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.
You can find tens of thousands—and I wouldn’t be surprised if you could find millions—of articles about divorce and family law mediation and all of the benefits thereof. Just Google “divorce mediation” or “family law mediation” and you will find limitless numbers of articles on divorce and family law mediation of varying degrees of detail and quality. These are usually not objective articles but articles written by mediators who want you to use their mediation services, and so, as with any sales pitch, you should receive them a healthy dose of skepticism (A healthy dose, not too much, but not too little).
Given the extreme volume of articles that describe what family law mediation is and how it can be conducted, I’m not going to rehash here what you can read in the literally countless number of articles that have been written about the benefits of divorce and family law mediation.
Instead, I will tell you what many of you who believe or want to believe that mediation is a magic pill by which you and/or your spouse we’ll quickly, inexpensively, comprehensively, and amicably resolve your divorce or other family law dispute probably don’t want to know but need to know: mediation only works as well as the people who engage in it. Thus:
evil people;
vindictive people;
greedy people;
lazy people;
cheapskates;
sociopaths;
conflict averse people (cowards); and
stupid people
rarely reach agreement in mediation quickly, inexpensively, comprehensively, fairly, or amicably.
No matter how good your mediator is (and I have yet to meet a mediator with a magic touch, someone who has that supernatural ability to transform bitter rivals into “problem solving partners” who think win-win), your odds of reaching a quick, inexpensive comprehensive, fair, and amicable settlement agreement in mediation are slim to none if you and/or your spouse or your children’s other parent aren’t decent, intelligent, informed, rational, and pragmatic people yourselves.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Last week I wrote a post about Arb-med and how it can benefit practitioners of law, particularly family law. In this post I will be addressing the specific benefits of Arb-med to those who are going through divorce.
Arb-med is faster than litigation. While any case, no matter what form of resolution you seek, can drag out, arb-med is streamlined to work to a resolution as efficiently as possible. After you are done arbitrating you move straight to mediation.
Arb-med is cheaper than litigation. A major benefit of the efficient design of arb-med is that it costs significantly less than litigating your case. Avoiding unnecessary debt is a huge bonus.
Arb-med generates better resolutions than litigation. Most judges do not have the time nor the specific expertise required to always get the judgment right in a given divorce case. Arb-med puts your case in the hands of an experienced family law practitioner with both the time and expertise to get the judgment right.
Utah Family Law, LC | divorceutah.com | 801-466-9277
I have mentioned in previous posts that I am interested in the field of alternative dispute resolution, or “ADR”.
What is ADR? Its any means of resolving a dispute without court action. If you have heard of mediation or arbitration, those are the two most common forms of ADR.
One branch of ADR that my boss has introduced me to is divorce arbitration-mediation or “divorce arb-med.” Divorce arb-med is what it sounds like, a divorce arbitration followed by a divorce mediation conference. The parties agree to have a neutral third party (in this case an experienced divorce attorney or retired judge or domestic relations commissioner) hear their case in an arbitration setting. After the neutral third party, serving as arbitrator, considers the evidence and hears the arguments presented by both sides of the case, the arbitrator will make a ruling on the issues being arbitrated, but that decision will be neither binding nor disclosed unless the parties fail to settle in the mediation session that follows after the arbitration hearing is completed.
In the mediation phase of arb-med, the parties have an opportunity to settle the case by agreement between them. If the parties reach a settlement agreement, their settlement agreement resolves the dispute and is binding upon the parties in lieu of the arbitration ruling.
I believe in arb-med because having experienced the turmoil that accompanies litigating divorce, I see how arb-med does a better job of addressing and resolving divorce conflicts. Every case subject to arb-med is resolved by the process, one way or another. If you don’t settle in mediation, the arbitrator’s decision disposes of the case. Arbitration gives each party a full and fair opportunity to tell his or her story and explain why he or she feels entitled to the relief sought in the divorce. Having done that first in the arbitration phase, they have a better appreciation for the strengths and weaknesses of both their own position and the position of their spouses. That translates into a far better prepared and more realistic approach to mediation and what a satisfactory negotiated settlement is. Does that make sense to you too?
Utah Family Law, LC | divorceutah.com | 801-466-9277
My sons father and I have joint custody but I have final say over his well being health and education. How can I enforce my power?
If you are asking: “How do I enforce in good faith my final say authority over our son’s well-being, health, and education when the other parent and I do not agree?,” then the answer is (depending upon the jurisdiction’s requirements) typically:
go to mediation to try to resolve the dispute, and if that does not work, then
file a motion with the court seeking an order that compels your ex to comply with your final decision-making authority.
Don’t take this the wrong way, and I realize that there is more than one way to interpret the meaning of your question, but the fact that you would ask how you can “enforce” your “power” without ever expressing any concern for the welfare or best interest of the child raises questions as your motives for exercising that power. A parent wants to exercise power for the sake of lording it over the other parent is clearly unworthy of that power and should be stripped of it for the sake of the child’s welfare and best interest.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Law from a legal assistant’s point of view, week 18: Financial Declarations and Initial Disclosures
By Quinton Lister, legal assistant
My minimal exposure to the legal profession as a legal assistant to a divorce attorney has given me the opportunity to learn about financial declarations and initial disclosures. These forms are necessary for any party going through the process of litigation for a divorce, and they are straightforward as to what they require.
The financial declaration is a statement of income, expenses, debts, assets, and financial accounts for each party to a divorce action.
One’s initial disclosures form identifies people with information relevant to the case, the potential witnesses, and documents and other physical evidence a party asserts supports his/her case.
Completing the financial declaration and initial disclosures forms completely and correctly, along with gathering all the necessary supporting documentation, is a time-consuming process. With rare exception, divorce litigants do not want to prepare these forms. I know this because anyone I have tried to help through this process always fails to complete the forms and/or complains about the work that needs to be done on these forms. I get it, but what the clients often don’t seem to get is that your financial declaration and initial disclosures are not optional. Court rule require both you and your spouse to fill them out, fill them out correctly, and fill them out fully. Failing to do so can result in the court penalizing you and/or making erroneous rulings based upon incorrect and/or incomplete forms.
I am not a lawyer and thus cannot give any legal advice, but as someone who has taken part in the process of helping clients prepare their financial declarations and initial disclosures, I can see that preparing these forms completely, accurately, and on time greatly benefits you and your lawyer, saving you both time and frustration, as well as sparing you grief, on the back end.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Part of what has drawn me to my current position as a legal assistant to a divorce attorney is that I wanted to learn more about Alternative Dispute Resolution (ADR). In very basic terms, ADR refers to the other methods of solving disputes between parties outside of litigation in court.
But ADR is clearly not an “alternative” when you have no choice. ADR is often peddled as a cheaper, faster, less stressful cure-all, but that’s deceptive. I’ll discuss this more later in this post.
One form of ADR is mediation, which in today’s world probably everyone has at least heard of, and most people probably have some idea of how mediation works. In mediation the disputing parties privately discuss their issues and try to reach an agreement with a neutral third party acting as a moderator but not a decision maker.
Each divorce case in Utah is required to go to mediation before the matter can go to trial. I figured that I would get a chance to experience what mediation is like by working at a divorce and family law firm. I was right. The mediations I have attended were an educational experience. Each party was fairly civil and the mediator’s job was mostly keeping the discussion on track to cover each topic in dispute. The parties’ respective lawyers were also instrumental in getting the terms of a final settlement nailed down.
Family law in Utah has a strong connection to ADR, particularly mediation. Some might even say the connection to mediation is too strong.
Because mediation is mandatory in all divorce cases before you can go to trial (if you go to trial), the power and value of mediation has been somewhat diluted. Mediation works best when disputing people agree that trying to work out their differences is preferable to fighting out those differences in court. Requiring people who don’t want to negotiate with each other to negotiate will feel forced because it is forced. People come away from mediation with a bad taste in their mouths when they are made to negotiate with a party who hostile or deceptive, or both. Mandatory mediation can feel like just another hoop to jump through on the way to the courthouse for trial. I think it makes sense that just because mediation is possible that does not it should be mandatory.
But one of the reasons that mediation is so appealing to people going through a divorce or other family law dispute is because going to court is so appalling. Mediation, however, doesn’t work with people who aren’t able or aren’t willing to compromise. And there’s nothing that requires you to compromise, especially if you don’t feel it’s fair for you to compromise, when you know or at least strongly believe that the law is on your side. is there a way to fight for what’s right without getting caught up in all the expense and bureaucratic red tape of the court system? Yes, there is. This is where arbitration comes in.
Arbitration is a private forum for arguing and deciding disputes, where the two parties present their case to a neutral third party, typically a retired judge or lawyer, who then decides the case for them and issues an order that is as binding legally binding upon the parties as a court order from a judge. So if you and the other party don’t trust each other to reach a resolution in mediation, and you both have the good sense to know that going to trial in court is going in soon too far too much time, money, and effort, yet you still need your dispute resolved, arbitration maybe just the thing you both need.
I still believe ADR is a topic worthy of further investigation and development. I want to continue to learn more about this topic, better understand the advantages and disadvantages of ADR, and make ADR work.
Utah Family Law, LC | divorceutah.com | 801-466-9277
There appears to be a lot of confusion and fear surrounding the divorce mediation settlement conference. There shouldn’t be.
The two main reasons for the mystery and worry appear to be 1) that lawyers don’t explain mediation to their clients very well (if at all), and 2) clients, who generally hate everything about the divorce process, are thus not terribly eager to learn about or prepare for the various aspects of the divorce process (which is understandable).
So, here is a concise, clear description of what divorce mediation is, how it works under the law of the jurisdiction where I practice divorce and family law (Utah), and how to prepare for it.
What a divorce mediation settlement conference is: the process of trying to reach a settlement of all (or at least some) of the disputes in the divorce case by involving a neutral third person (the mediator) to assist and encourage the spouses to settle their legal dispute(s).
That’s it. The mediator is someone who tries to help the parties reach an agreement.
If you want more details on better understanding what mediation is, you will find this informative and useful:
The mediator does not have the power to force or order the parties to settle.
The mediator does not dispense legal advice. Many divorcing people, who are short on funds, think they can “cheat the system” by going to mediation and not hiring a lawyer to represent them. They believe that the mediator will not only help the parties try to settle, but advise them on what good settlement terms are. A mediator is not permitted to advise the parties to a mediation. That would be a conflict of interest. A mediator cannot be a neutral and at the same time advise people with opposing interests as to what each of them should do. If what benefits you would come in your spouse’s expense, there is no way the mediator could look out for your best interest and look out for your spouse’s best interest at the same time.
If the parties do not settle in mediation, the mediator cannot be called as a witness at trial to testify about what was discussed during the mediation settlement conference. This means that if your spouse or you made a settlement proposal or offer in mediation that was rejected, that proposal or offer cannot be brought up at trial as “proof” that you or your spouse can and should be ordered to do as proposed or offered in settlement negotiations.
Note: many mediators try to create the false impression that mediation is a sophisticated, complicated process that can only be “practiced” successfully by elite, highly trained professionals who possess rare and unique skills. While it is true that most successful mediators have in common a certain minimal level of competence and procedures to be effective, mediation isn’t nearly as exotic and complex as these “mediateurs” would have you believe. Don’t be taken in.
That stated, it is obvious that a well-intentioned layperson who has no knowledge of divorce law is likely not going to be as good at mediating a divorce settlement as a mediator who has training and experience in divorce law.
The more experience your mediator has with divorce (such as a lawyer who has been practicing divorce law for decades or a retired domestic relations commissioner or judge), the more your mediator will know about the many different ways he/she has seen cases like yours settle satisfactorily and successfully. A mediator experienced in divorce law can also provide the parties with the added benefit of providing both spouses with a reality check as to just how strong or weak their respective cases are, were either or both of them to go to trial.
How to prepare for your divorce mediation settlement conference:
1. Know and understand the legal strengths and weaknesses of your case.
a. How badly you want something or want to avoid something does not make your case strong.
b. How sincerely you feel about certain principles does not make your case strong.
c. There are statutes and case law that govern how every divorce issue is to be decided. If the facts of your case don’t favor you, you will — unless your judge is corrupt and/or incompetent — lose on those issues at trial, if the case goes to trial.
d. Understanding the law and what it will and will not allow you or your spouse to have prevents you from setting your heart on things that you either cannot possibly get or that you are extraordinarily unlikely to get.
e. So, don’t go into mediation expecting bluff and bluster to compensate for the weaknesses in your case. Rarely will your spouse and his/her lawyer not be aware of the same weaknesses.
f. Go into your mediation settlement conference with an informed and realistic understanding of what you could expect to get at trial (which usually means you must be prepared for disappointment in most, if not all subjects of your divorce because very few people’s desires square with the law). Then try to negotiate a settlement that is better than or at least as good as what you expect you would get a trial. that way you avoid the time, effort, and expense that preparing for and going to trial would consume.
g. Prepare for mediation knowing what your bottom line is. What do I mean by “bottom line”? what is the least you are willing to settle for without going to trial? At what point would your spouse’s settlement proposal cause you to say to him/her, “Unacceptable. I will see you in court”? This segues perfectly to the next point
2. Know and understand your spouse’s case in the arguments behind it as well as you understand yours.
a. The more you understand the facts that bear upon the divorce case and the more you understand your spouse’s interests and motives, the better you can craft a settlement proposal that meets as many of your spouse’s desires while still consisting of terms acceptable too you.
b. The better you understand both your case and your spouse’s case, the more confident you can be in making an offer that you’re willing to go to court to defend, if your spouse rejects it in mediation.
c. Knowing your case and your spouse’s case inside and out ensures that negotiation time is spent efficiently and productively. If you going to mediation unsure of the value of your assets, how much money is in the bank in your various accounts, if you don’t know what kind of child custody award you want and why, you’re going to waste a ton of time in mediation just trying to get up to speed. Ignorance of the facts will easily be misconstrued as misrepresentation or concealment of the facts. Consequently, both you and your spouse will be frustrated at how little progress is being made toward settlement.
3. Have a fully formed, comprehensive settlement proposal in mind before you go to mediation, and send a copy of this proposal to your spouse well in advance of mediation.
a. This helps you to frame the issues in a light most positive to you. This helps to create an agenda for discussing the issues and in the order you may wish to discuss them.
b. I am amazed at how rarely anyone does this in advance of mediation, but I am never amazed at how advantageous it is for my clients and me when we do it.
c. Sending your spouse and his/her attorney a comprehensive settlement proposal in advance of mediation helps ensure that mediation doesn’t waste time and has the effect of planting the seed in your spouse’s mind that you have a command of the situation, you have a plan where he/she does not.
d. If your spouse is too lazy and/or scared or discouraged to want to think about a comprehensive settlement of his/her own, the fact that you prepared one may have the effect of causing your spouse to accept more of your proposals than would otherwise be the case if you sprang your proposal on your spouse and his/her attorney for the first time at mediation.
4. Be as open-minded, flexible, and nimble as possible. You may be surprised when you get to mediation to learn that your spouse has a proposal for settling certain issues that is better than anything you had in mind. You may learn at mediation for the first time facts that suddenly make your case a lot better or worse than you thought. Don’t reject good ideas simply because they come from your spouse. Don’t blind to yourself to beneficial possibilities, just because you didn’t think of them. By definition, no one can be prepared for surprises, but failing to acknowledge the possibility of surprise and doing your best to ready yourself for that possibility, will help you react far more rationally, and perhaps even to your advantage.
5. Do the work. How much you get out of mediation depends upon how much you put into it. How well mediation goes depends upon how well you prepared in advance and how well you participate in the mediation settlement conference itself.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Not really, at least not in the jurisdiction where I practice divorce law (Utah).
Even if you get a “no fault” divorce (“no fault divorce” means that you don’t have to accuse your spouse of being the cause of the marriage, i.e., of being “at fault” as the reason you are seeking a divorce), technically the law still requires that there be (and that you allege in your complaint for divorce) irreconcilable differences between you and your spouse that cause continuing the marriage to be impossible.
The reality is that because it is impossible for the court to know whether there really exist irreconcilable differences between you and your spouse, you could be perfectly happy in your marriage, file for a no-fault divorce, and obtain a divorce without the court being any the wiser and without so much as batting an eye.
Married a short time. He demands discovery going back years. Can he?
Married 16 months. He became abusive almost immediately after. I filed for divorce. He and his attorney is requesting bank statements and my previous divorce information -real estate sales, bankruptcy, etc. from my last marriage prior to this marriage. Can They? They may be well within their rights to seek this kind of information, if the reason he and his attorney are doing so because you are seeking alimony. Things like your bank statements, real estate sales, and bankruptcy documents provide information as to your earning capacity, how capable you are of supporting yourself, and lifestyle costs—that’s all highly relevant and thus clearly discoverable information on the issue of alimony. If you are concerned that your husband and his attorney are engaging in irrelevant, burdensome, harassing, abusive discovery tactics, get your own attorney to find out, and if your attorney honestly believes the discovery is inappropriate/unnecessary, your attorney can ask the court to review the matter to see if the court agrees. If the court agrees, it can bar your husband and attorney from engaging in that kind of thing.
The greatest influence on how long a divorce case takes is usually how much and how severely the parties fight over the issues. The more they fight and the more things they fight over, the longer and more expensive the divorce process is. But here is a general timeline for a Utah divorce, step by step.
Bottom line: Generally speaking, a contested divorce will likely take between 15 months to 24 months. Bitterly contested divorce cases can take many years. An uncontested divorce can take as little as 45-60 days to complete from the date of filing, if the parties agree on everything.
Timeline
What happens first?
Complaint or petition for divorce is filed (“complaint for divorce” and “petition for divorce” are interchangeable terms). The person who files is the “petitioner”.
What happens next?
Your spouse is served with the summons and a copy of the complaint/petition for divorce. Your spouse is the “respondent”.
When?: The respondent has 21 days to file an “answer” to your complaint. Your spouse will likely not only answer your divorce complaint but also counters through you which is known as a counterclaim.
You will then have 21 days to respond to the counterclaim after it is served on you (and if you have an attorney the counterclaim will be sent to your attorney, and your attorney should provide you with a copy of it).
What happens next?
Financial declaration and initial disclosures. After the complaint have been filed with the court and served on your spouse and after the parties have responded to each other’s respective complaint and counterclaim for divorce they have to exchange what are known as financial declarations and initial disclosures.
Financial declaration. The financial declaration requires you to identify
Whether you are employed and if so, by whom and what you earn from employment.
Other forms of income other than income from a job (unearned income).
Monthly expenses
Business interests, if you have any
Financial Assets. A description of your financial assets
Real Estate. Identifying any interests in real estate that you own
Personal Property. A description of your personal property, such as vehicles, boats, trailers, major equipment, furniture, jewelry, and collectibles
Debts Owed. A list of your debts and obligations, what you owe, and who your creditors are.
Initial Disclosures. Your initial disclosures require you to disclose:
each individual likely to have discoverable information supporting your claims or defenses
each fact witness you may call at trial
a copy of all documents, data compilations, electronically stored information, and tangible things in your possession or control that you may offer at trial
a copy of all documents to which you refer in your pleadings
When?: The petitioner must serve her financial declaration and initial disclosures 14 days after the answer is filed (that’s a lot of work in a fairly short time, so don’t dillydally if you’re the petitioner). The respondent is required to serve his financial declaration and initial disclosures 28 days after the answer is filed.
What happens next?
Temporary orders. After the answer and counterclaim have been filed with the court, it is typical for the parties to request what are known as “temporary orders” from the court. Temporary orders are put in place to ensure that the leaves and affairs of the family are maintained during the pendency of the divorce action. So temporary orders can include things like responsibility for the mortgage and other expenses associated with the house and family. They can include temporary orders of child custody and parent time and child support and spousal support. Temporary orders can include other provisions as well, depending upon the circumstances and needs of your family.
When?: You soonest you could file for temporary orders is when you file your petition/complaint for divorce. Most people file after the petition/complaint for divorce is filed.
After the motions are file the court usually schedules a hearing within 1 to 3 months of the date the motion was filed.
What happens next?
Discovery. Discovery is the process By which the parties request documents and other evidence from each other to help them get a better understanding of the issues, and to determine what issues are really disputed and which ones aren’t or can’t be disputed. Discovery is used to help the parties gain a better understanding of the issues and to help each party build its strongest case against the other party.
When?: You are allowed 180 days for discovery. The discovery period starts the day after the last day that initial disclosures and financial declarations are due from the respondent.
If you have children and you and your spouse are fighting over child custody: a custody evaluation may be ordered. A custody evaluation is supposed to take 4 months. They almost always take longer. Sometimes the custody evaluation won’t be completed by the time discovery closes. Be prepared for this possibility.
What happens next?
Divorce Orientation and Education Courses. If the divorcing couple has minor children then divorce orientation and education courses are mandatory for both parties. You can learn about and sign up for those courses using this link: https://www.utcourts.gov/specproj/dived/
When?: You can take the divorce orientation and education courses any time, even before you file for divorce. Most people sign up for and complete the courses around the time after the answer and the reply to counterclaim have been filed and served.
You cannot obtain a decree of divorce without completing the divorce orientation and education courses or having the requirement to attend them waived (and for most people it’s probably more trouble than it’s worth to try to get the courses waived).
What happens next?
Mediation. You must go to mediation before the case can go trial. Most divorce actions settle and most settle in mediation. If neither party wants to go to mediation or there are circumstances (such as domestic violence) that would not make mediation feasible or worthwhile, the parties can move to waive the mediation requirement.
When?: You can go to mediation any time, even before you file for divorce, although if you go to mediation before you or your spouse file(s) for divorce the court may make you go to mediation again before you will be allowed to go to trial.
So bear in mind that you can go to mediation at any point in the case.
You cannot obtain a decree of divorce without engaging in mediation or having the mediation requirement waived (and for most people it’s probably more trouble than it’s worth to try to get the courses waived).
What happens next?
Trial. If the parties do not settle their case (whether in mediation or on their own), then the case goes to trial.
When?: After discovery has closed (after 180-day discovery period has elapsed), then the case can be certified for trial.
It usually takes at least 2 or 3 months from the time a party requests a trial date to get a trial date. All told, it takes about a year to a year and a half to go from filing for divorce to trial.
It usually takes at least 2 or 3 months from the time a party requests a trial date to get a trial date.
All told, it takes about a year to a year and a half to go from filing for divorce to trial.
What happens next?
After trial, the court will make its decisions as to the issues that were argued over and “tried” in court and then the Decree of Divorce is prepared and the court signs it.
When?: Usually 30 to 60 days after trial.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Putting my money where my mouth is: I now offer half-day mediation services free of charge. No strings attached.
Divorce litigation almost always costs too much. Divorce mediation is now getting out of control too.
I cannot offer unlimited free mediation sessions, but I offer one slot per week. You don’t have to be poor to qualify. Anyone can request my free divorce mediation services.
In person or over Zoom (or Skype, Google Meet, or Microsoft Teams), I can accommodate you.
If you or someone you know who needs or wants to mediate, you can book a half-day mediation (either 8 to noon or 1 to 4) with me on a first come, first-served basis. 801-466-9277. Or to book by e-mail, send your message to my legal assistant, Brian: brian@divorceutah.com.
Utah Family Law, LC | divorceutah.com | 801-466-9277
If my husband and I agree on child support and custody in mediation, can the judge reject our agreement?
Yes.
A judge is not obligated to approve of and adopt as his/her child custody order the agreement the parents may agree upon.
To illustrate this principle in an overly simplified manner, let me give you an example of why that is.
Imagine the parents agreeing to a joint physical custody award when A) the mother is employed as an airline pilot, leaving her gone for several days at a time and subject to a constantly changing schedule that can change at a moment’s notice, and B) the father works from home during the same hours the children are in school so that he can provide personal care and attention for them when they are home. And if there’s any question as to whether mom can make this schedule work, the answer is, clearly and verifiably, no.
A judge may look at that schedule that the parents have agreed to and determine that the schedule was agreed to not because it serves the best interest of the children but because mom the airline pilot threatened to continue to litigate the issue unless dad agreed to a schedule and child support obligation that mom—and only mom—wants (but can’t even exercise due to her work schedule). In such a situation, the judge is not bound to do as the parents agree, but must exercise his/her judgment as to what custody arrangement best serves the children.
So if you and your spouse are trying to settle out of court your divorce issues, including but not limited to child custody, make sure that your agreements are fair and equitable and feasible; otherwise, your judge may reject them.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Must I engage in all-day mediation in my divorce action, or for some other specific time period?
No, there is no mandatory minimum period of time you must spend in mediation. You don’t have to stay in all-day mediation or for half a day or for any specific period of time. All you are required to do is engage in mediation in good faith. Here’s the applicable statute:
Utah Code Section 30-3-39. Mediation program.
(2) If, after the filing of an answer to a complaint of divorce, there are any remaining contested issues, the parties shall participate in good faith in at least one session of mediation. This requirement does not preclude the entry of pretrial orders before mediation takes place.
If you want to attempt to reach a settlement agreement and spend half a day or all day trying, you certainly can, BUT you are under no obligation to do that. If after just a few minutes of good faith effort you conclude (in good faith) that you don’t believe a fair settlement will be reached, you can stop. You don’t have to keep trying to settle for the sake of trying to settle.
Indeed, one of the biggest mistakes you can make in your divorce case is placing way too much faith reaching a settlement.
Many people, including their attorneys, count on settlement (the prospect of going to trial is unthinkable to them), which then leads these people to value settlement settlement’s sake. In other words, litigants and their attorneys become so focused on reaching settlement — any settlement — that they lose sight of the fact that the purpose of negotiating isn’t just settlement, but getting an outcome as good as or better than what they reasonably (even conservatively) believe they could/should achieve at trial. If your settlement isn’t better than what you would get at trial, then your settlement (and all the time and effort and money you put into it) is a waste. Other people are so desperate to settle (out of fear of trial or for other reasons) that they engage in all-day mediation out of the mistaken believe they can somehow bring about a fair settlement by sheer force of will. Either way, it leads to fruitless and costly all-day mediation.
It is not lost on me that many people have to make lousy settlements in their divorce actions because they simply run out of money or willpower to keep fighting.
People who settle out of exhaustion cannot be faulted for making lousy settlement deals when a lousy settlement is the best they could hope for. What many divorcing people forget, however, is that their spouses are usually in the same position. If you can just hold on a little longer, outwork and outlast just that little bit more, that’s when the fair offer is finally made or accepted.
Finally, there are those who settle on unfair terms because they have no better option and they absolutely know it. These are the people who settle because their spouses’ superhuman levels of tenacity born of unimaginable evil and mental and emotional instability. These are people who know that their spouses will never abide by any agreement, never abide by any court order. Those who are married to such monsters reach settlement simply to bring the divorce litigation to an end (or more accurately, in the hope of bringing the divorce litigation to an end).
Utah Family Law, LC | divorceutah.com | 801-466-9277
Too much, generally. Odds are that if you attempt to settle your divorce through what is called the “collaborative law” process your experience will be a negative one and/or one that cost you far more in time and money and effort than it should have.
Truly collaborative divorce is, in practice, a sham more often than not.
Most collaborative lawyers are all hat and no cattle, selling the sizzle and not a steak. With rare exception, most attorneys who call themselves “collaborative lawyers” do so for the sole purpose of exploiting what they believe to be a lucrative trend, not to be real collaborators.
Forewarned is forearmed.
Collaborative divorce is one of those things that sounds great in concept but doesn’t translate to real world success. Even the most enthusiastic and vocal (and honest) proponents of collaborative divorce will tell you this (please read on to find out who and why).
I was recently asked why collaborative law is not utilized more in divorce cases, and while I had my own ideas for how to answer the question, I wanted to refer to someone with more expertise and a greater understanding of the subject than I do, to make sure that I did not misstate 1) the correct definition of collaborative law; and 2) did not misstate the strengths and weaknesses of collaborative law as it is practiced in the real world today.
As I searched the web for such an article, I found a few that summarized what I was thinking, but I still felt did not accurately describe what real collaborative law is or why collaborative law practice so often fails to be practiced correctly. I knew that I still did not myself have a correct definition or correct understanding of collaborative law.
Then I came across ‘Collaborative Divorce’ Is Collaborative in Name Only. The author of this article, Mark Baer, hit the nail on the head when you said that what many people describe as “collaborative law” is in fact “cooperative law”.
The article laments “a collaborative law community that seems more intent on patting itself on the back and devising a way for all of us to make more money than in really helping our clients.” Again, it hits the nail squarely on the head.
Human nature being what it is, most people won’t exercise the patience or take the leap of faith needed for collaborative law to function properly. That’s a shame, but Mr. Baer’s article neatly summarizes why this is.
The real power of collaborative law practice, ADR, mediation, etc. is wasted and/or never realized when people don’t understand that the real power lies in mutual benefit as the goal. While mediation may still be better than litigation, if the main benefits are compromise obtained through conflict avoidance, the disputants “left money on the table” both literally and figuratively (i.e., emotionally and spiritually).
Utah Family Law, LC | divorceutah.com | 801-466-9277
ADAM LEGRANDE PEEPLES, Appellee,
v.
ANNALEISE T. PEEPLES, Appellant.
Opinion
No. 20180713-CA
Filed December 19, 2019
Third District Court, Salt Lake Department
The Honorable Andrew H. Stone
No. 044901980
Brian Boggess, Attorney for Appellant
Adam L. Peeples, Appellee Pro Se
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES GREGORY K. ORME and KATE APPLEBY concurred.
HARRIS, Judge:
¶1 Annaleise T. Peeples (Mother) asked the district court to modify her divorce decree to give her sole custody of her two teenage daughters, but the district court refused, determining that Mother had failed to demonstrate any substantial change in the circumstances underlying the original decree. Mother now appeals the district court’s order dismissing her petition to modify, and we affirm.
BACKGROUND
¶2 In 2004, after about three-and-a-half years of marriage, Adam Legrande Peeples (Father) filed for divorce from Mother, citing irreconcilable differences. Around the same time, Father also sought and obtained a protective order against Mother, asserting that Mother had been physically abusive to him; that protective order awarded temporary custody of the parties’ two young daughters to Father. The parties were each represented by counsel in both the divorce and the protective order proceedings, and because of the allegations of physical abuse, the court also appointed a guardian ad litem to represent the best interests of the two children. Early in the divorce case, all parties and counsel appeared before a domestic relations commissioner to discuss the parties’ motions for temporary orders. Following that hearing, the commissioner entered a temporary order, later countersigned by the assigned trial judge, awarding temporary custody of the children to Father, as the protective order did, with Mother receiving parent-time.
¶3 As the divorce proceedings progressed, the district court appointed a custody evaluator to make a recommendation to the court. While the custody evaluation was ongoing, the court entered a stipulated bifurcated decree of divorce in 2005, severing the parties’ marital union but reserving all other issues, including custody and parent-time, for further proceedings. In 2007, Mother filed her first motion for a change in custody, alleging that the temporary order giving custody to Father was unworkable because Mother lived in northern Utah County and Father lived in Salt Lake County, and because Father had “moved three times in three years and has not demonstrated stability.” Father objected, and after briefing and oral argument, the commissioner denied Mother’s motion.
¶4 In October 2007, soon after the commissioner denied Mother’s motion for a change in temporary custody, the parties and counsel participated in a settlement conference with the custody evaluator, at which the evaluator orally shared with the parties his recommendation: that primary physical custody remain with Father. At a hearing in December 2007, the guardian ad litem informed the court that he agreed with the custody evaluator’s recommendation. At that same hearing, the district court set a date for a bench trial to resolve all remaining issues.
¶5 Following the commissioner’s ruling on Mother’s motion and the court’s decision to set a trial date, as well as the revelation of the recommendations made by the custody evaluator and the guardian ad litem, the parties and their counsel entered into negotiations, and were able to resolve the remaining issues by stipulation. On April 28, 2008, after more than four years of divorce litigation, the court entered a stipulated amended decree of divorce, awarding the parties “joint legal custody” of the children, but awarding Father “primary physical custody.” Mother was to have “liberal parenting time” amounting to five out of every fourteen overnights during the school year, with the schedule to be “reversed” during the summertime.
¶6 Perhaps not surprisingly, given the nature and tone of the four years of pre-decree litigation, entry of the final divorce decree did not end the divisiveness and discord between these parties. About a year-and-a-half after the amended decree was entered, Mother filed a petition to modify, seeking amendments to the parent-time provisions of the decree. Mother alleged that circumstances had changed substantially since the entry of the decree because Father had enrolled the children in year-round school, rendering certain of the decree’s provisions unworkable, and because Father had violated the decree in numerous particulars. Father responded by filing a cross-petition to modify, seeking sole legal and physical custody. After further proceedings, the district court declined to modify the original divorce decree, and denied the parties’ dueling petitions.
¶7 A few years later, in 2013, Mother filed the instant petition to modify, this time seeking sole physical custody of the children. Mother asserted that circumstances had changed in three specific ways. First, she contended that Father had been “unable to provide a stable home environment” and find “stable employment.” Second, she contended that Father had “denied [her] physical visitation” to which she was entitled pursuant to the decree. Third, she contended that Father had “become violent with other people” and that “the children [had] been emotionally abused.”
¶8 Soon after the filing of Mother’s 2013 petition to modify, the parties agreed to have another custody evaluation done. After some procedural wrangling about the identity of the evaluator, the court finally appointed one, and the new evaluator interviewed the parties and the children in the fall of 2015. In January 2016, the evaluator shared her recommendation with the parties’ attorneys: that Mother be awarded sole physical custody, with Father to receive “standard minimum parent time.” Soon thereafter, the court appointed a different guardian ad litem (GAL) to represent the best interests of the children during the proceedings on the petition to modify.
¶9 From there, it took over a year to get to trial on the petition to modify; trial eventually took place over two days in December 2017. Just a few days before trial was to begin, the GAL issued a report containing his recommendations. Unlike the custody evaluator, the GAL recommended that the custody arrangement remain unchanged, with Father retaining primary physical custody. He explained that, while he understood the evaluator’s “rationale for recommending a change in custody at the time [the] evaluation was performed, over two years [had] passed” since the evaluator conducted her interviews, and he expressed his view that the information on which the evaluator based her conclusions was outdated.
¶10 At trial, Mother (as the petitioner on the petition to modify) presented her case first, and called three witnesses over the first day-and-a-half of trial: herself, Father, and the custody evaluator. At the conclusion of Mother’s case-in-chief, Father made an oral motion to dismiss the petition to modify, arguing that Mother failed to “meet her burden to prove that a significant change in circumstances has taken place.” After hearing argument from both sides, as well as from the GAL, the court granted Father’s motion. The court explained that Father’s relative instability had been constant since before the decree was entered, and therefore was not a change in circumstances; that any violations by Father of the terms of the decree could be resolved in contempt proceedings, and—especially in a case in which “[t]he parties have been in constant conflict since their separation and likely before”—that those violations did not rise to the level of unworkability that would constitute a change in circumstances; and found that there had not been any violence or emotional abuse. The court noted that the parties had been fighting over custody for some thirteen years, and that the fighting had been fairly constant. The court stated that, in such a “high-conflict” case, “if anything, the need to show a change in circumstances [is] even stronger,” and “the need for a permanent decree . . . that people can rely on . . . is that much greater.” A few weeks later, the court entered a written order, drafted by Father’s counsel, dismissing Mother’s petition to modify; that order contained a provision stating that, “[i]n a high conflict divorce such as this one, the need for finality is even greater and therefore the burden to show a material and significant change in circumstances should be higher than normal.”
ISSUE AND STANDARDS OF REVIEW
¶11 Mother now appeals from the district court’s order dismissing her petition to modify. When reviewing such a decision, we review the district court’s underlying findings of fact, if any, for clear error, see Vaughan v. Romander, 2015 UT App 244, ¶ 7, 360 P.3d 761, and we review for abuse of discretion its ultimate determination regarding the presence or absence of a substantial change in circumstances, see Doyle v. Doyle, 2009 UT App 306, ¶ 7, 221 P.3d 888, aff’d, 2011 UT 42, 258 P.3d 553. The district court’s choice of legal standard, however, presents an issue of law that we review for correctness. See id. ¶ 6.
ANALYSIS
¶12 Mother challenges the district court’s dismissal of her petition to modify on two general grounds. First, she contends that the district court employed an incorrect (and overly strict) legal standard in determining whether circumstances had changed sufficiently to justify reopening the governing custody order. Specifically, she asserts that the court did not properly take into account the fact that the decree at issue was stipulated rather than adjudicated, and she takes issue with the statement in the court’s written order that, in “high conflict” cases, the burden of demonstrating a change in circumstances is “higher than normal.” Second, Mother contends that the district court abused its discretion in determining, on the facts of this case, that no substantial and material change in circumstances existed. We address each of these contentions in turn.
A
¶13 Under Utah law, petitions to modify custody orders are governed by a two-part test:
A court order modifying . . . an existing joint legal custody or joint physical custody order shall contain written findings that: (i) a material and substantial change of circumstance has occurred; and (ii) a modification . . . would be an improvement for and in the best interest of the child.
Utah Code Ann. § 30-3-10.4(2)(b) (LexisNexis Supp. 2019). Because “[t]he required finding of a material and substantial change of circumstances is statutory, . . . [n]either this court nor the supreme court has purported to—or could—alter that requirement.” Zavala v. Zavala, 2016 UT App 6, ¶ 16, 366 P.3d 422; see also Doyle v. Doyle, 2011 UT 42, ¶ 38, 258 P.3d 553 (“Even an overwhelming case for the best interest of the child could not compensate for a lack of proof of a change in circumstances.”). Thus, “only if a substantial change of circumstances is found should the [district] court consider whether a change of custody is appropriate given the child’s best interests.” Wright v. Wright, 941 P.2d 646, 651 (Utah Ct. App. 1997) (quotation simplified).
¶14 This statutory requirement that a substantial change in circumstances be present before a court may modify a custody order serves two important ends. “First, the emotional, intellectual, and moral development of a child depends upon a reasonable degree of stability.” Elmer v. Elmer, 776 P.2d 599, 602 (Utah 1989). We have previously noted the “deleterious effects of ‘ping-pong’ custody awards” that subject children to ever-changing custody arrangements. See Taylor v. Elison, 2011 UT App 272, ¶ 13, 263 P.3d 448 (quotation simplified). Second, the requirement “is based in the principles of res judicata,” as “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.” Id. (quotation simplified); see also Zavala, 2016 UT App 6, ¶ 16 (stating that the statutory change-incircumstances requirement is “a legislative expression of the principle of res judicata”).
¶15 The change-in-circumstances requirement is itself comprised of two parts. In order to satisfy it, “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). In this context, however, our case law has drawn something of a distinction between adjudicated custody decrees and stipulated custody decrees, recognizing that “an unadjudicated custody decree” is not necessarily “based on an objective, impartial determination of the best interests of the child,” and therefore the res judicata policies “underlying the changed-circumstances rule [are] at a particularly low ebb.” See Taylor, 2011 UT App 272, ¶ 14 (quotation simplified). In Zavala, we clarified that the change-in-circumstances requirement still applies even in cases involving stipulated (as opposed to adjudicated) custody orders, although we acknowledged that, in some cases, “a lesser showing” of changed circumstances may “support modifying a stipulated award than would be required to modify an adjudicated award.” See 2016 UT App 6, ¶ 17.
¶16 In this case, the court did not specifically discuss the distinction our case law has drawn between stipulated and adjudicated decrees, or the extent to which this decree should be considered stipulated or adjudicated. The court simply applied the change-in-circumstances requirement and found it not met on the facts of this case. In one recent case, we found no error under similar circumstances. See Erickson v. Erickson, 2018 UT App 184, ¶ 21, 437 P.3d 370 (declining to reverse a district court’s determination that no substantial and material change in circumstances had been shown, despite the fact that the district court did not specifically consider “the fact that the underlying custody award was based on a stipulated agreement”).
¶17 But more to the point, we think it unhelpful to view the adjudicated/stipulated dichotomy as entirely binary; instead, in assessing how much “lesser” a showing might be required to satisfy the change-in-circumstances requirement, see Zavala, 2016 UT App 6, ¶ 17, courts should 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.
¶18 We discern no error here, even though the district court did not expressly discuss the origin of the custody decree at issue, because the decree—although entered as a result of a negotiated settlement—was more akin to an adjudicated decree than a non-adjudicated decree. Here, the decree was finalized in April 2008, after more than four years of litigation between the parties, during which both parties were represented by counsel the entire time. The parties had fully litigated not only motions for protective orders, which involved custody determinations made by a court, but also motions for temporary orders before the court commissioner and the district court wherein temporary custody determinations were made. Moreover, the court had appointed a guardian ad litem to represent the children, and in addition a full evaluation had been performed by a neutral court-appointed custody evaluator. The parties did not reach their negotiated settlement in this case until after they had received input from not only the custody evaluator and the guardian ad litem, but also from the commissioner and the court during the temporary orders process. By the time the settlement was reached, four years of litigation had passed and a trial date had been set. In the end, the decree encapsulated, for the most part, the recommendations made by the guardian ad litem and the custody evaluator, and memorialized an arrangement very similar to the one previously ordered by the court on a temporary basis.
¶19 We certainly recognize the potential for injustice with certain types of stipulated custody orders; indeed, this is part of the reason why courts, when considering petitions to modify, retain the flexibility to be less deferential to stipulated custody orders. See Taylor, 2011 UT App 272, ¶ 14 (stating that unadjudicated custody decrees “may in fact be at odds with the best interests of the child” (quotation simplified)). Depending on the situation, our confidence that a stipulated custody decree—at least one that is submitted to the court before receipt of input from judicial officers during the temporary orders process or from custody evaluators or guardians ad litem—will actually be in keeping with the best interest of the child may be comparatively low, especially where neither side is represented by counsel (or, potentially more concerning, when only one side is represented by counsel). Inequalities in negotiating power or financial resources can sometimes result in one parent agreeing to conditions by stipulation that may not be in the long-term best interest of the child.
¶20 But such concerns are not present in a case like this one, where the parties reached a negotiated agreement after fully and robustly participating in the litigation process, with lawyers, for more than four years. The terms of the negotiated custody decree in this case—entered on the eve of a scheduled trial—did not substantially deviate from the terms of the temporary custody order imposed by the court, and were heavily influenced by the recommendations of both the custody evaluator and the guardian ad litem. In this case, therefore, we have relatively high confidence that the custody order was in line with the best interests of the children. Accordingly, we discern no error in the district court’s decision to apply the change-in-circumstances requirement without watering it down to account for the fact that the custody order in question was, technically speaking, stipulated.
¶21 We are more concerned, however, with the district court’s statement in its written order that, in “high conflict” cases, “the burden to show a material and significant change in circumstances should be higher than normal.” The district court offered no citation to any authority supporting this principle in our case law, and we are aware of none. We take this opportunity to clarify that there is no separate standard that courts are to apply in high-conflict cases when considering whether a substantial change of circumstances is present in the context of a petition to modify. Nevertheless, we are not persuaded that the district court’s statement made a material difference to its analysis in this case. In context, especially after reviewing the court’s oral ruling, we view the court’s statement as simply acknowledging that, in high-conflict divorce cases, parties are perhaps more willing to seek modification more often, and that the danger of “ping-pong” custody awards in those cases is therefore proportionately higher.
¶22 In the end, we are convinced, after a review of the full record, that the district court applied the proper two-step analysis to determine whether a substantial and material change in circumstances occurred here. First, the court analyzed whether, “since the time of the previous decree, there have been changes in the circumstances upon which the previous award was based.” See Hogge, 649 P.2d at 54. Second, the court analyzed whether “those changes are sufficiently substantial and material to justify reopening the question of custody.” See id. Because we conclude that the court applied the proper test, we now proceed to analyze whether the court abused its discretion in its application of that test.
B
¶23 In her petition to modify, Mother pointed to three things that she believed led to a substantial and material change in circumstances. First, she contended that Father had been “unable to provide a stable home environment” and find “stable employment.” Second, she contended that Father had “denied [her] physical visitation” to which she was entitled pursuant to the decree. Third, she contended that Father had “become violent with other people” and that “the children have been emotionally abused.” After hearing evidence for a day-and-a-half, the district court concluded that these things did not constitute a substantial and material change in circumstances, finding either that they were occurring, at most, infrequently, or that they had been occurring throughout the litigation and therefore could not constitute a change in circumstances. We conclude that the court did not abuse its discretion in making that determination.
1
¶24 Mother’s first contention was that Father had “been unable to provide a stable home environment” for the children because he had “been evicted from several residences” resulting in the children having to change schools a number of times. In addition, Mother contended that Father had not “had stable employment for the last eight years.” The district court acknowledged that Mother had presented evidence that Father’s “income was questionable and [his] lifestyle was a little bit itinerant.” But the court noted in its oral ruling that this had been the case both “before and after the decree,” and that nothing had changed in this regard. In its written ruling, the court made a finding that it had “not received evidence that there has been a significant and material change in [Father’s] ability to provide the children with a stable home.”
¶25 It is unclear from Mother’s brief whether she even intends to challenge the district court’s factual findings, stating that her “appeal is primarily legal.” But in any event Mother has not carried her burden—if indeed she intended to shoulder that burden—of demonstrating that the court’s factual finding was clearly erroneous. As noted above, Mother alleged as early as 2007—in her pre-decree motion to alter the terms of the court’s temporary custody order—that Father had “moved three times in three years and has not demonstrated stability.” Despite Father’s itinerant nature, the first custody evaluator recommended that primary physical custody be awarded to Father, and the stipulated decree followed that recommendation. Presumably, all of that was taken into account during the litigation that preceded entry of the decree. Moreover, in her own petition to modify filed in 2013, Mother alleged that Father’s employment instability had been an issue “for the last eight years,” dating back to 2005, three years before entry of the decree. Issues that were present prior to the decree, and continue to be present in much the same way thereafter, do not represent a change in circumstances sufficient to justify the reopening of a custody decree. See Utah Code Ann. § 30-3 10.4(2)(b)(i) (LexisNexis Supp. 2019) (requiring a “change of circumstance” before reopening a custody decree); see also Becker v. Becker, 694 P.2d 608, 610 (Utah 1984) (stating that the rationale behind the change-in-circumstances requirement “is that custody placements, once made, should be as stable as possible unless the factual basis for them has completely changed”). In the end, Mother has not shown that the district court’s finding—that Father’s employment instability and itinerant nature had been present the whole time and therefore did not constitute a substantial change in circumstances—was clearly erroneous.
2
¶26 Mother’s next contention was that Father failed on numerous occasions to facilitate parent-time as required under the divorce decree. The district court found that, while Father may have committed occasional violations of the terms of the decree, “[t]he court has not received evidence that any denial of physical visitation on the part of [Father] was systemic, deliberate, or pathogenic enough to satisfy the requirements of the law in reopening” the decree.
¶27 Ordinarily, when one parent commits a violation of the terms of a divorce decree, the other parent’s remedy lies in contempt. See Utah Code Ann. §§ 78B-6-301(5), -310 (LexisNexis 2018) (categorizing “disobedience of any lawful judgment [or] order” as “contempt[] of the authority of the court,” and authorizing courts to sanction violators); see also, e.g., Clarke v. Clarke, 2012 UT App 328, ¶¶ 24–31, 292 P.3d 76 (resolving one parent’s request for contempt sanctions against the other for asserted violations of a custody order). In most cases, violations of a custody order by one party will not constitute the type of substantial and material change in circumstances that will justify reexamining the propriety of the order. But if the violations are so numerous and pervasive that it becomes evident that the custody arrangement is “not functioning,” then a change in circumstances may have occurred. See Moody v. Moody, 715 P.2d 507, 509 (Utah 1985) (“[T]he nonfunctioning of a joint custody arrangement is clearly a substantial change in circumstances which justifies reopening the custody issue.”); see also Huish v. Munro, 2008 UT App 283, ¶ 13, 191 P.3d 1242 (same).
¶28 In this case, the district court, after hearing Mother’s evidence, made a factual finding that the evidence of Father’s potentially contemptuous behavior was not so overwhelming as to render the decree unworkable. The court noted that the parties had been “in constant conflict since their separation and likely before,” and that they were “still at war” thirteen years after their separation. The court found that, while Father may have violated the decree with regard to parent-time on a few occasions, Father’s violations were not “systemic, deliberate, or pathogenic enough to satisfy the requirements of the law in reopening” the decree.
¶29 As noted above, it is unclear if Mother even intends to challenge the district court’s factual findings, but in any event she has not demonstrated clear error here. The district court’s finding that the decree had not been rendered unworkable as the result of Father’s violations was supported by, among other evidence, the recommendation of the court-appointed GAL, who expressed the view that the custody arrangement was working well enough and should remain unchanged, and that “the children have maintained throughout these proceedings that they are happy with the current arrangement.” Mother has not demonstrated that the district court’s determination about the decree’s workability was clearly erroneous.
3
¶30 Mother’s final contention was that Father had “become violent with other people and the children have been emotionally abused.” After hearing the evidence, the district court found insufficient evidence that Father had been violent or that he had emotionally abused anyone. In her brief, Mother makes no serious effort to challenge this factual finding, and therefore we are unable to find any error therein.
4
¶31 Given that Mother has not mounted a successful challenge to any of the district court’s factual findings, all that remains is for us to examine whether, given these findings, the court abused its discretion in determining that no material and substantial change in circumstances had occurred. See Doyle v. Doyle, 2009 UT App 306, ¶ 7, 221 P.3d 888, aff’d, 2011 UT 42, 258 P.3d 553. And on this record, we have no trouble concluding that the court did not abuse its discretion in making that determination. Many of the issues identified by Mother in her petition—such as Father’s unstable employment and frequent change of residence—had been present from the outset of this case, and were present before the decree was entered; such ever-present conditions cannot constitute a change in circumstances sufficient to reopen a custody decree. Any issues Father had with complying with the terms of the decree were apparently not egregious or pervasive enough to render the custody arrangement unworkable. And the district court, after listening to a day-and-a-half of evidence, did not hear any evidence that Father had acted violently or abusively toward anyone.
¶32 Under these circumstances, the district court did not abuse its discretion in concluding that Mother had not carried her burden of demonstrating a change in circumstances that was substantial and material enough to justify reexamining the parties’ longstanding custody arrangement. Because Mother did not satisfy the first part of the statutory test for obtaining a modification of a divorce decree, the district court did not err by dismissing her petition.
CONCLUSION
¶33 For all of the foregoing reasons, we affirm the district court’s dismissal of Mother’s petition to modify.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Because 1) paradoxically, those for whom the true collaborative law process would work best are those who really don’t need collaborative law; and 2) “collaborative law” as it is practiced (as opposed to how it should be practiced) are not the same thing.
Now there’s going to be a collaborative family lawyer who will read this response and tell you that I am wrong and that collaborative law works wonders. you’ll notice, however, that that this so-called collaborative lawyer will avoid the hard questions, which include (but are not limited to): does collaborative law succeed without both parties to the case being committed to the success of the other?
On the surface, collaborative law sounds like a great idea, but as it is practiced it just doesn’t work for the majority of people because what goes by the name “collaborative law” among most of its ostensible practitioners is overwhelmingly 1) not truly collaborative and 2) was never really intended to be. ‘Kinda like the salesman who claim not to be “selling to” you but “selling for” you. Yeah, right. Sure, it can happen, but human nature being what it is, the odds are highly against it.
Even the name “collaborative law” is misleading in most cases because what passes for “collaboration” is just conflict avoidance and compromise, not seeking to make life better for both yourself and your spouse and family.
If you and your spouse are those who could benefit from collaborative law to settle your divorce case, you probably could have settled your divorce case without the complexity, burdens, and expense of the institutional “collaborative law” process.
Frankly, very few divorce cases consist of two people who do not see themselves as adversaries, but as being interested in helping each other leave each other better than they found each other. Now when’s the last time you heard of the divorce ending like that? If divorcing couples could get to that point, they’d choose to stay married, rather than divorce.
Here’s an article that claims to describe for you how the collaborative divorce process works:
And here’s an article by the same company explaining to you some of the flaws in collaborative law as it is practiced today by 99.5% of the so-called “collaborative law” practitioners:
It contains some good advice. It contains some bad advice. I’ll explain why below.
The Good
“2. Present your case to your mediator previous to mediation”.
This bit of advice is a little deceptive. Why? Because in my experience when you take care to prepare a mediation position statement and to provide the mediator with copies of the relevant documents needed to discuss the issues, rarely does the mediator review these documents in advance. Like most people, unfortunately, most mediators want to make as much profit as possible. The more time they spend preparing for your mediation, the less time they have to do other things they like to do. Mediators get paid the same amount of money whether they prepare in advance for your mediation or just wing it on the day of. Most mediators wing it on the day of. This, however, doesn’t mean you shouldn’t prepare in advance.
Whether your mediator benefits from it, you will benefit personally from thinking over the issues and generating ideas for settlement. The better you understand your case, the better you can educate your mediator.
The good advice in this paragraph of the article lies in extolling the benefits of preparation. The better prepared you are for mediation the more likely the mediation will be productive.
Preparation takes time and effort (and if you have an attorney assisting you, it takes money to pay for his/her help), and no matter how well you prepare, there’s no guarantee of success. Boo. But serious, good preparation is worth the effort nonetheless. Yay. Why? The more you prepare for mediation, the better you understand and appreciate the strengths and weaknesses of your case. The better your understanding of your case.
The better you can determine what the possible fair real-world settlement agreements might look like.
The better you can generate settlement ideas and options. Simply put, it takes more time and effort to come with Plan A and Plan B than just Plan A. And when start asking what your options are, the more options you will notice. Imagine how much better prepared you’ll be to settle on fair terms if you have a wide range of ideas on what all those fair terms could be and form they’d take.
And while the most productive mediation is one that ends in a satisfactory settlement, even a mediation that doesn’t end in settlement can be productive. If you don’t settle in mediation, you may learn things in mediation helpful you in your trial preparations. The better prepared you are for mediation, the better prepared you are to frame the issues and to discuss them. So even if the mediation does not end with a settlement, you and your spouse may come to understand better the respective strengths and weaknesses of your cases.
“3. The Parties’ State of Mind is Crucial”
The article goes on and on about the importance of being in the proper state of mind for mediation and goes to great lengths to describe what “being in the proper state of mind” means. I can sum it up in far fewer words:
Be prepared to compromise so bad it hurts.
Think about virtually every agreement you have ever made. With the exceptions of the deals you make with people you have over a barrel, the deal you end up with is almost never as good as the one you hoped for. Divorce mediation is no exception.
While every now and then certain people get extraordinarily lucky in divorce settlements, the overwhelming odds are that you’re not going to get everything you want out of a settlement agreement. Accept it.
While preparation for mediation is crucial, no amount of preparation will make your case any stronger than it inherently is. No amount of preparation will make your spouse’s case any weaker than it inherently is. No amount of preparation magically causes the universe to bend to your will. Preparation helps you to make the best of a bad situation.
So when mediators urge you to “keep an open mind” and “be flexible” those are just euphemisms for “don’t be surprised if the best you can do is a mediocre deal.” That’s what settlement is most of the time.
True, occasionally two opposing parties with differing interests find a way to think “win-win,” but that rarely happens in divorce. There’s just never enough money and assets to make both parties financially secure. Just too much anger, bitterness, and vengefulness to enable the parties to trust each other and desire to work together for their mutual benefit. And should that come as any surprise? If you could amicably cooperate, think win-win, and make each other’s happiness your priority, you would not be divorcing in the first place.
The section of the article dealing with the importance of patience is excellent. Spot on. In most cases, a mediation doesn’t really start to get serious – and seriously productive – until the parties realize they are running out of time. Before then, the parties will spend a great deal of time (wasting a great deal of time, actually) telling the mediator their life stories.[1]
So while it is not unusual for a lot of time to be wasted in the first few hours of mediation, that does not mean that you must suffer this waste as a “natural” or “necessary” part of the mediation process. The sooner you can get down to business, without the venting and posturing, the more time you’ll have to formulate options and reach a settlement that is well-thought-out and as fair as you can reasonably expect.
The Bad
“1. Choose your mediator carefully”
This is bad advice because rarely do you get to choose your mediator.
Choice of mediator is a joint decision you reach with your spouse. As you might have guessed, one way to ensure your choice of preferred mediator is not chosen is to inform your spouse of your choice of preferred mediator. Most spouses will reject your proposed mediator on the basis that you proposed that mediator.
Another problem with choosing mediators: some people propose bad mediators and/or mediators you don’t like just to make you suffer.
So when the article tells you to select a mediator based upon the best fit of personalities, etc. that’s probably never going to happen. It can happen, but it’s not likely. It’s always hard to get agreement between two warring parties. So it should come as no surprise that if you and your spouse can’t agree upon the terms of your divorce without a mediator, why should you and your spouse suddenly develop the ability to cooperate when choosing the mediator?
Frankly, while there are some elite mediators who seemingly have an almost superhuman ability to get agreements out of almost anyone, I don’t know who any of these people are, and even if I did, these are the kinds of mediators you likely can’t afford and who are booked out so far down the road that you might have to wait months or even years before you can get a spot on his or her schedule. You and your spouse probably don’t want to spend months or years in a fruitless search for such a unicorn mediator.
The good news is that there are plenty of merely excellent mediators that you can book on just a few days’ or few weeks’ notice. Candidly, there is more value in getting mediation scheduled as soon as possible, before the attorneys’ fees and sickening worry start to rack up.
Odds are that if you find a mediator who is a former judge or a former court commissioner, or an experienced divorce and family law attorney with at least 10 or 20 years of experience, that is the kind of mediator who can help you frame the issues properly, help you understand the stakes and your options realistically, and think creatively to help you and your spouse reach an agreement that is as mutually beneficial as possible, fair, and – though it may not be an agreement you are thrilled with – an agreement you can live with. An agreement that is preferable to spending more time, effort, worry, and money on rolling the dice at trial.
The mediator has no power over you. He/she cannot tell you what to do. The mediator cannot be a witness for or against you in court. So don’t fear your mediator. Don’t worry about picking “the wrong mediator”. If you and your spouse end up picking a lousy mediator, you can always and the mediation session sooner than later and pick another mediator and try again.
Mediation succeeds only if you and your spouse reach an agreement. Mediators cannot force a settlement on anyone (although many try[2]). The mediator is not a miracle worker. The mediator does not possess magic powers of persuasion. So don’t pin all hopes of successful mediation on your mediator. Yes, there are mediators who are so incompetent that they do more harm than good, but what matters most is that you and your spouse are both of the mind that you would rather settle than continue to fight and litigate.
Knowing you don’t have to fear your mediator, and knowing that it’s unlikely that you and your spouse will agree upon “the best” mediator, you can take this part of the article for what it’s worth:
“You may be familiar with the mediators under consideration, but take time to think carefully about the personalities involved in your case and whether a particular mediator would be effective in dealing with you and your client. Also, think about the potential interaction between the mediator and your opponent. Mediators come to their task with differing experience, talents, dispositions, and styles. The mediator who would be perfect for resolving a case involving complex assets and property division issues may or may not be the best person to mediate a case focused upon custody and support issues. It is worth your time to research the background of the mediator. It can also be very helpful to solicit the advice of colleagues who have participated in mediations with a particular mediator. Finally, be prepared for the possibility that your opposing counsel may not agree with you as to the optimal person to handle the mediation. As an attorney representing a client, I attempt to diffuse this issue by providing opposing counsel with a list of three mediators, any of whom would be acceptable to me and my client. I allow opposing counsel to pick from the three and, in virtually every case, one of the three is acceptable.”
“4. Successful Family Law Mediation: Closing the Deal”
I struggled with whether to consider this bit of advice good or bad.
On the good side: if you and your spouse can – in the time you schedule to hold mediation – adequately identify, discuss, and resolve all of the issues in your case to your mutual satisfaction, and then reduce that agreement to a complete and clear written agreement, that is beautiful. It is not, however, terribly common.
But on the bad side: Far too often what happens is that the parties become desperate to reach an agreement for the sake of reaching an agreement. Any agreement. Anything to bring this horrible divorce case to a close. Anything to stop spending money on lawyers and mediators and Lord knows what else.
It is so tempting to believe that any settlement agreement is better than no settlement agreement. But it’s a lie. And when you’re desperate and fearful your judgment can be fatally clouded.
It’s similar to the feeling you have after you’ve negotiated with a used car salesman for hours and find yourself tempted to make a bad deal simply because you don’t want to walk away feeling as though you wasted all that time with nothing to show for it.
But just as you feel like a sucker the next day after you bought that overpriced heap, making a hasty settlement agreement doesn’t feel any better. In fact, it feels a lot worse. A bad deal on a used car can be minor inconvenience for a few years. A bad deal in divorce can dog you for the rest of your life.
I wouldn’t sign any divorce settlement agreement without sleeping on it first. That’s not only fair to you, it’s fair to your spouse. If the proposed deal still looks good in the morning, after you’ve had a chance to let your subconscious work on it, after you had a chance to review it with your attorney who was with you in mediation (or with an attorney for the first time, if you went to mediation without your attorney in the first place), after you’ve had a chance to review it with a trusted friend, then it’s probably a good deal and one that’s worth making. You’ll feel the peace of having taken a reasonable period of time to think it over before you sign your name and make it permanent.
If your spouse tries to pressure you into signing by claiming the deals off unless you sign right then and there, that’s probably a very good indication that it’s a bad deal for you.
Sleep on it. Any deal worth its salt will survive that.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] The reason this is a waste of time is because the mediator doesn’t find this information particularly useful. The mediator is there to help you reach an agreement, not to act as a therapist. A mediation needs to be conducted in a businesslike manner to be efficient and to provide you the greatest value.
[2] Many mediators have a personal stake in mediations because they want to brag about their high success rate. The more mediations that they conduct that end with the agreement, the more effective they can claim to be. So even if the mediator himself or herself would not make a deal if the case were his or her own, many mediators will twist arms and put a lot of pressure on parties to settle a case simply so that the mediator can claim the mediation was a success. Be aware of this possibility upfront.
It won’t be hard to tell when a mediator is putting pressure on you to settle. When that happens, recognize it and don’t give in. You don’t have to chew out your mediator for pressuring you. You may want to kindly point out to the mediator that he or she is pressuring you and that that is inappropriate. Another way of responding to mediator pressure is to point out that if and when you want the mediator’s opinion, you will ask for.
While the temptation to pressure one to settle is real, good mediators do not pressure anyone to settle. Good mediators are secure enough in their abilities and their limitations to know that whether people settle in mediation is not necessarily a reflection of the skill or effectiveness of the mediator.
Now good mediators will sometimes ask if you would like their opinion on whether the proposed settlement is appealing and worthwhile. If I were you, I would listen to such opinions. Experienced mediators can often help you recognize a good deal even when you can’t see it on your own. While it costs you nothing to hear and consider a professional opinion, it might cost you plenty if you never bother to hear the opinion out in the first place.