has reasonable articulable bases for suspecting that the child support payee (known in some jurisdictions as the child support obligee) is not responsibly spending the child support funds for the support of the child, then the payor has every right to raise the concern and to ask for proof to the contrary.
But if a child is hungry, mal-nourished, wearing clothes too small for him/her or wearing worn out clothing or wearing flip flops in the snow, has no blankets or even a bed to sleep in, etc. and yet the child support recipient parent is receiving hundreds (sometimes thousands) of dollars per month intended to meet those needs of the child, the child support payor has every right to raise concern with the court and every right to request that the court audit the payee and require the payee to prove that he/she is being a good steward of the child support funds.
In Utah, we have a statute on this very subject:
Utah Code § 78B-12-218. Accountability of support provided to benefit child — Accounting.
(1) The court or administrative agency which issues the initial or modified order for child support may, upon the petition of the obligor, order prospectively the obligee to furnish an accounting of amounts provided for the child’s benefit to the obligor, including an accounting or receipts.
(2) The court or administrative agency may prescribe the frequency and the form of the accounting which shall include receipts and an accounting.
(3) The obligor may petition for the accounting only if current on all child support that has been ordered.
If this statute has ever been implemented in a child support case, I have yet to see it. Whenever I’ve asked a court to implement it, the courts’ are offended that my client would have the audacity to be concerned over child support payee malfeasance.
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Jillyn Smith appeals the district court’s order regarding custody and child support for her minor son (Child). Because we determine the court abused its discretion by awarding Smith sole physical and legal custody while requiring joint decision-making between Smith and Child’s father, DeJuan Blake, we vacate that part of the court’s custody award. Furthermore, because we conclude the court made a mathematical error in calculating the amount of child support, and that a further examination of the evidence of Blake’s income is warranted, we reverse the court’s child support award and remand for recalculation as appropriate.
BACKGROUND
¶2 Smith met Blake in 2007 in Las Vegas, Nevada, and the two entered into a relationship. As a result of the relationship, Smith became pregnant with Child in 2009. At the time Smith learned about the pregnancy, she was no longer living in Las Vegas—she had moved to Utah to escape her relationship with Blake.
¶3 After a tumultuous pregnancy, during which Blake continuously asked Smith to have an abortion, Child was born in Utah in October 2009. Blake traveled to Utah to visit Child twice during the first year of Child’s life, with each visit lasting “maybe an hour or two.” The sporadic visits continued over the next few years, with Child and Smith traveling with Blake on short trips together. Although Smith asked Blake for financial support during this time, Blake did not provide support and instead always offered an “excuse.” Eventually, the communications between the couple became too toxic and Smith elected to “take a break from communication” with Blake.
¶4 Thereafter, Smith decided to “give [Blake] a second chance.” Blake and Child had “maybe a few” “infrequent[]” telephone conversations a year, but the conversations were short due to Child’s speech impediment. Blake was not involved in Child’s schooling or scheduling, he never attended Child’s doctor’s appointments, and he “wouldn’t follow through” or offer any explanation as to why he could not help Smith with financial support for Child’s medical care or educational needs.
¶5 Blake traveled to Utah in 2015 to attend Child’s birthday party. Toward the end of the party, Blake and Smith had a verbal altercation regarding Blake’s failure to honor their agreement for Blake to pay Smith child support. Following this visit, Blake returned to Utah once in 2016 to attend Child’s baseball game. That visit also ended in a verbal altercation.
¶6 In January 2018, Blake petitioned the district court for paternity and custody of Child. At the time, Child was eight years old and living with Smith.
¶7 After initiating custody proceedings, Blake filed a series of three financial declarations with the district court. Blake is self-employed and owns a company managing professional and aspiring boxers. Blake’s stated gross income, monthly expenses, and debt listed on each of the three financial declarations differed significantly. In the first declaration, Blake claimed $0 in gross monthly income, $1,875 in monthly expenses, and a debt of $7,240. In the second, Blake claimed $2,000 in gross monthly income, $17,797 in monthly expenses, and no debt. And in the third, Blake claimed $1,686 in gross monthly income, $3,947 in monthly expenses, and no debt. The bank statements filed with each disclosure were incomplete; however, the bank statements that were submitted showed that between August 2017 and January 2019, Blake made deposits into his personal account totaling $456,669.98, and that during that same time, he made withdrawals totaling nearly $50,000 for investments in cryptocurrency, payments to his mother, payments to the mother of one of his other children, and luxury clothing.
¶8 The case proceeded to a bench trial in October 2020. At trial, Smith detailed the relationship between Child and Blake. She explained that Blake had never been actively involved in Child’s life and that Blake had not seen Child at all since May 2016. Smith testified that she and Blake had reached an “original agreement” for child support where Blake would pay her $1,000 per month. She further testified that this agreement did not start until 2015—when Child was already six years old—and that the payments had lasted for only one month. In total, Smith estimated that Blake had contributed $1,600 in support payments “over the entirety of [Child’s] life.”
¶9 Following trial, the district court adjudicated Blake as Child’s father, awarded Smith sole physical and legal custody of Child, and awarded Blake standard relocation parent-time pursuant to Utah Code section 30-3-37, which is approximately 17% of the year. In reaching its legal custody determination, the court analyzed the statutory factors outlined in Utah Code sections 30-3-10 and 30-3-10.2 and concluded that the presumption favoring joint legal custody had been rebutted and that joint legal custody was not in Child’s best interest. However, the court ordered a joint decision-making arrangement between the parties, requiring that the parties “discuss with each other decisions that should be made regarding [Child].” The arrangement further provides, “If there is a dispute, the parties should attend mediation and each pay half of the mediation fees. If the dispute remains, then [Smith] will have final say. [Blake] can . . . bring the matter to court if he is unsatisfied with the decision.”
¶10 Regarding child support, the district court primarily calculated Blake’s past child support payments based on his 2018 tax record, where he claimed $45,050 in gross receipts and $34,483 in deductions. After reviewing the evidence, the court concluded that several of the deductions—totaling $27,530—were unsupported and accordingly struck those deductions. Based on this, the court found that Blake’s “annual income should be $23,790” through March 2020. However, given the outbreak of the COVID-19 pandemic, the court concluded that “Blake’s income has come to a halt,” and it accordingly found it “appropriate . . . to impute minimum wage income of $1,257/month from March 2020 forward.”
ISSUES AND STANDARDS OF REVIEW
¶11 Smith now appeals the district court’s order regarding custody and child support, raising two issues for our review. First, Smith argues the court abused its discretion when it “issued an internally inconsistent [custody] award” giving Smith “sole legal and physical custody but also order[ing] joint decision-making” between her and Blake. “We review custody determinations under an abuse of discretion standard, giving the district court broad discretion to make custody awards.” K.P.S. v. E.J.P., 2018 UT App 5, ¶ 24, 414 P.3d 933 (quotation simplified). “But this broad discretion must be guided by the governing law adopted by the Utah Legislature. And on matters of statutory interpretation, we review for correctness.” Dahl v. Dahl, 2015 UT 79, ¶ 155, 459 P.3d 276 (quotation simplified). And “[w]here the court’s findings are internally inconsistent on a material point, reversal and remand are appropriate.” Vandermeide v. Young, 2013 UT App 31, ¶ 21, 296 P.3d 787, cert. denied, 308 P.3d 536 (Utah 2013).[1]
¶12 Second, Smith argues the district court abused its discretion when it calculated Blake’s income for purposes of child support. “We review the district court’s decisions regarding child support . . . under the abuse of discretion standard.” Pankhurst v. Pankhurst, 2022 UT App 36, ¶ 13, 508 P.3d 612 (quotation simplified). Where the court’s findings contain mathematical error or conflict with the record, we will remand for recalculation. See Miner v. Miner, 2021 UT App 77, ¶¶ 57–60, 496 P.3d 242.
ANALYSIS
I. Custody
¶13 Smith first challenges the district court’s custody award, contending the court abused its discretion in crafting the award because it is “internally inconsistent.” According to Smith, the joint decision-making arrangement “undermines” her award of sole physical and legal custody because it “allows [Blake] to force mediation and litigation whenever he disagrees with a decision made by [Smith], even though she has sole legal and physical custody.” We agree.
¶14 As an initial matter, the Utah Code does not define “sole physical custody” or “sole legal custody.” But in Hansen v. Hansen, 2012 UT 9, 270 P.3d 531, our supreme court provided guidance as to the meaning of those terms. In Hansen, the father and the mother were awarded joint custody of their daughter following their divorce. Id. ¶ 2. The mother was awarded sole physical custody and the father was ordered to pay child support to the mother. Id. Sometime later, the daughter entered a private youth homeless shelter, where she lived through her eighteenth birthday. Id. While the daughter was living at the shelter, the father filed a petition with the district court seeking to redirect his child support payments from the mother to the homeless shelter. Id. ¶¶ 2–3. The court denied the motion, which denial was ultimately upheld by the Utah Supreme Court. Id. ¶¶ 4–5, 30.
¶15 The supreme court’s decision centered on the meaning of custody. Although the daughter had been residing at the shelter, the court determined that the daughter’s physical custody had not changed; rather, the mother still retained physical custody. Id. ¶¶ 15–19, 28. The court explained,
Family law treatises consistently define custody as a bundle of constituent rights and obligations to a child’s possession, care, and control, and explain that the essence of custody is control over all aspects of the child’s life coupled with responsibility for the child’s welfare. Standard dictionary definitions of custody are to the same effect.
Custody is often divided into two subsets: legal and physical custody. Both encompass a duty of control and supervision. While legal custody carries the power and duty to make the most significant decisions about a child’s life and welfare, physical custody involves the right, obligation, and authority to make necessary day-to-day decisions concerning the child’s welfare. Although the latter is limited to the right to control the child’s daily activities, it still involves a right of control. This grant of authority is necessary so that the custodian can control and discipline the child or make emergency medical or surgical decisions for the child.
Id. ¶¶ 16–17 (quotation simplified). Put differently, “the legal duty of control or supervision [is] the essential hallmark of custody.” Id. ¶ 18 (quotation simplified). Legal custody encompasses the ability to make major decisions in a child’s life, while physicalcustody encompasses the ability to make day-to-day decisions in a child’s life.
¶16 Although the Utah Code does not define sole physical or legal custody, it does define “joint legal custody” and “joint physical custody.”[2] Under the current statutory scheme, a parent may be awarded “joint legal custody,” which is defined as “the sharing of the rights, privileges, duties, and powers of a parent by both parents.” Utah Code § 30-3-10.1(2)(a) (emphasis added). As this court has long recognized, the purpose of joint legal custody is to allow “both parents [to] share the authority and responsibility to make basic decisions regarding their child’s welfare.” See Thronson v. Thronson, 810 P.2d 428, 429–30 (Utah Ct. App. 1991), cert. denied, 826 P.2d 651 (Utah 1991).
¶17 Taken together, it follows that an award of “sole” legal custody does not involve sharing the “rights, privileges, duties, and powers of a parent.” See Utah Code § 30-3-10.1(2)(a). Accordingly, when the district court awarded sole legal and physical custody to Smith, it also awarded her alone the “rights and obligations to [Child’s] possession, care, and control,” see Hansen, 2012 UT 9, ¶ 16 (quotation simplified), including the sole authority to “make the most significant decisions about [Child’s] life and welfare,” see id. ¶ 17 (quotation simplified), and the “authority to make necessary day-to-day decisions concerning [Child’s] welfare,” see id. (quotation simplified). It therefore was inconsistent to simultaneously order a joint decision-making arrangement.
¶18 Moreover, the joint decision-making arrangement is at odds with the district court’s own findings regarding Child’s best interest. “In making a custody determination, a [district] court’s primary focus is what custody arrangement would be in the best interest[] of the child.” Grindstaff v. Grindstaff, 2010 UT App 261, ¶ 4, 241 P.3d 365. Utah law presumes that joint legal custody is in a child’s best interest, but that presumption may be rebutted by showing “by a preponderance of the evidence that it is not in the best interest of the child.” Utah Code § 30-3-10(3)–(4). And under Utah law, there is “neither a preference nor a presumption for or against joint physical custody or sole physical custody.” Id. § 303-10(8).
¶19 “In determining whether the best interest of a child will be served by ordering joint legal custody or joint physical custody or both, the court shall consider” a number of statutory factors. See id. § 30-3-10.2(2). Here, the court analyzed the statutory factors and determined that awarding Smith sole legal and physical custody of Child was in Child’s best interest. In particular, the court found that there was “very little evidence provided that either parent could function appropriately with co-parenting skills,” that it was “unclear” whether the parties could work together to reach shared decisions in Child’s best interest, and that there was “very little evidence” the parties “actually discussed and made decisions together.” In light of these findings, it is unclear how the joint decision-making arrangement—which is not limited to major decisions but instead encompasses all decisions—could be properly viewed as advancing Child’s best interest. It does not follow from the evidence of the parties’ ongoing issues making decisions relating to Child that such an arrangement would lead to success in the future. Rather, precisely because of the court’s findings, it seems likely that such an arrangement would cause ongoing issues, result in costly mediation and additional court involvement, and be detrimental to Child’s best interest, which is exactly what Utah law seeks to avoid.
¶20 In sum, the district court abused its discretion when it awarded Smith sole physical and legal custody while also ordering a joint decision-making arrangement between Smith and Blake. Although Utah law does not prohibit a joint decision-making arrangement in cases involving an award of joint physical and legal custody, an examination of the underlying statutory scheme reveals that such an arrangement is not compatible with an award of sole physical and legal custody. Furthermore, these competing provisions belie the court’s own findings regarding Child’s best interest as relates to custody. As such, we vacate the portion of the court’s custody award ordering the joint decision-making arrangement.
II. Child Support
¶21 Smith next argues the district court erred in calculating child support. Specifically, Smith takes issue with the court’s calculation of Blake’s income for purposes of child support, contending the court’s calculation (1) contains a mathematical error and (2) is inconsistent with the evidence in the record. We agree.
¶22 The Utah Child Support Act outlines the process by which a district court must evaluate the income of a parent when calculating child support. See generally Utah Code § 78B-12-202. To begin, the court must consider the “gross income” of a parent, which the Utah Code defines broadly as including
prospective income from any source, including earned and nonearned income sources which may include salaries, wages, commissions, royalties, bonuses, rents, gifts from anyone, prizes, dividends, severance pay, pensions, interest, trust income, alimony from previous marriages, annuities, capital gains, Social Security benefits, workers’ compensation benefits, unemployment compensation, income replacement disability insurance benefits, and payments from “nonmeans-tested” government programs.
Id. § 78B-12-203(1). And when a parent is self-employed—as is the case with Blake—the statute directs how gross income should be handled. It provides that “[g]ross income from self-employment or operation of a business shall be calculated by subtracting necessary expenses required for self-employment or business operation from gross receipts. . . . Gross income . . . may differ from the amount of business income determined for tax purposes.” Id. § 78B-12-203(4).
¶23 The district court determined that Blake’s income had been impacted as a result of the COVID-19 pandemic and accordingly evaluated his income for purposes of child support based on what he had earned pre-pandemic and what he was earning during the pandemic. On the record before us, we see two errors in the court’s calculations. First, the court made a discrete mathematical error in calculating Blake’s pre-pandemic income. Second, and more broadly, the court did not consider all the evidence of Blake’s finances when calculating Blake’s income, both pre-pandemic and at the time of trial.
¶24 First, the district court calculated Blake’s past child support payments using his 2018 tax record. On that record, Blake claimed $45,050 in gross receipts. From that, Blake deducted $34,483 as follows: $5,270 for “materials and supplies,” $3,605 for “advertising,” $360 for “legal and professional services,” $500 for “office expense,” $21,760 for “other business property,” and $2,988 for “utilities.” After viewing the evidence, the court found that Blake had failed to adequately explain why he should be entitled to deductions for “materials and supplies” ($5,270), “other business property” ($21,760), or “office expense” ($500), and it accordingly struck those deductions, totaling $27,530. As a result, the court should have concluded that Blake’s income was $38,097, or $3,175 per month rounded. But it did not. Instead, it concluded that Blake’s income was $23,790, or $1,983 per month. This value is mathematically incorrect.
¶25 Second, notwithstanding the mathematical error in the court’s calculation of Blake’s income, the value imputed by the court is inconsistent with the evidence in the record. Utah law is clear that “in contested cases,” a judge is entitled to impute income to a parent so long as the judge “enters findings of fact as to the evidentiary basis for the imputation.” See id. § 78B-12203(8)(a). “The purpose of such imputation is to prevent parents from reducing their child support or alimony by purposeful unemployment or underemployment.” Connell v. Connell, 2010 UT App 139, ¶ 16, 233 P.3d 836 (quotation simplified). Accordingly, when imputing income, “the income shall be based upon employment potential and probable earnings considering,” among other things, “employment opportunities,” “work history,” and “occupation qualifications.” Utah Code § 78B-12203(8)(b).
¶26 As explained above, the court calculated Blake’s income at $1,983 per month up until the time that the COVID-19 pandemic began in March 2020. And at trial, which was held in October 2020, the court concluded that due to the pandemic, “Blake’s income has come to a halt” and therefore determined it was “appropriate . . . to impute minimum wage income of $1,257/month from March 2020 forward.” But the financial documents submitted by Blake do not support the low amount of income the court chose to impute.
¶27 Blake’s bank records—which were all filed with the court—show that Blake made deposits into his personal account totaling $456,669.98 between August 2017 and January 2019. These deposits included a check for $200,000, which Blake testified “was for my services that was rendered” in connection with a high-publicity boxing match. And in addition to the deposits, Blake’s bank records show significant withdrawals. For example, the records indicate that Blake had regularly invested in cryptocurrency, had transferred over $15,000 to his mother, had transferred over $9,000 to the mother of one of his other children,[3] and had spent over $10,000 on luxury clothing.
¶28 Despite the evidence of Blake’s spending, Blake did not demonstrate how he was funding his lifestyle, and he claimed only one debt of $7,240 in the first of his three financial disclosures. In light of the foregoing, the district court’s determination that Blake was making no money and therefore should be imputed minimum wage is not supported by the evidence. Rather, the evidence suggests that Blake was less than forthcoming with the court as to the actual amount of his income. As such, on remand the court should reevaluate evidence of Blake’s finances, his earning capacity, and whether he is voluntarily underemployed and should make a further determination as to whether greater income should be imputed to him.[4] In so doing, the court should take special care to ensure that the final award is void of mathematical error.
CONCLUSION
¶29 The district court abused its discretion when it awarded Smith sole physical and legal custody of Child while also ordering a joint decision-making arrangement with Blake. We therefore vacate the court’s custody ruling as it relates to the joint decision-making arrangement. The court also abused its discretion when calculating child support. The current award contains a mathematical error and is not supported by record evidence. Accordingly, we reverse the court’s award of child support and remand with instructions that the court reexamine the evidence to determine whether greater income should be imputed to Blake.
[1] Blake did not file a brief or otherwise appear in this appeal. Although “an appellee’s failure to file a brief does not amount to an automatic default and consequent reversal of the lower court,” our supreme court has recently recognized that such failure does impact the “typical burden of persuasion on appeal.” See AL-IN Partners, LLC v. LifeVantage Corp., 2021 UT 42, ¶ 19, 496 P.3d 76 (quotation simplified). Because an appellee’s failure to raise any argument leaves the appellant’s claims “unrebutted,” see Broderick v. Apartment Mgmt. Consultants, LLC, 2012 UT 17, ¶¶ 18–21, 279 P.3d 391, “when an appellee fails to present us with any argument, an appellant need only establish a prima facie showing of a plausible basis for reversal,” AL-IN Partners, 2021 UT 42, ¶ 19 (quotation simplified). We question whether the standard articulated in AL-IN Partners should apply the same way in cases such as this where the standard of review on appeal is deferential to the discretionary decisions of the district court. But because this issue was not briefed and our decision on both arguments presented ultimately involves the conclusion that the district court did abuse its discretion and committed other errors, we need not decide the issue today. However, we note the question does warrant additional consideration in a case where it is squarely before the court.
[2] In relevant part, the statute defines “joint physical custody” as when “the child stays with each parent overnight for more than 30% of the year.” Utah Code § 30-3-10.1(3)(a). This particular provision is not applicable here because Blake was awarded standard relocation parent-time which falls below the 30% threshold. See id. § 30-3-37. Nevertheless, Utah law is clear that “[e]ach parent may make decisions regarding the day-to-day care and control of the child while the child is residing with that parent.” Id. § 30-3-10.9(6). Thus, by statute Smith has sole decision-making authority over day-to-day decisions when Child is in her care. Likewise, Blake has decision-making authority over day-to-day decisions when Child is in his care.
[3] This amount does not include child support payments awarded to the mother, which were $1,000 per month. Those support payments were made directly to Nevada’s State Collection and Disbursement Unit.
[4] Smith filed a post-trial motion pursuant to rule 59(e) of the Utah Rules of Civil Procedure seeking to amend, among other things, the court’s child support award. The district court issued a Memorandum Decision and Order denying the motion. In analyzing the child support issue, the court stated that “[g]ifts are not generally considered income.” This is legally incorrect. As explained above, the Utah Code explicitly defines “gross income” as including “gifts from anyone.” See Utah Code § 78B-12-203(1). To the extent Blake was gifted items, the court must include the value of those gifts when calculating his income.
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 lawprovides 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).
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.
There are two kinds of child custody, not just one. Those two different kinds are legal custody and physical custody.
Legal custody is the power of a parent to make decisions for a minor child regarding the child’s health and health care, education, moral and religious upbringing, and other matters pertaining to the child’s general welfare.
Physical custody of a child Is defined as that parent’s right to have the child reside physically with that parent.
You hear about the terms “sole custody” and “joint custody”. Parents can be awarded sole legal or joint legal custody of their children. They can be awarded sole physical or joint physical custody of their children. There is also what is known as a “split custody” award.
Another term that is often used for sole custody is primary custody. That is something of a misnomer.
Sole custody in the context of legal custody would mean that one parent and one parent alone has the power to make decisions for the child. Joint legal custody would mean that both parents share the right to make choices pertaining to the child. That stated, however, courts can and often do award parents the ostensible joint legal custody of their children, and yet give one parent the sole and exclusive right to decide in the event the parents cannot reach agreement. If you ask me, that can’t, in intellectual honesty, be joint legal custody, but I digress.
Sometimes Utah courts will divide legal custody between the parents such that one parent may have the right to make all decisions in a particular area. For example, the court could award the mother the right to make all healthcare decisions and award the father the right to make all education decisions for the children. That sort of arrangement would be known as a “split” legal custody award because neither parent has the sole and exclusive power to make all decisions regarding the child, the parents are not awarded joint legal custody such that they must make decisions jointly, but each parent has some soul and exclusive power to make some decisions, though not all decisions, pertaining to the child’s upbringing.
This is a good question and one that arises frequently in one form or another; a parent either can’t or won’t provide personal care and supervision of the parties’ children his/her scheduled parent-time or custody yet does not want the other parent to care for the children in his/her absence.
Some parents try to pull this stunt because either 1) they are territorial about “my time” with the children and thus can’t stand the idea of the other parent caring for the children during “my time”; or 2) they maliciously want to deny the other parent the opportunity to provide this care for the children. Others try to pull this stunt because they are afraid they will lose the child custody or parent-time they were awarded if they allow the other parent the opportunity to provide care for the children (yet believe that if someone else provides the care that somehow makes retaining custody and parent-time more “secure”). This is wrong, and is something you can take to the court to complain about and seek new court orders to remedy.
But sometimes a parent occasionally wants to leave the children in the care of someone else for perfectly reasonable, even laudable reasons, such as wanting the kids to enjoy time with grandma and grandpa or with the cousins, a sleepover at a friend’s house, and things like that. Clearly, it’s not defensible if it is the rule and not the exception, but there is nothing wrong with this on occasion. Indeed, refusing to be flexible and to allow a parent to do this for your kids is unfair to your kids.
Adoptive parents cannot lose custody of the children they adopted merely because they divorce. The children of adoptive parents are treated no differently in divorce than children who are issue of the marriage (“issue of the marriage” means the children are the biological children of the married couple). Divorcing parents who are not unfit parents cannot be deprived of the legal and physical custody of their children merely because they divorce. Instead, the court will award custody to one or both of the parents (such as “sole custody,” which means that the children live primarily with one parent and the other parent exercises “visitation” with the children on weekends, holidays, and in the summertime; or joint custody, which means that the children reside with each of the parents a portion of the year, year after year).
If there is no statute or court order in place that bars you from taking your child out of state with you for a vacation, and no law that provides that you must obtain the permission of the other parent to travel out of state or out of town with the child, nothing legally prevents you from going on that vacation with the child.
But that doesn’t necessarily mean it’s a good idea to take the child with you on vacation against the wishes of the other parent.
Even if there is no statute or court order that prevents you from taking the vacation with the child against the wishes of the other parent, the court may (or may not) take a dim view of you taking such unilateral action. It may cause you to appear self-absorbed and immature, and/or a law unto oneself.
And put yourself in that parent’s shoes. Think of how you would feel. Now, of course, if the other parent opposes the vacation out of malice, that’s a different matter altogether. But if the parent is genuinely and reasonably worried that you’re going to try to abscond with the child and disappear, you may want to postpone that vacation until you either have the consent of the other parent or permission of the court to do so.
There are many ways one might interpret what your question is. If you are asking whether a child of divorced parents has, as a result of the divorce, more or fewer rights in a parent’s house after divorce than before divorce, the answer is generally no, although a court may order in the decree of divorce that a parent may have to provide certain accommodations for his/her child, if the court feels that the parent won’t provide them without being ordered to do so, such as a separate bedroom for the child, help with homework, getting the child to bed at a certain time, getting the child to and from school on time, administering necessary medication, not bad-mouthing the other parent, not engaging in corporal punishment, etc. It’s worth noting that although these orders are for the benefit of the child, they are not necessarily rights of the child to enforce.
It appears that your question is: can child support be awarded to a parent even if a divorce or child support action has not yet been filed? If that is your question, then the answer is “yes” in many jurisdictions. You’ll want to verify whether that is the case in your particular jurisdiction.
In Utah, where I practice divorce and family law, one can obtain child support without a court order by obtaining an administrative order awarding child support instead. Here is how that process works (click this link): https://ors.utah.gov/child-support/establish-child-support-orders/
Can one obtain spousal support or alimony without a court order? I can’t say as to all jurisdictions, but in Utah the answer is: no. The only order that entitles one to spousal support or alimony is a court order. Spousal support can be ordered on a temporary basis during the pendency of a divorce action before the court issues its decree of divorce.
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.
I generally don’t recommend books on divorce or particular strategies articulated in these books because, while the advice is often (not always) good, it gets lost in the excessive number of pages it takes to stretch the advice to book length when it can and should be reduced to pamphlet- or even single page-length. one book I’ve heard rave reviews about is a book entitled BIFF: Your Guide to Difficult Coparent Texts, Emails and Social Media Posts(I provided the link if you want to buy it; I have no affiliate arrangement with Amazon). BIFF explains how to communicate effectively with especially rude and otherwise difficult ex-spouses and co-parents.
If you can check the book out of the library and read it as quickly or as closely as you wish, that’s not a bad idea, but you can get the gist of it in two pages. Here is my effort to reduce BIFF to its most helpful essential elements.
BIFF is an acronym for keeping communications with difficult people:
Brief
No more than a paragraph (2-5 brief sentences), if possible (and it’s almost always possible, even if the communication from your ex/co-parent to which you are responding droned on for pages). Make every word count.
Informative
Focus on discussing and providing facts that are relevant to the dispute. Expressing feelings usually does not help communicate briefly or clearly and risks having your ex/co-parent respond in a rambling emotional way as well.
Friendly
This just means being civil and polite, and not overly so. Common courtesy 1) reduces the risk of escalating hostilities; 2) improves the odds of effective communication; and 3) depicts you as a reasonable, mature person, and thus credible, person.
Firm
Close your message in a way that conveys that the conversation is respectfully concluded, that you have addressed everything as necessary, and will not engage in further disputation (further discussion, sure, just not fighting). If you must include a question or make a request in your response, try to phrase it for a “yes or no” response. If you need a response by a specific time, state that clearly and concisely.
To make the most of the BIFF method, BIFF-style communications should also:
Avoid the “The Three A’s” because they don’t help and are thus not needed:
Admonishments
Criticizing and reprimanding tends to take your ex’s/co-parent’s focus off the substance of the problem. Admonishments tend to elicit defensive and recriminations, no matter how innocently and sincerely you may believe you have expressed yourself.
Advice
Offering advice tends to make you look self-righteous and judgmental. Like admonishments, giving advice tends to trigger not just a response (which you are trying to avoid), but a defensive, combative response at that.
Apologies
Even a sincere apology is usually not accepted as by a high-conflict ex/co-parent with grace and class, but gets treated and cited as an admission of fault that your ex/co-parent will belabor and remind you of for months and years to come.
Incorporate EAR:
Empathy
Empathy, not sympathy. “I’ve been where you are myself, and I understand how it feels” and not “I don’t feel as you do, but I can imagine how you feel.” Empathy indicates that you take your ex/co-parent seriously and respect him/her, even when you disagree.
Attention
Stating/showing you are paying attention helps to defuse the tension and to calm your ex/co-parent by showing your ex/co-parent doesn’t have to fight for your attention and can devote that energy toward more productive ends.
Respect
Expressing respect shows your ex/co-parent that both 1) he/she matters and 2) so does the dispute and getting it dealt with.
BIFF communications are good evidence for court.
Adhere to BIFF in all communications to help ensure you don’t communicate in a manner that would upset a judge, if a judge were to read your communications. When you employ BIFF and your hostile ex/co-parent does not, you benefit twice: 1) you help resolve the problem that much sooner and 2) you show yourself to be a mature, responsible, peacemaker.
The bonus of learning BIFF?: Its essential principles apply to communicating with difficult people generally, whether they be your ex or your boss or neighbor, and whether in writing or otherwise.
Allow me to start my answer to your question by acknowledging how unfair it is to children of divorce when courts refuse to hear from the children and refuse to allow them to weigh in on the child custody and parent time decisions.
Generally speaking, courts go out of their way to ensure that children are never heard from directly or on the record in a divorce case on the subjects of the child custody awards and the awards of parent time (also known as visitation).
The reasons why courts refuse to hear from children are many. They assert that questioning children about their experiences, observations, feelings, opinions, and desires pertaining to the child custody and parent time awards:
“puts them in the middle of their parents’ divorce,” but that is silly. The children are already aware that their parents are divorcing and if there is a fight over the child custody and parent time awards. They have the greatest stake in the outcome of the child custody and parent time decisions. Rather than “sheltering” children from harm by refusing to hear from them, courts end up failing the children far more and doing the children far more damage by refusing to consider children’s perspective to inform the court’s decisions better.
“puts them in a position of having to choose one parent over the other”. Nonsense. While it is true that a court could ask children, “Which parent do you want to live with?,” A court is clearly not required to ask such a question of the children. Sometimes a child’s preference may be important to know before a court makes the child custody and parent time awards, but even then, there are ways of discerning and learning a child’s preference without asking the child about it directly. Far more useful to the court will be eliciting information from the children regarding 1) the parents’ respective desires to be actively involved in their children’s lives postdivorce and 2) the parents’ respective levels of parental fitness. Rather than asking Johnny which parent he prefers, the court should find out from Johnny whether one parent clearly provides more care and attention to him than the other, whether one or both of his parents is abusive, neglectful, and absentee parent, impaired by substance abuse, etc.
doesn’t result in reliable evidence because children are easily manipulated, coached, or coerced. But that’s painting all children with an unfairly broad brush. While it is true that some children might be unreliable witnesses because they were manipulated, coached, and/or coerced, it would be unfair and foolish to presume that all children are that way. Rather than presuming a child will be an unreliable witness, the court needs to hear from the child first to gauge that child’s level of competency as a witness and the child’s level of credibility. That can’t happen if the child is never allowed to testify.
is a bad idea because kids shouldn’t get the idea that they call the shots. This is a silly argument too because asking a child what he wants doesn’t mean that the child controls the outcome, and it’s very easy to make that clear to a child by plainly stating, “while I am interested in knowing what your preferences are, it is not the single factor controlling my decisions.”
You are the one who will be most affected by the child custody and parent time awards. It will not only affect the rest of your life as a minor child, it can have a profound effect on the rest of your entire life. You deserve to be heard from, if you want to be heard. You are morally entitled to be heard from, if you want to be heard. The court and your parents need to respect your opinions. If you want your voice heard on the subject of the child custody and parent time awards, then unless you are in an extremely liberal and progressive jurisdiction, you are going to have to work extremely hard to ensure that happens. Frankly, the odds are against the court ever hearing from you directly as to your experiences, observations, feelings, opinions, and desires pertaining to the child custody and parent time awards. But there is too much riding on the outcome of the child custody and parent time awards for you to give up and stay silent.
The father has primary custody but left our child with me and left the child with me 60 days ago with no indication of when or whether he will return, and he has had no contact with our children but an 11-minute video call. Florida law applies.
I am not licensed to practice law in the state of Florida, but I will answer your question based upon the law of the state of Utah, which is the jurisdiction in which I a licensed to practice law. To get the answer to this legal question as it applies in Florida, you’ll need to consult with a knowledgeable Florida family law attorney.
The answer to that question is more complicated than it may seem at first blush.
Your question appears to imply a question that is different than the one you asked. I think your question is asking what action can or should you take legally now that the father (who happens to be the custodial parent as well) appears to have abandoned the child to you. If this is not what has happened, then I wouldn’t try to lie to the court and claim that it has. If the father has told you that he has to leave the state for a brief period because of work obligations or some other legitimate reason and has every intention of returning and exercising primary or sole custody of the child afterward, then clearly the father has not abandoned the child and is simply asking you to help him and held the child while he is unable to exercise custody for a brief period.
So, assuming that the father left the child with you with no indication of when he would return, you could rush to the courthouse with a petition to modify the child custody award, citing the fact that the father and custodial parent left the child in your care and custody before moving out of state, then having no contact with the child for 60 days except for one short video chat with the child. And I would bet that he is also not giving you any money to help you support the child financially in his absence. If you were to claim these events, and only these events, as warranting modification of the child custody award, it could be enough, but if the father were to oppose your petition, it is likely that he would win. The reason he would likely win is because the court would find that the father had essentially not “abandoned the child enough” to justify stripping him of the child custody award.
If the father has abandoned the child, you would likely need more time to pass before you petition to modify the child custody award, so that you could establish this fact beyond any reasonable doubt. Six months or more ought to do it. Of course, if you wait, you run the risk of the father returning after, say, 2 1/2 months or three months or four months. And if he reappears in that period of time and then re-establishes the exercise of custody, a petition to modify the child custody award would, in my opinion, likely fail.
If
the father has left the child with you for approximately six months or longer, has little to no contact with the child in that period, and provides little to no financial support for the child
modification is what’s best for the child as opposed to what’s in your self-interest (if you were to seek a modification of the child custody award for the benefit of the child and not primarily for your benefit),
then your odds of prevailing on a petition to modify the child custody award are good.
We have joint custody in Nevada. I’m in California now. Is it wrong to ask them to take my child to me because of my location?
Do mean to ask, “Is it wrong to ask the other parent to do all traveling back and forth between the parents’ respective homes?” My answer is, unless there are exceptional circumstances that dictate otherwise, “no.” Not just “no,” but “no way!”
Making one parent pick up and drop off the child for every custody or parent-time is a tremendous burden on that parent’s time, money, and vehicle.
There are better, fairer ways to handle the situation, such as:
having both parents drive to a mid-point between their respective residences for exchanges
having one parent pick up and drop off for one exchange, then having the other parent pick up and drop off for the next exchange, and doing that for every other exchange
If one parent bears the burden of all the traveling back and forth between the parents’ respective homes, then the other should compensate him/her for half of that parent’s fuel, meals, and vehicle wear and tear expenses. If the distance is long enough that it requires an overnight stay at a hotel, that expense should be included too.
What can I legally do if my child’s mother picks up our child in an Uber without a car seat? She is 5 years old, about 50 lbs. She is also the custodial parent with full custody rights, so she feels she can do anything she wants. Can I call the cops?
I’m old enough to remember when it was not illegal to wear a seatbelt. I’m old enough to remember when it was not illegal to permit a child to ride in a car without a seatbelt. I remember when there were no laws that children under a certain weight or height must ride in car seats when riding in cars. Most jurisdictions now have laws that require children of a certain age, weight, or height be strapped into a car seat when riding in a car.
So, the first thing you will need to do is find out whether it is illegal for your ex-wife to have your five-year-old, 50 pound child ride in a car without a car seat. You’ve mentioned that your ex-wife will often have your child picked up by Uber (a ridesharing service), and so you will want to ensure that even if there are laws that require a child to ride in a car seat when writing in a car, there are no exceptions for ridesharing services, taxicabs, buses, etc.
If, after conducting your research, you learn that it is illegal for your ex-wife to have your child ride in a car or when using a ridesharing service without having the child strapped into a car seat, then you would be well within your rights to report this to the police. just because you could do this, however, does not mean that you should, at least without first notifying your ex-wife that what she is doing is illegal and places your child in danger, and that if she refuses to comply with the law you will then report her to the police and perhaps even take the matter up with the court to get an order that requires her to secure the child in a car seat when traveling by car under circumstances when the law requires a car seat be utilized.
I will assume that your ex-husband (the children’s father) arriving to pick up the children earlier than his court ordered scheduled time is a hardship on, or at least an inconvenience for, you and/or for the children. Otherwise, if the father is the noncustodial parent (meaning that he spends less time with the children than you do on a weekly or monthly or even annual basis), he’s probably eager to spend as much time as possible with his children whom he loves.
But if arriving 30 to 45 minutes earlier than the court orders permit him to arrive to pick up the children is clearly causing you and or the children to suffer hardship or chronic inconvenience, you could move to have him held in contempt of court and sanctioned or contempt. Contempt of court consists of willfully violating court orders. Contempt sanctions can include fines, being jailed for a short period of time, in some cases being required to complete therapy or counseling, parenting courses, and performing community service for a certain number of hours. If you succeed on a motion to hold your ex-husband in contempt, the court may also award you your attorney’s fees incurred to bring the motion to the court (but remember, you cannot win an attorneys fee award unless you have actually incurred attorney’s fees).
I had a weird experience as a lawyer in a situation kind of like the one you’re asking about.
The ex-spouse didn’t end up with sole custody of the children, but one of the reasons (if not the controlling reason) why equal (50/50) physical custody wasn’t awarded blew me away: the custody evaluator said that she would have recommended 50/50 custody if not for her fear that if the court awarded 50/50 physical custody the mother would take out her “defeat” on the children by making them feel guilty and by trying to alienate the children from their father so that they would resent and refuse to exercise equal custody. For the sake of protecting the children from that possibility the court awarded the mother custody of the children 8 out of 14 days on a rotating 2-week basis. If that’s not capitulating to a form of extortion (however mild), then what was it?