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Category: Joint Physical Custody

2024 UT App 84 – Corn v. Groce – Modification of Parent-Time or Custody

2024 UT App 84 – Corn v. Groce

THE UTAH COURT OF APPEALS

JANETTE CORN, Appellee, v. BLAKE GROCE, Appellant.

Opinion No. 20220526-CA Filed May 31, 2024

Second District Court, Farmington Department

The Honorable Ronald G. Russell No. 194700657

Alexandra Mareschal and Julie J. Nelson, Attorneys for Appellant, Emily Adams, Freyja Johnson, and William M. Fontenot, Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

CHRISTIANSEN FORSTER, Judge:

¶1        Blake Groce (Father) appeals the district court’s rejection of his petition to modify parent-time. He also challenges the court’s calculation of Janette Corn’s (Mother) net income for child support purposes. Because the court did not abuse its discretion when ruling on either issue, we affirm.

BACKGROUND

¶2        Father and Mother are the parents of twin daughters (the Children). In 2015, the parties agreed to joint legal and physical custody of the Children, with Father exercising parent-time four overnights during a two-week period, and the district court entered a decree reflecting this agreement (Original Decree). In 2016, Father moved out of state for work. The following year, Father began dating stepmother (Stepmother); the two married in 2019.

¶3        In 2019, due in part to Father’s relocation out of state, Mother petitioned to modify the Original Decree, seeking sole physical custody of the Children subject to Father’s parent-time. Father responded to the petition and filed a counterpetition seeking orders related to the Children’s healthcare. Father did not ask for a change in parent-time.

¶4        Shortly thereafter, the parties entered into a stipulation (2019 Stipulation). By its express terms, the 2019 Stipulation did “not resolve the competing petition and counterpetition to modify custody.” It did, however, set forth a “temporary” parent-time schedule that would increase Father’s parent-time upon his planned relocation to Utah. The parties agreed that upon Father’s relocation, the parties would follow, “on a temporary basis until further agreement of the parties or further order of the Court,” the parent-time schedule in Utah Code section 30-3-35.1. Pursuant to that schedule, Father would exercise five overnights during a two-week period (an increase of one overnight). The parties further agreed that if the increased parent-time schedule were to take effect, they would adhere to it “for at least six (6) months.” At that point, if either party wanted to change parent-time, the party could submit a written request communicating the desired change, after which the parties would attend mediation. And if the parties had not “otherwise reach[ed] an agreement regarding a permanent parent-time order” after Father had exercised the increased schedule for “six (6) months and thereafter,” either party could “request mediation in writing.”

¶5        In August 2019, Father made the move to Utah and began exercising his increased parent-time. The following year, the district court entered the 2019 Stipulation as an order (2020 Order).

¶6        In August 2020, Father filed a petition to modify the custody and parent-time awarded in the 2020 Order. In this petition, Father sought sole physical and legal custody of the Children based on circumstances that he alleged had changed since the entry of the 2020 Order. The changes included the decreased quality of education at the Children’s school, Father’s desire to teach the Children religious values, Father’s work trips and the right of first refusal created a “disconnect” between the Children and Stepmother, the parties’ disagreement over the Children’s vaccines, Mother’s changing financial situation, and Mother’s failure to use a Google calendar. Most notably, Father also alleged that Mother exhibited “inappropriate behaviors” in front of the Children, causing them mental health issues that required counseling, which Mother had refused to allow. In a separate motion, Father asked the court to appoint a custody evaluator to aid the court in making a custody determination. The court granted Father’s request and appointed an evaluator (Evaluator).

¶7        As the case proceeded, the district court held several pretrial conferences to determine which issues were to be certified for trial. After much confusion on both sides, the court entered a pretrial order stating that the issues certified for trial were intended to resolve (1) Mother’s 2019 petition to modify the Original Decree, (2) Father’s 2019 counterpetition to modify the Original Decree, and (3) Father’s petition to modify the 2020 Order. But at the final pretrial conference a few months later, Mother informed the court that she was “not pursuing” her 2019 petition to modify.

¶8        Shortly before trial, Father submitted a trial memorandum to the district court addressing the issues certified for trial. Regarding “[p]hysical custody/parent time,” Father asserted that “[j]oint physical custody is appropriate” and requested that the court award him either “220 overnights to Mother’s 145 overnights” or “equal parent time.”[1] And regarding “[l]egal custody/terms of parenting plan,” Father asserted that “[j]oint legal custody is appropriate” and requested that the court implement a parenting plan filed by Father. Father also requested changes to child support.

¶9        In response to Father’s request to change child support, Mother filed an updated financial declaration. Mother is a self-employed realtor. In her financial declaration, Mother listed her monthly income as $6,599 ($6,000 salary plus $599 child support), and her annual salary as “approximately” $72,000. Mother supported the declaration with her 2020 tax return and three months of bank statements. The tax return listed $106,408 in gross income and $30,745 of expenses, resulting in a net income of $75,663. Those expenses included advertising, vehicle expenses, insurance, office expenses, office rent, office supplies, bank charges, membership dues and fees, education costs, internet fees, telephone charges, referral fees, software fees, website charges, equipment fees, and broker fees.

¶10 A two-day bench trial was held in March 2022. At the outset of the trial, Mother asked for clarification with respect to what relief Father was requesting. She explained that Father had requested sole physical custody in his petition to modify but that he had requested only a change to parent-time in his trial memorandum. She asserted the difference was relevant because “based on what [Father’s] requesting, either just additional parent-time or actually sole legal custody . . . , then that would change the showing that he needs to make.”

¶11      In response, Father reiterated his position, as set forth in his memorandum, that he had “changed [his] position from asking for sole custody” and was seeking only a change in parent-time. Mother objected to “an amendment to the petition to modify if now [Father is] requesting just a change in parent-time” because that had “not been pleaded” and it was “not going to be tried by consent.” The court “note[d] [Mother’s] objection” but concluded that the trial could proceed because Father’s requested relief “include[d] a number of items” and was “fairly broad,” which would allow the court to order relief as it “deem[ed] appropriate.” The court concluded by directing the parties “to present [their] evidence regarding the substantial change in circumstances so that can be considered.”

¶12      Over the course of the trial, the district court heard testimony from Evaluator, the parties, and multiple other individuals involved in the Children’s lives. The parties also presented evidence regarding their monthly incomes.

¶13      Evaluator testified about what custody changes would be in the best interest of the Children; she specifically did not discuss whether there had been a change in circumstances. Evaluator opined that since “the very beginning,” the parties “had difficult communication,” they were “at odds about parent-time [and] about the role of each parent,” and Mother “saw herself as the primary person who would care for the [C]hildren and make decisions about them.” She expressed that both parents had “some fault in the coparenting difficulties.”

¶14      Regarding Mother, Evaluator did not observe any “intense and sudden mood swings,” as had been alleged by Father. She noted that Mother “was quite open and forthright about the fact that she lost her temper with the [C]hildren sometimes” but concluded that the behavior was “[n]ot out of the ordinary.” Evaluator further expressed that she had not observed Mother acting in an “irrational” manner. Regarding Father, Evaluator observed that in “some circumstances” Father’s actions were not proportionate and that on occasion, he had been “overly concerned about relatively small things.”

¶15 Evaluator recommended that the Children have “equal amounts of time with both parents,” noting that although the Children “struggle with some anxiety and some stress about parental conflict,” overall they “are thriving with both parents” and “have a good relationship with both parents.” She opined that “both parents demonstrate appropriate decision-making in terms of the [C]hildren, are good role models for the [C]hildren, and lead an appropriate lifestyle.”

¶16 Concerning child support and income, Father introduced Mother’s 2020 tax return as an exhibit. Relying on that document, Mother testified that her 2020 net income was “right around $76,000.” She explained that she has “lots of business expenses,” totaling around “30-something-thousand dollars,” which generally include a monthly Multiple Listing Service fee, a monthly payment to her brokerage, a monthly payment for office rent, yearly dues, and mileage. In addition, Mother noted she pays for trainings, continuing education classes, and seminars; open house expenses; signs; and general office expenses such as paper, business cards, and photos. Lastly, she testified that she deducts a portion of her cell phone and home internet. Father did not object at any point during this portion of Mother’s testimony.

¶17      At the close of the trial, the district court issued an oral ruling, which it later reduced to writing. The court declined to change the custody status or to alter parent-time, but it agreed to modify child support payments. Regarding custody and parent-time, the court first noted that although Father sought a change in custody in his petition to modify, at trial he elected to seek only a change in parent-time. The court then explained that to modify a custody order, a party must show both that “(1) a material and substantial change in circumstances has occurred, and (2) a modification would be in the best interest of the children.” As relevant here, the court then made two specific findings pertaining to the change in circumstances requirement. First, the court found that “the [2020 Order] in fact reflects the results of robustly contested litigation aimed at ascertaining the best interest of the [C]hildren.” Second, the court examined each of Father’s alleged changed circumstances and found that “there has not been a material and substantial change in circumstances shown that would support a modification in the current custody order.”

¶18 As to child support, the district court concluded that although there had not been a substantial and material change sufficient to warrant a change in custody, a change in child support was nevertheless warranted due to “material changes of 30% or more in the income of a parent.” Father verbally indicated his agreement with the court’s position. In response, Mother also agreed to “stipulate to modification of child support,” as long as her income was set at what “she testified to at trial, which . . . was $76,000 a year.” The court then ruled:

So my findings for purposes of child support are that the parties’ incomes are as stated in their financial declarations. [Father’s] financial declaration was stated as $5,808, his monthly income. [Mother’s] monthly income stated in her financial declaration was actually $6,599. And I went back and looked at the testimony and the business expenses that were claimed. And I understand that in the real estate business, that things go up and down and that . . . the cost of doing business goes up and down. And that may change from time to time. So I . . . don’t want to see a roller coaster going on here, where you’re . . . forced to go back and forth . . . each year. So for purposes of child support, that is what my ruling is.

Thereafter, the court asked Mother’s counsel to calculate child support “based on the number of days that each party has the [C]hildren.”

ISSUES AND STANDARDS OF REVIEW

¶19 Father now appeals, raising two issues for our review. First, Father argues the district court abused its discretion when it declined to modify parent-time on the ground that Father had not demonstrated a material and substantial change in circumstances. “When reviewing such a decision, we review the district court’s underlying findings of fact, if any, for clear error, and we review for abuse of discretion its ultimate determination regarding the presence or absence of a substantial change in circumstances. The district court’s choice of legal standard, however, presents an issue of law that we review for correctness.” Spencer v. Spencer, 2023 UT App 1, ¶ 13, 524 P.3d 165 (quotation simplified).

¶20 Second, Father argues the district court abused its discretion when it calculated Mother’s income for child support purposes. “In reviewing child support proceedings, we accord substantial deference to the district court’s findings and give it considerable latitude in fashioning the appropriate relief. We will not disturb that court’s actions unless the evidence clearly preponderates to the contrary or there has been an abuse of discretion.” Twitchell v. Twitchell, 2022 UT App 49, ¶ 18, 509 P.3d 806 (quotation simplified).

ANALYSIS

I. Custody and Parent-Time

¶21      While not challenging any of the district court’s factual findings, Father argues the court abused its discretion in determining there had not been a substantial and material change in circumstances warranting a modification of parent-time. Father contends the court “applied the wrong legal standard” when evaluating whether the changes alleged in his petition to modify were sufficient to warrant a modification. Specifically, Father asserts the court should have required a “lesser” showing of a change of circumstances because (1) he was seeking to modify parent-time, not custody; (2) he was seeking to modify a stipulated order; and (3) the provisions in the 2020 Order were temporary. Father argues that under this “lesser” standard, he made a sufficient showing to justify a modification. Because Father’s argument hinges on whether the court correctly applied the statutory standard for modifying a custody order, we begin by discussing that standard. We then evaluate the application of that standard to the factual findings made by the court.

A.        Statutory Standard for Modification of a Custody Order

¶22      To modify a custody order, a district court must engage in a two-step procedure. First, the court must find that “a material and substantial change of circumstance has occurred.” Utah Code § 30-3-10.4(4)(b)(i). Second, the court must find that “a modification of the terms and conditions of the order would be an improvement for and in the best interest of the child.” Id. § 30-3-10.4(4)(b)(ii).

¶23      To satisfy the first step, “the party seeking modification must demonstrate (1) that since the time of the previous decree, there have been changes in the circumstances upon which the previous award was based; and (2) that those changes are sufficiently substantial and material to justify reopening the question of custody.” Hogge v. Hogge, 649 P.2d 51, 54 (Utah 1982). “Only if circumstances have materially and substantially changed may the court proceed to the second step—a determination as to the manner in which custody should be modified, if at all, based on a de novo review of the child’s best interests.”[2] Doyle v. Doyle, 2011 UT 42, ¶ 24, 258 P.3d 553 (quotation simplified). “The district court’s determination that there has or has not been a [material and] substantial change in circumstances is presumed valid and is reviewed only for an abuse of discretion.” Harper v. Harper, 2021 UT App 5, ¶ 13, 480 P.3d 1097 (quotation simplified).

¶24      “Because the required finding of a material and substantial change of circumstances is statutory, neither this court nor the supreme court has purported to—or could—alter that requirement.” Peeples v. Peeples, 2019 UT App 207, ¶ 13, 456 P.3d 1159 (quotation simplified). As such, the change-in-circumstances requirement applies in all cases where a district court is considering a petition to modify custody. However, Utah courts have recognized that in certain cases, a petitioner seeking to modify a custody order may be required to make a lesser showing that a change of circumstances qualifies as “sufficiently substantial and material.” Hogge, 649 P.2d at 54. Courts have allowed a lesser showing in two general types of cases.

¶25 The first category of cases turns on “the type of modification sought.” Haslam v. Haslam, 657 P.2d 757, 758 (Utah 1982). “While altering custody orders generally requires a showing of substantial change in circumstances material to the modification of custody, a lesser showing may be required when the change sought is not a change of custody.” Jones v. Jones, 2016 UT App 94, ¶ 10, 374 P.3d 45 (citation omitted). Where a petitioner is seeking to modify parent-time, rather than custody, “the petitioner is required to make only some showing” of a material and substantial change in circumstances, “which does not rise to the same level as the substantial and material showing required when a district court alters custody.” Erickson v. Erickson, 2018 UT App 184, ¶ 16, 437 P.3d 370 (quotation simplified). Indeed, a court may “determine that a change in circumstances warrants modification of parent-time while simultaneously determining there is no substantial and material change in circumstances to justify a modification of custody. In other words, it is not necessarily erroneous for a court to determine that a particular change in circumstances is sufficient enough to warrant a change in a parent-time schedule, but not significant enough to warrant a modification of custody.” Id.

¶26 “Custody and parent-time are conceptually distinct.” McFarland v. McFarland, 2021 UT App 58, ¶ 36, 493 P.3d 1146 (quotation simplified). “[P]hysical custody encompasses the ability to make day-to-day decisions in a child’s life,” Blake v. Smith, 2023 UT App 78, ¶ 15, 534 P.3d 761, whereas “parent-time more narrowly refers to the amount of time that a parent is entitled to spend with the child,” Widdison v. Widdison, 2022 UT App 46, ¶ 44, 509 P.3d 242 (quotation simplified). Moreover, there are two types of physical custody: joint physical custody and sole physical custody. See Utah Code § 30-3-10.1(3)(a). The “dividing line” between the two is statutorily defined by “the number of overnight visits enjoyed by each parent.” McFarland, 2021 UT App 58, ¶ 36. When a “child stays with each parent overnight for more than 30% of the year,” the parents have joint physical custody of the child. Utah Code § 30-3-10.1(3)(a). But when a child stays with one parent for “at least 70% of the overnights,” that parent is considered to have “sole physical custody” of the child. See McFarland, 2021 UT App 58, ¶ 36. Therefore,

when a change occurs that causes one parent to obtain enough additional overnights to move from one category to another (e.g., from 25% of overnights to 35%, or from 65% to 75%), there has been a change in physical custody. But when a change occurs in which one parent obtains a few additional overnights but not enough to move from one category to another, the change constitutes only a change in parent-time, and not a change in physical custody, as that term is statutorily defined.

Id. (quotation simplified). Thus, although parent-time and custody are conceptually distinct, a parent-time schedule is merely a subspecies of a custody order, see Utah Code § 30-3-10(1), and modification of a parent-time schedule is therefore governed by the same statute that controls modification of a custody order, see id. § 30-3-10.4.

¶27 The second category of cases turns on “the nature of the underlying custody award.” Zavala v. Zavala, 2016 UT App 6, ¶ 17, 366 P.3d 422. The change-in-circumstances requirement for modifying a custody award “is based in the principles of res judicata, for courts typically favor the one-time adjudication of a matter to prevent the undue burdening of the courts and the harassing of parties by repetitive actions.” Taylor v. Elison, 2011 UT App 272, ¶ 13, 263 P.3d 448 (quotation simplified). But not all custody decrees are adjudicated; indeed, a custody award may be “determined by stipulation or default.” Elmer v. Elmer, 776 P.2d 599, 603 (Utah 1989). In cases where a district court is considering an unadjudicated award, such as the stipulated award at issue in this case, “the res judicata policy underlying the changed-circumstances rule is at a particularly low ebb.” Id. Because of this, “a lesser showing will support modifying a stipulated award than would be required to modify an adjudicated award.” Zavala, 2016 UT App 6, ¶ 17.

¶28 A court assessing exactly how much lesser the required showing might be should not “view the adjudicated/stipulated dichotomy as entirely binary” but should instead “examine the origin of the order in question and analyze the extent to which the order—even if stipulated—reflects the result of robustly contested litigation aimed at ascertaining the best interest of the child.” Peeples, 2019 UT App 207, ¶ 17. Thus, in a situation where a custody order is technically stipulated, the court may nevertheless decline to water down the change-in-circumstances showing if the circumstances are such that the court has a “relatively high confidence that the custody order was in line with the best interests of the children.” Id. ¶ 20; see also id. ¶ 18 (concluding that although the custody order being modified was technically stipulated, the district court did not err in requiring a normal change-of-circumstances showing because the stipulation was entered after the parties participated in years of litigation, during which they were represented by counsel); Spencer v. Spencer, 2023 UT App 1, ¶ 19, 524 P.3d 165 (same).

B.        Modification of Parent-Time

¶29      With this legal standard in mind, we now turn to Father’s contention that the district court abused its discretion in finding that he had not shown a sufficient change in circumstances to justify modifying parent-time. Father raises three arguments in support of his contention. First, he argues that the changes occurring between the 2019 Stipulation and the March 2022 trial constitute “sufficient” changes to justify modification of parent-time under the lesser change of circumstances showing. Second, he argues that modifying the 2020 Order based on the 2019 Stipulation also required a lesser showing because the 2020 Order was not the product of “robustly contested litigation.” Third, he asserts that the “conditional” nature of the 2019 Stipulation should have factored into the court’s change-of-circumstance analysis. We address each argument in turn.

1.         Allegations of Changed Circumstances

¶30      In arguing that he made a sufficient showing to justify a change in parent-time, Father points to three things that occurred between the 2019 Stipulation and the March 2022 trial date that he believes constitute sufficient changes to justify modification of parent-time. Those changes are (1) Father’s relocation to Utah, (2) the Children’s strong relationship with Stepmother, and (3) Mother’s troubling behaviors and “emotional reactivity.” But the first two changes on which Father focuses here were not alleged in his petition to modify (or even addressed in his trial memorandum). Nor did they constitute changes that have occurred since the entry of the 2020 Order. And the district court properly concluded that the changes that were alleged in Father’s petition did not justify revisiting the 2020 Order.

¶31      Father’s petition alleged several instances of changed circumstances. After hearing two days of evidence, the district court rejected all of them. It found that three of Father’s allegations—those relating to the Children’s schooling, Mother’s alleged cohabitation, and the issue with vaccinations and medical care—were not supported by any credible evidence. It found that Father’s need to participate in training courses for his employer once or twice a year and Mother’s failure to use a Google calendar were not material changes. And, after analyzing Mother’s finances, it rejected Father’s assertion that Mother could not financially provide for the Children.

¶32 The district court also considered and appropriately rejected the allegation raised by Father that Mother’s behaviors and emotional reactivity were a changed circumstance that had negatively impacted the Children. Instead, it found that the way in which both Mother and Father have interacted contributed to the Children’s need for counseling and that this situation was not a change from prior interactions. It reached a similar conclusion with respect to Father’s allegation that Mother had attempted to undermine him with the Children. And Father has not challenged any of these factual findings.

¶33      Father’s two remaining arguments are that his relocation to Utah and the strong relationship that the Children had forged with Stepmother constitute changed circumstances. But these arguments fail to account for the fact that Father had already remarried and planned on returning to Utah at the time of the 2019 Stipulation. Indeed, the primary rationale for the 2019 Stipulation (on which the 2020 Order was based) was Father’s planned relocation and the 2020 Order had already increased Father’s parent-time based upon that relocation.

¶34    We therefore conclude that the district court correctly applied the change-in-circumstances requirement when determining that Father had not demonstrated a sufficient change. As the party seeking modification, Father bore the burden of demonstrating “(1) that since the time of the previous decree, there [had] been changes in the circumstances upon which the previous award was based; and (2) that those changes [were] sufficiently substantial and material to justify reopening the question of custody.” Hogge v. Hogge, 649 P.2d 51, 54 (Utah 1982). After considering the evidence presented over the course of the two-day trial, the court concluded that Father had not carried his burden on any of the changes alleged in his petition to modify. Even assuming, for purposes of the discussion, that Father needed to make only a “lesser” showing of changed circumstances, it was not an abuse of discretion here for the court to determine that Father’s showing was insufficient. Because Father has not demonstrated that the court abused its discretion in so finding, we will not second-guess the court’s determination. See Harper v. Harper, 2021 UT App 5, ¶ 13, 480 P.3d 1097 (“The district court’s determination that there has or has not been a substantial change in circumstances is presumed valid and is reviewed only for an abuse of discretion.” (quotation simplified)).

2.         Stipulated Order

¶35      Father next contends the district court should have allowed him to get by with a lesser showing of a change of circumstances because he was seeking to modify a stipulated order. However, on the facts of this case, Father has not demonstrated that the court abused its discretion in declining to allow a lesser showing on this basis.

¶36 In its order declining to modify Father’s parent-time, the district court considered whether the 2020 Order should be considered stipulated or adjudicated. Citing Zavala v. Zavala, 2016 UT App 6, 366 P.3d 422, the court explained that the “adjudicated/stipulated dichotomy is not strictly binary” but instead requires an examination of the “origin” of the underlying order. See id. ¶ 17. The court then found that, “after examining the record and considering the testimony presented, the [2020 Order] in fact reflects the results of robustly contested litigation aimed at ascertaining the best interest of the [C]hildren.”

¶37 Although Father believes the district court should have permitted him to make a lesser change-in-circumstances showing because the 2020 Order was stipulated, he has not directly challenged the court’s factual finding that the 2020 Order was the “result[] of robustly contested litigation aimed at ascertaining the best interest of the [C]hildren.” Given the court’s unchallenged finding, which is supported by the record and entitled to deference on appeal, we will not reweigh the evidence. See Lobendahn v. Lobendahn, 2023 UT App 137, ¶ 27, 540 P.3d 727 (“The existence of conflicting evidence in the record is not sufficient to set aside a district court’s findings. The pill that is hard for many appellants to swallow is that if there is evidence supporting a finding, absent a legal problem—a fatal flaw—with that evidence, the finding will stand, even though there is ample record evidence that would have supported contrary findings.” (quotation simplified)). Consequently, Father has not demonstrated that the court abused its discretion in rejecting his argument that the nature of the 2020 Order allowed him to make a lesser showing of a substantial and material change in circumstances.

3.         Temporary Order

¶38 Lastly, Father contends the district court should have considered the 2020 Order as a “temporary order[], which require[s] no showing of changed circumstances to modify, rather than a fully enforceable custody order.” See Harper v. Harper, 2021 UT App 5, ¶ 17, 480 P.3d 1097 (“[U]nlike a permanent custody order, a temporary custody order is modifiable without a showing of a substantial and material change in circumstances.”). We disagree with Father’s contention that the 2020 Order was “temporary.”

¶39      Because the 2020 Order was stipulated, Father contends it must be “interpreted as if it were a contract between the parties.” See McQuarrie v. McQuarrie, 2021 UT 22, ¶ 18, 496 P.3d 44. To that end, he argues, we should “consider each provision [of the 2020 Order] in relation to all others, with a view toward giving effect to all and ignoring none.” Id. (quotation simplified).

¶40 The 2020 Order provides that “[u]pon [Father’s] move to Utah, on a temporary basis until further agreement of the parties or further order of the Court, [Father] shall exercise [extended] parent-time” pursuant to statute. The 2020 Order then outlines the procedure for changing that parent-time: “[A]fter exercising [extended] parent-time for at least (6) months and communicating in writing the desired change in parent-time, the parties will mediate parent-time.”

¶41      Taken together, Father contends these provisions indicate (1) that the conditional parent-time schedule was meant to be temporary and (2) that by entering into the 2019 Stipulation, the parties essentially agreed that Father would not be required to show a change in circumstances in order to modify parent-time. Father is wrong on both fronts.

¶42      First, the extended parent-time schedule did not have an expiration date. Although the provision refers to the schedule being used on a “temporary basis,” when considered in conjunction with the rest of the provision, it is clear that the schedule was intended to be ongoing. Indeed, “temporary basis” is followed immediately after with the phrase “further agreement of the parties or further order of the Court.” As a whole, then, this implies that the schedule outlined in the 2020 Order would continue until the parties could agree on a new schedule or until the court ordered something different. And if neither the parties nor the court sought to change the schedule, then it would remain in place.[3]

¶43      Second, nothing in the 2020 Order explicitly or impliedly eradicated the change-in-circumstances requirement; instead, that order merely set forth part of the process for changing custody. Pursuant to the 2020 Order, the only condition the parties put on modifying the extended parent-time schedule was to notify the other party in writing, triggering a mediation. Father argues that “interpreting that language to mean nothing more than how a party would normally go about modifying a custody order would render that language . . . superfluous.” Thus, in Father’s view, “when Mother and Father agreed that either party could request to modify the parent-time once the conditions in the provision were met, . . . the parties essentially agreed that satisfaction of the conditions (Father’s relocation and exercising the section 30-3-35.1 schedule for six months) constitute a changed circumstances sufficient to modify this parent-time in the future.”

¶44 But “essentially agreeing” is not enough to override the change-in-circumstances requirement. Cf. id. ¶¶ 23–27 (concluding that a divorce decree did not require payment of alimony after remarriage because there was no provision “specifically overrid[ing] the statutory presumption” that alimony terminate upon remarriage (quotation simplified)). The district court is statutorily required to find a material and substantial change in circumstances prior to modifying a custody order. See Utah Code § 30-3-10.4. Thus, without a specific provision overriding the change-in-circumstances requirement, the court was bound by statute to find that circumstances had sufficiently changed prior to modifying the 2020 Order.[4] See McQuarrie, 2021 UT 22, ¶¶ 23–27.

¶45 In sum, the 2020 Order was not temporary. The district court therefore did not err when it declined to treat that order as a temporary order.

II. Child Support

¶46      Next, Father argues the district court abused its discretion when ordering child support. Specifically, Father contends the court erred in calculating Mother’s income because the court deducted Mother’s business expenses from her gross income even though Mother did not prove what those expenses were. But we discern no abuse of discretion in the court’s calculation of Mother’s net income.

¶47 “A noncustodial parent’s child support obligation is calculated using each parent’s adjusted gross income.” Twitchell v. Twitchell, 2022 UT App 49, ¶ 34, 509 P.3d 806 (quotation simplified). When a parent is self-employed, “gross income” is calculated by “subtracting necessary expenses required for self-employment . . . from gross receipts.” Utah Code § 78B-12­203(4)(a). However, “[o]nly those expenses necessary to allow the business to operate at a reasonable level may be deducted from gross receipts.” Id. The individual claiming business expenses carries the burden of demonstrating that “those expenses are necessary to allow the business to operate at a reasonable level.” Ouk v. Ouk, 2015 UT App 104, ¶ 4, 348 P.3d 751 (quotation simplified). Because the district court is “best equipped to find whether expenses are necessary,” we accord a court broad discretion to make such determinations. Barrani v. Barrani, 2014 UT App 204, ¶ 11, 334 P.3d 994 (quotation simplified). “Generally, so long as the steps by which the ultimate conclusion on each factual issue was reached are apparent, a [district] court may make findings, credibility determinations, or other assessments without detailing its justification for finding particular evidence more credible or persuasive than other evidence supporting a different outcome.” Twitchell, 2022 UT App 49, ¶ 36 (quotation simplified).

¶48 Shortly before trial, Mother filed an updated financial declaration, which listed her net monthly income as $6,599. Mother supported the declaration with her 2020 tax return and three months of bank statements. The tax return listed $106,408 in gross income and $30,745 of expenses, resulting in a net income of $75,663. Those expenses included advertising, vehicle expenses, insurance, office expenses, office rent, office supplies, bank charges, membership dues and fees, education costs, internet fees, telephone charges, referral fees, software fees, website charges, equipment fees, and broker fees. At trial, Father presented Mother’s 2020 tax return as an exhibit, and Mother testified regarding the information contained therein. Mother’s testimony regarding her income was largely consistent with the information listed in her tax return. She testified that her 2020 net income was “right around $76,000,” because even though her gross income was over $106,000, she had “lots of business expenses” totaling around “30-something-thousand dollars.” Mother then listed a number of those expenses. Father did not object during this portion of Mother’s testimony, nor did he object to the admission of the underlying evidence; indeed, Mother’s tax return was offered into evidence by Father himself.

¶49      Based on this evidence, the district court ordered that child support payments be calculated using “the incomes listed on the parties’ financial declarations,” with Father’s monthly income set at $5,808, and Mother’s monthly income set at $6,599. The court explained, “Real estate income and costs fluctuates, and the Court does not want to see a change of child support every year, and therefore sets child support with the income listed on the financial declaration.” We discern no abuse in the district court’s calculation of Mother’s net income. As the person claiming business expenses, Mother bore the burden of proving that her expenses were necessary. See Ouk, 2015 UT App 104, ¶ 4. To that end, Mother submitted a financial declaration, which was supported by a tax return and bank statements, showing her business expenses. And at trial, she further testified as to these expenses. All this evidence was unrefuted by Father. Because there was evidence before the court regarding Mother’s business expenses, we must defer to the court’s determination that Mother has carried her burden of proving those expenses.

CONCLUSION

¶50 The district court did not abuse its discretion when it declined to modify Father’s parent-time. In particular, the court did not abuse its discretion in concluding, on this record, that Father had not made even a “lesser” showing of changed circumstances. And the court did not abuse its discretion in calculating Mother’s net income.

¶51 Affirmed.


[1] Father’s requested change would have increased his number of overnights from 130 to 220 and would have decreased Mother’s overnights from 235 to 145. Father’s alternative request for equal parent-time would have also greatly changed the number of overnights awarded to each parent, with Father receiving 182 overnights and Mother receiving 183 overnights. These requests sought significant changes in the parties’ child-care arrangement, even though these requests were, technically speaking, requests for changes to “parent-time” and not to “physical custody.” See McFarland v. McFarland, 2021 UT App 58, ¶ 36, 493 P.3d 1146.

[2] At the outset of the trial, the parties discussed how to present their respective cases in light of the two-step approach. Mother suggested that the district court should “bifurcate[] the process and handl[e] it in two different phases.” Father pushed back on Mother’s suggestion, acknowledging that although Father would not be entitled to relief absent a showing of a material and substantial change in circumstances, that showing was “so intertwined” with the second-phase best-interest inquiry “that it [would] not make sense to hear them separately.” Ultimately, the court agreed with Father that “these issues are somewhat intertwined” and declined to bifurcate the trial. Father’s position and, in turn, the court’s decision, are consistent with Utah caselaw. Our supreme court has recognized that some early Utah cases addressing the two-step approach could be read as supporting the notion that each step should be completely “bifurcated.” See, e.g.Hogge v. Hogge, 649 P.2d 51, 54 (Utah 1982). However, the court has since clarified that our two-step approach requires “only analytical—and not formal procedural— bifurcation,” recognizing that “the evidence supporting changed circumstances is often the same evidence that is used to establish the best interests of the child.” Doyle v. Doyle, 2011 UT 42, ¶¶ 28, 33, 258 P.3d 553 (quotation simplified).

[3] This conclusion is also bolstered by the fact that the 2020 Order contains other provisions that were not meant to be temporary. For example, the 2020 Order provides that summer parent-time is to be scheduled with Mother exercising “first choice . . . in odd years.” This language is closely mirrored in a provision outlining which years the parties can claim the Children for tax purposes, with the parties to “alternate years.”

[4] Moreover, the district court specifically found that nothing in the 2019 Stipulation or the 2020 Order “would make inapplicable the statutory requirement that a party requesting a change to the custody order must allege and prove a material and substantial change in circumstances.” Father has not challenged this finding as clearly erroneous.

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What Can I Do if My Ex Doesn’t Let My Daughter Come for My Parenting Time Which Is Summer? Our Divorce Is Not Finalized Yet.

I can give you my personal opinion (not legal advice, but my personal opinion) from my perspective as a lawyer licensed in Utah and who practices divorce and family law in Utah. You’ll need to confer with a lawyer about the specifics of your particular case, but I will give you my general take on the situation below.

In Utah, if:

  • you and your spouse are parties to a pending divorce case;
  • you and your spouse have made a written agreement governing a parent-time schedule at any time during the year (whether it be when school is in session or when school is dismissed for the summer);
  • you have an agreement, but the terms of the agreement have not been made the order of the court;
  • you’re upholding your end of the agreement; you’re complying with all of the terms of the agreement;
  • the date when school will be dismissed for the summer is in just a few weeks, or even just a few days, away;
  • but then your spouse tries to renege on the agreement and tells you he/she won’t comply with the agreement

then I would immediately and without delay file an ex parte motion for a temporary order (perhaps an ex parte motion for a temporary restraining order (TRO)) asking the court to order the parties to adhere to their parent-time schedule agreement and request expedited disposition. The longer you wait, the harder it is to prevail. You can request that such a motion be reviewed and decided by the court much more quickly than a typical motion if you can show that time is of the essence (meaning that unless the motion is decided immediately, you will suffer the adverse effects of your spouse’s non-compliance with your parent-time agreement). You can argue that unless the court upholds and enforces the agreement, both you and the children will suffer irreparable harm. See Utah Rules of Civil Procedure, Rule 65A for more details. While there are no guarantees the court would grant such a motion (every judge sees things his/her own way), your odds of succeeding on such a motion are, on the face of it, pretty good.

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

https://www.quora.com/What-can-I-do-if-my-ex-doesn-t-let-my-daughter-come-for-my-parenting-time-which-is-summer-Our-divorce-is-not-finalized-but-we-already-signed-it-and-it-ll-be-soon-filed/answer/Eric-Johnson-311?prompt_topic_bio=1

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What Are My Chances of Gaining Full or Primary Custody of My Child as a Father?

First, you need ask a different question before you get to the question of a father’s chances of winning full or primary custody of children in divorce. The question should not be “what are my chances,” but instead, “What custody arrangement is best for our children?”

It is my view that as long as both parents are fit (not perfect, and not equally fit, but each parent meets minimal requirements of parental fitness), both parents love their children and want to be as involved as they can be with their children while the children are still minors, and both parents live within very close proximity to each other so that the children have the same friends and activities in the same neighborhood regardless of which parent they are with at a given time, then the parents should be awarded joint custody. Joint custody does not necessarily mean 50/50 custody, by the way. For example, in Utah, where I practice divorce and family law, joint physical custody* is defined in the Utah Code as “the child stays with each parent overnight for more than 30% of the year”; so that means that if Dad has the children in his custody 111 overnights out of 365, he’s considered a “joint physical custodian”.

With that stated, I’ll address your question: What are my chances of gaining full or primary custody of my child as a father? Generally speaking, in contemporary culture? Not great. Heck, not even good, but still better than it was a generation ago.

I’m a divorce lawyer. I’m 55 years old. When I was still a child (a teenager) in the 1980s, the way joint child custody for fathers was discussed would lead you to conclude that the authors had never even contemplated it before. One article I found treats the subject of a law passed in 1981 “authorizing joint custody of children after separation or divorce”. Really? Joint custody wasn’t even an option until 1981? And this paragraph is from article published in 1984:

A small revolution has begun in child custody law, and as yet its dimensions and ultimate direction are uncertain. Joint custody, the sharing of legal authority by divorced or separated parents over their children, is gaining acceptance as the best arrangement for most children when their parents divorce.

We’ve come a long way since then, but there is still an undeniable bias that takes two forms: 1) bias in favor of mothers (and thus, consequently against fathers) and 2) a specific bias against fathers in the child custody analysis.

Judges, whether they be men or women, generally (not all judges, but most still) believe that mothers are superior caregivers, that children are generally more closely bonded with their mother than with their fathers, and that men who say they want to exercise joint custody do so to a) gain leverage in divorce negotiations over issues that have little or nothing to do with child custody and/or b) reduce the amount of child support they pay. It’s pretty sexists thinking, and you’re rarely going to find a judge who’s dumb enough to express his/her views so starkly, but the bias is there. It doesn’t matter if you’re a male or female lawyer; we all see it.

If you’re clearly an absentee father, then your hope of being awarded joint custody rests largely on whether you are lucky enough to live in a jurisdiction that awards joint custody more or less by default. I’ve heard that such jurisdictions exist, but I don’t live in one now.

But if you are a good, loving, fit father, what can you do to improve their chances of the court making a joint physical and legal custody award? In no particular order: 1) call out the bias (do it diplomatically, if possible). 2) gather and present ludicrously overwhelming evidence of your parental fitness. The bias against fathers results in mothers essentially being presumed fit parents and father being presumed unfit. It’s disgustingly unfair, but crying about it isn’t enough to overcome it. Fathers must work much, much harder and provide much, much more objectively verifiable evidence of parental fitness than do mothers. Prove beyond any reasonable doubt that you clearly meet all of the criteria in your jurisdiction for qualifying for a joint custody award. 3) Be prepared for a long, expensive, unfair fight. Don’t give up. You’ll want to, perhaps even several times over the course of the court case. 4) Do not fall for the “well, we’ll start with minimum visitation/parent-time and see about working our way up to joint” settlement offer scam—that’s usually structured (whether intentionally or not) to keep you at minimum time.

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


*There are two kinds of child custody: physical and legal. Physical custody is the right to have the child live with the person awarded custody by the court (Black’s Law Dictionary 11th ed. 2019). Legal custody is the authority to make significant decisions on a child’s behalf, including decisions about education, religious training, and healthcare. (Id.) Make sure you seek both joint physical AND joint legal custody. And unless you don’t want equal (i.e., 50/50, no parent has more than the other) custody, make sure you specifically request an award of equal legal and physical custody. It’s not a given.

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Why Condemn Children to Sole Custody Awards When They Have Two Fit Parents?

One of the arguments that some fathers make when they encounter the double standard applied to mothers and fathers in child custody disputes (resulting in a denial of equal legal and physical custody to perfectly fit fathers in situations in which there is no way it could be shown that sole custody subserves the best interest of the child better than joint equal custody), they sometimes argue in utter (and utterly understandable) frustration, “Single mothers prove to be the worst parents time and time again!”

That’s an overstatement, a misleading claim. There are plenty of bad single mothers, sure, but single mothers don’t have a corner on the bad parent market.

Single parents (man or woman) have a hard time being the best parents (and being their best selves as a result) because parenthood was never meant to be a solo act. Single parents who try to marginalize and cut the other parent out of childrearing are doing not only the children a disservice, but themselves a disservice as well.

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

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Why won’t courts test competing custody and parent-time proposals during the pretrial phase of a case?

Do you want to know where the real money is most often made in divorce and family law cases? Child custody and parent-time disputes, hands down.

Rarely do the parents agree on what the child custody and parent-time schedules should be. One parent wants (or says he/she wants) things one way, one parents wants (or says he/she wants) them another way. There are many reasons why (which could be the subject of numerous articles, even several volumes), but in a nutshell, the reasons boil down to a few main categories, and in the following order: money, spite, and genuine concern for the children. Money because one gets or pays more money depending upon how many overnights the children spend in a parent’s custody. Spite because many parents use or try to use a parent’s love for his/her children to wound that parent emotionally and psychologically by scheming to deprive parent and child of spending time together. And finally, sometimes (rarely) there is a genuine dispute over whether a parent is fit to exercise the amount of custody and parent-time he/she seeks.

Because there are so often ulterior motives behind a parent’s proposed custody and/or parent-time schedule, the true test of what schedule realistically subserves the best interest of the children is not (cannot be) which parent is the most credible. That’s way too subjective and fallible a standard.

Instead, and so long as each parent’s proposed custody and/or parent-time schedule is reasonable on its face, why not try them both? Why not see whether the kids do best with one or the other or neither? Rather than determine the custody and/or parent-time schedule on pure or mostly speculative bases (i.e., “I imagine/believe/hope that this proposed, but unimplemented, untested schedule will work better than the other unimplemented, untested schedule”), why not have the court implement, compare, contrast, and test competing child custody and parent time schedules during the pretrial/pendente lite/discovery phase of a child custody and/or parent-time dispute case? That way, the court has hard, real world, case-specific, family-specific data to analyze and on which to base its custody and/or parent-time orders.

In 27 years of practice, I have never had a court implement, compare, contrast, and test competing child custody and parent time schedules during the pretrial/pendente lite/discovery phase of a child custody and/or parent-time dispute case.

As long as the conflicting proposals are not obviously deleterious to the children, it’s fairly arrogant of anyone (parent or judge) to contend that “we will implement one and only one custody and/or parent-time schedule during the months or years these proceedings are pending.” It drives me up the wall when I get to trial in those situations and the court tells me, “There is no evidence that the “temporary” schedule [that’s been in place the entire pendency of the case on the basis of nothing but a proffer hearing] does not work.” Well, of course it “works”. It “works” not because it’s best for the kids, not because it’s been shown to be the best of the proposed schedules, but because we have no idea if anything is better or worse. It’s not because the kids support it or benefit from it, they were given no other choice and no other experience. It’s maddening when courts take the position of, “I won’t order your client’s proposed schedule because you and your client never proved it works.” Of course we didn’t prove it, Your Honor—you saw to it that we couldn’t! It’s a “winning” schedule not by virtue of its merits, but by default. It was never proven best for the children, it was imposed by force of inertia. It is impossible to know whether (and thus to claim that) a decision was “in the best interest of the children” when best efforts were never made in reaching that decision.

Put the parents’ proposed competing custody and parent-time schedules to a real-world test. Implement them both for a period sufficient to give them a fair chance to prove a success or failure. Perhaps one will emerge as the clearly superior schedule. Perhaps both schedules will prove inferior to a different schedule that reveals itself in the process of comparing and testing the competing schedules against each other.

There is no good reason—from a general policy perspective—why a court could not or should not, as a general policy, implement and then compare, contrast, and test competing child custody and parent time schedules during the pretrial/pendente lite/discovery phase of a child custody and/or parent-time dispute case. Indeed, the children, parents, and court have everything to gain from such a practice and nothing to lose by adopting such a practice.

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

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Is There a Primary Parent in Joint Custody in Utah Which Is Also Known as “Equal” or “50/50” Custody?

Utah, like many states, has struggled with the very concept of equal (“50/50”) custody of children for years. While progress has been made (especially in the past few years), we still struggle with it. Inexplicably, in my opinion.

For example, in Utah, we have § 30-3-35.2, entitled “Equal parent-time schedule.” It provides, in pertinent part: “(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.” (emphasis mine)

Why? A 50/50 schedule would naturally result in the children spending equal time with the parents because a year has an odd number of overnights in it. Thus, in one year the children would spend 183 overnights with Mom and 182 with Dad, then the next year the children would spend 182 overnights with Mom and 183 with Dad. That results in an equal distribution of time with the children between the parents.

So, you can see how this Code section applies to your question of whether there is a primary parent in a joint equal (50/50) custody award situation.

*But here’s a strange note: To be awarded equal physical custody does not require that it be awarded according to the provisions of Utah Code § 30-3-35.2. In the cases in which I am involved where the parents agree to equal custody, I specify in the settlement agreement and in the custody orders that each parent has the children in his/her care and custody an average of 182.5 overnights annually, and include an statement like the one I provided above explaining how that works (i.e., “because a year has an odd number of overnights in it. Thus, in one year the children would spend 183 overnights with Mom and 182 with Dad, then the next year the children would spend 182 overnights with Mom and 183 with Dad. That results in an equal distribution of time with the children between the parents.”)

Accordingly, in Utah the answer to the question of, “Is there a primary parent in an equal physical custody award case?,” is that it’s possible for one parent to have the children in his/her custody one more overnight more than the other parent, but such a situation is not mandatory. Parents who truly want a perfectly equal division of child custody can have it, if they ensure that the language of the custody order so provides.

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

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What are the child custody factors that judges consider?

What are the child custody factors that judges consider when determining what’s in a child’s best interest in custody disputes according to Utah’s family law statutes?

The main factors are found in Utah Code § 30-3-10 (and the main factors of § 30-3-10 itself are highlighted below in red text, but you should read the entire applicable code section for all factors):

30-3-10.  Custody of a child — Custody factors.

(2) In determining any form of custody and parent-time under Subsection (1), the court shall consider the best interest of the child and may consider among other factors the court finds relevant, the following for each parent:

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

      (b) the parent’s demonstrated understanding of, responsiveness to, and ability to meet the developmental needs of the child, including the child’s:

             (i) physical needs;

             (ii) emotional needs;

             (iii) educational needs;

             (iv) medical needs; and

             (v) any special needs;

      (c) the parent’s capacity and willingness to function as a parent, including:

             (i) parenting skills;

             (ii) 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

            (iii) ability to provide personal care rather than surrogate care;

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

     (e) the emotional stability of the parent;

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

     (g) 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;

     (h) the parent’s reasons for having relinquished custody or parent-time in the past;

     (i) duration and depth of desire for custody or parent-time;

     (j) the parent’s religious compatibility with the child;

     (k) the parent’s financial responsibility;

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

     (m) who has been the primary caretaker of the child;

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

     (o) the relative benefit of keeping siblings together;

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

     (q) 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

     (r) any other factor the court finds relevant.

(3) There is a rebuttable presumption that joint legal custody, as defined in Section 30-3-10.1, is in the best interest of the child, except in cases when there is:

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

     (b) special physical or mental needs of a parent or child, making joint legal custody unreasonable;

     (c) physical distance between the residences of the parents, making joint decision making impractical in certain circumstances; or

     (d) any other factor the court considers relevant including those listed in this section and Section 30-3-10.2.

*****

(6)

     (a) Except as provided in Subsection (6)(b), a court may not discriminate against a parent due to a disability, as defined in Section 57-21-2, in awarding custody or determining whether a substantial change has occurred for the purpose of modifying an award of custody.

     (b) The court may not consider the disability of a parent as a factor in awarding custody or modifying an award of custody based on a determination of a substantial change in circumstances, unless the court makes specific findings that:

         (i) the disability significantly or substantially inhibits the parent’s ability to provide for the physical and emotional needs of the child at issue; and

         (ii) the parent with a disability lacks sufficient human, monetary, or other resources available to supplement the parent’s ability to provide for the physical and emotional needs of the child at issue.

*****

(7) This section does not establish a preference for either parent solely because of the gender of the parent.

(8) This section establishes neither a preference nor a presumption for or against joint physical custody or sole physical custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.

*****

(10) In considering the past conduct and demonstrated moral standards of each party under Subsection (2)(d) or any other factor a court finds relevant, the court may not:

     (a) consider or treat a parent’s lawful possession or use of cannabis in a medicinal dosage form, a cannabis product in a medicinal dosage form, or a medical cannabis device, in accordance with Title 4, Chapter 41a, Cannabis Production Establishments and PharmaciesTitle 26B, Chapter 4, Part 2, Cannabinoid Research and Medical Cannabis, or Subsection 58-37-3.7(2) or (3) any differently than the court would consider or treat the lawful possession or use of any prescribed controlled substance; or

     (b) discriminate against a parent because of the parent’s status as a:

         (i) cannabis production establishment agent, as that term is defined in Section 4-41a-102;

         (ii) medical cannabis pharmacy agent, as that term is defined in Section 26B-4-201;

         (iii) medical cannabis courier agent, as that term is defined in Section 26B-4-201; or

         (iv) medical cannabis cardholder in accordance with Title 26B, Chapter 4, Part 2, Cannabinoid Research and Medical Cannabis.

Just how does a court consider the child custody factors? The recent case of Lamb v. Lamb (2024 UT App 16) provides a concise explanation:

¶26 Section 30-3-10 states that in “determining any form of custody and parent-time . . . , the court shall consider the best interest of the child and may consider . . . other factors the court finds relevant,” including factors for each parent articulated in the code. Utah Code § 30-3-10(2) (emphasis added). These factors a court may consider are “not on equal footing.” Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. Instead, “it is within the trial court’s discretion to determine, based on the facts before it and within the confines set by the appellate courts, where a particular factor falls within the spectrum of relative importance and to accord each factor its appropriate weight.” Id. (emphasis added). “And where significant evidence concerning a particular factor is presented to the district court, findings that omit all discussion of that evidence must be deemed inadequate.” Twitchell v. Twitchell, 2022 UT App 49, ¶ 21, 509 P.3d 806. Thus, to “ensure that the trial court’s custody determination, discretionary as it is, is rationally based, it is essential that the court set forth in its findings of fact not only that it finds one parent to be the better person to care for the child, but also the basic facts which show why that ultimate conclusion is justified.” Id. ¶ 24 (cleaned up).

But note that § 30-3-10 does not constitute the only list of factors the court can consider in making its child custody and parent-time award decisions.

Equal physical custody factors

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 begins.

     (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.

Parent-time factors

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

(1) As used in Sections 30-3-32 through 30-3-37:

     (a) “Child” means the child of divorcing, separating, or adjudicated parents.

     (b) “Supervised parent-time” means parent-time that requires the noncustodial parent to be accompanied during parent-time by an individual approved by the court.

     (c) “Surrogate care” means care by any individual other than the parent of the child.

     (d) “Uninterrupted time” means parent-time exercised by one parent without interruption at any time by the presence of the other parent.

     (e) “Virtual parent-time” means parent-time facilitated by tools such as telephone, email, instant messaging, video conferencing, and other wired or wireless technologies over the Internet or other communication media, to supplement in-person visits between a noncustodial parent and a child or between a child and the custodial parent when the child is staying with the noncustodial parent.

(2) (a) A court shall consider as primary the safety and well-being of the child and the parent who experiences domestic or family violence.

     (b) Absent a showing by a preponderance of evidence of real harm or substantiated potential harm to the child:

         (i) it is in the best interests of the child of divorcing, divorced, or adjudicated parents to have frequent, meaningful, and continuing access to each parent following separation or divorce;

         (ii) each divorcing, separating, or adjudicated parent is entitled to and responsible for frequent, meaningful, and continuing access with the parent’s child consistent with the child’s best interests; and

         (iii) it is in the best interests of the child to have both parents actively involved in parenting the child.

(3) An order issued by a court pursuant to Title 78B, Chapter 7, Part 6, Cohabitant Abuse Protective Orders, shall be considered evidence of real harm or substantiated potential harm to the child.

(4) If a parent relocates because of an act of domestic violence or family violence by the other parent, the court shall make specific findings and orders with regards to the application of Section 30-3-37.

30-3-33.  Advisory guidelines.

In addition to the parent-time schedules provided in Sections 30-3-35 and 30-3-35.5, the following advisory guidelines are suggested to govern all parent-time arrangements between parents.

(1) Parent-time schedules mutually agreed upon by both parents are preferable to a court-imposed solution.

(2) The parent-time schedule shall be used to maximize the continuity and stability of the child’s life.

(3) Special consideration shall be given by each parent to make the child available to attend family functions including funerals, weddings, family reunions, religious holidays, important ceremonies, and other significant events in the life of the child or in the life of either parent which may inadvertently conflict with the parent-time schedule.

(4) The responsibility for the pick up, delivery, and return of the child shall be determined by the court when the parent-time order is entered, and may be changed at any time a subsequent modification is made to the parent-time order.

(5) If the noncustodial parent will be providing transportation, the custodial parent shall have the child ready for parent-time at the time the child is to be picked up and shall be present at the custodial home or shall make reasonable alternate arrangements to receive the child at the time the child is returned.

(6) If the custodial parent will be transporting the child, the noncustodial parent shall be at the appointed place at the time the noncustodial parent is to receive the child, and have the child ready to be picked up at the appointed time and place, or have made reasonable alternate arrangements for the custodial parent to pick up the child.

(7) Regular school hours may not be interrupted for a school-age child for the exercise of parent-time by either parent.

(8) The court may make alterations in the parent-time schedule to reasonably accommodate the work schedule of both parents and may increase the parent-time allowed to the noncustodial parent but may not diminish the standardized parent-time provided in Sections 30-3-35 and 30-3-35.5.

(9) The court may make alterations in the parent-time schedule to reasonably accommodate the distance between the parties and the expense of exercising parent-time.

(10) Neither parent-time nor child support is to be withheld due to either parent’s failure to comply with a court-ordered parent-time schedule.

(11) The custodial parent shall notify the noncustodial parent within 24 hours of receiving notice of all significant school, social, sports, and community functions in which the child is participating or being honored, and the noncustodial parent shall be entitled to attend and participate fully.

(12) The noncustodial parent shall have access directly to all school reports including preschool and daycare reports and medical records and shall be notified immediately by the custodial parent in the event of a medical emergency.

(13) Each parent shall provide the other with the parent’s current address and telephone number, email address, and other virtual parent-time access information within 24 hours of any change.

(14) Each parent shall permit and encourage, during reasonable hours, reasonable and uncensored communications with the child, in the form of mail privileges and virtual parent-time if the equipment is reasonably available, provided that if the parties cannot agree on whether the equipment is reasonably available, the court shall decide whether the equipment for virtual parent-time is reasonably available, taking into consideration:

     (a) the best interests of the child;

     (b) each parent’s ability to handle any additional expenses for virtual parent-time; and

     (c) any other factors the court considers material.

(15) Parental care shall be presumed to be better care for the child than surrogate care and the court shall encourage the parties to cooperate in allowing the noncustodial parent, if willing and able to transport the children, to provide the child care. Child care arrangements existing during the marriage are preferred as are child care arrangements with nominal or no charge.

(16) Each parent shall provide all surrogate care providers with the name, current address, and telephone number of the other parent and shall provide the noncustodial parent with the name, current address, and telephone number of all surrogate care providers unless the court for good cause orders otherwise.

(17) Each parent shall be entitled to an equal division of major religious holidays celebrated by the parents, and the parent who celebrates a religious holiday that the other parent does not celebrate shall have the right to be together with the child on the religious holiday.

(18) If the child is on a different parent-time schedule than a sibling, based on Sections 30-3-35 and 30-3-35.5, the parents should consider if an upward deviation for parent-time with all the minor children so that parent-time is uniform between school aged and non-school aged children, is appropriate.

(19) When one or both parents are servicemembers or contemplating joining a uniformed service, the parents should resolve issues of custodial responsibility in the event of deployment as soon as practicable through reaching a voluntary agreement pursuant to Section 78B-20-201 or through court order obtained pursuant to Section 30-3-10. Servicemembers shall ensure their family care plan reflects orders and agreements entered and filed pursuant to Title 78B, Chapter 20, Uniform Deployed Parents Custody, Parent-time, and Visitation Act.

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; 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 schedule as provided in Sections 30-3-35 and 30-3-35.5 shall be considered the minimum parent-time to which the noncustodial parent and the child shall be entitled.

(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;

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

     (c) the distance between the residency of the child and the noncustodial parent;

     (d) a credible allegation of child abuse has been made;

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

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

     (g) the preference of the child if the court determines the child is of sufficient maturity;

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

     (i) shared interests between the child and the noncustodial parent;

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

     (k) 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;

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

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

     (n) the parent-time schedule of siblings;

     (o) the lack of reasonable alternatives to the needs of a nursing child; and

     (p) any other criteria the court determines relevant to the best interests of the child.

(4) The court shall enter the reasons underlying the court’s order for parent-time that:

     (a) incorporates a parent-time schedule provided in Section 30-3-35 or 30-3-35.5; or

     (b) provides more or less parent-time than a parent-time schedule provided in Section 30-3-35 or 30-3-35.5.

(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.

(6) Once the parent-time schedule has been established, the parties may not alter the schedule except by mutual consent of the parties or a court order.

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

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Is mom deemed to be unfit or unstable if she’s going to school to better her career for a better living for her two year old child while temporarily receiving unemployment benefits. Can mom still be granted joint custody with the other parent?

I am a divorce and family lawyer. I think you’d be hard-pressed to find a court anywhere in this country (USA) that would consider a mother temporarily receiving unemployment benefits while attending school improve her career to earn a better living for her and her child(ren) unfit or unstable or otherwise unfit to be awarded joint custody of the child(ren) with the other parent.

If Mom making fraudulent claims of attending school improve her earning capacity, when in fact she is just taking the “perpetual student” lazy person’s way out, there’s nothing wrong with exposing that.

If your argument is that a mother who works cannot divide her time and attention between employment and caregiving to take adequate care of a child, there are some real world scenarios where that is true, but generally, most parents (married or separated) both work in today’s world.

Would you be happier with paying to support both the mother and the child financially (*i.e.*, be careful what you wish for; you might get it)?

Or are you a stay-at-home father who does not need to work to obtain sufficient income? If you are arguing that the working mother should not be awarded equal physical custody of the child(ren) because you can provide full-time care for the child(ren) without having to place them in daycare during the work day, that is an argument that may get some traction when opposing an award of equal physical custody, but I have a problem with that argument because it tends to punish financially responsible people who must work to support themselves.

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

https://www.quora.com/Is-mom-deemed-to-be-unfit-or-unstable-if-she-s-going-to-school-to-better-her-career-for-a-better-living-for-her-two-year-old-child-while-temporarily-receiving-unemployment-benefits-can-mom-still-be-granted-joint

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House Bill 157 (HB0157 (utah.gov)), “Child Custody Factor Amendments”.

This post discusses another proposed family law bill under consideration for the 2024 Utah legislative session, House Bill 157 (HB0157 (utah.gov)), “Child Custody Factor Amendments”.

This bill, if passed, would provides that a parent’s approval or disapproval, in itself, of a child’s gender identity, is not a factor to be considered:

  • in a Division of Child and Family Services determination regarding removal of a child from parental custody; and
  • when determining child custody as part of a divorce or other family law proceeding.

If passed, H.B. 157 would amend:

Utah Code § 30-3-10

and

Utah Code § 80-2a-202

The new provisions specially are:

(For Utah Code § 30-3-10)

127          (10) In considering the past conduct and demonstrated moral standards of each party
128     under Subsection (2)(d) or any other factor a court finds relevant, the court may not:

*****

144          (b) discriminate against a parent based upon the parent’s agreement or disagreement
145     with a minor child of the couple’s:
146          (i) assertion that the child’s gender identity is different from the sex assigned to the
147     child at birth; or
148          (ii) practice of having or expressing a different gender identity than the sex assigned to
149     the child at birth.

(For Utah Code § 80-2a-202)

167          (b) A peace officer or a child welfare caseworker may not take action under Subsection
168     (2)(a) solely on the basis of:

*****
175          (iii) a parent’s agreement or disagreement with a minor child of the couple’s:
176          (A) assertion that the child’s gender identity is different from the sex assigned to the
177     child at birth; or
178          (B) practice of having or expressing a different gender identity than the sex assigned to
179     the child at birth.

“How many legs does a dog have if you call his tail a leg? Four. Saying that a tail is a leg doesn’t make it a leg.” – Abraham Lincoln

While I realize that the intent of the bill is NOT to give credence to, among other things (all bad) junk science and the extremely dangerous notion that one can legally force others to share and engage in one’s own delusions, the result of enacting such legislation would—ironically—have the opposite effect (e.g., the bill incorporates “sex assigned at birth” when biological sex is not “assigned,” but a law like this would legitimate this inanity). The best way to deal with what will be looked back on as one of the most intellectually bankrupt and embarrassing concepts of the 21st century is to give it precisely all the statutory attention it deserves: none. Parental rights are inalienable and God-given, not a thing the government can erode with trendy, woke (there, I said it) legislation.

Here is the propose text of the bill:

30          30-3-10. Custody of a child — Custody factors.
31          (1) If a married couple having one or more minor children are separated, or the married
32     couple’s marriage is declared void or dissolved, the court shall enter, and has continuing
33     jurisdiction to modify, an order of custody and parent-time.
34          (2) In determining any form of custody and parent-time under Subsection (1), the court
35     shall consider the best interest of the child and may consider among other factors the court
36     finds relevant, the following for each parent:
37          (a) evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional
38     abuse, involving the child, the parent, or a household member of the parent;
39          (b) the parent’s demonstrated understanding of, responsiveness to, and ability to meet
40     the developmental needs of the child, including the child’s:
41          (i) physical needs;
42          (ii) emotional needs;
43          (iii) educational needs;
44          (iv) medical needs; and
45          (v) any special needs;
46          (c) the parent’s capacity and willingness to function as a parent, including:
47          (i) parenting skills;
48          (ii) co-parenting skills, including:
49          (A) ability to appropriately communicate with the other parent;
50          (B) ability to encourage the sharing of love and affection; and
51          (C) willingness to allow frequent and continuous contact between the child and the
52     other parent, except that, if the court determines that the parent is acting to protect the child
53     from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into
54     consideration; and
55          (iii) ability to provide personal care rather than surrogate care;
56          (d) in accordance with Subsection (10), the past conduct and demonstrated moral

57     character of the parent;
58          (e) the emotional stability of the parent;
59          (f) the parent’s inability to function as a parent because of drug abuse, excessive
60     drinking, or other causes;
61          (g) whether the parent has intentionally exposed the child to pornography or material
62     harmful to minors, as “material” and “harmful to minors” are defined in Section 76-10-1201;
63          (h) the parent’s reasons for having relinquished custody or parent-time in the past;
64          (i) duration and depth of desire for custody or parent-time;
65          (j) the parent’s religious compatibility with the child;
66          (k) the parent’s financial responsibility;
67          (l) the child’s interaction and relationship with step-parents, extended family members
68     of other individuals who may significantly affect the child’s best interests;
69          (m) who has been the primary caretaker of the child;
70          (n) previous parenting arrangements in which the child has been happy and
71     well-adjusted in the home, school, and community;
72          (o) the relative benefit of keeping siblings together;
73          (p) the stated wishes and concerns of the child, taking into consideration the child’s
74     cognitive ability and emotional maturity;
75          (q) the relative strength of the child’s bond with the parent, meaning the depth, quality,
76     and nature of the relationship between the parent and the child; and
77          (r) any other factor the court finds relevant.
78          (3) There is a rebuttable presumption that joint legal custody, as defined in Section
79     30-3-10.1, is in the best interest of the child, except in cases when there is:
80          (a) evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional
81     abuse involving the child, a parent, or a household member of the parent;
82          (b) special physical or mental needs of a parent or child, making joint legal custody
83     unreasonable;
84          (c) physical distance between the residences of the parents, making joint decision
85     making impractical in certain circumstances; or
86          (d) any other factor the court considers relevant including those listed in this section
87     and Section 30-3-10.2.

88          (4) (a) The person who desires joint legal custody shall file a proposed parenting plan
89     in accordance with Sections 30-3-10.8 and 30-3-10.9.
90          (b) A presumption for joint legal custody may be rebutted by a showing by a
91     preponderance of the evidence that it is not in the best interest of the child.
92          (5) (a) A child may not be required by either party to testify unless the trier of fact
93     determines that extenuating circumstances exist that would necessitate the testimony of the
94     child be heard and there is no other reasonable method to present the child’s testimony.
95          (b) (i) The court may inquire of the child’s and take into consideration the child’s
96     desires regarding future custody or parent-time schedules, but the expressed desires are not
97     controlling and the court may determine the child’s custody or parent-time otherwise.
98          (ii) The desires of a child 14 years old or older shall be given added weight, but is not
99     the single controlling factor.
100          (c) (i) If an interview with a child is conducted by the court pursuant to Subsection
101     (5)(b), the interview shall be conducted by the judge in camera.
102          (ii) The prior consent of the parties may be obtained but is not necessary if the court
103     finds that an interview with a child is the only method to ascertain the child’s desires regarding
104     custody.
105          (6) (a) Except as provided in Subsection (6)(b), a court may not discriminate against a
106     parent due to a disability, as defined in Section 57-21-2, in awarding custody or determining
107     whether a substantial change has occurred for the purpose of modifying an award of custody.
108          (b) The court may not consider the disability of a parent as a factor in awarding custody
109     or modifying an award of custody based on a determination of a substantial change in
110     circumstances, unless the court makes specific findings that:
111          (i) the disability significantly or substantially inhibits the parent’s ability to provide for
112     the physical and emotional needs of the child at issue; and
113          (ii) the parent with a disability lacks sufficient human, monetary, or other resources
114     available to supplement the parent’s ability to provide for the physical and emotional needs of
115     the child at issue.
116          (c) Nothing in this section may be construed to apply to adoption proceedings under
117     Title 78B, Chapter 6, Part 1, Utah Adoption Act.
118          (7) This section does not establish a preference for either parent solely because of the

119     gender of the parent.
120          (8) This section establishes neither a preference nor a presumption for or against joint
121     physical custody or sole physical custody, but allows the court and the family the widest
122     discretion to choose a parenting plan that is in the best interest of the child.
123          (9) When an issue before the court involves custodial responsibility in the event of a
124     deployment of one or both parents who are service members and the service member has not
125     yet been notified of deployment, the court shall resolve the issue based on the standards in
126     Sections 78B-20-306 through 78B-20-309.
127          (10) In considering the past conduct and demonstrated moral standards of each party
128     under Subsection (2)(d) or any other factor a court finds relevant, the court may not:
129          (a) (i) consider or treat a parent’s lawful possession or use of cannabis in a medicinal
130     dosage form, a cannabis product in a medicinal dosage form, or a medical cannabis device, in
131     accordance with Title 4, Chapter 41a, Cannabis Production Establishments and Pharmacies,
132     Title 26B, Chapter 4, Part 2, Cannabinoid Research and Medical Cannabis, or Subsection
133     58-37-3.7(2) or (3) any differently than the court would consider or treat the lawful possession
134     or use of any prescribed controlled substance; or
135          [(b)(ii) discriminate against a parent because of the parent’s status as a:
136          [(i)(A) cannabis production establishment agent, as that term is defined in Section
137     4-41a-102;
138          [(ii)(B) medical cannabis pharmacy agent, as that term is defined in Section
139     26B-4-201;
140          [(iii)(C) medical cannabis courier agent, as that term is defined in Section 26B-4-201;
141     or
142          [(iv)(D) medical cannabis cardholder in accordance with Title 26B, Chapter 4, Part 2,
143     Cannabinoid Research and Medical Cannabis[.]; or
144          (b) discriminate against a parent based upon the parent’s agreement or disagreement
145     with a minor child of the couple’s:
146          (i) assertion that the child’s gender identity is different from the sex assigned to the
147     child at birth; or
148          (ii) practice of having or expressing a different gender identity than the sex assigned to
149     the child at birth.

150          Section 2. Section 80-2a-202 is amended to read:
151          80-2a-202. Removal of a child by a peace officer or child welfare caseworker —
152     Search warrants — Protective custody and temporary care of a child.
153          (1) A peace officer or child welfare caseworker may remove a child or take a child into
154     protective custody, temporary custody, or custody in accordance with this section.
155          (2) (a) Except as provided in Subsection (2)(b), a peace officer or a child welfare
156     caseworker may not enter the home of a child whose case is not under the jurisdiction of the
157     juvenile court, remove a child from the child’s home or school, or take a child into protective
158     custody unless:
159          (i) there exist exigent circumstances sufficient to relieve the peace officer or the child
160     welfare caseworker of the requirement to obtain a search warrant under Subsection (3);
161          (ii) the peace officer or child welfare caseworker obtains a search warrant under
162     Subsection (3);
163          (iii) the peace officer or child welfare caseworker obtains a court order after the child’s
164     parent or guardian is given notice and an opportunity to be heard; or
165          (iv) the peace officer or child welfare caseworker obtains the consent of the child’s
166     parent or guardian.
167          (b) A peace officer or a child welfare caseworker may not take action under Subsection
168     (2)(a) solely on the basis of:
169          (i) educational neglect, truancy, or failure to comply with a court order to attend
170     school; [or]
171          (ii) the possession or use, in accordance with Title 26B, Chapter 4, Part 2, Cannabinoid
172     Research and Medical Cannabis, of cannabis in a medicinal dosage form, a cannabis product in
173     a medicinal dosage form, or a medical cannabis device, as those terms are defined in Section
174     26B-4-201[.]; or
175          (iii) a parent’s agreement or disagreement with a minor child of the couple’s:
176          (A) assertion that the child’s gender identity is different from the sex assigned to the
177     child at birth; or
178          (B) practice of having or expressing a different gender identity than the sex assigned to
179     the child at birth.
180          (3) (a) The juvenile court may issue a warrant authorizing a peace officer or a child

181     welfare caseworker to search for a child and take the child into protective custody if it appears
182     to the juvenile court upon a verified petition, recorded sworn testimony or an affidavit sworn to
183     by a peace officer or another individual, and upon the examination of other witnesses if
184     required by the juvenile court, that there is probable cause to believe that:
185          (i) there is a threat of substantial harm to the child’s health or safety;
186          (ii) it is necessary to take the child into protective custody to avoid the harm described
187     in Subsection (3)(a)(i); and
188          (iii) it is likely that the child will suffer substantial harm if the child’s parent or
189     guardian is given notice and an opportunity to be heard before the child is taken into protective
190     custody.
191          (b) In accordance with Section 77-23-210, a peace officer making the search under
192     Subsection (3)(a) may enter a house or premises by force, if necessary, in order to remove the
193     child.
194          (4) (a) A child welfare caseworker may take action under Subsection (2) accompanied
195     by a peace officer or without a peace officer if a peace officer is not reasonably available.
196          (b) (i) Before taking a child into protective custody, and if possible and consistent with
197     the child’s safety and welfare, a child welfare caseworker shall determine whether there are
198     services available that, if provided to a parent or guardian of the child, would eliminate the
199     need to remove the child from the custody of the child’s parent or guardian.
200          (ii) In determining whether the services described in Subsection (4)(b)(i) are
201     reasonably available, the child welfare caseworker shall consider the child’s health, safety, and
202     welfare as the paramount concern.
203          (iii) If the child welfare caseworker determines the services described in Subsection
204     (4)(b)(i) are reasonably available, the services shall be utilized.
205          (5) (a) If a peace officer or a child welfare caseworker takes a child into protective
206     custody under Subsection (2), the peace officer or child welfare caseworker shall:
207          (i) notify the child’s parent or guardian in accordance with Section 80-2a-203; and
208          (ii) release the child to the care of the child’s parent or guardian or another responsible
209     adult, unless:
210          (A) the child’s immediate welfare requires the child remain in protective custody; or
211          (B) the protection of the community requires the child’s detention in accordance with

212     Chapter 6, Part 2, Custody and Detention.
213          (b) (i) If a peace officer or child welfare caseworker is executing a warrant under
214     Subsection (3), the peace officer or child welfare caseworker shall take the child to:
215          (A) a shelter facility; or
216          (B) if the division makes an emergency placement under Section 80-2a-301, the
217     emergency placement.
218          (ii) If a peace officer or a child welfare caseworker takes a child to a shelter facility
219     under Subsection (5)(b)(i), the peace officer or the child welfare caseworker shall promptly file
220     a written report that includes the child’s information, on a form provided by the division, with
221     the shelter facility.
222          (c) A child removed or taken into protective custody under this section may not be
223     placed or kept in detention pending court proceedings, unless the child may be held in
224     detention under Chapter 6, Part 2, Custody and Detention.
225          (6) (a) The juvenile court shall issue a warrant authorizing a peace officer or a child
226     welfare worker to search for a child who is missing, has been abducted, or has run away, and
227     take the child into physical custody if the juvenile court determines that the child is missing,
228     has been abducted, or has run away from the protective custody, temporary custody, or custody
229     of the division.
230          (b) If the juvenile court issues a warrant under Subsection (6)(a):
231          (i) the division shall notify the child’s parent or guardian who has a right to parent-time
232     with the child in accordance with Subsection 80-2a-203(5)(a);
233          (ii) the court shall order:
234          (A) the law enforcement agency that has jurisdiction over the location from which the
235     child ran away to enter a record of the warrant into the National Crime Information Center
236     database within 24 hours after the time in which the law enforcement agency receives a copy of
237     the warrant; and
238          (B) the division to notify the law enforcement agency described in Subsection
239     (6)(b)(ii)(A) of the order described in Subsection (6)(b)(ii)(A); and
240          (c) the court shall specify the location to which the peace officer or the child welfare
241     caseworker shall transport the child.

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House Bill 140 (HB0140 (utah.gov)), “Amendments to Custody and Parent-Time”

Today’s post on proposed family law legislation under consideration during the 2024 Utah legislative session is House Bill 140 (HB0140 (utah.gov)), “Amendments to Custody and Parent-Time”.

This bill, according to its own description:

  • provides that a substantial and material change in circumstances for a custody order includes a parent residing with an individual, or providing the individual with access to the parent’s child, when the individual has been convicted of certain crimes;
  • amends the advisory guidelines for a custody and parent-time arrangement to allow for parental notification when a parent is residing with an individual, or providing the individual with access to the parent’s child, and the individual has been convicted of certain crimes;
  • amends the advisory guidelines for a custody and parent-time arrangement in regard to notification of a parent in the event of a medical emergency; and
  • makes technical and conforming changes.

It would amend the following code sections, if passed into law:

Utah Code § 30-3-10.4

Utah Code § 30-3-33

My thoughts on this bill:

If this bill passed, what effect would it have? A parent discovers that the person he/she resides with or to whom the parent has “provide access to his/her child(ren)” meets one or more of the child abuse/child sexual abuse factors and has to notify the other parent of this fact? So what? Unless the person is barred from contact with children, then unless that person has abused, attempted to abuse, or threatened to abuse the child(ren), what can legally be done? A child being in the presence of a child abuse ex-con is not itself a “substantial and material change of circumstances” justifying a modification of child custody or parent-time, in my view. We can’t keep punishing someone repeatedly for the same crime.

And the definition of “sex offender” gets broader all the time. You can get on the sex offender list for the silliest of things (I know a guy who went streaking in college and is on the sex offender list—it was stupid of him to go streaking, but a little kid saw him from a neighboring window and that’s what got him on the sex offender list).

Yes, living with a child abuse ex-con or providing a child abuse ex-con “access to the child(ren)” is poor judgment, but without the children being harmed or in danger of being harmed, there’s not enough to go on to do anything.

But I get it. If I were a divorced or single parent, I wouldn’t want the other parent living with a convicted sex offender either (assuming the offense was a serious one, and not one of those “he/she is on the sex offender list for public urination” kind of convictions).

It’s not a matter of how I feel about sex offenders (real sex offenses are vile), it’s whether the proposed law would do any good. I don’t think it would. Especially not in the legal system we have now. What good one perceives such a law would do and what it would actually do are quite different, in my view.

I don’t know a great deal about the sex offender registry law and other post-conviction laws. Are convicted sex offenders required to notify prospective boyfriends/girlfriends or spouses that they are convicted sex offenders currently? It is my understanding that they do not. If they do, then H.B. 140 may have stronger rational footing than I believe. If not, then the bill doesn’t appear to make much legal sense to me (meaning: I don’t see what good it will actually do, no matter how good it may feel to propose such a law).

Even if the law were passed, it would not likely be the basis for a modification of a child custody or parent-time order. Living with someone who is a convicted sex offender alone is simply not proof of any harm or sufficient danger to a child (just as living with one convicted of a violent crime, drug use, drug dealing, or other crimes is not). I don’t know the real statistics about the rate of recidivism for sex offenders, but even if we assume for the sake of discussion that it’s very high, that alone would not, in my view, likely be seen by a court as a reason to change custody. Like it or not.

If a parent resided with a sex offender with a history of repeated offenses, that might qualify as too great a risk to a child, but if we’re talking one conviction (maybe even two, sadly), that may not be enough to establish the sex offender as a danger to the children. My opinion is not based upon sympathy for sex offenders but on what I believe the courts would do in the situation you describe. This is why you’ll notice that there has not been a bill proposed that prevents a single parent or divorced parent from marrying or living with a convicted sex offender. I believe it would be found unconstitutional, that it would be found to unduly punish those who don’t re-offend.

Besides, how would one ever prove that a parent who resides with a convicted sex offender or provides him/her with access to that parent’s knows that the individual is a sex offender or worse, “an offense that is substantially similar to” a sex offense (see lines 57 and 58 of the bill, emphasis mine).

No matter how good the intent behind H.B. 140 may be, I foresee far too many adverse unintended consequences and abuses of such a law.

AMENDMENTS TO CUSTODY AND PARENT-TIME

33     Be it enacted by the Legislature of the state of Utah:
34          Section 1. Section 30-3-10.4 is amended to read:
35          30-3-10.4. Modification or termination of order.
36          (1) The court has continuing jurisdiction to make subsequent changes to modify:
37          (a) custody of a child if there is a showing of a substantial and material change in
38     circumstances since the entry of the order; and
39          (b) parent-time for a child if there is a showing that there is a change in circumstances
40     since the entry of the order.
41          (2) A substantial and material change in circumstances under Subsection (1)(a)
42     includes a showing by a parent that the other parent:
43          (a) resides with an individual or provides an individual with access to the child; and
44          (b) knows that the individual:
45          (i) is required to register as a sex offender or a kidnap offender for an offense against a
46     child under Title 77, Chapter 41, Sex and Kidnap Offender Registry;
47          (ii) is required to register as a child abuse offender under Title 77, Chapter 43, Child
48     Abuse Offender Registry; or
49          (iii) has been convicted of:
50          (A) a child abuse offense under Section 76-5-10976-5-109.276-5-109.376-5-114,
51     or 76-5-208;
52          (B) a sexual offense against a child under Title 76, Chapter 5, Part 4, Sexual Offenses;
53          (C) an offense for kidnapping or human trafficking of a child under Title 76, Chapter 5,
54     Part 3, Kidnapping, Trafficking, and Smuggling;
55          (D) a sexual exploitation offense against a child under Title 76, Chapter 5b, Sexual
56     Exploitation Act; or

57          (E) an offense that is substantially similar to an offense under Subsections
58     (2)(b)(iii)(A) through (D).
59          [(1)(3) On the petition of one or both of the parents, or the joint legal or physical
60     custodians if they are not the parents, the court may, after a hearing, modify or terminate an
61     order that established joint legal custody or joint physical custody if:
62          (a) the verified petition or accompanying affidavit initially alleges that admissible
63     evidence will show that the circumstances of the child or one or both parents or joint legal or
64     physical custodians have materially and substantially changed since the entry of the order to be
65     modified;
66          (b) a modification of the terms and conditions of the order would be an improvement
67     for and in the best interest of the child; and
68          (c) (i) both parents have complied in good faith with the dispute resolution procedure
69     in accordance with Subsection 30-3-10.3(7); or
70          (ii) if no dispute resolution procedure is contained in the order that established joint
71     legal custody or joint physical custody, the court orders the parents to participate in a dispute
72     resolution procedure in accordance with Subsection 30-3-10.2(5) unless the parents certify that,
73     in good faith, they have used a dispute resolution procedure to resolve their dispute.
74          [(2)(4) (a) In determining whether the best interest of a child will be served by either
75     modifying or terminating the joint legal custody or joint physical custody order, the court shall,
76     in addition to other factors the court considers relevant, consider the factors outlined in Section
77     30-3-10 and Subsection 30-3-10.2(2).
78          (b) A court order modifying or terminating an existing joint legal custody or joint
79     physical custody order shall contain written findings that:
80          (i) a material and substantial change of circumstance has occurred; and
81          (ii) a modification of the terms and conditions of the order would be an improvement
82     for and in the best interest of the child.
83          (c) The court shall give substantial weight to the existing joint legal custody or joint
84     physical custody order when the child is thriving, happy, and well-adjusted.
85          [(3)(5) The court shall, in every case regarding a petition for termination of a joint
86     legal custody or joint physical custody order, consider reasonable alternatives to preserve the
87     existing order in accordance with Subsection 30-3-10(3). The court may modify the terms and

88     conditions of the existing order in accordance with Subsection 30-3-10(8) and may order the
89     parents to file a parenting plan in accordance with this chapter.
90          [(4)(6) A parent requesting a modification from sole custody to joint legal custody or
91     joint physical custody or both, or any other type of shared parenting arrangement, shall file and
92     serve a proposed parenting plan with the petition to modify in accordance with Section
93     30-3-10.8.
94          [(5)(7) If the court finds that an action under this section is filed or answered
95     frivolously and in a manner designed to harass the other party, the court shall assess attorney
96     fees as costs against the offending party.
97          [(6)(8) If an issue before the court involves custodial responsibility in the event of
98     deployment of one or both parents who are service members, and the service member has not
99     yet been notified of deployment, the court shall resolve the issue based on the standards in
100     Sections 78B-20-306 through 78B-20-309.
101          Section 2. Section 30-3-33 is amended to read:
102          30-3-33. Advisory guidelines for a custody and parent-time arrangement.
103          (1) In addition to the parent-time schedules provided in Sections 30-3-35 and
104     30-3-35.5, the following advisory guidelines are suggested to govern [all parent-time
105     arrangementsa custody and parent-time arrangement between parents.
106          [(1)(2) [Parent-time schedulesA parent-time schedule mutually agreed upon by both
107     parents [areis preferable to a court-imposed solution.
108          [(2)(3) [TheA parent-time schedule shall be used to maximize the continuity and
109     stability of the child’s life.
110          [(3)(4) [Special consideration shall be given by each parentEach parent shall give
111     special consideration to make the child available to attend family functions including funerals,
112     weddings, family reunions, religious holidays, important ceremonies, and other significant
113     events in the life of the child or in the life of either parent which may inadvertently conflict
114     with the parent-time schedule.
115          [(4)(5) (a) The court shall determine the responsibility for the pick up, delivery, and
116     return of the child [shall be determined by the court] when the parent-time order is entered[,
117     and may be changed].
118          (b) The court may change the responsibility described in Subsection (5)(a) at any time

119     a subsequent modification is made to the parent-time order.
120          [(5)(c) If the noncustodial parent will be providing transportation, the custodial parent
121     shall:
122          (i) have the child ready for parent-time at the time the child is to be picked up [and
123     shall]; and
124          (ii) be present at the custodial home or [shall] make reasonable alternate arrangements
125     to receive the child at the time the child is returned.
126          [(6)(d) If the custodial parent will be transporting the child, the noncustodial parent
127     shall:
128          (i) be at the appointed place at the time the noncustodial parent is to receive the child[,
129     and]; and
130          (ii) have the child ready to be picked up at the appointed time and place[,] or have
131     made reasonable alternate arrangements for the custodial parent to pick up the child.
132          [(7)(6) [RegularA parent may not interrupt regular school hours [may not be
133     interrupted] for a school-age child for the exercise of parent-time [by either parent].
134          [(8)(7) The court may:
135          (a) make alterations in the parent-time schedule to reasonably accommodate the work
136     schedule of both parents [and may]; and
137          (b) increase the parent-time allowed to the noncustodial parent but may not diminish
138     the standardized parent-time provided in Sections 30-3-35 and 30-3-35.5.
139          [(9)(8) The court may make alterations in the parent-time schedule to reasonably
140     accommodate the distance between the parties and the expense of exercising parent-time.
141          [(10)(9) [Neither parent-time nor child support is to be withheld due to eitherA
142     parent may not withhold parent-time or child support due to the other parent’s failure to comply
143     with a court-ordered parent-time schedule.
144          [(11)(10) (a) The custodial parent shall notify the noncustodial parent within 24 hours
145     of receiving notice of all significant school, social, sports, and community functions in which
146     the child is participating or being honored[, and the].
147          (b) The noncustodial parent [shall beis entitled to attend and participate fully in the
148     functions described in Subsection (10)(a).
149          [(12)(c) The noncustodial parent shall have access directly to all school reports

150     including preschool and daycare reports and medical records [and shall be notified immediately
151     by the custodial parent].
152          (d) A parent shall immediately notify the other parent in the event of a medical
153     emergency.
154          [(13)(11) Each parent shall provide the other with the parent’s current address and
155     telephone number, email address, and other virtual parent-time access information within 24
156     hours of any change.
157          [(14)(12) (a) Each parent shall permit and encourage, during reasonable hours,
158     reasonable and uncensored communications with the child, in the form of mail privileges and
159     virtual parent-time if the equipment is reasonably available[, provided that if the parties].
160          (b) If the parents cannot agree on whether the equipment is reasonably available, the
161     court shall decide whether the equipment for virtual parent-time is reasonably available[,by
162     taking into consideration:
163          [(a)(i) the best interests of the child;
164          [(b)(ii) each parent’s ability to handle any additional expenses for virtual parent-time;
165     and
166          [(c)(iii) any other factors the court considers material.
167          [(15)(13) (a) Parental care [shall beis presumed to be better care for the child than
168     surrogate care [and the].
169          (b) The court shall encourage the parties to cooperate in allowing the noncustodial
170     parent, if willing and able to transport the children, to provide the child care.
171          (c) Child care arrangements existing during the marriage are preferred as are child care
172     arrangements with nominal or no charge.
173          [(16)(14) Each parent shall:
174          (a) provide all surrogate care providers with the name, current address, and telephone
175     number of the other parent [and shall]; and
176          (b) provide the noncustodial parent with the name, current address, and telephone
177     number of all surrogate care providers unless the court for good cause orders otherwise.
178          [(17)(15) (a) Each parent [shall beis entitled to an equal division of major religious
179     holidays celebrated by the parents[, and the].
180          (b) The parent who celebrates a religious holiday that the other parent does not

181     celebrate shall have the right to be together with the child on the religious holiday.
182          [(18)(16) If the child is on a different parent-time schedule than a sibling, based on
183     Sections 30-3-35 and 30-3-35.5, the parents should consider if an upward deviation for
184     parent-time with all the minor children so that parent-time is uniform between school aged and
185     nonschool aged children, is appropriate.
186          [(19)(17) (a) When one or both parents are servicemembers or contemplating joining
187     a uniformed service, the parents should resolve issues of custodial responsibility in the event of
188     deployment as soon as practicable through reaching a voluntary agreement pursuant to Section
189     78B-20-201 or through court order obtained pursuant to Section 30-3-10.
190          (b) [ServicemembersService members shall ensure their family care plan reflects
191     orders and agreements entered and filed pursuant to Title 78B, Chapter 20, Uniform Deployed
192     Parents Custody, Parent-time, and Visitation Act.
193          (18) A parent shall immediately notify the other parent if:
194          (a) the parent resides with an individual or provides an individual with access to the
195     child; and
196          (b) the parent knows that the individual:
197          (i) is required to register as a sex offender or a kidnap offender for an offense against a
198     child under Title 77, Chapter 41, Sex and Kidnap Offender Registry;
199          (ii) is required to register as a child abuse offender under Title 77, Chapter 43, Child
200     Abuse Offender Registry; or
201          (iii) has been convicted of:
202          (A) a child abuse offense under Section 76-5-10976-5-109.276-5-109.376-5-114,
203     or 76-5-208;
204          (B) a sexual offense against a child under Title 76, Chapter 5, Part 4, Sexual Offenses;
205          (C) an offense for kidnapping or human trafficking of a child under Title 76, Chapter 5,
206     Part 3, Kidnapping, Trafficking, and Smuggling;
207          (D) a sexual exploitation offense against a child under Title 76, Chapter 5b, Sexual
208     Exploitation Act; or
209          (E) an offense that is substantially similar to an offense under Subsections
210     (18)(b)(iii)(A) through (D).

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Family Law Legislation for the 2024 Utah State Legislative Session

Here is a list of the current proposed family law legislation for the 2024 Utah State Legislative session, along with a (very) brief description of the proposed legislation. If you want to read the complete bill, I have provided the links each of them.

Next month, I will provide my comments and those of others who have expressed their opinions on whether and why these bills should or should not be passed into law.

House Bills

House Bill 20

Title:  Parental Rights Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0020.pdf

Purpose: This bill: clarifies the requirements and procedure for an individual to consent to the termination of parental rights or voluntarily relinquish parental rights.

House Bill 81

Title: Domestic Violence Modifications

https://le.utah.gov/~2024/bills/hbillint/HB0081.pdf

Purpose: This bill adds the crime of propelling a bodily substance or material to the list of crimes that qualify as a domestic violence offense in certain circumstances; and makes technical and conforming changes.

House Bill 110

Title:  Sex and Kidnap Offender Registry Amendments

https://le.utah.gov/~2024/bills/static/HB0110.html

Purpose: This bill changes references from the Department of Corrections to the Department of Public Safety; clarifies the purpose of the Department of Public Safety keeping certain information for individuals on the Sex and Kidnap Offender Registry; and clarifies the requirements the Bureau of Criminal Identification and the Department of Corrections must check for when an individual petitions to be removed from the registry.

House Bill  129

Title:  Child Support Requirements

Purpose: This bill provides that a parent or other obligated individual is not responsible for child support for a child who is in the custody of the Division of Child and Family Services; and makes technical and conforming changes.

House Bill  131

Title:  Clergy Child Abuse Reporting Requirements

https://le.utah.gov/~2024/bills/hbillint/HB0131.pdf

Purpose:  This bill clarifies that a member of the clergy may report suspected child abuse or neglect in certain circumstances; and makes technical corrections.

House Bill  134

Title:  Marriage Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0134.pdf

Purpose: This bill addresses the validation and recognition of a marriage regardless of the race, ethnicity, or national original of the parties to the marriage; repeals a provision on interracial marriage; and makes technical and conforming changes

House Bill  140

Title:  Parental Notification Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0140.pdf

Purpose: This bill amends the advisory guidelines for a custody and parent-time arrangement to allow for parental notification when a parent is residing with an individual, or providing the individual access to the parent’s child, and the individual has been convicted of certain crimes; amends the advisory guidelines for a custody and parent-time arrangement in regard to notification of a parent in the event of a medical emergency; and makes technical and conforming changes.

House Bill  157

Title:  Child Custody Factors Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0157.pdf

Purpose: This bill provides that a parent’s approval or disapproval, in itself, of a child’s gender identity, is not a factor to be considered: in a Division of Child and Family Services determination regarding removal of a child from parental custody; and when determining child custody as part of a divorce or other family law proceeding.

House Bill  194

Title:  Child Placement Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0194.pdf

Purpose: This bill amends the definition of “relative” for purposes of child placement, including adoption; and addresses when a court holds a hearing concerning a contested adoption.

House Bill  198

Title:  Child Welfare Placement Review Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0198.pdf

Purpose: This bill addresses the analysis a juvenile court undertakes when evaluating whether to terminate parental rights; and makes technical and conforming changes.

House Bill  199

Title: Child Welfare Revisions

https://le.utah.gov/~2024/bills/hbillint/HB0199.pdf

Purpose: This bill amends definitions related to child welfare in the Utah Juvenile Code

House Bill  200

Title:  Order for Life Sustaining Treatment

https://le.utah.gov/~2024/bills/hbillint/HB0200.pdf

Purpose: This bill modifies professional conduct standards for physicians, advance practice registered nurses, and physician assistants to include obtaining a parent or guardian signature when completing an order for life sustaining treatment for a minor; and makes technical and conforming changes.

House Bill  219

Title:  Divorce Imputed Income Requirements

https://le.utah.gov/~2024/bills/hbillint/HB0219.pdf

Purpose: This bill provides standards for imputing income to a spouse who will be receiving alimony payments from another spouse; provides potential limitations on imputation of income for alimony purposes in some circumstances where the recipient spouse has no recent full-time work history or has been diagnosed with a disability; excludes situations where the recipient spouse has been determined to be at fault; and makes technical and conforming changes.

House Bill  220

Title:  Divorce Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0220.pdf

Purpose: This bill adds factors to be considered when determining the standard of living that existed during a marriage; requires a specific look-back period for information provided to demonstrate the financial conditions and needs of a spouse seeking to be awarded alimony; places restrictions on when a court can reduce a showing of need related to alimony; provides alternative means for demonstrating income and the standard of living during a marriage; and  modifies provisions related to when a court may elect to equalize income between parties by means of an alimony award.

House Bill  234

Title:  Birth Certificate Modifications

https://le.utah.gov/~2024/bills/hbillint/HB0234.pdf

Purpose: This bill requires an individual when petitioning the court for a name or sex designation change on the birth certificate to indicate on the petition whether the individual is registered with the Sex and Kidnap Offender Registry; and authorizes the court to obtain additional information from an individual that is registered with the Sex and Kidnap Offender Registry to determine whether to grant a name or sex designation change petition.

House Bill  272

Title:  Child Custody Proceedings Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0272.pdf

Purpose: This bill defines terms; in certain proceedings involving child custody: specifies requirements for the admission of expert evidence; and  requires a court to consider evidence relating to domestic violence or abuse by a parent; imposes certain requirements and limitations regarding orders to improve the relationship between a parent and a child; requires the state court administrator to make recommendations regarding the education and training of court personnel involving child custody and related proceedings;  requires that certain protective order proceedings comply with specific standards; and makes technical and conforming changes.

SENATE BILLS

Senate Bill 70

Title:  Judiciary Amendments

https://le.utah.gov/~2024/bills/sbillint/SB0070.pdf

Purpose: This bill increases the number of district court judges in the Third Judicial District, Fourth Judicial District, and Fifth Judicial District; increases the number of juvenile court judges in the Third Judicial District and the 15 Fourth Judicial District; and makes technical and conforming changes.

Senate Bill 88

Title:  Juvenile Justice Amendments

https://le.utah.gov/~2024/bills/sbillint/SB0088.pdf

Purpose: This bill defines terms; clarifies requirements regarding the collection of a DNA specimen from a minor adjudicated by the juvenile court; provides that a minor may not be placed in a correctional facility as an alternative to detention; provides a time period in which an agency is required to send an affidavit to an individual who is the subject of an expungement order by the juvenile court; and makes technical and conforming changes.

Senate Bill 95

Title:  Domestic Relations Recodification

https://le.utah.gov/~2024/bills/sbillint/SB0095.pdf

Purpose: This bill recodifies Title 30, Husband and Wife, to Title 81, Utah Domestic Relations Code; recodifies Title 78B, Chapter 12, Utah Child Support Act, to Title 81, Chapter 6, Child Support; defines terms; clarifies provisions related to a claim of a creditor when the joint debtors divorce or are living separately under an order of separate maintenance; clarifies the validation of a marriage to an individual subject to chronic epileptic fits who had not been sterilized; clarifies the validation of an interracial marriage; clarifies the validation of a marriage to an individual with acquired immune deficiency syndrome or other sexually transmitted disease; clarifies provisions regarding the rights and obligations during a marriage; clarifies provisions regarding the dissolution of a marriage, including: an order for separate maintenance; an annulment; and a divorce; clarifies provisions regarding child support, including: the requirements for a child support order; the general requirements for calculating child support; and the requirements for calculating child support for a sole physical custody case, a joint physical custody case, and a split physical custody case; clarifies provisions regarding custody, parent-time, and visitation; repeals statutes related to domestic relations, including a statute on the appointment of counsel for a child; and makes technical and conforming changes.

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

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Parenting before, during, and divorce litigation By Braxton Mounteer, Legal Assistant

Divorce is already hard enough on the parties involved, but it is even harder on the children of the recently separated family. I speak as a child of divorce, who had to live through it and who has experienced the effect that divorce has had on me and on and my siblings.

When your divorce is contentious or negotiations have broken down, you shouldn’t use your children as messengers between your spouse and you on divorce-related subjects. Your children are not the proper avenue of communication between you and your estranged or ex-spouse.  You’re the adult. Communicate like one.

The worst thing you can do is force your children to choose sides. Forcing your children to pick a side causes damage that may be irreparable. This isn’t just forcing Tim and Susan to choose to live with Mom or Dad. How confident are you that they would choose you anyway (or for how long)? For all of your and your spouse’s faults and failings, you are the children’s parents and your children need you to work (and deserve to have you work) together for the children’s benefit. You need to start (if you have not already started) acting in your children’s best interest and stop thinking of them as problems and/or as solutions to your problems.

Don’t bad-mouth your ex-spouse to your children. Your children are literally a part of their parents, and (except in truly dysfunctional situations) they love both of their parents. If you tell your children their mother or father is a loser, an abuser, or other kind of scoundrel, your children may (and likely will) start to believe that they are that way too. If you’ve disparaged your ex-spouse (whether what you said is true or not), act like the adult that you are, swallow your pride, and apologize for including your children in something you had no business discussing with them.

In the early stages of a divorce, you may be tempted to buy your children’s affection. While it is not the worst thing you could do, it has unintended adverse consequences. If you try to buy your children’s affection in an effort to get a better outcome in the divorce case, only to “cut off” this level of affection or material exchange with your children after the ink dries on the decree, this sends your kids the message that you see your children as pawns for self-serving purposes. If you try to buy your children’s affection for the rest of their lives (or at least the duration of their minority), you’re throwing good money after bad, you’re engaging in an unsustainable practice. Kids will quickly tire of movie tickets and theme parks and start expecting cars and luxury experiences. How long can you keep that up? And how insufferable will your children be if they become accustomed to getting whatever they want?

You reap what you sow. The path of least resistance makes for weak parents and for weak kids. Do right by your children, for their sake and yours.

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

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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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How To Talk To Your Former Spouse By Braxton Mounteer

Regardless of your feelings towards your ex-spouse, if you have children, you will have to talk or otherwise communicate to your ex (and do so often) about the minor children throughout their minority. While you have minor children, you will need to “deal” with your ex regularly.

As is the case for anyone with whom you have to communicate regularly and frequently, both you and the children benefit from you knowing how to communicate effectively with your ex.

Effective communication with an ex-spouse and co-parent needs to be civil, courteous, and businesslike. Being the reason that communications broke down will only hurt you and the children.

“But,” you may ask, “what do I do if my ex communicates in a combative, falsely accusatory, and/or insulting manner? Isn’t giving as good as I get justified at that point?” Those are two fair and excellent questions. And the answers are clear.

First, record all communications with your ex. “Record” does not mean simply audio recording. “Record” means making a record. A record can take the form of sound, video, and writing. Every conversation you have with your ex should be recorded (even if that means following up on any personal meeting or phone call with an e-mail or text message summarizing what you and your ex discussed). Recording makes false accusations much harder to make. If your ex ever refuses to communicate with you “unless you promise not to record,” that’s indisputable proof that you need to record.

Second, ensure that all of your communications with your ex are conducted in a mature, courteous, clear, and concise manner.

If you stay classy for months or years and then reach your “breaking point” by unloading a torrent of sick burns and other “he/she had it coming” tirades, then all the goodwill you built up to that point is swept away in an instant. If you sink to your combative ex’s level, you will be (and rightfully so) seen by the court as no better than your ex (perhaps seen as even worse). It’s that simple.

It is possible (and highly likely) that the rantings and ravings of your former spouse are a set up. So give yourself a break. Don’t let your antagonistic ex manipulate you into becoming your own worst enemy. Do not rise to your ex’s bait. The last thing that you want is to react inappropriately to your ex’s goading, so that you look like the bad guy.

If you cannot talk in person or over the phone to your spouse without your emotions getting the better of you, communicate in writing. And don’t fight fire with fire. Do not under any circumstances send anything in writing without taking the time to cool off before you hit the “send” button. Make sure your communications do not cause you any self-inflicted wounds.

This does not, however, mean you must be a doormat. You don’t have to be mute in the face of lies and insults. It can be as simple and easy as this:

Your ex:          You clearly have no idea how to meet the educational needs of our children, so you ignore their homework and no-show for parent teacher conferences, just like you’ve always done. It’s what I expect from someone who never went to college. Don’t bother to try helping with homework anymore, and don’t even try to attend parent teacher conferences either. If you are there when I’m there, I’ll call the police.

You:                What you have accused me of is false. I care about our children’s education and their individual needs. I want to ensure their needs are met, and I do my best to meet those needs. I talk with our kids, I consult their teachers. I help with their homework and ensure they complete it when they are with me. One does not have to have gone to college to appreciate the value of an education, and I am no exception. The reason I did not go to the last parent teacher conference is because you gave me the wrong date and time for it (why you did that I do not know). I will be there for next week’s parent teacher conference.

I asked the school if we could attend parent teacher conferences separately, but the school does not allow it, so if we both want to attend (and I do want to attend), we will have to attend together. We can attend together. You cannot prohibit me from attending. All I want to do and will do when I attend is meet with and talk with Ms. Hansen. There is no reason to call the police. The police cannot prevent either of us from attending. Please do not embarrass our children, yourself, Ms. Hansen, the school, or me by calling the police needlessly.

Are there any questions?

Thank you.

Any judge or commissioner who listens to or reads a response like that simply cannot fault you. If anyone ends up getting chewed out or sanctioned by the court in connection with this exchange it won’t be you. Any ex who isn’t smart enough to see who really looks bad in this exchange (and does not change his/her wicked ways in response) is someone who will never figure it out.

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

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What happens in court if I file for divorce but my husband has an active case on me for child support? Will I get the child?

Whether you “get the child” (meaning whether you will be awarded physical custody of the child) has little to no relevance to the fact that your spouse is seeking child support from you.

My guess is, based upon the way you phrased your question, that 1) you and your husband are separated and were separated before you filed, or before you have contemplated filing, for divorce; 2) the children have been, on an informal basis (i.e., no court order) your spouse has been exercising sole or primary custody of the children for a while since the separation occurred; and 3) your spouse has applied for an administrative order or court order for child support without having filed for a divorce. Under such circumstances, what would weaken your case for awarding custody to you would be the fact that the children have been in the sole or primary custody of your spouse during separation (and thus, the argument would go, that is the way it should stay, if and when a court issues a decree of divorce), not that he/she has sought child support from you.

If the children have been in the sole or primary custody of your spouse since separation and this is not due to your spouse having concealed the children from you, having absconded with the children, or having otherwise not obtained and exercised this de facto sole/primary custody wrongfully, then it’s not the fact that your spouse is seeking child support from you that hurts your case for custody. What hurts your case for custody being awarded to you is the fact that your spouse stepped up to take care of the kids and you did not.

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

Eric Johnson’s answer to What happens in court if I file for divorce but my husband has an active case on me for child support? Will I get the child? – Quora

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Blake v. Smith – 2023 UT App 78 – child custody, child support

Blake v. Smith – 2023 UT App 78

2023 UT App 78

THE UTAH COURT OF APPEALS

DEJUAN BLAKE,

Appellee,

v.

JILLYN SMITH,

Appellant.

Opinion

No. 20210779-CA

Filed July 20, 2023

Third District Court, Salt Lake Department

The Honorable Su Chon

No. 184900112

Julie J. Nelson, Attorney for Appellant

DeJuan Blake, Appellee Pro Se

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY

concurred.

CHRISTIANSEN FORSTER, Judge:

 

¶1        Jillyn Smith appeals the district court’s order regarding custody and child support for her minor son (Child). Because we determine the court abused its discretion by awarding Smith sole physical and legal custody while requiring joint decision-making between Smith and Child’s father, DeJuan Blake, we vacate that part of the court’s custody award. Furthermore, because we conclude the court made a mathematical error in calculating the amount of child support, and that a further examination of the evidence of Blake’s income is warranted, we reverse the court’s child support award and remand for recalculation as appropriate.

BACKGROUND

¶2        Smith met Blake in 2007 in Las Vegas, Nevada, and the two entered into a relationship. As a result of the relationship, Smith became pregnant with Child in 2009. At the time Smith learned about the pregnancy, she was no longer living in Las Vegas—she had moved to Utah to escape her relationship with Blake.

¶3        After a tumultuous pregnancy, during which Blake continuously asked Smith to have an abortion, Child was born in Utah in October 2009. Blake traveled to Utah to visit Child twice during the first year of Child’s life, with each visit lasting “maybe an hour or two.” The sporadic visits continued over the next few years, with Child and Smith traveling with Blake on short trips together. Although Smith asked Blake for financial support during this time, Blake did not provide support and instead always offered an “excuse.” Eventually, the communications between the couple became too toxic and Smith elected to “take a break from communication” with Blake.

¶4        Thereafter, Smith decided to “give [Blake] a second chance.” Blake and Child had “maybe a few” “infrequent[]” telephone conversations a year, but the conversations were short due to Child’s speech impediment. Blake was not involved in Child’s schooling or scheduling, he never attended Child’s doctor’s appointments, and he “wouldn’t follow through” or offer any explanation as to why he could not help Smith with financial support for Child’s medical care or educational needs.

¶5        Blake traveled to Utah in 2015 to attend Child’s birthday party. Toward the end of the party, Blake and Smith had a verbal altercation regarding Blake’s failure to honor their agreement for Blake to pay Smith child support. Following this visit, Blake returned to Utah once in 2016 to attend Child’s baseball game. That visit also ended in a verbal altercation.

¶6        In January 2018, Blake petitioned the district court for paternity and custody of Child. At the time, Child was eight years old and living with Smith.

¶7        After initiating custody proceedings, Blake filed a series of three financial declarations with the district court. Blake is self-employed and owns a company managing professional and aspiring boxers. Blake’s stated gross income, monthly expenses, and debt listed on each of the three financial declarations differed significantly. In the first declaration, Blake claimed $0 in gross monthly income, $1,875 in monthly expenses, and a debt of $7,240. In the second, Blake claimed $2,000 in gross monthly income, $17,797 in monthly expenses, and no debt. And in the third, Blake claimed $1,686 in gross monthly income, $3,947 in monthly expenses, and no debt. The bank statements filed with each disclosure were incomplete; however, the bank statements that were submitted showed that between August 2017 and January 2019, Blake made deposits into his personal account totaling $456,669.98, and that during that same time, he made withdrawals totaling nearly $50,000 for investments in cryptocurrency, payments to his mother, payments to the mother of one of his other children, and luxury clothing.

¶8        The case proceeded to a bench trial in October 2020. At trial, Smith detailed the relationship between Child and Blake. She explained that Blake had never been actively involved in Child’s life and that Blake had not seen Child at all since May 2016. Smith testified that she and Blake had reached an “original agreement” for child support where Blake would pay her $1,000 per month. She further testified that this agreement did not start until 2015—when Child was already six years old—and that the payments had lasted for only one month. In total, Smith estimated that Blake had contributed $1,600 in support payments “over the entirety of [Child’s] life.”

¶9        Following trial, the district court adjudicated Blake as Child’s father, awarded Smith sole physical and legal custody of Child, and awarded Blake standard relocation parent-time pursuant to Utah Code section 30-3-37, which is approximately 17% of the year. In reaching its legal custody determination, the court analyzed the statutory factors outlined in Utah Code sections 30-3-10 and 30-3-10.2 and concluded that the presumption favoring joint legal custody had been rebutted and that joint legal custody was not in Child’s best interest. However, the court ordered a joint decision-making arrangement between the parties, requiring that the parties “discuss with each other decisions that should be made regarding [Child].” The arrangement further provides, “If there is a dispute, the parties should attend mediation and each pay half of the mediation fees. If the dispute remains, then [Smith] will have final say. [Blake] can . . . bring the matter to court if he is unsatisfied with the decision.”

¶10      Regarding child support, the district court primarily calculated Blake’s past child support payments based on his 2018 tax record, where he claimed $45,050 in gross receipts and $34,483 in deductions. After reviewing the evidence, the court concluded that several of the deductions—totaling $27,530—were unsupported and accordingly struck those deductions. Based on this, the court found that Blake’s “annual income should be $23,790” through March 2020. However, given the outbreak of the COVID-19 pandemic, the court concluded that “Blake’s income has come to a halt,” and it accordingly found it “appropriate . . . to impute minimum wage income of $1,257/month from March 2020 forward.”

ISSUES AND STANDARDS OF REVIEW

¶11      Smith now appeals the district court’s order regarding custody and child support, raising two issues for our review. First, Smith argues the court abused its discretion when it “issued an internally inconsistent [custody] award” giving Smith “sole legal and physical custody but also order[ing] joint decision-making” between her and Blake. “We review custody determinations under an abuse of discretion standard, giving the district court broad discretion to make custody awards.” K.P.S. v. E.J.P., 2018 UT App 5, ¶ 24, 414 P.3d 933 (quotation simplified). “But this broad discretion must be guided by the governing law adopted by the Utah Legislature. And on matters of statutory interpretation, we review for correctness.” Dahl v. Dahl, 2015 UT 79, ¶ 155, 459 P.3d 276 (quotation simplified). And “[w]here the court’s findings are internally inconsistent on a material point, reversal and remand are appropriate.” Vandermeide v. Young, 2013 UT App 31, ¶ 21, 296 P.3d 787, cert. denied, 308 P.3d 536 (Utah 2013).[1]

¶12      Second, Smith argues the district court abused its discretion when it calculated Blake’s income for purposes of child support. “We review the district court’s decisions regarding child support . . . under the abuse of discretion standard.” Pankhurst v. Pankhurst, 2022 UT App 36, ¶ 13, 508 P.3d 612 (quotation simplified). Where the court’s findings contain mathematical error or conflict with the record, we will remand for recalculation. See Miner v. Miner, 2021 UT App 77, ¶¶ 57–60, 496 P.3d 242.

ANALYSIS
I. Custody

¶13      Smith first challenges the district court’s custody award, contending the court abused its discretion in crafting the award because it is “internally inconsistent.” According to Smith, the joint decision-making arrangement “undermines” her award of sole physical and legal custody because it “allows [Blake] to force mediation and litigation whenever he disagrees with a decision made by [Smith], even though she has sole legal and physical custody.” We agree.

¶14      As an initial matter, the Utah Code does not define “sole physical custody” or “sole legal custody.” But in Hansen v. Hansen, 2012 UT 9, 270 P.3d 531, our supreme court provided guidance as to the meaning of those terms. In Hansen, the father and the mother were awarded joint custody of their daughter following their divorce. Id. ¶ 2. The mother was awarded sole physical custody and the father was ordered to pay child support to the mother. Id. Sometime later, the daughter entered a private youth homeless shelter, where she lived through her eighteenth birthday. Id. While the daughter was living at the shelter, the father filed a petition with the district court seeking to redirect his child support payments from the mother to the homeless shelter. Id. ¶¶ 2–3. The court denied the motion, which denial was ultimately upheld by the Utah Supreme Court. Id. ¶¶ 4–5, 30.

¶15      The supreme court’s decision centered on the meaning of custody. Although the daughter had been residing at the shelter, the court determined that the daughter’s physical custody had not changed; rather, the mother still retained physical custody. Id. ¶¶ 15–19, 28. The court explained,

Family law treatises consistently define custody as a bundle of constituent rights and obligations to a child’s possession, care, and control, and explain that the essence of custody is control over all aspects of the child’s life coupled with responsibility for the child’s welfare. Standard dictionary definitions of custody are to the same effect.

Custody is often divided into two subsets: legal and physical custody. Both encompass a duty of control and supervision. While legal custody carries the power and duty to make the most significant decisions about a child’s life and welfare, physical custody involves the right, obligation, and authority to make necessary day-to-day decisions concerning the child’s welfare. Although the latter is limited to the right to control the child’s daily activities, it still involves a right of control. This grant of authority is necessary so that the custodian can control and discipline the child or make emergency medical or surgical decisions for the child.

Id. ¶¶ 16–17 (quotation simplified). Put differently, “the legal duty of control or supervision [is] the essential hallmark of custody.” Id. ¶ 18 (quotation simplified). Legal custody encompasses the ability to make major decisions in a child’s life, while physical custody encompasses the ability to make day-to-day decisions in a child’s life.

¶16      Although the Utah Code does not define sole physical or legal custody, it does define “joint legal custody” and “joint physical custody.”[2] Under the current statutory scheme, a parent may be awarded “joint legal custody,” which is defined as “the sharing of the rights, privileges, duties, and powers of a parent by both parents.” Utah Code § 30-3-10.1(2)(a) (emphasis added). As this court has long recognized, the purpose of joint legal custody is to allow “both parents [to] share the authority and responsibility to make basic decisions regarding their child’s welfare.” See Thronson v. Thronson, 810 P.2d 428, 429–30 (Utah Ct. App. 1991), cert. denied, 826 P.2d 651 (Utah 1991).

¶17      Taken together, it follows that an award of “sole” legal custody does not involve sharing the “rights, privileges, duties, and powers of a parent.” See Utah Code § 30-3-10.1(2)(a). Accordingly, when the district court awarded sole legal and physical custody to Smith, it also awarded her alone the “rights and obligations to [Child’s] possession, care, and control,” see Hansen, 2012 UT 9, ¶ 16 (quotation simplified), including the sole authority to “make the most significant decisions about [Child’s] life and welfare,” see id. ¶ 17 (quotation simplified), and the “authority to make necessary day-to-day decisions concerning [Child’s] welfare,” see id. (quotation simplified). It therefore was inconsistent to simultaneously order a joint decision-making arrangement.

¶18       Moreover, the joint decision-making arrangement is at odds with the district court’s own findings regarding Child’s best interest. “In making a custody determination, a [district] court’s primary focus is what custody arrangement would be in the best interest[] of the child.” Grindstaff v. Grindstaff, 2010 UT App 261, ¶ 4, 241 P.3d 365. Utah law presumes that joint legal custody is in a child’s best interest, but that presumption may be rebutted by showing “by a preponderance of the evidence that it is not in the best interest of the child.” Utah Code § 30-3-10(3)–(4). And under Utah law, there is “neither a preference nor a presumption for or against joint physical custody or sole physical custody.” Id. § 30­3-10(8).

¶19      “In determining whether the best interest of a child will be served by ordering joint legal custody or joint physical custody or both, the court shall consider” a number of statutory factors. See id. § 30-3-10.2(2). Here, the court analyzed the statutory factors and determined that awarding Smith sole legal and physical custody of Child was in Child’s best interest. In particular, the court found that there was “very little evidence provided that either parent could function appropriately with co-parenting skills,” that it was “unclear” whether the parties could work together to reach shared decisions in Child’s best interest, and that there was “very little evidence” the parties “actually discussed and made decisions together.” In light of these findings, it is unclear how the joint decision-making arrangement—which is not limited to major decisions but instead encompasses all decisions—could be properly viewed as advancing Child’s best interest. It does not follow from the evidence of the parties’ ongoing issues making decisions relating to Child that such an arrangement would lead to success in the future. Rather, precisely because of the court’s findings, it seems likely that such an arrangement would cause ongoing issues, result in costly mediation and additional court involvement, and be detrimental to Child’s best interest, which is exactly what Utah law seeks to avoid.

¶20      In sum, the district court abused its discretion when it awarded Smith sole physical and legal custody while also ordering a joint decision-making arrangement between Smith and Blake. Although Utah law does not prohibit a joint decision-making arrangement in cases involving an award of joint physical and legal custody, an examination of the underlying statutory scheme reveals that such an arrangement is not compatible with an award of sole physical and legal custody. Furthermore, these competing provisions belie the court’s own findings regarding Child’s best interest as relates to custody. As such, we vacate the portion of the court’s custody award ordering the joint decision-making arrangement.

II. Child Support

¶21      Smith next argues the district court erred in calculating child support. Specifically, Smith takes issue with the court’s calculation of Blake’s income for purposes of child support, contending the court’s calculation (1) contains a mathematical error and (2) is inconsistent with the evidence in the record. We agree.

¶22      The Utah Child Support Act outlines the process by which a district court must evaluate the income of a parent when calculating child support. See generally Utah Code § 78B-12-202. To begin, the court must consider the “gross income” of a parent, which the Utah Code defines broadly as including

prospective income from any source, including earned and nonearned income sources which may include salaries, wages, commissions, royalties, bonuses, rents, gifts from anyone, prizes, dividends, severance pay, pensions, interest, trust income, alimony from previous marriages, annuities, capital gains, Social Security benefits, workers’ compensation benefits, unemployment compensation, income replacement disability insurance benefits, and payments from “nonmeans-tested” government programs.

Id. § 78B-12-203(1). And when a parent is self-employed—as is the case with Blake—the statute directs how gross income should be handled. It provides that “[g]ross income from self-employment or operation of a business shall be calculated by subtracting necessary expenses required for self-employment or business operation from gross receipts. . . . Gross income . . . may differ from the amount of business income determined for tax purposes.” Id. § 78B-12-203(4).

¶23      The district court determined that Blake’s income had been impacted as a result of the COVID-19 pandemic and accordingly evaluated his income for purposes of child support based on what he had earned pre-pandemic and what he was earning during the pandemic. On the record before us, we see two errors in the court’s calculations. First, the court made a discrete mathematical error in calculating Blake’s pre-pandemic income. Second, and more broadly, the court did not consider all the evidence of Blake’s finances when calculating Blake’s income, both pre-pandemic and at the time of trial.

¶24      First, the district court calculated Blake’s past child support payments using his 2018 tax record. On that record, Blake claimed $45,050 in gross receipts. From that, Blake deducted $34,483 as follows: $5,270 for “materials and supplies,” $3,605 for “advertising,” $360 for “legal and professional services,” $500 for “office expense,” $21,760 for “other business property,” and $2,988 for “utilities.” After viewing the evidence, the court found that Blake had failed to adequately explain why he should be entitled to deductions for “materials and supplies” ($5,270), “other business property” ($21,760), or “office expense” ($500), and it accordingly struck those deductions, totaling $27,530. As a result, the court should have concluded that Blake’s income was $38,097, or $3,175 per month rounded. But it did not. Instead, it concluded that Blake’s income was $23,790, or $1,983 per month. This value is mathematically incorrect.

¶25      Second, notwithstanding the mathematical error in the court’s calculation of Blake’s income, the value imputed by the court is inconsistent with the evidence in the record. Utah law is clear that “in contested cases,” a judge is entitled to impute income to a parent so long as the judge “enters findings of fact as to the evidentiary basis for the imputation.” See id. § 78B-12­203(8)(a). “The purpose of such imputation is to prevent parents from reducing their child support or alimony by purposeful unemployment or underemployment.” Connell v. Connell, 2010 UT App 139, ¶ 16, 233 P.3d 836 (quotation simplified). Accordingly, when imputing income, “the income shall be based upon employment potential and probable earnings considering,” among other things, “employment opportunities,” “work history,” and “occupation qualifications.” Utah Code § 78B-12­203(8)(b).

¶26      As explained above, the court calculated Blake’s income at $1,983 per month up until the time that the COVID-19 pandemic began in March 2020. And at trial, which was held in October 2020, the court concluded that due to the pandemic, “Blake’s income has come to a halt” and therefore determined it was “appropriate . . . to impute minimum wage income of $1,257/month from March 2020 forward.” But the financial documents submitted by Blake do not support the low amount of income the court chose to impute.

¶27      Blake’s bank records—which were all filed with the court—show that Blake made deposits into his personal account totaling $456,669.98 between August 2017 and January 2019. These deposits included a check for $200,000, which Blake testified “was for my services that was rendered” in connection with a high-publicity boxing match. And in addition to the deposits, Blake’s bank records show significant withdrawals. For example, the records indicate that Blake had regularly invested in cryptocurrency, had transferred over $15,000 to his mother, had transferred over $9,000 to the mother of one of his other children,[3] and had spent over $10,000 on luxury clothing.

¶28      Despite the evidence of Blake’s spending, Blake did not demonstrate how he was funding his lifestyle, and he claimed only one debt of $7,240 in the first of his three financial disclosures. In light of the foregoing, the district court’s determination that Blake was making no money and therefore should be imputed minimum wage is not supported by the evidence. Rather, the evidence suggests that Blake was less than forthcoming with the court as to the actual amount of his income. As such, on remand the court should reevaluate evidence of Blake’s finances, his earning capacity, and whether he is voluntarily underemployed and should make a further determination as to whether greater income should be imputed to him.[4] In so doing, the court should take special care to ensure that the final award is void of mathematical error.

CONCLUSION

¶29      The district court abused its discretion when it awarded Smith sole physical and legal custody of Child while also ordering a joint decision-making arrangement with Blake. We therefore vacate the court’s custody ruling as it relates to the joint decision-making arrangement. The court also abused its discretion when calculating child support. The current award contains a mathematical error and is not supported by record evidence. Accordingly, we reverse the court’s award of child support and remand with instructions that the court reexamine the evidence to determine whether greater income should be imputed to Blake.

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


[1] Blake did not file a brief or otherwise appear in this appeal. Although “an appellee’s failure to file a brief does not amount to an automatic default and consequent reversal of the lower court,” our supreme court has recently recognized that such failure does impact the “typical burden of persuasion on appeal.” See AL-IN Partners, LLC v. LifeVantage Corp., 2021 UT 42, ¶ 19, 496 P.3d 76 (quotation simplified). Because an appellee’s failure to raise any argument leaves the appellant’s claims “unrebutted,” see Broderick v. Apartment Mgmt. Consultants, LLC, 2012 UT 17, ¶¶ 18–21, 279 P.3d 391, “when an appellee fails to present us with any argument, an appellant need only establish a prima facie showing of a plausible basis for reversal,” AL-IN Partners, 2021 UT 42, ¶ 19 (quotation simplified). We question whether the standard articulated in AL-IN Partners should apply the same way in cases such as this where the standard of review on appeal is deferential to the discretionary decisions of the district court. But because this issue was not briefed and our decision on both arguments presented ultimately involves the conclusion that the district court did abuse its discretion and committed other errors, we need not decide the issue today. However, we note the question does warrant additional consideration in a case where it is squarely before the court.

[2] In relevant part, the statute defines “joint physical custody” as when “the child stays with each parent overnight for more than 30% of the year.” Utah Code § 30-3-10.1(3)(a). This particular provision is not applicable here because Blake was awarded standard relocation parent-time which falls below the 30% threshold. See id. § 30-3-37. Nevertheless, Utah law is clear that “[e]ach parent may make decisions regarding the day-to-day care and control of the child while the child is residing with that parent.” Id. § 30-3-10.9(6). Thus, by statute Smith has sole decision-making authority over day-to-day decisions when Child is in her care. Likewise, Blake has decision-making authority over day-to-day decisions when Child is in his care.

[3] This amount does not include child support payments awarded to the mother, which were $1,000 per month. Those support payments were made directly to Nevada’s State Collection and Disbursement Unit.

[4] Smith filed a post-trial motion pursuant to rule 59(e) of the Utah Rules of Civil Procedure seeking to amend, among other things, the court’s child support award. The district court issued a Memorandum Decision and Order denying the motion. In analyzing the child support issue, the court stated that “[g]ifts are not generally considered income.” This is legally incorrect. As explained above, the Utah Code explicitly defines “gross income” as including “gifts from anyone.” See Utah Code § 78B-12-203(1). To the extent Blake was gifted items, the court must include the value of those gifts when calculating his income.

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The Father of My Child Told Me He Can Unilaterally Give Up His Parental Rights. Can He? He Thinks This Way He Will Get Out of Child Support. Can He Do This?

There is more than one question to answer here.

First, does a parent have the unilateral power simply to “give up” his or her parental rights (and accompanying obligations)? No. The only way to terminate a parent’s parental rights and obligations is by court order after a petition to terminate that parent’s parental rights has been filed and granted.

Can a parent have his/her parental rights terminated? Yes. By court order after a petition to terminate that parent’s parental rights has been filed (either by that parent himself or herself) and granted by the court.

Does the termination of parental rights (not to be confused with merely the desire or intent to have one’s parental rights terminated) also terminate a parent’s obligations to support that child? Yes.

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(8) The father of my child told me he is giving up his parental rights. He thinks this way he will get out of child support. Can he do this? – Quora

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What does it mean when he tries to avoid a legal fight in court for child custody?

It could mean many things when a parent avoids a legal fight in court for child custody. To identify a few things, it could mean:

  • that the parent does not want custody of the child or doesn’t care to litigate the matter.
  • that the parent believes there is no hope that he/she can prevail in the case because of various factors, such as
    • being unable to afford a competent lawyer
    • the judge’s, guardian ad litem’s, custody evaluator’s, DCFS’s, and/or law enforcement’s, etc. insurmountable bias against and animus for that party
    • the opposing party taking a scorched-earth approach to the litigation that includes doing and saying anything to win without regard for truth, decency, and/or the child’s best interest.
  • that the parent agrees with the other parent’s position on what the child custody award should be.
  • that the parent is not aware that there is pending child custody litigation involving that parent.

There could be other reason, but these are the most common, in my experience.

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https://www.quora.com/What-does-it-mean-when-he-tries-to-avoid-a-legal-fight-in-court-for-child-custody

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

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

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

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

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If One Parent Gets Primary Custody, Does This Mean That He/She Can Make All Decisions Regarding the Kids Without Any Input From the Other Parent?

There are two kinds of child custody, not just one. Those two different kinds are legal custody and physical custody.

Legal custody is the power of a parent to make decisions for a minor child regarding the child’s health and health care, education, moral and religious upbringing, and other matters pertaining to the child’s general welfare.

Physical custody of a child Is defined as that parent’s right to have the child reside physically with that parent.

You hear about the terms “sole custody” and “joint custody”. Parents can be awarded sole legal or joint legal custody of their children. They can be awarded sole physical or joint physical custody of their children. There is also what is known as a “split custody” award.

Another term that is often used for sole custody is primary custody. That is something of a misnomer.

Sole custody in the context of legal custody would mean that one parent and one parent alone has the power to make decisions for the child. Joint legal custody would mean that both parents share the right to make choices pertaining to the child. That stated, however, courts can and often do award parents the ostensible joint legal custody of their children, and yet give one parent the sole and exclusive right to decide in the event the parents cannot reach agreement. If you ask me, that can’t, in intellectual honesty, be joint legal custody, but I digress.

Sometimes Utah courts will divide legal custody between the parents such that one parent may have the right to make all decisions in a particular area. For example, the court could award the mother the right to make all healthcare decisions and award the father the right to make all education decisions for the children. That sort of arrangement would be known as a “split” legal custody award because neither parent has the sole and exclusive power to make all decisions regarding the child, the parents are not awarded joint legal custody such that they must make decisions jointly, but each parent has some soul and exclusive power to make some decisions, though not all decisions, pertaining to the child’s upbringing.

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

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