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Category: GAL (Guardian ad Litem)

2024 UT App 91 – In re R.D. – Juvenile Court Jurisdiction – Parental Presumption

2024 UT App 91 – In re R.D.

THE UTAH COURT OF APPEALS

IN THE INTEREST OF R.D. AND Z.J., PERSONS UNDER EIGHTEEN YEARS OF AGE.

K.J., Appellant, v. N.J. AND A.J., Appellees.

Opinion No. 20220798-CA Filed June 27, 2024, Second District Juvenile Court, Ogden Department

The Honorable Debra J. Jensen No. 1174368

K. Andrew Fitzgerald, Attorney for Appellant, Jason B. Richards, Attorney for Appellees Martha Pierce, Guardian ad Litem

JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1 A mother and her children were in the company of the mother’s boyfriend as he allegedly robbed a business. The children had recently been adjudicated as abused by their father, who was living with the mother at the time of the abusive events, and were thus under the jurisdiction of the juvenile court. Fearing that this latest incident might result in the children being placed in foster care, the mother sent the children to her parents in Texas. The children have been in Texas ever since. After the children moved in with them, the grandparents intervened in the juvenile court case and petitioned the court for guardianship and custody, which the court granted. The mother now appeals, asserting, in addition to other claims of error and ineffective assistance of counsel, that the juvenile court lacked jurisdiction to grant the guardianship and custody. We affirm on all grounds.

BACKGROUND[1]

¶2 K.J. (Mother) has two children (the Children) by the same man (Father)—a girl born in December 2015 and a boy born in January 2018.

¶3 In October 2018, law enforcement was dispatched to a disturbance at the family home. Father was intoxicated, had become “destructive,” and was “not making much sense.” Father transported to the hospital. Within a few days of this incident, Mother sent the Children to live with her parents, N.J. and A.J. (Grandparents), in Texas, where they stayed about three months.

¶4 In February 2019, law enforcement was again dispatched to the family home. Father was again found intoxicated, and he had locked Mother out of the residence. It was reported that Father would “jump on” Mother and “shake her.”

¶5 In April 2019, law enforcement responded to a call involving aggravated assault at the family home. Father was yet again intoxicated, and he had pushed Mother into a wall of their apartment, an action that knocked her to the ground. Father had then grasped Mother from behind and had begun hitting her, giving her a bloody nose. Father had also choked Mother, causing her to nearly lose consciousness. The Children were present during this assault.

¶6 A few days after this incident, having received a referral regarding the Children, the Utah Division of Child and Family Services (DCFS) initiated a home visit. Mother admitted that law enforcement had been called to the home due to Father’s “drinking and getting out of control.” But she “minimized the domestic violence incidents,” noting that that she could usually get the Children to bed and sleeping so they would not hear any of the parents’ arguments. Mother asked the DCFS caseworker to tell Father that she still wanted “to be with him,” but the caseworker advised Mother that doing so would be a violation of a no contact order that was in place. And as the caseworker was leaving the home, Mother said, “So what [you are] saying is the best thing I can do is go to court next week and ask for the no contact order to be dropped?” The caseworker responded that was not what was being communicated, and she discussed with Mother “the concerns of her failure to protect the [C]hildren from the ongoing domestic violence.” Mother responded that she just wanted to speak with Father.

¶7 About a week later, DCFS spoke with Father, who was at this point incarcerated. He admitted that there had been a “scuffle” in which he had “knocked” Mother in the nose but claimed there had only been one physical altercation between the two of them.

¶8        In May 2019, DCFS initiated proceedings, pursuant to Utah Code section 80-3-201(1), by filing a petition for protective supervision services (PSS petition) that alleged the Children were abused, neglected, or dependent.[2] Mother and Father both entered rule 34(e) pleas in response to the allegations contained in the PSS petition. See Utah R. Juv. P. 34(e) (“A respondent may answer by admitting or denying the specific allegations of the petition, or by declining to admit or deny the allegations. Allegations not specifically denied by a respondent shall be deemed true.”).

¶9 In July 2019, the juvenile court determined that the Children were subject to the jurisdiction of the juvenile court and adjudicated them “abused children” by Father in that they “suffered non-accidental harm or threatened harm” when Father “committed domestic violence” in their presence by assaulting Mother. Accordingly, the court appointed a guardian ad litem (GAL) to represent the best interests of the Children; ordered DCFS to provide protective supervision services; ordered Mother and Father to comply with a family plan that included mental health assessments, a domestic violence assessment, completion of a parenting course, and maintenance of stable housing and income; and ordered Father to complete drug and alcohol assessment and treatment. The juvenile court further ordered Mother and Father to “have no contact with each other in the presence” of the Children.

¶10 Notably, the court made a custody determination at this juncture in two respects. First, at least impliedly, it determined that the Children would remain in the custody of Mother, albeit subject to the jurisdiction of the court pursuant to the provisions of the family plan. Second, it placed severe restrictions on Father’s parent-time with the Children. Specifically, the court ordered that Father “shall not return to the family home until further order” of the court. And the court specified that “[v]isitation between [Father] and the [C]hildren shall be reasonable and supervised as approved by the [GAL], until further order of the [c]ourt.”

¶11 Not long after the adjudication, Mother began a relationship with another man (Boyfriend). This relationship too was marked by incidents of domestic violence. In one instance, Boyfriend called police claiming that Mother tried to hit him with her car, while a witness said it was Boyfriend who jumped on the hood of Mother’s car. But a more serious incident—at least insofar as it concerned the safety of the Children—happened when Boyfriend allegedly robbed an oil-change shop while Mother and the Children were with him in Mother’s car. This prompted Mother, in October 2019, to arrange for the Children to go to Texas to live with Grandparents again. Mother was apparently “afraid that the [Children] would go to foster care if [authorities] thought [she] was involved in the robbery.” The Children have been in Texas ever since.

¶12 In June 2020, Grandparents moved to intervene in the Children’s welfare action and petitioned the juvenile court for temporary child custody. The court granted the motion and awarded them temporary custody. In an October 2020 hearing, the court changed the Children’s permanency goal to permanent custody with a relative and terminated reunification services with Mother and Father. Also in October 2020, Grandparents petitioned for permanent custody and guardianship, which was supported by the GAL. Mother and Father opposed

Grandparents’ petition. As relevant here, Mother argued that there had been a substantial and material change in her circumstances and requested the Children be returned to her custody. In December 2020, the court released DCFS from the case.

¶13 In August 2022, the juvenile court entered detailed findings, concluding that Mother had not changed her circumstances and that it was necessary for the welfare of the Children that Grandparents be awarded permanent custody and guardianship.[3]

¶14      Mother appeals.

ISSUES AND STANDARDS OF REVIEW

¶15 Mother first contends that the juvenile court lacked jurisdiction under the Utah Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), see generally Utah Code §§ 78B13-101 to -318, to enter custody orders in favor of Grandparents. Whether a court has jurisdiction is a matter of law reviewed for correctness. In re adoption of B.B., 2017 UT 59, ¶ 16, 417 P.3d 1.

¶16 Next, Mother argues that the juvenile court violated the Interstate Compact on the Placement of Children (ICPC), see generally Utah Code §§ 80-2-901 to -910, by failing to ensure that Grandparents were fit for custody of the Children prior to placement. “The proper interpretation and application of a statute is a question of law which we review for correctness.” In re adoption of B.H., 2019 UT App 103, ¶ 9, 447 P.3d 110 (cleaned up), aff’d, 2020 UT 64, 474 P.3d 981.

¶17 Mother next asserts that her trial counsel (Counsel) was ineffective for failing to call her therapist to testify on her behalf regarding her current mental health status. “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.” In re C.M.R., 2020 UT App 114, ¶ 11, 473 P.3d 184 (cleaned up).

¶18 Mother lastly maintains that the juvenile court erred in applying an incorrect standard of proof, arguing that the custody dispute should have been governed by the parental presumption. The application of the correct standard of proof, including the juvenile court’s “interpretation of the parental presumption, presents a legal issue, which we review for correctness.” In re A.T., 2020 UT App 50, ¶ 11, 464 P.3d 173.

ANALYSIS

I. Jurisdiction

¶19 Mother argues that the juvenile court lacked jurisdiction to consider Grandparents’ custody petition because the Children had been residing in Texas for more than six months prior to the petition. Mother’s argument is grounded in the UCCJEA, which states, in pertinent part, that

a court of this state has jurisdiction to make an initial child custody determination only if . . . this state is the home state of the child on the date of the commencement of the proceeding[] or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.

Utah Code § 78B-13-201(1)(a). In developing this argument, Mother points to the definition of a child custody proceeding found in the Utah Code:

“Child custody proceeding” means a proceeding in which legal custody, physical custody, or parenttime with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear.

Id. § 78B-13-102(4).

¶20 From these statutory provisions, Mother argues that the PSS petition filed by DCFS did not indicate that “legal custody” or “physical custody” of the Children was at issue, asserting “the PSS petition was arguably not a ‘child custody proceeding’ for purposes” of the UCCJEA. Mother further argues that because the Children had been in Texas for more than six months by the time Grandparents petitioned for custody in June and August 2020, “Texas was the ‘home state’ of the Children under” the UCCJEA and Utah did not have jurisdiction to consider Grandparents’ custody petition.

¶21 Mother is mistaken. The statutory language makes it clear that the Utah juvenile court had jurisdiction over the custody petition. Under the plain language of the UCCJEA, Utah was the “home state” of the Children “on the date of the commencement of the proceeding” that determined child custody. See id. § 78B-13201(1)(a) (“[A] court of this state has jurisdiction to make an initial child custody determination only if . . . this state is the home state of the child on the date of the commencement of the proceeding . . . .”). And a “child custody proceeding” includes “a proceeding in which . . . parent-time with respect to a child is an issue.” See id. § 78B-13-102(4) (emphasis added).

¶22 Here, the “child custody proceeding” commenced when the juvenile court adjudicated the PSS petition. While it is true that the PSS petition—filed in May 2019 when the Children were living in Utah—did not mention legal custody, physical custody, or parent-time, it did recount three incidents of domestic violence, one of which was committed in the presence of the Children, perpetrated by Father. Based on these allegations, DCFS asked the juvenile court to adjudicate the Children “abused, neglected and/or dependent” because they had “suffered non-accidental harm or threatened harm . . . [w]hen [Father] committed domestic violence in the presence of the [C]hildren by hitting [Mother,] causing her a bloody nose, choking her, and knocking her to the ground.”

¶23 In adjudicating the PSS petition, the court specifically found that the Children were “abused” by Father in that the Children had “suffered non-accidental harm or threatened harm” when Father “committed domestic violence” in their presence.

And, as it was allowed to do given the finding of abuse,[4] the juvenile court also made a “custody” determination—at least according to the terms of the UCCJEA—when it limited Father’s parent-time. Specifically, the juvenile court ordered that Father “shall not return to the family home until further order” of the court. And it further specified that “[v]isitation between [Father] and the [C]hildren shall be reasonable and supervised as approved by [DCFS] and the [GAL], until further order of the [c]ourt.”

¶24 The Utah juvenile court obtained jurisdiction as soon as it entertained the PSS petition because two conditions were met. First, the PSS petition resulted in a “proceeding for . . . abuse . . . and protection from domestic violence.” Id. § 78B-13-102(4). Second, in that proceeding, “parent-time with respect to [the Children was] an issue.” Id. Accordingly, under the terms of the UCCJEA, the PSS petition gave rise to a child custody determination because parent-time—specifically with respect to Father—was “an issue.” Id. And the juvenile court had jurisdiction from that time on because Utah was the “home state of the [Children] on the date of the commencement” of the PSS petition and resulting proceeding. See id. § 78B-13-201(1)(a).

¶25 Once jurisdiction attached at the commencement of proceedings by the filing of the PSS petition, it remained intact. Mother argues the opposite—that while Utah may have had jurisdiction of the initial matters in the PSS petition, jurisdiction switched to Texas for the custody matters related to

Grandparents. We rejected a similar argument in In re A.J.B., 2017 UT App 237, 414 P.3d 552, where we stated that “once a state makes an initial child custody determination, that state obtains exclusive, continuing jurisdiction, which exists until that state relinquishes or is divested of its exclusive jurisdiction in accordance with the UCCJEA or a similar act.” Id. ¶ 16 (cleaned up). Because the juvenile court never relinquished its jurisdiction over the case here, “whether pursuant to section 207 of the UCCJEA or any other statute,” it retained jurisdiction over the Children. See id.see also Utah Code § 78B-13-207(1) (“A court of this state that has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.”).

¶26 In sum, the Utah juvenile court’s jurisdiction commenced on the filing of the PSS petition—which alleged abuse, neglect, and dependency due to domestic violence—and resulted in limitations on Father’s parent-time. Accordingly, Mother’s first claim of error fails.

II. ICPC Violation

¶27 Mother next contends that the juvenile court also violated the ICPC by failing to ensure that Grandparents were fit for custody before placing the Children with them.[5]

¶28 The purpose of the ICPC is to ensure that “[e]ach child requiring placement” receives “the maximum opportunity to be placed in a suitable environment and with persons or institutions having appropriate qualifications and facilities to provide necessary and desirable care.” Utah Code § 80-2-905 art. I(1). The ICPC also allows the “appropriate authorities in a state where a child is to be placed [to] have full opportunity to ascertain the circumstances of the proposed placement, thereby promoting full compliance with applicable requirements for the protection of the child.” Id. § 80-2-905 art. I(2). Moreover, the ICPC ensures that the “proper authorities of the state from which the placement is made may obtain the most complete information on the basis of which to evaluate a projected placement before it is made.” Id. § 80-2-905 art. I(3).

¶29 By its own terms, the ICPC is oriented toward facilitating interstate placements in the context of anticipated adoptions coordinated by state authorities or private agencies, a point that it makes explicitly clear:

This compact shall not apply to . . . [t]he sending or bringing of a child into a receiving state by [the child’s] parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt, or . . . guardian and leaving the child with any such relative or nonagency guardian in the receiving state.

Id. § 80-2-905 art. VIII(1). Thus, the ICPC exempts parents from the requirement of ascertaining the suitability of the placement if the parent is sending the child to one of the identified relatives or guardians.

¶30 Here, Mother is the one who sent the Children to stay with Grandparents, a point about which there is no disagreement. Mother sent the Children to live with Grandparents after a criminal episode allegedly committed by Boyfriend in the presence of the Children because she was concerned that her alleged involvement in the incident might lead to the placement of the Children in foster care. Thus, the sending of the Children to live with Grandparents was voluntarily and directly done by Mother while the Children were in her custody. It was only later, after Grandparents petitioned for custody due to Mother’s persistent instability and ongoing involvement in relationships plagued by domestic violence, that the juvenile court entered custody orders for Grandparents. And by this time, the Children were physically living in Texas.

¶31 The provisions of the ICPC that work to ensure the suitability of the placement to which a child is sent simply do not apply here because Mother herself sent the Children to live with Grandparents long before they petitioned for custody. Accordingly, Mother’s second claim of error fails.

III. Ineffective Assistance

¶32 Mother’s next claim is that she received ineffective assistance when Counsel failed to call her therapist to testify “as to her current mental health status in terms of her ability to parent the Children effectively.” Mother argues that having her therapist testify would have shown that “she was actively engaged in and had never stopped working on her mental health issues/concerns,” thus allowing the juvenile court “to make better informed decisions” about her parenting abilities.

¶33 Parents are entitled to the effective assistance of counsel in child welfare proceedings. See In re. E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994) (recognizing an implicit guarantee of effective assistance of counsel in a proceeding to terminate the fundamental right of parenting one’s children); see also Utah Code § 78B-22-201(1)(b). “To prevail on an ineffective assistance of counsel claim, Mother must show that (1) Counsel’s performance was deficient and (2) this deficient performance prejudiced the defense. Because failure to establish either prong of the test is fatal to an ineffective assistance of counsel claim, we are free to address Mother’s claims under either prong.” In re C.M.R., 2020 UT App

114, ¶ 19, 473 P.3d 184 (cleaned up). For the deficiency prong, Mother must demonstrate “that, considering the record as a whole, Counsel’s performance was objectively unreasonable.” In re R.G., 2023 UT App 114, ¶ 16, 537 P.3d 627. “In other words, Mother must show that . . . Counsel rendered a deficient performance in some demonstrable manner, and that Counsel’s performance fell below an objective standard of reasonable professional judgment.” In re C.M.R., 2020 UT App 114, ¶ 20 (cleaned up).

¶34 Here, Counsel had an easily discernable strategic reason to refrain from calling Mother’s therapist to report on her current mental health progress. The record indicates that the juvenile court made findings that Mother had been untruthful throughout the proceedings and was not taking her mental health treatment seriously. Specifically, the court found that Mother (1) had not “internalized her treatment”; (2) was not “truthful with [DCFS], her treatment providers, her parents, or the [c]ourt”; (3) did not disclose domestic violence incidents involving Father; (4) claimed that she “was fully engaging in her individual counseling and being honest with her therapist” while also admitting through her testimony that she was “not fully honest [with her therapist] about the extent of her contact” with Boyfriend; and (5) was “vague” in stating that she did not know if she was present when Boyfriend committed the robbery with the Children in the car. The court also stated that “[b]ecause of [Mother’s] dishonesty to the [c]ourt for nearly two years,” it had no way of knowing whether Mother was currently in contact with Boyfriend. And it concluded, “She has continued to violate [c]ourt orders, . . . and she continues to not understand the dangerous situation she puts [the Children] in when bringing people around them with violence and drug use problems.”

¶35 Knowing of Mother’s serious credibility problems— problems obviously well known to the court—Counsel had a sound strategic reason not to call her current therapist as a witness. Mother’s ongoing pattern of lying, not following court orders, and failing to internalize her therapy would have given Counsel little reason to suspect that anything had changed with respect to her behavior. Counsel might well have feared that calling her current therapist would have, at best, done nothing to help Mother’s case or, more likely, compounded the honesty concerns that already plagued her.

¶36 Moreover, Counsel would have legitimate concerns about what might be revealed on cross-examination. While limiting exposure of inconsistencies that would exacerbate Mother’s credibility issues might be possible on direct examination, Counsel would have no such control over the direction of questioning on cross-examination, where opposing counsel would certainly take the opportunity to highlight Mother’s already glaring credibility issues.

¶37 Because Counsel had a strategically reasonable basis for not calling the therapist as a witness, Mother’s ineffective assistance claim necessarily fails.

IV. Burden of Proof

¶38 Mother’s final assertion is that the juvenile court applied the incorrect standard for the post-adjudication hearing. More specifically, Mother argues that the court “applied the wrong standard by requiring proof” from Grandparents of what was necessary for the welfare of the children, see Utah Code § 78A-6357(4)(a), rather than considering the more demanding parentalpresumption standard. The parental presumption means that “where one party to [a custody dispute] is a nonparent, there is a presumption in favor of the natural parent, even if an ordinary best-interest inquiry would come out in favor of the nonparent.” In re A.T., 2020 UT App 50, ¶ 12, 464 P.3d 173 (cleaned up).

Parental Presumption

¶39 Mother was not entitled to the parental presumption. Our supreme court has expressly stated that “the parental presumption does not apply . . . to cases brought before the juvenile court on abuse, neglect, or dependency petitions. In such cases, the petition alone is sufficient to overcome the parental presumption for purposes of adjudicating the allegations in the petition.” In re K.F., 2009 UT 4, ¶ 69, 201 P.3d 985 (cleaned up); accord In re A.S.A., 2012 UT App 151, ¶ 3, 279 P.3d 419. And “in cases in which abuse, neglect, or dependency is established, the usual parental presumption that prevents the State (a nonparent) from intervening in parental decision-making no longer applies, and the State (supervised by the juvenile court) may take custody of children, even over their parents’ objections, and place them appropriately.” In re A.T., 2020 UT App 50, ¶ 14.

¶40 Here, not only had DCFS filed a petition alleging abuse, neglect, or dependency, but the juvenile court had actually adjudicated the Children as abused. This court long ago observed that “the legislature has determined, as evidenced by the statutory scheme, that in cases involving a petition alleging the abuse, neglect, or dependency of a child, the parental presumption does not apply. . . . The legislature has determined that abuse or neglect of a child at the hands of a parent, or dependency of a child, is incompatible with the presumption that the child is best served by being in the parent’s custody.” In re J.M.V., 958 P.2d 943, 948 (Utah Ct. App. 1998). Since the Children had been so “adjudicated and the court had continuing jurisdiction over them, it was also within the court’s dispositional authority to vest legal custody” in DCFS or in another appropriate person. See In re S.F., 2012 UT App 10, ¶ 44, 268 P.3d 831 (cleaned up); see also Utah Code § 80-3-405(1)– (2) (“Upon adjudication . . . , [t]he juvenile court may vest custody of an abused, neglected, or dependent minor in [DCFS] or any other appropriate person . . . .”). Thus, Mother’s parental presumption didn’t apply because the juvenile court exercised continuing jurisdiction over the Children after the adjudication, which allowed the court “to impose any of the dispositional choices available to it.” See In re M.J., 2011 UT App 398, ¶ 56, 266 P.3d 850; see also In re S.A., 2016 UT App 191, ¶ 6, 382 P.3d 642 (“The adjudication of a child as dependent, neglected, or abused forms the basis for juvenile court jurisdiction, thereby making all of the dispositional options . . . available to that court.”).

¶41 In sum, after the juvenile court’s adjudication pursuant to Mother’s entry of a rule 34(e) plea in response to the allegations of abuse, neglect, or dependency contained in the PSS petition, Mother was not entitled to invoke the parental presumption.

Burden of Proof

¶42 Even deprived of the parental presumption, Mother argues that the juvenile court held her “to a higher standard than required under the rules for her to modify a temporary order of custody,” thereby shifting the burden to her rather than keeping it with Grandparents. It appears that Mother is arguing that the juvenile court erred not in applying the wrong burden of proof to Grandparents—namely “by clear and convincing evidence”—but that it applied that same standard to her as well. But because Mother was not entitled to the parental presumption, the question becomes what standard of proof the juvenile court should have applied to Mother’s petition to modify or restore custody.

¶43 Mother’s petition to modify or restore custody was considered along with Grandparents’ petition for custody. The juvenile court recognized that modifications to custodial orders are generally “treated as disposition hearings and subject to the preponderance of the evidence standard.” However, because DCFS was no longer a party to this case at this point, the juvenile court determined that it was “more similar to a custody dispute between a parent and non-parent.” And given this circumstance, the court concluded that the dispute “should proceed at the clear and convincing standard of proof for all parties.”

¶44 It appears that the juvenile court applied the wrong standard of proof to Mother’s petition to modify or restore custody. Modifications of an interim order, which was the procedural situation here, are governed by rule 47 of the Utah Rules of Juvenile Procedure. See Utah R. Juv. P. 47(b)(2)–(3), (c) (providing the process for modification of prior dispositional orders). And the burden of proof employed in imposing “any of the dispositional choices” available to the juvenile court, In re M.J., 2011 UT App 398, ¶ 56, is the preponderance of the evidence standard, cf. Utah R. Juv. P. 41(c) (“[M]atters regarding child custody, support, and visitation certified by the district court to the juvenile court must be proved by a preponderance of the evidence . . . .”).

¶45 While Mother may be right that the clear and convincing standard should not have been applied to her petition to modify, she has made no showing that an application of the correct standard of proof—preponderance of the evidence—would have resulted in a better outcome. Thus, any error of the juvenile court as to the standard of proof has not been shown to have prejudiced Mother. Cf. In re L.B., 2015 UT App 21, ¶ 6, 343 P.3d 332 (per curiam) (“Harmless error is an error that is sufficiently inconsequential that there is no reasonable likelihood that it affected the outcome of the proceedings.” (cleaned up)); accord In re A.M., 2009 UT App 118, ¶ 21, 208 P.3d 1058.

¶46 First, Mother makes no showing that Grandparents failed to demonstrate that it was in the Children’s best interest to award them permanent custody and guardianship. Thus, the application of the wrong standard of proof—which was more rigorous in any case—was largely irrelevant to Grandparents’ ability to prove their case.

¶47 Moreover, the juvenile court entered extensive factual findings. Based on these findings, the court concluded that Mother had “not changed her circumstances,” making it unnecessary to conduct an examination of the Children’s best interests with regard to Mother’s petition to modify custody. Such an examination was unnecessary because a change of circumstance is necessary to restore custody to a parent whose legal custody has been transferred by the juvenile court. See Utah Code § 78A-6-357(3)(b) (“A parent or guardian may only petition the juvenile court [for restoration of custody] on the ground that a change of circumstances has occurred that requires modification or revocation in the best interest of the child or the public.”). Mother has not challenged the court’s finding that she has not changed her circumstances. Nor has she made any attempt to show how the court’s application of a less rigorous burden of proof would have made a difference in its determination that a consideration of the Children’s best interests was unnecessary given the lack of the change in circumstances.

¶48 Because Mother has not demonstrated how this alleged error regarding the increased burden of proof prejudiced her, this claim fails.

CONCLUSION

¶49 Mother’s challenge to the jurisdiction of the Utah juvenile court fails because the court’s jurisdiction commenced with the filing of the PSS petition, which resulted in limitations on Father’s parent-time and the continued jurisdiction of the juvenile court. Mother’s claim that the juvenile court violated the ICPC fails because she voluntarily sent the Children to live with Grandparents. Mother’s ineffective assistance claim falls short for lack of deficient performance. And the parental presumption was unavailable to Mother owing to the juvenile court’s jurisdiction over the Children, so Mother has not demonstrated prejudice on her burden-of-proof claim.

¶50      Affirmed.

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


[1] We limit our discussion to “those background facts necessary to resolve the issues on appeal.” Blosch v. Natixis Real Estate Cap., Inc., 2013 UT App 214, ¶ 2 n.2, 311 P.3d 1042 (cleaned up). And we recite the evidence in a light most favorable to the juvenile court’s findings. See In re adoption of B.H., 2020 UT 64, n.2, 474 P.3d 981.

[2] While courts and practitioners frequently refer to a petition for protective supervision services, see, e.g., In re M.J., 2011 UT App 398, ¶ 2, 266 P.3d 850; In re T.M., 2003 UT App 191, ¶ 2, 73 P.3d 959, the term does not formally exist in the juvenile code. Instead, Utah Code section 80-3-201(1) states that “any interested person may file an abuse, neglect, or dependency petition.” The PSS petition filed by DCFS in this case referenced section 78A-6-304, which has since been renumbered and amended as section 80-3201. See Act of Mar. 3, 2021, ch. 261, § 64, 2021 Utah Laws 1752, 1799–800.

[3] The court found that while Father had met the burden of proof showing a change in circumstances, a change of custody was nevertheless in the best interest of the Children.

[4] A custody determination is implicit in a petition asking a juvenile court for a finding of abuse, which is precisely what DCFS presented here. The statute does not require a talismanic invocation of the words “custody” or “parent-time,” because it is presumed that once a finding of abuse is reached, custody or parent-time will naturally be addressed. Indeed, section 80-3-405 states that the “juvenile court may vest custody of an abused, neglected, or dependent minor in [DCFS] or any other appropriate person.” See Utah Code § 80-3-405(1)–(2).

Moreover, that DCFS did not mention “custody” or “parent-time” in the PSS petition did not deprive the juvenile court of jurisdiction, because the petition is not where the issue (continued…) must arise for a proceeding to become a “[c]hild custody proceeding.” See id. § 78B-13-102(4). The statute merely says that a child custody proceeding “includes a proceeding for,” among other things, “neglect, abuse, dependency,” or “protection from domestic violence, in which the issue” of “legal custody, physical custody, or parent-time with respect to a child . . . . may appear.”

Id.

[5] Grandparents argue that this challenge is unpreserved, an assertion that has some merit. However, “if the merits of a claim can easily be resolved in favor of the party asserting that the claim was not preserved, we readily may opt to do so without addressing preservation.” State v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415 (cleaned up). “[B]ecause we can easily dispose of” Mother’s ICPC claim on its “merits, we choose to exercise our prerogative to simply assume that [it was] preserved and proceed to consideration of the merits.” Id.

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Why Get it Straight From the Horse’s Mouth When You Can Get a Truncated Version, Second-Hand?

When a custody evaluator and/or private guardian ad litem is/are appointed in a divorce case in which custody and parent-time of the children is disputed, they usually interview the children who are the subject of the custody and parent-time dispute and then make observations and recommendations regarding what the custody and parent-time awards should be based in part on those interviews.

But they never record their interviews with the children.

Instead, every custody evaluator (except one) that I know and every PGAL that I know wants us to believe (as opposed to knowing, based upon an objectively verifiable recording) that 1) they did in fact speak with the children; 2) what the custody evaluators and PGALs report second-hand and in summary fashion accurately reflects what was (and was not) asked of the children and what the children said (and did not say) in response; and 3) that the custody evaluator’s and PGAL’s assessment of the children’s credibility (assuming–not knowing–that the child were interviewed in the first place and that what the children allegedly said is in fact what the children said) is correct.

Such a policy is incongruous with the way any other witness account is presented to a court.

Courts claim they need to know the child’s “intent [whatever that means in the context of a child custody dispute] and desires.”

Yet the court goes out of its way to ensure that what we get from custody evaluators and/or PGALs not just second-hand accounts of the child’s purported statements, but summary second-hand accounts of the child’s purported statements.

Then, on the basis of the purported, second-hand summary accounts, the non-witness PGAL “makes a recommendation regarding the best interest of the minor” by ostensibly “disclos[ing] the factors that form the basis of the recommendation” when the purported factors have–not necessarily, but by design, no less–no objectively verifiable basis in the child’s testimony (because there is no testimony). Such a “take my un-recorded, unverifiable, second-hand word for it” process elevates faith over fact, and needlessly.

Yet by way of the court interviewing the child directly and on the record (or by having the child deposed in a fitting, appropriate setting, of course), the court could easily obtain objectively verifiable knowledge of not only the child’s “intent and desires” stated in the child’s own words but in the same way also obtain knowledge of the child’s relevant experiences, observations, feelings, opinions, and anything else the court may want to learn that bears on the child custody and parent-time award decisions.

Everyone who tries to justify the policy against child testimony does so by claiming that there is no equal or superior alternative. Such claims are without merit.

I would be cruel and unreasonable if I did not concede that a child should not be questioned on and for the record if it were proved (as reflected in particularized findings, not generalized views or preferences) that that particular child likely will (not merely could) be harmed by testifying to the extent that the value of the testimony does not outweigh the harm. In such a situation barring that child from testifying would be warranted.

But when avoiding the subject altogether is worse for the child than confronting it, question the child on the record–for the child’s sake. For the sake of the truth- and fact-finding processes. It is cruel and unreasonable to silence the child that way.

Many children are not only willing to testify to the facts bearing upon the child custody and parent-time awards, they want to testify to them. Even when it may be unpleasant to address the topics. Regardless of how eager children may be to testify, they have the greatest stake in the child custody and parent-time awards. They deserve to be heard from, and in their own words. Who would (who could, credibly) gainsay that?

And the notion that a judge or commissioner interviewing a child, or a child being questioned in a deposition (and the child could be deposed by the PGAL, if there were sufficient facts to support a conclusion that the child is in danger of suffering verifiable serious, irreparable harm were the child questioned by the parents’ respective attorneys) would inherently cause a child unjustifiable harm is self-evidently false.

First, I have personal experience with children testifying for the record in child custody and parent-time proceedings without incident. I (and others who have the same experience actually deposing a child) know that it is not inherently harmful to every child who is old enough to testify competently.

Second, children regularly testify in proceedings substantively indistinguishable from divorce/parentage child custody and parent-time proceedings (e.g., contested child abuse, neglect, or dependency cases, contested petitions for termination of parental rights cases, contested adoption and guardianship cases). This is proof that child testimony–though it may be frightening or saddening for some children–is not universally catastrophic for all (even most) children who are old enough to testify competently.

Thus, the assertion that judges, domestic relations commissioners, and lawyers cannot competently question a child in a divorce-based child-custody and parent-time dispute unless they are “specially trained as PGALs (especially when the ‘special training’ can be obtained in a matter of a few days’ time)” is invalid on its face. If one need not be “specially trained” to question a child in contested child abuse, neglect, or dependency cases, contested petitions for termination of parental rights cases, contested adoption and guardianship cases, one need not be “specially trained” as a PGAL to question a child competently and with due sensitivity.

My biggest worry (among many) about the way custody evaluations and PGAL appointments work in Utah is when custody evaluators and PGALs–who can by recording child interviews easily provide the parents and the court with an objective way of verifying whether the children were interviewed, how well or poorly they were interviewed, what they were asked (and not asked) and what they said (or did not say) in response–refuse to do so.

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

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Doing What’s Best for Children by Refusing to Hear From Them on the Subject (And Other Nonsense).

Recently an attorney posed a question on a forum for fellow Utah family law attorneys. The question involved how to find out what the children’s experiences have been with one of their parents (this parent was dealing with some personal demons) and what kind of contact they should have with that parent.

I responded on the forum that if this isn’t a scenario in which both the commissioner and the judge should be interviewing the children themselves, so that those who hold the fates of these children in their hands have the best possible idea what is going through these children’s minds at this time, what they have experienced, how they feel, what they desire, and whether those desires are in line with their best interests, then there is never an appropriate time for the court to interview children.

Who could gainsay that?

Many tried (and failed).

One attorney who responded to my suggestion commented that this would be the worst time for a judge or commissioner to interview the children but did not explain why. This attorney claimed that a private guardian ad litem (PGAL) should be appointed for, and to interview the children, instead. I asked for an explanation, and further commented by asking what ostensibly makes judges and commissioners so innately bad at interviewing children, and what makes PGALs innately so good at it? I don’t know where the myth of the angelic, “child whisperer” PGAL and the demonic, “couldn’t interview a child effectively if his/her life depended on it” judge dichotomy came from, but it’s nonsense.

Another attorney (like many who comment on this subject) commented that children should never be interviewed or even “exposed to the legal system unless absolutely necessary” without identifying a scenario in which it would be “absolutely necessary”. This attorney claimed that because minor children’s brains are developing that being interviewed by a judge or commissioner  “is incredibly damaging to the child.” In response to that comment I asked, “Where’s the evidence?”

The response I got was similar to what everyone says to me in response to that same question:

  • “every single child development book ever created, academic case studies, nonprofits that specialize in it, etc.” advises against judges or lawyers interviewing children.

o   This is false (which should come as no surprise when any speaks in those kinds of absolute terms), but it’s widely believed (or asserted as believed) in the family law profession.

  • “Commissioners and judges are not specifically educated in this area of law as those who practice it day are.”

o   But that argument erroneously presumes

  • that unless a judge, commissioner, or lawyer is “specifically educated” in how to talk to children about what they have experienced, how they feel, what they desire, and whether those desires are in line with their best interests, that judge, commissioner, or lawyer will inexorably make a mess of interviewing the child; and
  • that those who are (or are “certified” as) “specifically educated” in how to talk to children are incapable of being incompetent child interviewers.
  • When I responded with, “Well, if it’s so obvious and the research so voluminous and overwhelming, please cite it,” I got this in response: “You can do the research yourself.”

The legal system needs to stop believing that which is untested in the name of “protecting children.” It was widely accepted as fact in America that tomatoes were poisonous to humans. It was not until Robert Gibbon Johnson (no relation to me) ate a tomato on the courthouse steps of Salem, New Jersey in 1820 that he proved otherwise. Dispelling that myth has been a culinary and economical boon to the entire world.

I recently deposed a 14-year-old child in a parent time dispute case. She was not only willing to testify but was grateful for the opportunity to have her voice heard and her viewpoint considered. She was a particularly compelling and credible witness. The evidence she provided could not have come from any other source. After her deposition the case was resolved in a week.

The notion that any child testifying in any child custody or parent-time dispute case does terrible damage to any and every child is simply not true. I know this because I have deposed children to the benefit of child and truth seeking alike.

Blanket prohibitions on child testimony (on the grounds that they are nothing but harmful to all children) are not only false, they are also contrary to fundamental concepts of fact finding and subserving the best interest of the child.

I know that eliciting child testimony is not harmful to all children because I have real world data to the contrary. And not just someone else’s claims, but my own experience.

It has, unfortunately, become an article of faith in Utah family law practice that child testimony does more harm than good. That has not been my experience. I am one of the few attorneys in Utah who has that experience. It is therefore hard for me to give unverified claims the same weight as my own experience. I would be lying if I asserted that child testimony inexorably and/or irreparably harms most (let alone all) children. Blanket prohibitions on child testimony are antithetical to fundamental principles of our legal system, i.e., diligent investigation, careful, impartial analysis, real respect for children’s rights and best interests, and honest judgment.

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

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What Good Parents Need to Know About Child Custody Disputes with an Evil Parent

You hear and read on attorney websites stuff like, “Navigating child custody arrangements during divorce can be challenging.” That’s not the half of it. Child custody disputes with an evil parent are nastier and harder (and orders of magnitude more expensive) than most parents expect or can even imagine. I’m not exaggerating. I am really not exaggerating. Really, I am not exaggerating. Here are some crucial tips to consider for a smoother process.

  • If there is no valid child custody order issued by a court, the police cannot help you “enforce” your “child custody rights”. This is because you have no right to control what the other parent does with the children when it comes to exercising custody. The other parent can deny your requests to spend time with the children. He/she can even deny your requests to call the children on the phone or chat with them over video.

 

o   Even if there is a court order that clearly identifies the child custody and parent-time orders, it’s only as good as the will of the courts and the police to enforce it. Many police departments will either outright refuse to assist you in enforcing the order or will act as if “I can’t understand what the order means, so I can’t help you.”

  • Defend your reputation, your good name, and your parental fitness with everything you have.

o   Courts are afraid of making a mistake when they issue child custody and parent-time orders. Evil parents exploit this fear by accusing innocent, loving parents of terrible traits and acts, so that the court will “protect” the children from them by awarding custody to the other parent and/or restricting parent-time. Mere accusations—if they’re scary enough and skillfully spun—can be enough to force a court’s hand.

o   What kinds of accusations? Abuse! Abuse! Abuse! Physical abuse, sexual abuse, emotional abuse, and substance abuse are the most “successful”.

o   If you are accused wrongfully, defend yourself with everything you have. Point out the dearth of support for the allegations. If you can, get overwhelming amounts of proof in your favor. Live as perfect life as you possibly can. Be as perfect a parent as you can. Sure, it’s unfair unrealistic, but don’t expect the court to be sympathetic with you (especially if you’re a father). Don’t give the court any way to take the path of least resistance, to act “out of an abundance of caution,” or to indulge “better safe than sorry” thinking.

  • Document everything pertaining to the child custody and parent-time awards. Gather as much proof as you possibly can in support of your parental fitness, of your efforts to be there for your children, to spend time with them, to take care of them (feed them, bathe and clothe them, help with homework, play with them, exemplify good morals and values, etc.), so that the court cannot deny your requests without looking biased, ignorant, and/or incompetent.

o   Know what factors the court must consider when making the child custody and parent-time awards, then ensure you satisfy every single one of them beautifully (and if you cannot satisfy them all, explain why, and why that should not disqualify you from being awarded as much custody and parent-time as is in the best interest of the children

  • Here are the factors considered in Utah:
  • In a nutshell: the child’s needs and the parent’s ability to meet them
  • In total:

Utah Code § 30-3-10

–          evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the parent, or a household member of the parent;

–          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;

–          educational needs;

–          medical needs; and

–          any special needs;

–          the parent’s capacity and willingness to function as a parent, including:

–          parenting skills;

–          co-parenting skills, including:

(A) ability to appropriately communicate with the other parent;

(B) ability to encourage the sharing of love and affection; and

(C) willingness to allow frequent and continuous contact between the child and the other parent, except that, if the court determines that the parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration; and

–          ability to provide personal care rather than surrogate care;

–          in accordance with Subsection (10), the past conduct and demonstrated moral character of the parent;

–          the emotional stability of the parent;

–          the parent’s inability to function as a parent because of drug abuse, excessive drinking, or other causes;

–          whether the parent has intentionally exposed the child to pornography or material harmful to minors, as “material” and “harmful to minors” are defined in Section 76-10-1201;

–          the parent’s reasons for having relinquished custody or parent-time in the past;

–          duration and depth of desire for custody or parent-time;

–          the parent’s religious compatibility with the child;

–          the parent’s financial responsibility;

–          the child’s interaction and relationship with step-parents, extended family members of other individuals who may significantly affect the child’s best interests;

–          who has been the primary caretaker of the child;

–          previous parenting arrangements in which the child has been happy and well-adjusted in the home, school, and community;

–          the relative benefit of keeping siblings together;

–          the stated wishes and concerns of the child, taking into consideration the child’s cognitive ability and emotional maturity;

–          the relative strength of the child’s bond with the parent, meaning the depth, quality, and nature of the relationship between the parent and the child; and

–          any other factor the court finds relevant.

Utah Code § 30-3-10.2 (when seeking a joint custody award, and “joint custody” does not necessarily mean “equal time”; in Utah means that a parent exercises no less than 111 overnights with the children annually)

–          whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal custody or joint physical custody or both;

–          the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;

–          co-parenting skills, including:

–          ability to appropriately communicate with the other parent;

–          ability to encourage the sharing of love and affection; and

–          willingness to allow frequent and continuous contact between the child and the other parent, except that, if the court determines that the parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration; and

–          whether both parents participated in raising the child before the divorce;

–          the geographical proximity of the homes of the parents;

–          the preference of the child if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to joint legal custody or joint physical custody or both;

–          the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents;

–          the past and present ability of the parents to cooperate with each other and make decisions jointly; and

–          any other factor the court finds relevant.

 

Utah Code Section 30-3-34 (this is for determining parent-time, but the factors are equally relevant to the child custody award)

–          whether parent-time would endanger the child’s physical health or mental health, or significantly impair the child’s emotional development;

–          evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, a parent, or a household member of the parent;

–          the distance between the residency of the child and the noncustodial parent;

–          a credible allegation of child abuse has been made;

–          the lack of demonstrated parenting skills without safeguards to ensure the child’s well-being during parent-time;

–          the financial inability of the noncustodial parent to provide adequate food and shelter for the child during periods of parent-time;

–          the preference of the child if the court determines the child is of sufficient maturity;

–          the incarceration of the noncustodial parent in a county jail, secure youth corrections facility, or an adult corrections facility;

–          shared interests between the child and the noncustodial parent;

–          the involvement or lack of involvement of the noncustodial parent in the school, community, religious, or other related activities of the child;

–          the availability of the noncustodial parent to care for the child when the custodial parent is unavailable to do so because of work or other circumstances;

–          a substantial and chronic pattern of missing, canceling, or denying regularly scheduled parent-time;

–          the minimal duration of and lack of significant bonding in the parents’ relationship before the conception of the child;

–          the parent-time schedule of siblings;

–          the lack of reasonable alternatives to the needs of a nursing child; and

–          any other criteria the court determines relevant to the best interests of the child.

Utah Code Section 30-3-35.2 (when seeking an award of equal physical custody)

–          A court may order the equal parent-time schedule described in this section if the court determines that:

–          the equal parent-time schedule is in the child’s best interest;

–          each parent has been actively involved in the child’s life; and

–          each parent can effectively facilitate the equal parent-time schedule.

–          To determine whether each parent has been actively involved in the child’s life, the court shall consider:

–          each parent’s demonstrated responsibility in caring for the child;

–          each parent’s involvement in child care;

–          each parent’s presence or volunteer efforts in the child’s school and at extracurricular activities;

–          each parent’s assistance with the child’s homework;

–          each parent’s involvement in preparation of meals, bath time, and bedtime for the child;

–          each parent’s bond with the child; and

–          any other factor the court considers relevant.

–          To determine whether each parent can effectively facilitate the equal parent-time schedule, the court shall consider:

–          the geographic distance between the residence of each parent and the distance between each residence and the child’s school;

–          each parent’s ability to assist with the child’s after school care;

–          the health of the child and each parent, consistent with Subsection 30-3-10(6);

–          the flexibility of each parent’s employment or other schedule;

–          each parent’s ability to provide appropriate playtime with the child;

–          each parent’s history and ability to implement a flexible schedule for the child;

–          physical facilities of each parent’s residence; and

–          any other factor the court considers relevant.

o   Be a class act at all times in your dealings with the other parent, no matter how much mud is slung and no matter how uncooperative antagonistic the other parent is. All the goodwill you’ve built up over a lifetime can be discounted and dismissed in an instant with just one angry outburst (no matter how much the other parent had it coming)

o   You do not build yourself up as a parent by tearing or trying to tear the other parent down. Be as honestly complimentary of the other parent as you can. No, don’t deny serious defects and faults, but unless the other parent is truly a monster, don’t try to paint the other parent as one—it’s not only evil, but it can backfire.

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

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The Problem with Private Guardians ad Litem. Part 3 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)). Here is how I analyze the argument that PGALs state what they allege to be a child client’s intentions and/or desires:

  • If an attorney makes an argument pertaining to what the court’s child custody or parent-time orders should be, that argument must be based upon evidence duly admitted into the court record, or there is no evidence supporting the argument. An argument unsupported by the evidence in the record is basis for objection. An argument based upon speculation is basis for objection.

  • A recommendation made by a PGAL is an argument. The elements of a recommendation and an argument are the same. Without a basis of duly admitted evidence in the court record for support, a PGAL’s recommendation is without support.

  • Implicit in an argument are underlying facts cited to support the argument. A PGAL cannot argue that “this is the child’s desire” without citing evidence of the child’s desire. A PGAL who claims to know a child client’s intentions and desires to the court is, by definition, testifying, not arguing. To argue that we can discern a child’s intentions and/or desires from the evidence in the record still requires evidence in the record to which to cite in support of the argument. An argument cannot be a substitute for evidence. An argument is not an argument without evidentiary support.

  • If a PGAL bases his arguments to any degree upon his child client’s communication of the child’s intentions and desires (whether to the PGAL or to someone else), the child client must have first communicated his/her intentions and desires. If a PGAL then reports to the court those attorney-client communications on the subject of the client’s intentions, that is still either 1) hearsay or inferential hearsay or 2) the witness’s proffered testimony that entitles a party to cross-examine the witness at the very least.

  • If a PGAL claims to have discerned a client’s intentions and desires without having received express communication from the client as the client’s intentions and desires (such as, for example, not conversing or corresponding in writing, but instead monitoring the child’s communications with other people or observing the child’s behavior), then the PGAL would be acting as a witness.

  • If a PGAL is the attorney for a party to the case, then the PGAL does not get to testify for the client. And if the PGAL proffers a client’s testimony, then that testimony is subject to cross-examination.

  • A PGAL cannot “argue what my client wants” without there being some evidence that what the PGAL asserted “the client wants” is, in fact, what the clients want. With parties that’s fairly easy because they will have filed a pleading stating what they want. If there is any question as to whether the pleadings are not those of the party, then the party can either indicate that spontaneously or be asked to verify or deny it. With child clients of PGAL there are rarely, if ever, pleadings filed with the court(as the term is properly defined, i.e., a formal statement of a cause of action, not as the term is carelessly thrown around to mean documents filed with the court) by the children through their counsel. Even if the PGAL had somehow filed pleadings in the action AND the court recognized the children as parties to the action, their PGAL attorney cannot testify for them.

 

  • Advocacy of a PGAL client’s desires requires evidence of the child client’s desires. Evidence of the child client’s desires requires a record that the child expressed/articulated those desires; otherwise, we would find ourselves in a situation where the PGAL could literally fabricate “argument” on the basis of nonexistent evidence and get away with it clean. That is clearly not how the law and the rules of evidence apply.

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

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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 | divorceutah.com | 801-466-9277

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The Problem with Private Guardians ad Litem. Part 1 of 3

Utah Code § 78A-2-705 provides that, “The court may appoint an attorney as a private attorney guardian ad litem to represent the best interests of the minor in any district court action when: child abuse, child sexual abuse, or neglect is alleged in any proceeding, and the court has made a finding that an adult party is not indigent as determined under Section 78B-22-202; or the custody of, or parent-time with, a child is at issue.

What is a guardian ad litem? According to Black’s Law Dictionary, a guardian ad litem is a lawyer, appointed by the court to appear in a lawsuit on behalf of an incompetent adult or on behalf of a minor child party. At first blush, the concept of a guardian ad litem sounds pretty good, right? Unfortunately, the way private guardians ad litem (known as PGALs, for short) are utilized in Utah’s courts in child custody disputes is simply wrongheaded and contrary to the fundamental principles of fact finding, due process of law, and justice itself.

Given that children have the greatest stake in the custody and parent-time awards, I cannot see how any competent jurist could justify barring a sufficiently (sufficiently, not excessively) competent, intelligent, mature, and credible minor child witness (especially, but not exclusively, a child who wants to testify) from testifying on those subjects.

PGALs are not appointed for the purpose of ensuring a child never testifies on/for the record in his/her own words, yet that is what many GALs/PGALs believe (and they act accordingly). I’ve encountered PGALs and judges who object to children who want to testify–not because the children are incompetent or incredible or in serious danger if they testify, but “as a matter of general principle” (whatever that means).

PGALs are not witnesses (expert or otherwise). PGALs cannot testify, but most PGALs I know believe they can testify, nonetheless. Most PGALs I know believe that they are an exception to the hearsay rule. Most PGALs I know believe that one of the purposes of their appointment is ensuring a child’s own, unfiltered, un-summarized, direct, on the record testimony is never heard. This is wrong. PGALs claim that one of their roles is to prevent the child from getting involved in the case. This is wrong too.

Every witness (child or otherwise) is inherently involved to some degree or another in the case in which the witness testifies. Most witnesses (even party witnesses) are reluctant witnesses. It has been my experience that, as a lazy, disingenuous way to prevent any child of any age from testifying for the record, those who oppose child testimony define “harm’s a child” as synonymous with “child is reluctant” or “child might be reluctant” or “the child’s testimony could upset a parent and the parent might retaliate against the child” or “simply having to contemplate the subjects raised in the course of testifying is asking too much of any child.” These lazy, disingenuous people equate any and all testifying from the mouth of the child on the record with inherently causing the child harm.

I could easily identify a dozen Utah attorneys who, with a straight face, will unqualifiedly agree with the statement, “Any child who testifies directly on the record on the subject of the custody or parent-time awards that will apply to him/her is unduly harmed by his/her testifying.” It’s a fatuously overbroad contention and they know (or should know) it, but it’s not about coming up with sincere, good-faith opposition to child testimony, it’s about contriving what is labeled an excuse (plausible or otherwise) to prevent child testimony.

Another “reason” for banning on/for the record child testimony that a child’s preferences and desires do not control the custody and parent-time awards. That’s embarrassingly disingenuous. I am aware of no one ever arguing, “Once the child has testified for the record, the court is inexorably bound to award custody and parent-time as the child wants,” yet I have seen many memoranda that argue against child testimony on the “grounds” that a child should not testify because “the [child’s] expressed desires [regarding future custody or parent-time schedules] are not controlling.” (see Utah Code Section 30-3-10(5)(b)(i)).

It is not my purpose, in seeking the testimony of children on subjects relevant to the custody and parent-time awards, to harm those children. By the same token, unless child testimony is honestly found to be unduly harmful to a child, then a child should not be prevented from testifying simply because someone can think of any kind of harm–no matter how slight–that testifying might cause the child.

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Why Do Utah Courts Not Allow Child Testimony?

I had lunch today with a former legal assistant of mine who is now a law student in Arizona. Over the summer he shadowed judges in Maricopa County during their family court rotations.

He told me that in Arizona the courts permit children over the age of 10 years to testify in child custody proceedings.

Are the Arizona courts administered by fools and sadists?

Or could it be that the Utah district courts’ near-universal aversion to any and all forms of on the record child testimony in child custody proceedings is a case of misplaced priorities?

Could it be that the way Utah courts use appointments of guardians ad litem and/or custody evaluators for the ostensible purpose of “speaking for” competent witness minor children

  • is a sophomoric euphemism for good old fashioned hearsay?
  • ironically results in silencing the most percipient witnesses (regarding issues in which they have the greatest stake)?

Could it be that GAL “reports” and “recommendations” that are based upon purported interviews with the minor child (when there is no objectively verifiable record of whether the interviews even took place, to say nothing of what was and was not asked and answered in the course of the alleged interview) are not fact or expert witness testimony (see State ex rel. A.D., ¶¶ 6 and 7, 6 P.3d 1137, 2000 UT App 216) and thus inherently not evidence?

Could it be that custody evaluator “expert testimony” and “recommendations” based upon purported interviews with the minor child (when there is no objectively verifiable record of whether the interviews even took place, to say nothing of what was and was not asked and answered in the course of the alleged interview) inherently can’t qualify as expert testimony (URE Rule 702 (Rules of Evidence))?

Special masters, parent coordinators, and the infantilization of parents

Special masters and parent coordinators (and co-parenting therapists, co-parent coaches/consultants, and their ilk) were invented for the purpose of unburdening courts from some of the conflict associated with domestic relations litigation. They fail to fulfill their purpose. They do not provide value for the money they charge. The parent(s) end up wasting money on a special master, parent coordinator, etc. while the disputes either persist or get worse (and sometimes it’s the involvement of the special master and parent coordinators who are to blame, either in full or in part). Besides, for most litigants a special master, parent coordinator, etc. is an expense they cannot (or should not) financially bear.

The idea that divorced parents need more than the laws currently on the books, the (lawful) orders in their divorce and child custody decrees, and the sensible use of law enforcement officers when warranted is to infantilize divorced and separated parents.

In the overwhelming majority of cases, anyone trying to sell you on a special master, parent coordinators, co-parenting therapist, co-parent coach, consultants, blah, blah, blah is either someone who offers such “services” and who is trying to sell them to you or a is a court trying to take the dispute out its lap and place it in someone else’s.

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Pgals (Private Guardians Ad Litem) Are a Bad Idea.

Why?

You’ll hear the argument that a PGAL should be appointed for a child because we don’t want to traumatize children by having them testify on the record. Where is the evidence that a child testifying for the record so traumatizing to the child as to be unthinkable, causes irreparable damage, or that the value of the testimony is outweighed by the adverse effects on the child?

You’ll hear the argument that a judge is not qualified to question children. Oddly, you’ll hear that argument from the judge. And the argument is patent nonsense. Judges are authorized by the Utah Code to interview children. The Utah Code permits children to testify if and when they testify voluntarily. Does that come as any surprise?

You’ll hear the argument that what a child may say when questioned may go beyond scope of what is relevant. OK, that’s certainly possible, but it’s hardly unusual for a witness, adult or child, to testify beyond the scope of the examination. That’s been happening (and will continue to happen) with witnesses for centuries. When that happens with a child witness, objections are raised, the witness is instructed to stay within the scope of examination, we get back on track, and we move on. To suggest that children must not be questioned because they may ramble or talk about irrelevant things is silly.

You’ll hear the argument that the best way to ensure that a child’s voice is heard is by having someone else speak for the child (in the form of a PGAL). That argument is invalid on its face.

You’ll hear the argument that a PGAL has access to evidence and facts that the parties and/or court don’t. But that’s simply not true.

You’ll hear the argument that a PGAL can make arguments on behalf of a child in court. OK, sure, but why would that be a reason to prevent the child client from testifying for himself too? So that his/her testimony is known for the record unfiltered, complete, and unadulterated?  We don’t bar other people who are represented by attorneys from testifying.

You’ll hear the argument that a PGAL is a “trusted adult,” someone a child can talk to. But a judge isn’t a trusted adult a child can talk to?

You’ll hear the argument that a judge won’t hear from therapists or other collateral contacts while a PGAL will, but that’s simply not true. The bottom line is that PGALs are being appointed to prevent a child’s testimony from being obtained for the record, from being known for the record, to prevent that child’s testimony from being evidence on the record in the case, and thus to prevent that evidence from influencing the decision of the court. That’s indefensible.

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

2023 UT App 3

THE UTAH COURT OF APPEALS

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

A PERSON UNDER EIGHTEEN YEARS OF AGE.

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

Opinion

No. 20210921-CA

Filed January 20, 2023

Third District Juvenile Court, Salt Lake Department

The Honorable Annette Jan No. 1198329

D.E., Appellant Pro Se

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

Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

Julie J. Nelson, Debra M. Nelson, Alexandra

Mareschal, and Kirstin Norman, Attorneys for

Amicus Curiae Utah Indigent Appellate Defense Division

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

HARRIS, Judge:

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

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

BACKGROUND[1]

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

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

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

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

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

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

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

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

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

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

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

ISSUES AND STANDARDS OF REVIEW

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

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

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

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

ANALYSIS

I. Jurisdiction

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

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

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

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

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

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

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

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

II. The Merits of Father’s Appeal

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

A

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

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

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

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

B

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CONCLUSION

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

 

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

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

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

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

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

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

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Is appointing a guardian ad litem helpful in custody cases?

Is appointing a guardian ad litem a positive tool to help with custody cases? 

[I will respond to your question based upon my experience with guardians ad litem in Utah, where I practice divorce and family law. Each jurisdiction will have a different system governing the appointment, use, and powers of a guardian ad litem, so understand that in reading my response.] 

In my professional opinion, rarely. 

It is not worth the risk, in my experience. There is too much of a chance of the GAL being more of a detriment than benefit to anyone. What do I mean? 

Nobody and no thing is perfect, but as long as you meet certain minimal, essential standards, you’ll stay out of jail and stay employed. As long as institutions meet certain minimal, essential standards will do and continue to do more good than harm.  

But there are many things that sound good in concept, yet just clearly don’t work well in practice. The guardian ad litem (GAL) is such a thing.  

So why do GAL programs still exist? Why are GAL’s appointed so frequently still? Two big reasons stand out in my mind: 

1) In my experience, courts like appointing GAL’s to relieve themselves of some of the fact-finding burdens. That’s not an inherently bad idea, if a GAL could be counted on to bear those fact-finding burdens competently. But they usually don’t. 

and  

2) The idea of a child having his/her own attorney to “stand in the child’s shoes” and “give the child a voice” sounds noble, perhaps even crucial. And I am sure that if one looked hard enough, one could find a GAL who accomplishes such objectives. In my experience, however, GAL’s are too afraid and/or apathetic to do their jobs well and are incentivized (or dis-incentivized, as the case may be) by the legal system to do minimal, mediocre work yielding equivocal results that keep the GAL out of hot water. And that’s the best I can say about GALs. Worse, most GAL’s are among the least competent attorneys and are often motivated by self interest to recommend what they subjectively want done, as opposed to where the evidence points. In my experience, the GALs don’t perform with due diligence or provide insightful, impartial analysis. Instead, they base their ostensible findings and recommendations upon personal biases, agendas, and lazy (but safe-sounding) assumptions. I find many (not all, but many) GALs to be extremely petty and judgmental. Be or do something irrelevant, but that the GAL disapproves of (like holding certain political, religious, or other views contrary to those of the GAL), and don’t be surprised if the GAL’s recommendations aren’t in your favor, regardless of the actual factual and legal merits of your case. 

——— 

When a proposal is made to appoint a GAL, I oppose it. There are far better, far more reliable, less time-consuming, and less expensive ways to obtain accurate, useful information that a GAL is intended to produce, but rarely, if ever, does produce. There is no need to appoint a third party to “give the child a voice,” when the child can speak for himself/herself. If the child is too young to talk or to testify competently, there is little that a GAL could provide of any substantive value anyway. 

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

https://www.quora.com/Is-appointing-a-guardian-ad-litem-a-positive-tool-to-help-with-custody-cases/answer/Eric-Johnson-311  

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I’m a child whose parents are divorcing and fighting over custody. What can I do?

I’m 15, about to be 16, and my parents are getting a divorce. My father has full custody, but he doesn’t want to take me to court to present my case that I want to see my mother. What can I do?  

“What can I do?” 

This is the perfect question in your situation, or more accurately, the perfect question to start the conversation. And before I give you the lengthier explanation, the short answer is: not much, unless you’re willing to take a lot of heat in your effort to have an influence over your own custody and parent time award (and even then, you may find your efforts utterly thwarted). 

I cannot speak for all jurisdictions, but I can talk about my experience in the jurisdiction of Utah, where I have some experience with the question of children having their experiences, observations, opinions, and desires both made known to the court and duly considered by the court before the court makes its child custody and parent time rulings.  

If you fear that the court may make a child custody and/or parent time award that is contrary to, if not diametrically opposed to, what is best for you individually and even best for the family collectively (the best interest of the whole family is a consideration courts too often overlook), you have good reason for such fear. 

Generally speaking, Utah courts hate involving children directly in child custody litigation and will go to extraordinary lengths to prevent it.*  

It wasn’t always this way.  

As late as the mid-1960s, the law in Utah was that if a child were over the age of 10 years and found to be of sound mind, the child had not just the right to express the child’s opinion as to the custody award, the child had an absolute right to choose.  

Just slightly less than 60 years later, just the opposite is now the case. Children are not allowed to choose the custody and parent time award, they’re not even allowed to weigh in on the subject on the record, unless the court permits them to do so. And courts rarely, if ever, allow children to testify on the subject of their desires regarding the child custody and parent time awards. How rarely? In 25 years of practice, I’ve been permitted to allow one child to testify on the subject.  

Oftentimes the court may order a “custody evaluator” appointed to speak to the child and then make recommendations to the court as to what the evaluator believes is the best custody award for the child. The court can also appoint, either separately from a custody evaluator or along with the appointment of a custody evaluator, a guardian ad litem ostensibly “for” the child.  

Custody evaluators and/or guardians ad litem are intended to speak with child, learn of the child’s current circumstances and determine what the child needs by way of the custody and parent time awards, and then make recommendations to the court regarding the custody and parent time awards that best serve the “best interest of the child” (whatever that means). 

Child custody evaluators and guardians ad litem are hardly infallible. I find most (not all) to be narrowminded and lax in their professional discipline and competence. Many of them have their own biases and agendas that lead to recommendations being in some cases diametrically opposed to a fair and reasonable custody and parent time award that the child wants or even needs. Many lack the courage to recommend what they honestly believe is best for the child, and instead make recommendations that don’t buck the legal culture’s conventional wisdom. 

I’m not telling you that this is what you should do, but I’ll tell you what I would do if I were a 16-year-old child whose parents were involved in a divorce action and the fight over the child custody award, and I wasn’t afraid to speak up for myself, even if my parent(s) and/or the court was upset about me speaking up for myself and expressing my own experiences, opinions, and desires: 

I would insist, if a guardian ad litem and/or custody evaluator were appointed ostensibly “for” me, that all interviews with me be recorded by sound and visual means (in other words, both audio and video recorded), so that if the evaluator and/or guardian ad litem tried to misrepresent what I was asked and or what I stated in response, there would be an objectively verifiable, indisputable record. 

I would make sure, in the course of the interviews with the guardian ad litem, that I make it clear that I wish to have my testimony heard by the court, from my mouth to the judge’s ear, with nothing interfering. No summary prepared by a third party in lieu of my direct testimony, no “proffer” of what I “would say” if called to testify. 

If I were not absolutely certain that the judge reviewed my own words, whether that be in the form of the recorded interviews, a deposition, in-court testimony on the record, or my own sworn affidavits or verified declarations (and by the way, I would try not to rely on affidavits or declarations because a court could easily claim that I didn’t write the words on the pages and thus dismiss the averments in the affidavits and/or declarations as not credible), I would hire my own attorney to take matters into my own hands and to help me to protect in advance my own interests in the child custody and parent time dispute. 

If my guardian ad litem did not do exactly as I directed my guardian ad litem to do, I would retain my own lawyer of my own choosing (it may be hard to find one who is willing to represent you, but if you are persistent, you will find one—I am such an attorney, and I’ve caught plenty of flak/flack for being such an attorney, but that hasn’t changed my willingness to represent a child in this kind of situation). Then I would have my lawyer notify the court that my guardian ad litem was not acting in my best interest and misrepresenting my interests and my positions and my desires to the court, which is why I have had to resort to retaining my own choice of counsel to do the job that my guardian ad litem has failed and/or refused to do. 

I would then have my attorney file motions and my affidavits (both from me and others who know me well) with the court explaining that because I am the very subject of the child custody and parent time disputes and the eventual child custody and parent time awards, because I am the one who will be most and most seriously affected by the child custody and parent time awards, my opinions and desires on the subject of child custody and parent time, my testimony (more accurately, my direct testimony itself, not adulterated or filtered through intermediaries like guardians ad litem and/or child custody evaluators). I would need to be prepared to have my intellect, lucidity, maturity, and the purity of my motives questioned because of my “audacity” shown by wanting to weigh in on my own child custody and parent time fate.  

—————————— 

*In fairness, there is at least one legitimate basis for this, and that is a concern that having children discuss matters of child custody and parent time and testify on the subject might make the children feel as though they are having to “choose sides” in the child custody and parent time dispute, and that this could emotionally and/or psychologically cause the child serious, if not irreparable, emotional and psychological harm. The problems with this line of thinking ruling the day include: 

  • while it is laudable to desire that a child be protected from harm, it does no good to expose a child to one kind of harm in an effort to protect the child from a different kind of harm. Look at it this way: Which is better? Remaining willfully ignorant of the evidence the child might provide (for fear that inquiring with the child might— might—harm the child), or inquiring with the child to see what useful evidence, if any, that child has to offer? Clearly, if there is sufficient evidence to conclude that of parent or parents will punish or retaliate against the child (and do so in a manner against which the court cannot protect the child) if that child provides his/her honest and complete observations, experiences, and preferences, it may be best for the sake of the child and for the sake of the evidence not to inquire of the child. Otherwise, it strikes me as malfeasance not to inquire directly with the child to gain what could be (and almost surely will be) some of the most material, relevant, compelling evidence on the subject of the child custody and parent time awards. a blanket ban on inquiring with the child, implemented ostensibly for the purpose of “helping” or “protecting” children is a wolf of a copout in sheep’s clothing. 
  • too often court’s give children too little credit for their abilities to express their experiences, observations, desires and preferences without those preferences being based in pure “loyalty” to one parent and pure “rejection” of another parent. Clearly, if the evidence honestly preponderates toward finding that a child has been unduly influenced (through coercion or enticement or both), the child’s opinions have been tainted to the point of being worthless from an evidential standpoint, but not everything a child says is inherently worthless simply because a child said it, yet that is exactly how many courts view and treat a child’s testimony, any child testimony, every child’s testimony, regardless of how honest, old, intelligent, mature, and rational that child may be. 

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

https://www.quora.com/I-m-15-about-to-be-16-and-my-parents-are-getting-a-divorce-My-father-has-full-custody-but-he-doesnt-want-to-take-me-to-court-to-present-my-case-that-I-want-to-see-my-mother-What-can-I-do/answer/Eric-Johnson-311?prompt_topic_bio=1

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Why is it OK for a parent to be given custody without their kids’ consent?

Why is it okay for a parent to be given custody without their kids consent or at least their input? This is a great question. I can’t speak for all lawyers, and the laws and rules governing what the courts must and can consider when making child custody awards differs slightly from jurisdiction to jurisdiction, but in the jurisdiction where I practice divorce and child custody law (Utah), there is a general policy that you can’t find written down anywhere but is nevertheless pervasive, and that is: courts will not talk to children in child custody cases if there is any way they can come up with a plausible excuse.

Do not misunderstand me. Courts can interview children on the subject of child custody and solicit the children’s experiences, observations, opinions, and preferences regarding the child custody award, although a child’s desires are “not the single controlling factor” governing the eventual child custody award (See Utah Code Section 30–3–10(5)(ii)). It’s just that most Utah courts, for reasons they’ve never credibly or logically explained to me, just don’t want to do it. Instead, they contract out the interviewing process to what are known as “custody evaluators” and/or “guardians ad litem”. You may ask, “So what’s the harm in that?”

In Utah, interviews between the children and custody evaluators and/or guardians ad litem are not on the record. Thus, we will never know what the children on what subjects the children were interviewed over or even if the children were interviewed at all. neither will we know what questions were asked, the manner in which they were asked, and the content and tone of the children’s responses, if any. Curiously, we don’t treat any other witness this way, but for some reason courts are more than happy to believe or say they believe that a custody evaluator and/or guardian ad litem would lie about a child interview or bungle a child interview.

when a judge interviews the child, not only do you have direct, unfiltered testimony in response to questions that the judge himself or herself deems most important to the child custody and parent time award analysis, that it takes less time, far less time than having a custody evaluator and/or guardian ad litem appointed to do the job. And it’s free of charge to have the judge interview the children, as opposed to costing thousands of dollars to pay for the services of a guardian ad litem, and even costing in excess of $10,000 to pay for the services of a custody evaluator. the value of what guardians ad litem and custody evaluators provide for the money just isn’t there when compared to no cost for a judge to interview the children directly and on the record. For some reason courts are more than happy to believe or say that they believe that it is just as good or better to have a child interview summarize and filtered through a custody evaluator or guardian ad litem then it would be to have the child speak directly to the judge, answering questions most pertinent and relevant in the judge’s opinion, and on the record. If you can explain how that makes any sense, please drop me a line.

Now clearly, some children would be too young to express a credible opinion or desire regarding child custody, are too young to know what they want, so young that they are easily manipulated, coachable, intimidated, or coerced. in those situations, it may make all the sense in the world to have a mental health professional observe the child to provide the court with some guidance as to

what custody and parent time arrangement serve the best interest of the child. but if a child is older than 10 years of age, there’s no harm in having the judge speak to that child to take the measure of the child, the child’s level of maturity and intelligence, and solicit information from that child’s experience to help guide the court in making the child custody and parent time awards. This is simply inarguable. And yet it remains virtually impossible to get a court to interview children directly and on the record. That doesn’t mean you shouldn’t try. That doesn’t mean you shouldn’t ask the court to interview the children on the record, just don’t be surprised if you get inexplicable resistance to such a sensible idea, both from the court and from opposing counsel.

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

https://www.quora.com/Why-is-it-okay-for-a-parent-to-be-given-custody-without-their-kids-consent/answer/Eric-Johnson-311?prompt_topic_bio=1

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Recent thoughts about family law

Recent thoughts about family law

I’ve been prompted recently to express my thoughts and opinions about the judiciary generally in the family law context. Here are a few thoughts I feel are worth sharing:

– Too often litigants and attorneys are afraid to present certain arguments and evidence and proposals for fear that merely raising fair-game topics, much less trying to advance them within the bounds of the law and procedure, will anger and/or offend the court to their detriment.

– Judges and commissioners deciding family law cases must be far more about the law and the facts dictating their decisions and much less about subjectively picking winners and losers.

– Judges and commissioners deciding family law cases must be far more about the law and the facts dictating their decisions and much less about indulging personal biases and subjectively picking winners and losers.

– Judges and commissioners rely on/pass the buck to GALs and custody evaluators far, far too much instead of interviewing children themselves and/or permitting children to testify. Just because this can be said of every district court* (as opposed to juvenile court) in Utah does not make universal failure/refusal right.

*If there is a judge or commissioner in Utah who will/does interview children in child custody cases to avoid the obscene expense, delays, and lack of record suffered by imposing a GAL or custody evaluator on the parties and children, I do not know of any such judge or commissioner. I get told frequently by many judges and commissioners who refuse to interview children something along the lines of, “I am not afraid/unwilling to interview children, I just [insert pretextual/lame excuse here],” and there are many judges and commissioners who tell me that it is their personal policy not to interview children under virtually any and all circumstances.

There are judges and commissioners everywhere, not just Utah, who act a law unto themselves. Always? No. But any time is too often, and there are times when I’ve witnessed this more times than can be written off to mere honest mistakes. Whether a judge or commissioner knowingly acts this way, ignorantly acts this way, or both, it is inexcusable.

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GALs/custody evaluators waste money/time compared to judge interview

GALs and custody evaluators waste too much money and time, and can never provide the same accuracy as a judge’s direct interview of the child.

This post is the fifteenth in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.

The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.

Even if guardians ad litem and custody evaluators always tell the truth (and there’s no way for us to know that, especially when they are not required to back their claims with independently verifiable evidence), how would that have any impact on whether children tell the truth to guardians ad litem and/or to custody evaluators? And is there any proof that children would lie more or less to judges than to guardians ad litem and/or custody evaluators? If so, I’m not aware of any such proof. It would be a cheap shot to call my critiques of the use of guardians ad litem and custody evaluators as being “skeptical” of their use when there is no basis for presuming that the use of guardians ad litem and/or custody evaluators is an obvious good or obviously better than having the judge speak directly to the children. Guardians ad litem and custody evaluators are way too expensive, waste too much time, and can never provide the same degree of accuracy as a judge’s interview directly with the child. That’s indisputable. Those who try to claim otherwise usually do so by relying on fallacious ad hominem and appeals to authority arguments, as well as outright lies.

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

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I’ve never seen a GAL or custody evaluator add value equal to the fees they charge

I’ve never seen a GAL or custody evaluator add value equal to the fees they charge

This post is the fourteenth in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.

The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.

I’ve never seen a guardian ad litem or custody evaluator add value to the child custody analysis that is equal to what the GAL and/or custody evaluator charged in fees, and here is why:

First and most glaring of all, there is no way to know if the guardian ad litem has done anything (let alone done anything well or poorly) because the guardian ad litem does not have to make a record and is not subject to discovery. The guardian ad litem could literally do nothing and lie through his or her teeth to the court and there is be no way discover and expose it except by dumb luck. Custody evaluators, as opposed to guardians ad litem, can be subject to some discovery, but rarely is a custody evaluator willing to part with his or her file contents in response to a discovery request. It is often very difficult to get a custody evaluator to comply with the discovery request, if a discovery request is made.

Back to the problems of guardians ad litem specifically. Because the guardian ad litem is not required to furnish the court with any proof in support of any alleged facts that underlie the GAL’s assertions and recommendations, the guardian ad litem’s assertions, analysis, and recommendations literally have the same evidentiary value as any other person’s bald claims.

If there are devoted guardians ad litem out there becoming intimately and accurately acquainted with their child clients’ circumstances and feelings AND providing verifiably accurate and credible factual information to the court, as well as sound analysis based upon and citing to such evidence, I have yet to witness that personally. If anyone viewing this has had a different experience that can be documented and verified, I plead with you to share it with me. I must warn you: even if you were to produce such of guardian ad litem, I would ask whether what the guardian ad litem charged for such a thing justify the expense when the child could have been interviewed directly by the judge instead.

Third, even if we were to grant that a guardian ad litem somehow furnished accurate evidence and analysis—without the basis of that evidence and analysis being subject to discovery and verification and without having to make a record of what the children are asked and what they say in response—the amount and quality of such evidence and analysis still does not justify the time and money consumed by the appointment of a guardian ad litem compared to the much lower cost, much shorter consumption of time, and greater accuracy of a judge’s on the record interview of the child.

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

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GAL recommendations are nowhere close to being the best way

GAL recommendations are nowhere close to being the best way to determining the child’s best interest.

This post is the thirteenth in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.

The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.

If a guardian ad litem claims to tell the court what a child said, that violates the rule against hearsay and violates the privilege against disclosure of attorney client communications.

When I point out to the court a guardian ad litem’s attempts to proffer hearsay statements, I am either ignored or told that there is a special exception for guardians ad litem (which is not true). When I try to invoke Utah rule of evidence 806 to cross examine a child on the hearsay statements (to determine whether what the child is alleged to have said is actually what the child said), I’m either giving an emperor’s new clothes kind of denial or just ignored. Now you understand that if the judge would question the child directly, there would be little to no need to cross-examine the child in the first place (if the judge questioned the children well, for example). Likewise, if a judge would question a child directly there would rarely, if ever, be a need to appoint a guardian ad litem or custody evaluator for the child’s benefit either. I do not understand why we have guardians ad litem or custody evaluators serve the purpose of “giving the child a voice” when the child has his or her own voice and is perfectly capable of using it, especially in articulating and attempting to advance the child’s own best interest by speaking directly with the court as to the child’s experiences, observations, ceilings, concerns, opinions and desires, without the child’s words being parsed or filtered or misconstrued by second and third hand intermediaries.

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

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How useful are a GAL’s or custody evaluator’s recommendations?

How useful are a GAL’s or custody evaluator’s recommendations?  

This post is the twelfth in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.  

The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides. 

Then there’s the nature and quality of the guardian ad litem’s and/or custody evaluator’s recommendations. They are never, never detailed or presented in a manner that subjects them to independent objective verification.  The guardian ad litem makes a recommendation to the court the guardians recommendations are cursory and vague. Things like, “I’ve spoken to my client and he is scared of his father.” While a custody evaluator’s recommendations may include more background information and supporting detail, as I stated previously, the problem with custody evaluator recommendations is that I’ve had more than one custody evaluator confided to me that they are afraid to give their frank assessments and opinions because they fear being reported to their licensing boards and/or being sued if they happen to make recommendations adverse to a parent. So, custody evaluators also end up giving vague, equivocal, and less than completely forthright analyses and recommendations. 

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

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What’s the benefit of having no record of the child’s interview?

What’s the benefit of having no record of the child’s interview?

This post is the eleventh in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.

The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.

Even if private guardians ad litem work diligently and find a lot of useful information, there is no way to know that because they are not required to furnish any proof to verify the quality of their work and opinions. And so, when guardians ad litem say that they don’t tell us much, if anything, about what the child said, and refuse to provide of the evidence upon which they base their recommendations, but instead merely make a recommendation as to what is in the child’s best interest, the evidentiary basis for those recommendations, the factual basis in the record, is literally non-existent. What verifiable proof of anything pertaining to a child’s best interest when it comes to custody and parent time does a GAL bring to the table? Literally nothing.

Why should we take the unsubstantiated word of the GAL over the word of the child directly stated to the judge in an on the record interview with the judge? I do not see how a GAL can represent a child when there is no way to tell whether the GAL has done good/adequate/preponderance of evidence work or any work at all. The GAL’s work and the child’s interview(s) are not made on the record, so we have no idea what was asked of the child or what the child said in response. The GAL is not subject to discovery, so any ostensible evidence upon which the GAL claims to have based her analysis and recommendations will not exist as a matter of court record. The court literally takes on faith what the GAL recommends, if the court decides to believe anything the GAL says. I ask you: why I go through any of this rigmarole when the judge can interview the children directly, without any second or third hand intermediaries, far more quickly, accurately, particularly, and inexpensively than a GAL or custody evaluator?

I have never witnessed a private guardian ad litem meet or speak with the children for multiple times or for significant periods of time (nor am I aware of the need for this). Even if they did so, how would we ever know? None of their conversation(s) is/are made part of the court’s record. And even if a guardian ad litem and/or custody evaluator were to spend hours speaking with the child, attending the child’s activities, becoming intimately acquainted with the child circumstances, feelings and needs, neither the parents nor the court will ever know this because A) neither the guardian ad litem nor the custody evaluator is required to record interviews with the children, will never really know what they were asked or what they said in response and B) the judge will never speak with the child to verify whether what the guardian ad litem and/or custody evaluator reports is true. I do not know why anybody believes this is an acceptable way to engage in fact-finding, especially in court proceedings. No one has yet convincingly explained why to me, and I’ve asked around a lot.

I’ve heard guardians ad litem claim to have spoken to collateral sources, but how would we know if they ever did or what they asked or what they were told? No record is made of any of their alleged actions, no discovery can be conducted into who these alleged collateral contacts were or what they actually said to the guardian ad litem. In most cases, the guardian ad litem doesn’t even identify specially who he or she spoke with, and even if these collateral sources were specifically identified, we have no record of the conversation between the GAL and the collateral sources. And by the time you learn who the collateral sources are, the guardian ad litem is already made his or her report to the court, so you can’t cross-examine any of the alleged collateral sources the Guardian ad litem claims to have interviewed.

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

 

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