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Category: Holiday Parent-time

Obstacles Fathers Face in Trying to Get Joint Custody of Their Children

I have been asked by a reader to answer two questions.

The first: whether I believe courts generally apply a double standard in the treatment of mothers and fathers when courts make their child custody and parent-time (visitation) orders. The answer is “yes”. Not just “yes,” but “unquestionably, yes.”

The second: What do fathers need to do to meet and overcome that double standard? This is not a polar or closed question, so it requires a prescriptive response.

Before I answer the second question in detail, we need to understand—really and fully understand—why courts generally apply a double standard in the treatment of mothers and fathers when courts make their child custody and parent-time orders. Several volumes could easily be dedicated to the reasons why, so understand what I provide here is not merely concise but rather terse and not exhaustive (though no less true). In no particular order, here are the reasons I’ve encountered:

  • Few will admit it, but most people—both men and women—harbor the belief that women are better parents than men generally.[1]Many judges (both men and women) literally find it impossible to conceive that a father can be as effective a parent as a mother. Consequently, many courts substitute scrutiny and analysis of each particular parent in each particular case for playing the odds by awarding sole primary custody of the children to the mothers.
  • For jurisdictions that base child custody and parent time decisions upon which parent is the “primary caregiver,” courts inexcusably apply a needlessly biased definition of “primary caregiver.” For example, in Utah, “primary caregiver” has been defined as:

We believe that the choice in competing child custody claims should instead be based on function-related factors. Prominent among these, though not exclusive, is the identity of the primary caretaker during the marriage. Other factors should include the identity of the parent with greater flexibility to provide personal care for the child and the identity of the parent with whom the child has spent most of his or her time pending custody determination if that period has been lengthy. Another important factor should be the stability of the environment provided by each parent.

(Pusey v. Pusey, 728 P.2d 117 (August 18, 1986 Supreme Court of Utah))

The Pusey standard is over 37 years old as of the date this post is written, but is still followed in Utah. The standard is outmoded and do for a change. I believe that change is coming soon and that when that day comes, sexual discrimination against father in the child custody and parent time awards will suffer a fatal or near-fatal blow, but that day is not here yet. Even so, the seeds of Pusey’s destruction are found in the decision itself:

“[T]he provisions of article IV, section 1 of the Utah Constitution and of the fourteenth amendment of the United States Constitution would preclude us from relying on gender as a determining factor.”

The primary caregiver standard is (as many of you have already surmised), in many respects, just another disguise for bias in favor of mothers and against fathers.

I would like to say that I do not understand why courts in Utah continue to overlook the obvious fact that most of these so-called primary caregiver parents’ status depends upon the other parent being the sole or primary breadwinner. Otherwise stated, the reason mom can stay home with the kids is because dad is the one working to put that roof over their heads and providing all of the other necessities of life without the mother having to work outside the home herself. And so the courts have these kinds of fathers on the heads, ostensibly thank them for their sacrifices and for being upstanding, responsible men, then turn around and hand over sole or primary custody of the children to the mother nonetheless.

o   The problem with this thinking is that divorce fundamentally changes family dynamics. The primary caregiver analysis often fails to acknowledge that the physical primary caregiver status will rarely remain static post-divorce.

She (or he, in rare instances) who was the primary caregiver when the family all resided under the same roof will rarely remain able to be a stay-at-home parent post-divorce. That stay-at-home parent may find herself having to work outside the home to provide financially both for herself and for the children.

Likewise, fathers who used to come home to their children every day but who now realize they will be lucky if they get to see their kids every other day, will often make sacrifices so that they can spend as much time caring for their kids as possible when they are not at work. Courts, however, largely act as though this fact of life isn’t real. Or they may ostensibly acknowledge the fact in their custody and parent time decisions, custody and parent time awards themselves– mom still ends up with sole or primary custody, and dad ends up with every other weekend, alternating holidays, and a few weeks in the summer.

In Utah, the law is:

“Determining which factors the court must address in a given case, and to what degree, presents a tricky task,” and that “courts are not required to render a global accounting of all evidence presented or to discuss all aspects of a case that might support a contrary ruling.” See Twitchell, 2022 UT App 49, ¶ 21, 509 P.3d 806

But “where significant evidence concerning a particular factor is presented to the district court,” especially where that factor is a critically important one, “findings that omit all discussion of that evidence” and of that factor “must be deemed inadequate.” Id.

(Twitchell v. Twitchell, 2022 UT App 49, ¶ 21, 509 P.3d 806)

But it doesn’t take a genius to find that courts can, if they so desire, overlook pretty much whatever evidence they want (to get to the ruling they want) by simply deeming/dismissing/discounting such evidence as “insignificant”.

So what can (or even must) fathers do to ensure that they (and their children’s relationships with them) are simply treated fairly and impartially in the child custody and parent-time awards? An exhaustive list of pointers could run into the hundreds, but here are the most important, in my estimation (again, in no particular order):

  1. Approach your case like a black man would back in the 1960s who was a defendant in a criminal case: to win, he had to prove his innocence, and he had do it with 10 times more evidence than a white defendant needed. Fathers need to prove their parental fitness. Rarely will a court presume fitness of a father (they presume a mother’s fitness all the time). Generally, fathers must have far more and far better evidence of their fitness compared to what the courts require of mothers. Otherwise stated, you need so much evidence, and so much high-quality evidence, that even the most biased/cynical judge cannot deny you without looking inept or corrupt.
  2. Prove that you satisfy every custody factor the court must consider. In Utah, those factors are found here:

Utah Code § 30-3-10.  Custody of a child—Custody factors.

Utah Code § 30-3-10.2.  Joint custody order—Factors for court determination—Public assistance.

30-3-32.  Parent-time—Definitions—Considerations for parent-time — Relocation.

Utah Code § 30-3-34.  Parent-time — Best interests — Rebuttable presumption.

Utah Code § 30-3-35.1.  Optional schedule for parent-time for a child five to 18 years old.

30-3-35.2.  Equal parent-time schedule.

  1. Document everything you possibly can to prove you are a fit parent who can and should exercise at least equal custody of your children (do not seek sole custody or primary custody out of spite—that is wrong).
  2. Do everything you reasonably, possibly can to show you are a fit parent in every way.
  3. If you and your wife are separated, make sure you live as close to your wife as you can, so that the children are in the same neighborhood near their same friends and familiar favorite places, same school district where the children attend school, and can attend the same church they have been historically attending, so that the court doesn’t say, “Dad, you live too far away to make awarding you equal custody good for the children.” Do you see why?
  4. If you live too far away from your kids, they will end up presenting spending any time with you, resent the travel back and forth between their parents’ homes, they won’t have any friends in your neighborhood, they will be too far away from school and extracurricular and church activities, and you risk them telling you that spending time with you is more trouble than it’s worth.
  5. Get your hands on all the latest rigorous research showing that children, whether boys or girls, fare better in an equal custody arrangement. You may even need to retain the services of an expert witness to testify to these things. If you simply dump scholarly articles on the court, they will likely not be admissible without an expert witness to verify that they are legitimate and valid.
  6.       Live a life beyond reproach, and document it in painstaking detail.
  7. You want to do everything to prove this beyond any reasonable doubt: “Your Honor, if what I have set up by way of where I live and what my work schedule is and how much time I can spend providing personal care and attention for the children doesn’t qualify me in every meaningful way to exercise equal physical custody of our children, then there is no other realistic situation that can.”
  8. Ensure that the court makes findings that you meet every factor (ensure that the court makes findings on every factor and points to the evidence supporting each and every finding).
  9. Don’t merely prove you are a good parent. To the extent you can, also DISPROVE all the claims that you are not a good parent.
  10. Be careful about admitting your wife is a good and fit parent if she’s claiming you are a bad and unfit parent.
  11. No, I’m not advising you to lie about your wife’s parental fitness, I’m warning you that I’ve seen courts make findings like this far too often: “Dad admits that Mom is a good parent, but Mom claims Dad is a bad parent, and so Mom wins the parental fitness argument.” It’s disgusting, but it happens.
  12. Don’t believe that “falling on your sword for your kids” will benefit you, or the kids for that matter. When you do that, you run the unnecessary risk of the court pulling a “no good deed goes unpunished” move like, “Dad said he’s willing to agree to less than equal custody to settle the case and put an end to the fighting; so be it.” That may have worked with Solomon, but it rarely works in court.
  13. Show that depriving a child of any care and love and companionship and tutelage that a parent is able and willing to give that child is inherently contrary to the best interest of the child. Show that “the best parent” is BOTH parents. Show that children have a right to loved and reared by both of their parents as much as possible.
  14. Blow the “primary caregiver” argument as meaning “woman” or even “the stay-at-home parent” to smithereens. It’s a pernicious lie. Read my other blog post for more on this and other bogus arguments against fathers and joint legal and physical custody of children: All Men Are Created Equal: A Proof for the Presumption of Joint Physical Custody – Divorce Utah

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


[1] I am nothing, if not frank. It is probably true that if you took a random sampling of parents and analyzed which of the two, among the mother and the father, is the more competent and attentive parent, a higher percentage of those parents would be mothers instead of fathers. But that doesn’t mean that every mother is presumptively a better parent than every father in a child custody dispute. It’s when courts indulge in such a presumption that they indulge in sexual discrimination, indulge in analytical laziness, and thus can (and often do) commit error.

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Christmas/Winter Break for Parents Under the Utah Code

Christmas/Winter Break for Parents Under Utah Code § 30-3-35 or (§ 30-3-35.5 for a child 18 months and older)

If your Christmas/Winter break starts December 17, 2021 and ends January 2, 2022 (i.e., school starts back up on Monday, January 3, 2022), then that means the period between December 17 and January 2 and 17 days (an odd number of days in the holiday break parent-time period). This is how the holiday would be divided:

§ 30-3-35(2)(f)(viii): the first portion of the Christmas school vacation as defined in Subsection 30-3-32(3)(b), including Christmas Eve and Christmas Day, continuing until 1 p.m. on the day halfway through the holiday period, if there are an odd number of days for the holiday period or until 7 p.m. if there are an even number of days for the holiday period, so long as the entire holiday period is equally divided.

The day halfway through the period between December 17 and January 2 would be 1:00 p.m. December 25.

Monday Tuesday Wednesday Thursday Friday Saturday Sunday
Dec. 17

(day 1)

Dec. 18

(day 2)

Dec. 19

(day 3)

Dec. 20

(day 4)

Dec. 21

(day 5)

Dec. 22

(day 6)

Dec. 23

(day 7)

Dec. 24

(day 8)

Dec. 25

(day 9)

Dec. 26

(day 10)

Dec. 27

(day 11)

Dec. 28

(day 12)

Dec. 29

(day 13)

Dec. 30

(day 14)

Dec. 31

(day 15)

Jan. 1

(day 16)

Jan. 2

(day 17)

 

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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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Custody order says mother and child can’t leave the state. Is that legal?

If custody order says mother and child are not allowed to leave the state, is there any chance the court would allow them to go on a vacation to another country if the father says no?

I cannot speak for all jurisdictions, but I can answer the question based upon the law where I practice divorce and family law (Utah):

First, if the court were to order a parent not to leave the state (just the parent, not the parent with the child), that would likely be held unconstitutional, as a civil court does not have the authority to infringe upon an individual’s right to travel without a compelling reason.

Second, if the court were to order a parent not to leave the state with the child, that may be within the court’s authority to do so, especially if:

  • there were evidence that you have tried to abscond with the child to a foreign country (whether the foreign country is beyond the reach of the Hague Convention) or are at risk of absconding with the child to a foreign country.
  • the custody award, such as a joint physical custody award, was conditioned upon the parties residing within a certain geographical distance of each other.

That stated, if:

  1. there is no concern about you absconding with the children to a foreign country, never to return;
  2. the foreign country to which you want to travel on vacation is not a dangerous place (i.e., a place where Americans are routinely kidnapped or killed and/or where there are wars, insurrections, and/or dangerous natural disasters occurring);
  3. there is no harm that a child would suffer by traveling with you internationally (such as a certain health or medical or mental health condition that makes international travel a serious danger to the child), I cannot see any reason why a court would deny you the right to travel to a foreign country on vacation; and
  4. there is no other compelling reason to deny you and the child(ren) the opportunity to vacation internationally,

I doubt that any court would bar you from travelling internationally with the child(ren).

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

https://www.quora.com/If-custody-order-says-mother-and-child-are-not-allowed-to-leave-the-state-is-there-any-chance-the-court-would-allow-them-to-go-on-a-vacation-to-another-country-if-the-father-says-no/answer/Eric-Johnson-311?prompt_topic_bio=1

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S.B. 122 just passed! So what? Joint equal physical custody.

S.B. 122 (4th Substitute) passed by the Utah State Legislature March 5, 2021!

Who should care and why?

  • The elephant in the room is this: if there is no gender bias/sexual discrimination that is preventing fit, able, worthy fathers from being awarded joint equal physical custody, then why A) did so many people (not only a huge number of men, but women who sympathize with these men and with the plight of men in child custody disputes generally) and B) the overwhelming majority of Utah legislators pass a law to address and, it is hoped, eliminate that bias.
  • If you are a parent (particularly a father) who is worried about having child custody or parent time reduced to minimal levels in your divorce or other kind of child custody case, then for the sake of your children and your relationship with them, you need to know what S. B. 122 means for you and your children.

What will S.B. 122’s passage into law do? It will make it easier to make a case for an award of joint equal physical custody of children. Again, this is especially important to fathers who have historically faced a strong culture of bias and prejudice in the legal system.

Finally! But all is not total sunshine and roses—read on to learn why.

Bottom line: This new joint equal custody option is better than what we had in the past and should make it easier to win a joint equal custody award, but we’re still going to run into parents and commissioners and judges who simply cannot accept the idea of joint equal physical custody. So get your hands on as much proof (proof, as opposed to mere evidence; meaning: objective, independently verifiable facts) as you possibly can to satisfy § 30-3-35.2 factors if you hope to get joint equal physical custody awarded.

S.B. 122:

  • amends Utah Code § 30-3-34 to provide for a new “parent-time” schedule option that, if implemented, would result in the children spending equal periods of time annually with each parent.
  • creates a new code section, § 30-3-35.2, which, if the court orders its application in a child custody case, would result in the parents sharing overnights with the children equally on an annual basis.
  • Amends § 78B-12-208 to provide for how child support is calculated under a § 30-3-35.2 equal custody schedule.

Portions of the changes S.B. 122 bring to the child custody scene are highlighted (in some cases “lowlighted”) in red text because they are important to know about.

NEWLY CREATED § 30-3-35.2 READS AS FOLLOWS:

30-3-35.2. Equal parent-time schedule.
(1) (a) A court may order the equal parent-time schedule described in this section if the court determines that:

(i) the equal parent-time schedule is in the child’s best interest;
(ii) each parent has been actively involved in the child’s life; and
(iii) each parent can effectively facilitate the equal parent-time schedule.

(b) To determine whether each parent has been actively involved in the child’s life, the court shall consider:
(i) each parent’s demonstrated responsibility in caring for the child;
(ii) each parent’s involvement in child care;
(iii) each parent’s presence or volunteer efforts in the child’s school and at extracurricular activities;

(iv) each parent’s assistance with the child’s homework;

(v) each parent’s involvement in preparation of meals, bath time, and bedtime for the child;
(vi) each parent’s bond with the child; and
(vii) any other factor the court considers relevant.

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

(i) the geographic distance between the residence of each parent and the distance between each residence and the child’s school;
(ii) each parent’s ability to assist with the child’s after school care;
(iii) the health of the child and each parent, consistent with Subsection 30-3-10(6);
(iv) the flexibility of each parent’s employment or other schedule;
(v) each parent’s ability to provide appropriate playtime with the child;
(vi) each parent’s history and ability to implement a flexible schedule for the child;
(vii) physical facilities of each parent’s residence; and
(viii) any other factor the court considers relevant.

(2) (a) If the parties agree to or the court orders the equal parent-time schedule described in this section, a parenting plan in accordance with Sections 30-3-10.7 through 30-3-10.10 shall be filed with an order incorporating the equal parent-time schedule.

(b) An order under this section shall result in 182 overnights per year for one parent, and 183 overnights per year for the other parent.
(c) Under the equal parent-time schedule, neither parent is considered to have the child the majority of the time for the purposes of Subsection 30-3-10.3(4) or 30-3-10.9(5)(c)(ii).
(d) Child support for the equal parent-time schedule shall be consistent with Section 78B-12-208.
(e) (i) A court shall determine which parent receives 182 overnights and which parent receives 183 overnights for parent-time.

(ii) For the purpose of calculating child support under Section 78B-12-208, the amount of time to be spent with the parent who has the lower gross monthly income is considered 183 overnights, regardless of whether the parent receives 182 overnights or 183 overnights under Subsection (2)(e)(i).

(3) (a) Unless the parents agree otherwise and subject to a holiday, the equal parent-time schedule is as follows:

(i) one parent shall exercise parent time starting Monday morning and ending Wednesday morning;
(ii) the other parent shall exercise parent-time starting Wednesday morning and ending Friday morning; and
(iii) each parent shall alternate weeks exercising parent-time starting Friday morning and ending Monday morning.

(b) The child exchange shall take place:

(i) at the time the child’s school begins; or
(ii) if school is not in session, at 9 a.m.

(4) (a) The parents may create a holiday schedule.

(b) If the parents are unable to create a holiday schedule under Subsection (4)(a), the court shall:

(i) order the holiday schedule described in Section 30-3-35; and
(ii) designate which parent shall exercise parent-time for each holiday described in Section 30-3-35.

(5) (a) Each year, a parent may designate two consecutive weeks to exercise uninterrupted parent-time during the summer when school is not in session.

(b) (i) One parent may make a designation at any time and the other parent may make a designation after May 1.

(ii) A parent shall make a designation at least 30 days before the day on which the designated two-week period beings.

(c) The court shall designate which parent may make the earlier designation described in Subsection (5)(b)(i) for an even numbered year with the other parent allowed to make the earlier designation in an odd numbered year.
(d) The two consecutive weeks described in Subsection (5)(a) take precedence over all holidays except for Mother’s Day and Father’s Day.

THE AMENDMENTS TO § 30-3-34 ARE:

30-3-34. Parent-time — Best interests — Rebuttable presumption.
(1) If the parties are unable to agree on a parent-time schedule, the court may:

(a) establish a parent-time schedule [consistent with the best interests of the child.]; or

(b) order a parent-time schedule described in Section 30-3-3530-3-35.130-3-35.2, or 30-3-35.5.
(2) The advisory guidelines as provided in Section 30-3-33 and the parent-time
33     schedule as provided in Sections 30-3-35 and 30-3-35.5 shall be [presumed to be in the best interests of the child unless the court determines that Section 30-3-35.1 should apply. The parent-time schedule shall be] considered the minimum parent-time to which the noncustodial parent and the child shall be entitled [unless a parent can establish otherwise by a preponderance of the evidence that more or less parent-time should be awarded based upon one or more of the following criteria:].
(3) A court may consider the following when ordering a parent-time schedule:
(a) whether parent-time would endanger the child’s physical health or mental health, or significantly impair the child’s emotional development;

*****

(5) A court may not order a parent-time schedule unless the court determines by a preponderance of the evidence that the parent-time schedule is in the best interest of the child.

NEWLY AMENDED § 78B-12-208 READS AS FOLLOWS:

 78B-12-208.Joint physical custody — Obligation calculations.

In cases of joint physical custody, the base child support award shall be determined as
follows:

(1) Combine the adjusted gross incomes of the parents and determine the base combined child support obligation using the base combined child support obligation table.
(2) Calculate each parent’s proportionate share of the base combined child support obligation by multiplying the base combined child support obligation by each parent’s percentage of combined adjusted gross income. The amounts so calculated are the base child support obligation due from each parent for support of the children.
(3) (3) [IfSubject to Subsection 30-3-35.2(2)(e)(ii), if the obligor’s time with the children exceeds 110 overnights, the obligation shall be calculated further as follows:
(a) if the amount of time to be spent with the children is between 110 and 131 overnights, multiply the number of overnights over 110 by .0027, then multiply the result by the base combined child support obligation, and then subtract the result from the obligor’s payment as determined by Subsection (2) to arrive at the obligor’s payment; or
(b) if the amount of time to be spent with the children is 131 overnights or more, multiply the number of overnights over 130 by .0084, then multiply the result by the base combined child support obligation, and then subtract the result from the obligor’s payment as determined in Subsection (3)(a) to arrive at the obligor’s payment.

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

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Why is it difficult for a father to get child custody?

Why is it difficult for a father to get child custody?

Because there is a pernicious and false belief in far too many of the courts (not, notably, in society at large) that generally:

  1. mothers are better parents than fathers;

and thus

  1. children need the care of their mothers more than the care of their fathers;

and thus

  1. children should spend most of their time in the care of their mothers but have “a relationship” with their fathers by seeing them every other weekend, once a week, and on alternating holidays.

All other “reasons” for presuming that sole or primary custody of a child or children should be awarded to the mother derive from these three false premises, which premises/presumptions are extraordinarily difficult for a father to overcome, even if all he seeks is an award of joint equal child custody.

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

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2020 Changes to Fall Break parent-time in Utah Code

When the fall school break parent-time period begins was a common question that the Utah State legislature addressed in the 2020 legislative session by making a clarifying change to the code.

That change is found in Utah Code § 30-3-35(2)(f). The Code used to provide that “the fall school break, if applicable, commonly known as U.E.A. weekend” began at 6 p.m. on Wednesday until 7 p.m. on Sunday “unless the holiday extends for a lengthier period of time to which the noncustodial parent is completely entitled”.

Now the revised provision for Fall Break provides that the fall school break begins “at 6 p.m. on the day that school lets out for the holiday until 7 p.m. on the evening before school resumes.” The legislature also included a provision that if the divorced couple has more than one child and the multiple children’s school schedules vary for purpose of a holiday, then at the option of the parent exercising the holiday, the children may remain together for the holiday period beginning the first evening that all children’s schools are let out for the holiday and ending the evening before any child returns to school.

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

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My ex claims snow days and teacher development days are all his. How does Utah law govern this?

QUESTION: My ex keeps bringing up snow days and teacher development days and claims he gets them all. How does Utah law govern this?

ANSWER: First, do unto others as you would have them do unto you. That goes for your ex towards you too. Be good even when your ex is bad. If your ex is chronically bad, warn your ex that if the chronic badness continues you will take the matter up with the court.

Here’s how parent-time and snow days and the like work:

Utah Code § 30-3-35(2):

(b)(iv) Weekends include any “snow” days, teacher development days, or other days when school is not scheduled and which are contiguous to the weekend period.

(c) Holidays include any “snow” days, teacher development days after the children begin the school year, or other days when school is not scheduled, contiguous to the holiday period, and take precedence over the weekend parent-time.

(e)(i) If a holiday falls on a weekend or on a Friday or Monday and the total holiday period extends beyond that time so that the child is free from school and the parent is free from work, the noncustodial parent shall be entitled to this lengthier holiday period.

To unpack this, the way I construe* this Utah Code section is:

If your ex has a regular weekend parent-time period coming up that would normally start on Friday and end Sunday night, but school is out on the Thursday before or on the Monday (and Tuesday, etc.) due to a snow day or teacher development day, then your ex gets those extra days.

If an upcoming holiday is your ex’s and would normally start on, for example, a Wednesday, but school is out on the Tuesday before due to a snow day or teacher development day, your ex gets to start his/her holiday time on Tuesday.

If an upcoming holiday is your ex’s and would normally end on Monday, but school is out on Tuesday too because of a snow day or teacher development day, your ex gets to end his/her holiday time on Tuesday.

If the kids are scheduled to be with you on a regular Tuesday, but it arises that school will not be in session on Tuesday because of a snow day or teacher development day, the time is yours, not your ex’s.

*Some construe the code more narrowly to mean that parent-time includes snow days and teacher development days that are only contiguous to the end of a parent-time period.

The point is that if a snow day or teacher development day is contiguous with time you would normally have with the kids, that time is yours. But if a snow day or teacher development day is contiguous with your ex’s weekend or holiday parent-time with the kids, that time is your ex’s.

If you and your ex can reach agreement on how you will both treat snow days and teacher development days, then snow days and teacher development days will apply the same way to you both.

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

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My ex just announced he’s taking the children during my parent-time.

QUESTION:

I have a question about parent-time inference. My ex-husband is taking the children out of town last minute and his plans overlap and will interfere with my holiday parent-time. He is supposed to return the children on the 29th of December, so that the children can spend that time through New Year’s with me, as the Decree of Divorce provides. But at the last minute–on December 26th, while the kids were with him—he planned a trip to leave on December 27th  and return late on December 31st. Since he has the children with him, denying me my parent time, is there anything I can do?

ANSWER:

If your decree of divorce provides that you are to have the child this year commencing December 29th, then clearly that is your time with the children and your ex-husband cannot unilaterally deprive you of this time. Thus he cannot, during his time with the children, “at the last minute plan a trip that won’t get him and the kids back until late December 31st” without violating the decree of divorce.

Can you do anything in response?

Yes. You can move the court 1) to award you make-up time that your ex-husband deprived you of; and 2) to hold your ex-husband in contempt of court and to sanction him for contempt, asking the court to impose any or all of the following sanctions for interfering with parent-time (See Utah Code § 78B-6-316):

78B-6-316. Compensatory service for violation of parent-time order or failure to pay child support.

(1) If a court finds by a preponderance of the evidence that a parent has refused to comply with the minimum amount of parent-time ordered in a decree of divorce, the court shall order the parent to:

(a) perform a minimum of 10 hours of compensatory service; and

(b) participate in workshops, classes, or individual counseling to educate the parent about the importance of complying with the court order and providing a child a continuing relationship with both parents.

(2) If a custodial parent is ordered to perform compensatory service or undergo court-ordered education, there is a rebuttable presumption that the noncustodial parent be granted parent-time by the court to provide child care during the time the custodial parent is complying with compensatory service or education in order to recompense him for parent-time wrongfully denied by the custodial parent under the divorce decree.

(3) If a noncustodial parent is ordered to perform compensatory service or undergo court-ordered education, the court shall attempt to schedule the compensatory service or education at times that will not interfere with the noncustodial parent’s parent-time with the child.

(4) The person ordered to participate in court-ordered education is responsible for expenses of workshops, classes, and individual counseling.

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(6) The obligor is responsible for the expenses of workshops, classes, and individual counseling ordered by the court.

(7) If a court orders an obligor to perform compensatory service or undergo court-ordered education, the court shall attempt to schedule the compensatory service or education at times that will not interfere with the obligor’s parent-time with the child.

(8) The sanctions that the court shall impose under this section do not prevent the court from imposing other sanctions or prevent any person from bringing a cause of action allowed under state or federal law.

You also could (although courts and the police frown on this–even though they shouldn’t), report your ex to the police for custodial interference. You’ll want to print a copy of the custodial interference law for the police because they will frequently act like they don’t know what you’re talking about. The police do this because they don’t want to enforce the custodial interference law. I’m not kidding. They will often say “there’s nothing we can do” and “this is a civil matter, not a criminal matter.” Lies.

Courts often see parents who report the non-compliant parent for custodial interference as people who stir up needless contention and who needlessly escalate custody and parent-time disputes by involving the police. Which is perverse because if the courts ostensibly prefer that a parent tolerate non-compliance with court orders over seeking their enforcement, what use are courts in the first place?

Anyway, here is the custodial interference statute:

76-5-303. Custodial interference.

(1) As used in this section:

(a) “Child” means a person under the age of 18.

(b) “Custody” means court-ordered physical custody entered by a court of competent jurisdiction.

(c) “Visitation” means court-ordered parent-time or visitation entered by a court of competent jurisdiction.

(2)

(a) A person who is entitled to custody of a child is guilty of custodial interference if, during a period of time when another person is entitled to visitation of the child, the person takes, entices, conceals, detains, or withholds the child from the person entitled to visitation of the child, with the intent to interfere with the visitation of the child.

(b) A person who is entitled to visitation of a child is guilty of custodial interference if, during a period of time when the person is not entitled to visitation of the child, the person takes, entices, conceals, detains, or withholds the child from a person who is entitled to custody of the child, with the intent to interfere with the custody of the child.

(3) Except as provided in Subsection (4) or (5), custodial interference is a class B misdemeanor.

(4) Except as provided in Subsection (5), the actor described in Subsection (2) is guilty of a class A misdemeanor if the actor:

(a) commits custodial interference; and

(b) has been convicted of custodial interference at least twice in the two-year period immediately preceding the day on which the commission of custodial interference described in Subsection (4)(a) occurs.

(5) Custodial interference is a felony of the third degree if, during the course of the custodial interference, the actor described in Subsection (2) removes, causes the removal, or directs the removal of the child from the state.

(6) In addition to the affirmative defenses described in Section 76-5-305, it is an affirmative defense to the crime of custodial interference that:

(a) the action is consented to by the person whose custody or visitation of the child was interfered with; or

(b)

(i) the action is based on a reasonable belief that the action is necessary to protect a child from abuse, including sexual abuse; and

(ii) before engaging in the action, the person reports the person’s intention to engage in the action, and the basis for the belief described in Subsection (6)(b)(i), to the Division of Child and Family Services or law enforcement.

(7) In addition to the other penalties described in this section, a person who is convicted of custodial interference is subject to the driver license suspension provisions of Subsection 53-3-220(1)(a)(xvii).

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

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Can a Child Be Held in Contempt of Court for Non-compliance with Child Custody and Parent-time Orders?

A minor child of divorced parents need not be a party to the divorce action to be subject to the court’s contempt power. See Crank v. Utah Judicial Council, 20 P.3d 307, 314-315 (Supreme Court of Utah 2001) (accord Iota, LLC v. Davco Management Co., LC, 284 P.3d 681, fn. 9 (Court of Appeals of Utah 2012)): 

¶ 25 Clearly, a trial court has the power to hold non-parties in contempt if those parties conspire to frustrate a lawful order of the court. See id.[1] Specifically, a person may be held in contempt for “[d]isobedience of any lawful judgment, order or process of the court,” id.[2] § 78–32–1(5)[3], or “[a]ny other unlawful interference with the process or proceedings of a court,” id. § 78–32–1(9). However, a court’s power to hold any person in contempt, whether a party to a case before that court or a non-party, is subject to constitutional and statutory restraints regarding the process due to any person so accused. See Von Hake v. Thomas, 759 P.2d 1162, 1169–70 (Utah 1988).

¶ 26 The basic constitutional requirement for due process is that “the person charged be advised of the nature of the action against him [or her], have assistance of counsel, if requested, have the right to confront witnesses, and have the right to offer testimony on his [or her] behalf.” Burgers v. Maiben, 652 P.2d 1320, 1322 (Utah 1982). The Utah Code seeks to implement this mandate by “set[ting] out two distinct procedures to be followed in contempt adjudications, one when the contempt is direct, i.e., committed in the presence of the judge, and the other when the contempt is indirect, i.e., committed outside the presence of the judge.” Thomas, 759 P.2d at 1169.

¶ 27 . . . “Indirect contempt . . . can properly be adjudged only in a proceeding more tightly hedged about with procedural protections.” Thomas, 759 P.2d at 1170. In such cases, the Utah Code amplifies upon the basic due process requirements of notice and opportunity to defend. See id. Section 78–32–3[4], in pertinent part, provides as follows:

When the contempt is not committed in the immediate view and presence of the court or judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators or other judicial officers.

¶ 28 Thus, in Utah, the statutory requirement of an affidavit is a procedural prerequisite to the imposition of any sanctions for indirect contempt. See Thomas, 759 P.2d at 1171; see also Khan v. Khan, 921 P.2d 466, 468 (Utah Ct.App.1996); Boggs v. Boggs, 824 P.2d 478, 481–82 (Utah Ct.App.1991).

Clearly a non-party to a Utah State district court action can be subject to contempt proceedings and sanctions where the acts or omissions of a non-party or parties frustrate(s) a lawful order of the court. There is no “non-party” basis for the court’s refusal to issue an order to show cause for failure to comply with a court’s child custody and parent-time orders. Even if, arguendo, the minor child is not a party to a parents’ divorce proceedings, the child is nevertheless clearly subject to the jurisdiction of this court for contempt.[5]

A court’s child custody and parent-time orders are clearly directed to both to the parents and to the minor children, and simply by virtue of either 1) a child following the custody and/or parent-time schedule; or 2) a parent making attempts to communicate with and engage with a child in the exercise of the custody and parent-time schedule, a child is not on notice of, and possesses knowledge as to the nature and contents of, the court’s child custody and parent-time order,

Crank v. Utah Judicial Council clearly establishes that the power of a court to hold a person in contempt is not limited by the formal designation of the parties. As shown in footnote 5 herein, common law principles further bolster the fact that the trial court has the power to hold in contempt a minor child subject to a divorce court’s child custody and parent-time orders.

I am not aware of any authority for the propositions A) that a minor child can be (for lack of a more exacting term) “exempted” from contempt of court proceedings or B) that a court has the discretion to deny an order to show cause movant relief in the form of an issuance of an order to show cause when the motion for order to show cause is duly made in compliance with Utah law.

Parents are, as are all Utah residents, entitled to the equal protection of the law and to enforcement of the court’s orders. Refusal to issue an order to show cause to a child who refuse to comply with a court’s child custody and parent-time orders could and almost certainly would result in denying the parent of due process of law (Utah Constitution, Article 1, Section 7), denial of his right to the redress of injuries (Id., Section 11), denial of the uniform operation of laws (Id., Section 24), and denial of fundamental rights (Id., Section 27).

Given that Utah law clearly and inarguably shows that a child is subject to the court’s contempt power in regard to noncompliance with child custody and parent-time orders:

  1. an order to show cause to a child for noncompliance with the court’s custody and parent-time orders (to show the child, the parents, and the public at large that law shall be obeyed); and
  2. use of an order to show cause to enforce the court’s order (and thus uphold the principle that a court has the actual power to enforce its own orders) through the civil courts process (as opposed to a party taking the law into his/her own hands and/or flouting the rule of law),

is entirely suitable and proper.

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[1] Citation was to Utah Code § 78-32-3, which was renumbered as Utah Code § 78B-6-302:

(1) When a contempt is committed in the immediate view and presence of the court, or judge at chambers, it may be punished summarily. An order shall be made, reciting the facts occurring in the immediate view and presence of the court. The order shall state that the person proceeded against is guilty of a contempt and shall be punished as prescribed in Section 78B-6-310.

(2) When the contempt is not committed in the immediate view and presence of the court or judge, an affidavit or statement of the facts by a judicial officer shall be presented to the court or judge of the facts constituting the contempt.

[2] Citation was to Utah Code § 78-32-3, which was renumbered as Utah Code § 78B-6-302. See fn. 1 supra.

[3] Utah Code § 78-32-1 was renumbered as Utah Code § 78B-6-301:

78B-6-301. Acts and omissions constituting contempt.

The following acts or omissions in respect to a court or its proceedings are contempts of the authority of the court:

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(5) disobedience of any lawful judgment, order or process of the court[.]

[4] Utah Code § 78-32-3 was renumbered as Utah Code § 78B-6-302. See fn. 1 supra.

[5] Note: The following arguments are adapted from a decision from the Appellate Court of Illinois, In re Marriage of Marshall, 663 N.E.2d 1113 (1996), a divorce action in which children were held in contempt of court for violating the trial court’s visitation orders:

If a child is subject to the control of each of her joint legal and physical custodial parents, she is bound by the court’s child custody and parent-time orders. Furthermore, the district court also possesses jurisdiction over the child under Utah Code §§ 30-3-5(3) and 78B-13-202. Given that jurisdiction over a person is the court’s power to bind a particular person to its orders, and given that the court clearly has the power to bind the child to its child custody and parent-time orders (and in fact has done just that with its child custody and parent-time orders) the district court has jurisdiction over the child; thus the child could very well be deemed one of the parties to the divorce action.

Rule 65A(d) of the Utah Rules of Civil Procedure provides, in pertinent part, that every order “granting an injunction shall” . . . “be binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive notice, in person or through counsel, or otherwise, of the order.”

Rule 65A’s provisions cited above are derived from the common law doctrine that a decree of injunction not only binds parties defendant but also those identified with them in interest, in “privity” with them, represented by them or subject to their control. See Golden State Bottling Co. v. NLRB, 414 U.S. 168, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973); Regal Knitwear Co. v. National Lab. Rel. Bd., 324 U.S. 9, 65 S.Ct. 487, 89 L.Ed. 661 (1945).

See also Petersen v. Fee Intern., Ltd., 435 F.Supp. 938, 941-942 (United States District Court, W. D. Oklahoma, 1975):

“The essence of the doctrine is that defendants may not nullify a decree by carrying out prohibited acts through aiders and abettors although they were not parties to the original action. Regal Knitwear Co. v. National Lab. Rel. Bd., supra. In the older cases a decree of injunction was generally directed to the party defendant, his officers, agents, servants and employees. The object of this generalization was to prevent defendants from doing by others that which the Court had forbidden them to do personally; from accomplishing indirectly a result prohibited by the Court. The full effect of such an order was that the defendant shall not do the prohibited act himself, neither shall his agent, servant, or employees do it for him, nor shall the defendant do it as the agent, servant, or employee of another. Dadirrian v. Gullian, 79 F. 784 (D.N.J.1897).

Thus under this concept a child is also bound by the court’s child custody and parent-time orders. Joint custodial parents are parties bound by the terms of the court’s child custody and parent-time orders. The joint legal and physical custodial parent or parents exercise(s) control over the minor child, and the child is subject to the control of her parent(s), the child is thus bound by the court’s child custody and parent-time orders.

Christmas Break Parent-time 2017 – how it works

NOTE: this will explain how to calculate Christmas break parent-time for any period, in any year (but we’ll use 2017 as an example).

QUESTION: I’m trying to figure out what day it ends if Christmas break in our child’s school district is 13 days in length this year (2017); school is dismissed for Christmas break the afternoon of December 20th. I don’t know if my ex gets our child until December 25th or 26th.

ANSWER (and special thanks to Heather Vanduker for her help with this): This is the best, most equal way I can interpret the law governing Christmas vacation, so that it is divided as equally as reasonably possible.

It’s not 13 days, it’s 12, and if you and your ex are working under the provisions of Utah Code Section 30-3-35(2), then the non-custodial parent’s half of the Christmas break 2017 period ends December 26th at 7:00 p.m. See below for the explanation.

First, here is how Christmas break is defined in the Utah Code:

Utah Code Section 30-3-32(3):

(3) For purposes of Sections 30-3-32 through 30-3-37:

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(b) Subject to Subsection (5), “Christmas school vacation” means:

(i) for a single child, the time period beginning on the evening the child is released from school for the Christmas or winter school break and ending the evening before the child returns to school; and

(ii) for multiple children when the children’s school schedules differ, the time period beginning on the first evening all children’s schools are released for the Christmas or winter school break and ending the evening before any of the children returns to school.

If you and your ex are working under the provisions of Utah Code Section 30-3-35(2), then these provisions apply in even- and odd-numbered years:

Odd-numbered Years

(f)(viii) the first portion of the Christmas school vacation as defined in Subsection 30-3-32(3)(b) including Christmas Eve and Christmas Day, continuing until 1 p.m. on the day halfway through the holiday period, if there are an odd number of days for the holiday period, or until 7 p.m. if there are an even number of days for the holiday period, so long as the entire holiday period is equally divided.

Even-numbered Years

(g) (viii) the second portion of the Christmas school vacation as defined in Subsection 30-3-32(3)(b), beginning 1 p.m. on the day halfway through the holiday period, if there are an odd number of days for the holiday period, or at 7 p.m. if there are an even number of days for the holiday period, so long as the entire Christmas holiday period is equally divided.

With 2017 being an odd-numbered year, that means that Christmas break parent-time would be shared and exercised as follows (I am assuming that there is either one child or that all children are dismissed on the same day):

First, note that 7:00 p.m. on December 26th is the the mid-point between “the evening” of Dec 20th and 7:00 p.m. on the evening of January 1. So if we treat “the evening of the day the child is released from school” as starting around 7:00 p.m. (even if you actually pick up the kids immediately after school, we can all agree that Day 1 is not a full 24-hour period), then the holiday period is actually 12 days, not 13. Watch, I’ll show you below.

December 20, starts in the evening. Even if you pick up the kids immediately after school, some parents don’t, so for calculation purposes, we’ll start “the evening” at 7:00 p.m. on December 20th.

So if we count days from 7:00 p.m. on Day 1 until 7:00 p.m. on Day 2, and so on, we get:

Day 1, 7:00 p.m., December 20 until 7:00 p.m. December 21: children with the non-custodial parent for at least a full 24-hour period

Day 2, 7:00 p.m., December 21 until 7:00 p.m. December 22: children with the non-custodial parent for a full 24-hour period

Day 3, 7:00 p.m., December 22 until 7:00 p.m. December 23: children with the non-custodial parent for a full 24-hour period

Day 4, 7:00 p.m., December 23 until 7:00 p.m. December 24: children with the non-custodial parent for a full 24-hour period

Day 5, 7:00 p.m., December 24 until 7:00 p.m. December 25: children with the non-custodial parent for a full 24-hour period

Day 6, 7:00 p.m., December 25 until 7:00 p.m. December 26: children with the non-custodial parent for a full 24-hour period

TOTAL periods spent with noncustodial parent to this point = 6 twenty-four-hour periods. At this point we make the exchange at 7:00 p.m. December 26th

Day 7 starts December 26 7:00 p.m. until 7:00 p.m. December 27: children with the custodial parent.

Day 8, 7:00 p.m., December 27 until 7:00 p.m. December 28: children with the custodial parent

Day 9, 7:00 p.m., December 28 until 7:00 p.m. December 29: children with the custodial parent

Day 10,  7:00 p.m., December 29 until 7:00 p.m. December 30: children with the custodial parent

Day 11, 7:00 p.m., December 30 until 7:00 p.m. December 31: children with the custodial parent

Day 12, 7:00 p.m., December 31 until 7:00 p.m. January 1: children with the custodial parent, and then the Christmas break ends.

Because the intention of the law is to divide the Christmas Break period equally (“so long as the entire Christmas holiday period is equally divided”), then look at it this way:

From the evening of the day the child is released from school until the evening before the child returns to school, returning the child to the custodial parent at 7:00 p.m. on December 26th is the mid-point between the evening of December 20th and evening of January 1st.

 

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

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