BLANK

Category: Men’s Divorce Issues

CPS Has Encouraged Parental Alienation Before My Parental Rights Have Been Taken, My Public Defender Has Not Been Representing Me the Way He Was Supposed to Be, but I Didn’t Know Until Now. What Can I Do?

There are plenty of things you can do (plenty of activity in which you can engage), but whether any of it will do any good is the question. The answer is usually: not likely. When child protective services (CPS) is working against you, then usually law enforcement and the courts follow suit, whether you’re “guilty” or not. If you have a public defender, then you’re poor, and while there is no shame simply in being poor, it limits your options in a fight like this.

All that stated, you need to fight with all you have for what’s right, or the regret and wondering “what might have been?” will surely torment you the rest of your life. You already know the outcome if you give up.

Now, pick your battles. Don’t run faster than you have strength, and don’t engage in “ends justify the means” tactics, but fight the good fight, so that if, some day, you confront your child who asks, “Did you try your best for me, Mom/Dad?,” you can answer in the affirmative.

Sometimes doing your best means kicking the bad habits, addictions, and mental health afflictions. The work on ourselves if often the hardest—not impossible (thankfully), but the hardest

I wish I had more for you, but this is the best I can offer.

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

https://www.quora.com/In-California-CPS-has-encouraged-parental-alienation-before-my-parental-rights-have-been-taken-my-public-defender-has-not-been-representing-me-the-way-he-was-supposed-to-be-but-I-didnt-know-until-now-What-can-I-do

Tags: , , , , , , , , , , , , ,

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

Tags: , , , , , , ,

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.

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

Tags: , , , , , , , , , ,

H.B. 194

Another potential law up for consideration in the 2024 Utah legislative session is H.B. 194. This bill would, if passed, amend provisions relating to adoption and child placement by amending the definition of “relative” for purposes of child placement to include second cousins. Up to this point, the law does not recognize a second cousin as a relative qualified to have a child placed with for adoptions or following the termination of a child’s parent’s or parents’ parental rights . H.B. 194 would make second cousins qualified relatives. I’m not sure there was any pressing need for such a law, but expanding the pool of relatives qualified to adopt or to care for a child who, for one reason or another, cannot live with one or both of its parents to include second cousins doesn’t strike me as a terrible idea.

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

Tags: , , , , , , ,

Why Hiding or Misrepresenting Your Income in a Divorce and/or Child Support Court Case Won’t Work (and why people still try) By Braxton Mounteer

When those who realize they may be ordered to pay child and/or spousal support (alimony) confront the matter, many try to lie about and to misrepresent their income in the hope they can avoid paying, or at least pay as little as possible. Few involved in the support calculation effort–from the would-be support obligee (“obligee” means the one who receives support payments) to the court–believes anyone would tell the truth about his/her income, and this is doubly true for support obligors (“obligor” means the one who pays) who are self-employed.

Those who hope to receive child support are also tempted to lie about their income as well because the less income they can get the court to believe they have, the more they hope to be paid.

While it is tempting to lie about your income in the hope of either receiving more than you should or paying less than you should, that’s wrong (and it most likely would not work anyway).

Many will earn more than they claim to earn by getting paid under the table or working a side hustle.

But how do you enjoy the hard-earned cash that you have cleaned your name from (i.e., the Walter White problem)? If you spend the money you haven’t reported, you risk unraveling the lie. For example, if your personal expenses are $10,000 per month, but you report an income of only $6,000 per month and don’t show yourself incurring $4,000 worth of debt every month, then clearly you have income of some kind that enables you to cover your $10,000 of monthly living expenses.

Avoiding your legal obligations often proves to be more trouble than it’s worth. It is both easier and easier on your conscience just to tell the truth. Most people aren’t good enough liars to keep everyone fooled forever. Don’t give your children reason to hate you for being greedy.

Now, we get it: some of you would feel a lot better about paying child support if you knew the parent receiving the support money was actually spending it for the child’s support and not for that parent’s own selfish benefit. But that’s a subject for another blog.

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

Tags: , , , , , , , , , , ,

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).

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

Tags: , , , , , , , , , , , , , ,

H.B. 20 “Parental Rights Amendments”

Today’s blog post treats House Bill 20, one of several proposed family law-related pieces of legislation for the 2024 Utah legislative session.

H.B. 20 is entitled “Parental Rights Amendments”

According the bill’s own “General Description,” this bill:

  • addresses the voluntary relinquishment of parental rights.
  • clarifies the requirements and procedure for an individual to consent to the termination of parental rights or voluntarily relinquish parental rights.

Utah Code Sections Affected (if passed): It would amend Utah Code § 80-4-307

Here is the proposed text:

24          80-4-307. Voluntary relinquishment — Irrevocable.
25          (1) The individual consenting to termination of parental rights or voluntarily

26     relinquishing parental rights shall sign [or confirm] the consent or relinquishment, or confirm a
27     consent or relinquishment previously signed by the individual, under oath before:
28          (a) a judge of any court that has jurisdiction over proceedings for termination of
29     parental rights in this state or any other state, or a public officer appointed by that court for the
30     purpose of taking consents or relinquishments; or
31          (b) except as provided in Subsection (2), any person authorized to take consents or
32     relinquishments under Subsections 78B-6-124(1) and (2).
33          (2) Only the juvenile court is authorized to take consents or relinquishments from a
34     parent who has any child who is in the custody of a state agency or who has a child who is
35     otherwise under the jurisdiction of the juvenile court.
36          (3) (a) The court, appointed officer, or other authorized person shall certify to the best
37     of that person’s information and belief that the individual executing the consent or
38     relinquishment, or confirming a consent or relinquishment previously signed by the individual,
39     has read and understands the consent or relinquishment and has signed the consent or
40     relinquishment freely and voluntarily.
41          (b) A consent or relinquishment is not effective until the consent or relinquishment is
42     certified pursuant to Subsection (3)(a).
43          (4) [A voluntary relinquishment or consent for termination of parental rights is
44     effective when the voluntary relinquishment or consent is signed and may not be revoked.A
45     consent or relinquishment that has been certified pursuant to Subsection (3)(a) is effective
46     against the consenting or relinquishing individual and may not be revoked.
47          (5) (a) The requirements and processes described in Section 80-4-104, Sections
48     80-4-301 through 80-4-304, and Part 2, Petition for Termination of Parental Rights, do not
49     apply to a voluntary relinquishment or consent for termination of parental rights.
50          (b) When determining voluntary relinquishment or consent for termination of parental
51     rights, the juvenile court need only find that the relinquishment or termination is in the child’s
52     best interest.
53          (6) (a) There is a presumption that voluntary relinquishment or consent for termination
54     of parental rights is not in the child’s best interest where it appears to the juvenile court that the
55     primary purpose for relinquishment or consent for termination is to avoid a financial support
56     obligation.

57          (b) The presumption described in Subsection (6)(a) may be rebutted if the juvenile
58     court finds the relinquishment or consent to termination of parental rights will facilitate the
59     establishment of stability and permanency for the child.
60          (7) Upon granting a voluntary relinquishment the juvenile court may make orders
61     relating to the child’s care and welfare that the juvenile court considers to be in the child’s best
62     interest.

The main reason for H.B. 20 is the questions that the recent Utah Court of Appeals case of State in Interest of A.G. (2022 UT App 126) raised about it. In that case,

4

Infants

Statute outlining steps for voluntary relinquishment of parental rights requires relinquishing parent to sign a document effectuating the relinquishment and if no such document is signed by the parent, the relinquishment is incomplete and ineffective. Utah Code Ann. § 80-4-307.

The Utah Court of Appeals described the issue this way:

¶1 This case requires us to determine whether, under the language of the governing statute [§ 80-4-307], parents who intend to relinquish their parental rights in connection with a child welfare proceeding may effectuate that relinquishment under oath orally in court, without ever signing anything, or whether they must at some point sign a document effectuating that relinquishment.

¶2 In this case, S.A. (Mother)—while under oath—told the juvenile court that she wanted to relinquish her parental rights to A.G., J.K., and D.K. (collectively, the Children), and that she was doing so knowingly and voluntarily. Relying on those sworn representations, the court accepted Mother’s relinquishment, and later entered an order terminating Mother’s parental rights. But Mother did not sign any document indicating that she was relinquishing her rights, and on that basis she challenged her relinquishment as incomplete and invalid. The juvenile court rejected that challenge, interpreting the governing statute as allowing relinquishment, under certain circumstances, without a signed document from the parent.

¶3 Mother now appeals that determination, asserting that the juvenile court’s interpretation of the governing statute was incorrect. We agree with Mother that the statute requires the relinquishing parent to—at some point—sign a document effectuating the relinquishment. Accordingly, we reverse the termination order and remand this case for further proceedings.

In describing the requirements of § 80-4-307, the court stated:

[T]to summarize, all relinquishments regarding children “in the custody of a state agency” or “under the jurisdiction of the juvenile court” must involve a juvenile court judge. See id. § 80-4-307(2). A parent who is relinquishing rights to any such children must “sign or confirm the consent or relinquishment under oath before” that judge. Id. § 80-4-307(1). The judge, in turn, must “certify to the best of [his or her] information and belief” that the parent who is “executing the consent or relinquishment” understands it and has “signed [it] freely and voluntarily.” Id. § 80-4-307(3). And the relinquishment “is effective when the voluntary relinquishment or consent is signed.” Id. § 80-4-307(4).

In its concluding paragraph, the Utah Court of Appeals stated:

CONCLUSION

¶25 The statute at issue here requires a person relinquishing parental rights to—at some point—sign a document effectuating the relinquishment. Even though Mother appeared in court and, under oath, indicated her willingness to relinquish her parental rights, she never signed a document to that effect. Accordingly, her relinquishment did not become effective, and the juvenile court erred by declining to set aside that nascent relinquishment and by proceeding to terminate her parental rights. We therefore reverse the juvenile court’s termination order and remand the case for further proceedings, which may include a rescheduled termination trial.

H.B. 20 was proposed to prevent future confusion by parents, attorneys, and judges in the future when confronting questions of whether a parent does in fact voluntarily relinquishment of parental rights.

Is H.B.20 a good idea, then? Yes, yes it is.

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

Tags: , , , , , , , , , , ,

Allegations of Child Abuse vs. Allegations of Parental Alienation

Here’s a very, very short news report on the subject of when allegations of child abuse are countered with allegations of parental alienation:

 https://www.youtube.com/watch?v=44hJ8zWRrik

image.png

I welcome sincere and rational comments on this very important subject.

There are no easy answers to this question, but there is one idea that will help: interview the child (when the child is a competent witness). Even if the interview raises more questions than provides answers, inquiring with the child does more than simply make sense; to me, it’s judicial malfeasance not to inquire with the child, as the child has a greater stake in the child custody and parent-time awards than anyone else. I have yet to have the child interview (in the shamefully rare cases when a child is either interviewed by the judge or in a deposition) do the child more harm than good, and when the child is articulate and credible, the child’s testimony is usually the most (by an order of magnitude) compelling and persuasive evidence.

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

Tags: , , , , , , , ,

A.W. v. Marelli – 2024 UT App 8 – infliction of emotional distress

A.W. v. Marelli – 2024 UT App 8

THE UTAH COURT OF APPEALS

A.W., Appellant, v.  MILLIE MARELLI, Appellee.

Opinion

No. 20220207-CA

Filed January 19, 2024

Third District Court, Salt Lake Department

The Honorable Andrew H. Stone

No. 190902075

Michael W. Young, Alan S. Mouritsen, and

Adam Bondy, Attorneys for Appellant

Emily Adams, Freyja Johnson,

Hannah K. Leavitt-Howell, and James I. Watts,

Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which

JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1 AW[1] alleges that when, as a teenager, she accused her stepfather of sexual abuse, her mother, Millie Marelli, maintained the abuse did not occur and told AW to never speak of it again. But speak of it AW did—to her biological father, who reported the abuse to authorities. Ultimately, AW was removed from Marelli’s home, and not long thereafter she cut off all contact with Marelli. When Marelli allegedly persisted over a number of years in making unwelcome contact, AW sued Marelli, claiming negligent and intentional infliction of emotional distress as well as negligent sexual abuse. Marelli moved for summary judgment on all claims, which the district court granted on the basis that AW failed to establish the required quantum of proof on each claim. AW appeals, and we affirm.

BACKGROUND[2]

¶2        AW alleges that in late 2008 or early 2009—when she was twelve years old—her stepfather (Stepfather) sexually abused her. When Marelli was hospitalized for several days while undergoing a medical procedure, she left AW in the care of Stepfather. According to AW, she became scared of the dark and Stepfather invited her to sleep in his bed. Once in the bed, Stepfather put his hand inside her underwear and began touching her genitals.

¶3        Shortly thereafter, AW disclosed the incident to Marelli. Marelli asked Stepfather what had happened, and he said that he awoke with his hand on AW and immediately withdrew it. He explained to AW that it was an accident and apologized. AW says Marelli and Stepfather told her the abuse never occurred and not to speak of it again. Marelli did not report the incident to authorities. Approximately one week later, AW told her father (Father) about the incident. Father immediately filed a complaint with the Division of Child and Family Services (DCFS) and sought a protective order against Stepfather. DCFS made a supported finding that Stepfather presented a credible threat to AW’s safety, but DCFS did not find evidence to support a finding that Marelli failed to protect AW. Father was eventually awarded sole legal custody of AW.

¶4        In a sworn declaration, Marelli’s neighbor (Neighbor) stated that in late 2007 or early 2008, prior to the abuse AW alleged, she informed Marelli of an incident between her young daughter and Stepfather. Neighbor explained that her daughter came home from playing at Marelli’s house with writing and pictures on her buttocks in the handwriting of an adult. When she asked her daughter about it, her daughter said that she and Stepfather were playing a game where the winner wrote on the other person. Neighbor spoke with Marelli about it, and Marelli “became defensive,” denying Stepfather had “anything to do with it.” Marelli blamed Neighbor’s daughter for it, saying she had “offered herself” to Stepfather. Neighbor said her instincts told her to stop allowing her daughter to play at Marelli’s house.

¶5        Since losing custody of AW in 2009, Marelli and AW have not seen one another outside of some initial court-ordered therapy sessions and a few brief encounters. AW claims that Marelli’s alleged “denial [of the abuse] and victim blaming behavior are significant sources of [her] psychological disorders.” Over the past decade, Marelli has continued to contact AW by sending letters, birthday gifts, and Facebook messages. AW claims she has repeatedly expressed her wishes not to have any contact at all. In Facebook messages from 2011, AW responded to Marelli with “STOP TALKING TO ME UNTIL U GET RID OF [STEPFATHER]!!!!!!!” and “STOP IT I WILL BLOCK THIS I AM NOT AFRAID TO SO STOP!!”

¶6        AW submitted many examples of communication she received from Marelli over the course of more than ten years. Those communications included handwritten letters and some photos with messages written on them, such as the following, which we present unedited for grammatical errors:

  • [AW] give your mom a call with [heart drawing] always mom.
  • I am sorry that you have forgotten the moments when you had with [Stepfather] to be your dad. I hope someday you will remember with all my heart and soul I loved you and will always love you because you are my girly for eternity.
  • We all make mistakes in life, it is what we learn from them is the most important. Forgive yourself, forgive me I am truly sorry for all the many tears & fears you went through without your mothers warmest embrace . . . with love mom.
  • [Stepfather] sure misses being your dad [heart drawing] be kind be forgiving be of great courage.
  • Oh I miss my little girl that is all grown up. I love every min every hour every dam week month & year of your life. I hope to enjoy and embrace my lovely daughter again to look into your loving eyes and find you again. With love Mom.
  • All my children was mislead away from the true. I have been told recently that I am not in reality but you see Reality isn’t the truth.

¶7        Some of the photos sent to AW included pictures of both Marelli and Stepfather. Marelli also sent several publications and transcripts of public addresses from her religious leaders covering a wide range of topics.

¶8        AW also asserted that Marelli made two unwanted visits to her. The first occurred on AW’s sixteenth birthday, when Marelli went to her school. The second was on her seventeenth birthday, when Marelli went to AW’s house.

¶9        In 2019, AW commenced the present action against Marelli, claiming intentional infliction of emotional distress (IIED), negligent infliction of emotional distress (NIED), and negligent sexual abuse. Marelli moved for summary judgment on the three claims. Shortly after filing the summary judgment motion, Marelli sent AW a second box of letters, religious publications, and some of AW’s old toys. AW argues that even though service of the complaint put Marelli on notice that her conduct caused AW distress, she nonetheless sent AW the box full of additional communication. AW filed a supplemental opposition to the motion, arguing that Marelli sent the communication with knowledge that AW did not want any contact with her. Marelli moved to strike the supplemental opposition, arguing that the Utah Rules of Civil Procedure allow for only supplemental authority not supplemental facts.

¶10      The district court allowed the supplemental opposition “in the interest of justice” and considered it in its decision. The district court granted Marelli’s motion for summary judgment on all three of AW’s claims. On the IIED claim, the court concluded that Marelli’s conduct was not objectively outrageous. The court concluded that the NIED claim failed because AW did not show that Marelli’s conduct objectively amounted to the “type of conduct ‘especially likely’ to cause severe and unmanageable emotional distress.” Finally, on the negligent sexual abuse claim, the court concluded there was no support in the record that Stepfather had a history of inappropriate sexual behavior with children of which Marelli was aware or that Marelli’s failure to report the alleged abuse harmed AW. AW appeals.

ISSUE AND STANDARD OF REVIEW

¶11 On appeal, AW contends that the district court erred in granting Marelli’s summary judgment motion with respect to each of her three claims. We review a grant of summary judgment for correctness, giving “no deference to the district court’s legal conclusions.” Ipsen v. Diamond Tree Experts, Inc., 2020 UT 30, ¶ 7, 466 P.3d 190 (cleaned up).

ANALYSIS

¶12 Summary judgment is appropriate where the moving party shows that “there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Utah R. Civ. P. 56(a). We conclude that the district court properly granted summary judgment disposing of all three of AW’s claims against Marelli. We address the IIED, NIED, and negligent sexual abuse claims in turn.

  1. IIED

¶13      The district court concluded that Marelli’s conduct was not outrageous as a matter of law because all Marelli’s “voluminous” communications with AW “plainly represent attempts by [Marelli] to reconcile with her daughter.” AW contends that the district court erred because it (1) stepped into the role of the jury when determining that all the communications were an attempt to reconcile, (2) failed to consider other evidence of Marelli’s outrageous behavior, and (3) applied an unnecessarily restrictive test for outrageous behavior. But we agree with the district court.

¶14      In addition to elements not at issue here,[3] to succeed on a claim for IIED, a plaintiff must show that the defendant’s conduct “was outrageous and intolerable in that it offended generally accepted standards of decency and morality.” Prince v. Bear River Mutual Ins. Co., 2002 UT 68, ¶ 37, 56 P.3d 524 (cleaned up). Our supreme court in Retherford v. AT&T Communications of Mountain States, Inc., 844 P.2d 949 (Utah 1992), explained that “the standard Utah has adopted for determining whether the conduct of a defendant is sufficiently offensive to permit recovery is whether the defendant’s actions offend against the generally accepted standards of decency and morality.” Id. at 977 (cleaned up). The court clarified that this standard does not “weaken” that adopted by the Restatement (Second) of Torts, which uses the language “beyond all possible bounds of decency.” Id. at 977 n.19; see also Restatement (Second) of Torts § 46 cmt. d (Am. L. Inst. 1965). The court made clear that the use of the language “generally accepted standards of decency” was not a change in the standard but only an acknowledgment that “all possible bounds” is difficult for any court to determine. Retherford, 844 P.2d at 977 n.19The court emphasized that it “in no way softened the Restatement’s requirement of extraordinarily vile conduct, conduct that is atrocious, and utterly intolerable in a civilized community.” Id. (cleaned up). As made explicitly clear by the court, this standard still applies and is appropriate to apply in this case.

Conduct is not necessarily outrageous merely because it is tortious, injurious, or malicious, or because it would give rise to punitive damages, or because it is illegal. To be considered outrageous, the conduct must evoke outrage or revulsion; it must be more than unreasonable, unkind, or unfair. Indeed, in order to prevail on a claim for IIED, a plaintiff must be able to prove that the defendant engaged in extraordinarily vile conduct, conduct that is atrocious, and utterly intolerable in a civilized community.

Chard v. Chard, 2019 UT App 209, ¶ 57, 456 P.3d 776 (cleaned up).

¶15      On a claim for IIED, “it is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” Id. (cleaned up). “However, where reasonable [minds] may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.” Cabaness v. Thomas, 2010 UT 23, ¶ 36, 232 P.3d 486 (cleaned up), abrogated on other grounds by Gregory & Swapp, PLLC v. Kranendonk, 2018 UT 36, 424 P.3d 897. “[A] district court is not required to draw every possible inference of fact, no matter how remote or improbable, in favor of the nonmoving party. Instead, it is required to draw all reasonable inferences in favor of the nonmoving party.” IHC Health Services, Inc. v. D&K Mgmt., Inc., 2008 UT 73, ¶ 19, 196 P.3d 588. “An inference is unreasonable if there is no underlying evidence to support the conclusion.” Medina v. Jeff Dumas Concrete Constr. LLC, 2020 UT App 166, ¶ 21, 479 P.3d 1116 (cleaned up).

¶16      Looking at the “voluminous” examples of communication from Marelli to AW, we agree with the district court that the communications represent attempts—though at times poorly executed—of a mother to reconcile with her daughter. While statements such as “[Stepfather] sure misses being your dad” may not be the most sensitive way for Marelli to rebuild a relationship with her daughter, we cannot conclude that this and all the other communications can be reasonably said to violate “generally accepted standards of decency and morality.” See Prince, 2002 UT 68, ¶ 37 (cleaned up). It is well within the court’s authority to ascertain Marelli’s intent when reasonable minds could not differ, as is the case here.

¶17 When a claim for IIED involves allegedly “ongoing and continuous conduct,” the plaintiff “may recover for the entire course of [the] defendant’s conduct.” See Cabaness, 2010 UT 23, ¶ 27. Considering the whole of Marelli’s conduct—including the facts that the correspondence was unwanted, that Marelli made a couple of unwelcome visits to AW over the last decade, and that Marelli sent AW correspondence after the present lawsuit commenced—does not change our determination that Marelli’s conduct cannot be reasonably found to evoke the outrage or revulsion required to succeed on a claim for IIED.

¶18 The communications and even visits by Marelli to AW represent a mother’s attempt to build a relationship with her estranged daughter and, though insensitive at times, do not rise to the level of extraordinarily vile conduct required. Therefore, we affirm the district court’s grant of summary judgment against AW’s claim of IIED.

  1. NIED

¶19      AW also asserts that the district court erred in dismissing her NIED claim, arguing the court applied the wrong standard and overlooked contrary evidence.

¶20      Prior to 2018 in Utah, plaintiffs outside the “zone-of-danger”[4] had no means to recover for NIED. Mower v. Baird, 2018 UT 29, ¶¶ 75–85, 422 P.3d 837. Mower expanded “recovery for [NIED] in very limited circumstances” where “certain types of relationships, activities, and undertakings” exist that go to “the core of another person’s emotional well-being and security.” Id. ¶ 76. Because the case before us does not involve a zone-of-danger scenario, we apply the principles set forth in Mower. Under the Mower analysis, a plaintiff must establish that (1) the defendant owed a “traditional duty of reasonable care to the plaintiff” and (2) the “relationship, activity, or undertaking [is] of the type that warrants a special, limited duty to refrain from causing severe emotional distress.” Id. ¶ 78.

¶21 The second step requires an additional three-prong analysis asking the following:

(1) Does the relationship, activity, or undertaking necessarily implicate the plaintiff’s emotional well-being?; (2) Is there an especially likely risk that the defendant’s negligence in the course of performing obligations pursuant to such relationship, activity, or undertaking will result in severe emotional distress?; and (3) Do general public policy considerations warrant rejecting a limited emotional distress duty where prongs one and two would otherwise find one to exist?

Id. ¶ 80 (cleaned up).[5]

¶22 The district court considered solely the second prong of this analysis; however, we find that analysis unnecessary as AW’s claim fails on the first prong. The first prong is meant to ensure that the relationship, activity, or undertaking complained of is one “fraught with the risk of emotional harm to the plaintiff.” Id. ¶ 81 (cleaned up). The Utah Supreme Court has made clear that “this prong can be met only in those very limited situations where the emotional well-being of others is at the core of, or is necessarily implicated by, the relationship, activity, or undertaking.” Id. (cleaned up). The court did not delineate all possible relationships, activities, or undertakings that meet this requirement but instead indicated that courts should make this determination on a case-by-case basis with the recognition that this high threshold will be met in very few instances. Id.

¶23 As pointed out by AW, the court in Mower found that a nonpatient parent’s claim against the therapist who caused the parent’s child to develop false memories while treating the child for potential sexual abuse met this threshold as both an activity and relationship that implicates the parent’s emotional well­being. See id. ¶ 97. The Restatement (Third) of Tortsupon which our supreme court based this rule and upon which courts in other jurisdictions have relied—identifies NIED as actions such as the mishandling of a corpse, an erroneous announcement of a death or illness, a physician negligently diagnosing a patient with a serious disease, a hospital losing a newborn infant, an employer mistreating an employee, and a spouse mentally abusing the other spouse. See Restatement (Third) of Torts: Liability for Physical & Emotional Harm § 47 cmt. f (Am. L. Inst. 2012); see also Mower, 2018 UT 29, ¶ 70; see, e.g.Hedgepeth v. Witman Walker Clinic, 22 A.3d 789, 819–20 (D.C. 2011) (applying NIED to a patient receiving a false HIV diagnosis); Doe Parents No. 1 v. State, 58 P.3d 545, 580–82 (Haw. 2002) (applying NIED to a school reinstating a teacher accused of child molestation without sufficient investigation of the claim); Boorman v. Nevada Mem’l Cremation Society, 236 P.3d 4, 7–8 (Nev. 2010) (en banc) (applying NIED to mortuary’s negligent handling of a loved one’s corpse).

¶24      Such a relationship, activity, or undertaking is not present here. While sexual abuse, particularly within one’s own home, is a serious and clearly harmful occurrence for a child, the activity that AW argues supports her NIED claim is Marelli’s continued communications with her, including two brief visits, over the decade following the alleged abuse. While this activity, which we view as attempts by a mother to reconcile with her daughter, may evoke strong emotions, as the district court pointed out, it is not “fraught with the risk of emotional harm.” Mower, 2018 UT 29, ¶ 81 (cleaned up). The expansion of NIED in Mower was extremely limited to the narrow circumstances explained above, and allowing recovery here would expand that rule exponentially. An estranged relationship with a parent is too ubiquitous to meet the specific requirement set out by our supreme court that this rule will be met in very few instances. See id. Applying NIED to the facts before us would open the door to a seemingly endless number of possible circumstances where communication between a parent and child is strained, hurtful, or unwanted. Thus, the activity here does not rise to the level of those “very limited situations where the emotional well-being of others” lies “at the core.” Id. (cleaned up). We therefore affirm the district court’s grant of summary judgment against AW’s claim of NIED.

III. Negligent Sexual Abuse

¶25 AW argues that Marelli was negligent in preventing the alleged sexual abuse AW suffered because Marelli had previous warning about Stepfather’s “inappropriate behavior around children.”[6] The district court found legally insufficient support in the record for this contention—a conclusion with which we agree. To support this claim, AW relies on Neighbor’s declaration that Stepfather wrote on her daughter’s buttocks. AW argues that the district court inappropriately weighed and discounted the declaration, particularly by calling the declaration “one somewhat vague report of inappropriate conduct.”

¶26 In addition to other factors, a negligence claim requires foreseeable injury to establish whether a defendant had a duty “to conform to a particular standard of conduct toward another.” Normandeau v. Hanson Equip., Inc., 2009 UT 44, ¶ 19, 215 P.3d 152 (cleaned up). “What is necessary to meet the test of negligence . . . is that [the harm] be reasonably foreseeable, not that the particular accident would occur, but only that there is a likelihood of an occurrence of the same general nature.” Steffensen v. Smith’s Mgmt. Corp., 862 P.2d 1342, 1346 (Utah 1993) (cleaned up); accord Normandeau, 2009 UT 44, ¶ 20. Duty—which includes the issue of foreseeability—is “a purely legal issue for the court to decide.” Normandeau, 2009 UT 44, ¶ 17.

¶27 While summary judgment is appropriate only “when, viewing all facts and reasonable inferences therefrom in the light most favorable to the nonmoving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law,” a plaintiff “is not entitled to build a case on the gossamer threads of whimsy, speculation and conjecture.” Kranendonk v. Gregory & Swapp, PLLC, 2014 UT App 36, ¶ 15, 320 P.3d 689 (cleaned up), cert. denied, 329 P.3d 36 (Utah 2014). “When the facts are so tenuous, vague, or insufficiently established that determining an issue of fact becomes completely speculative, the claim fails as a matter of law, and summary judgment is appropriate.” Hardy v. Sagacious Grace LC, 2021 UT App 23, ¶ 21, 483 P.3d 1275 (cleaned up); see also Nelson v. Target Corp., 2014 UT App 205, ¶ 25, 334 P.3d 1010 (“A plaintiff cannot avoid summary judgment based on doubtful, vague, speculative or inconclusive evidence.” (cleaned up)).

¶28 Although certainly disconcerting, the singular incident described in Neighbor’s declaration is not enough to make it reasonably foreseeable to Marelli that Stepfather would sexually abuse AW and thereby leaves AW’s claim in the realm of vague speculation, which is appropriate for summary judgment. First, the evidence AW points to suggests that the incident with Neighbor’s child was an isolated event. Second, writing on a child’s buttocks during a game, though deplorable and entirely inappropriate, is markedly different than lying in bed with and touching a child’s genitals under her clothing. See McGuire v.Cooper, 952 F.3d 918, 922–23 (8th Cir. 2020) (concluding that summary judgment was appropriate in a case involving a sexual assault as “the prior instances of sexual misconduct [were] not similar in kind or sufficiently egregious in nature to demonstrate a pattern of sexual assault”); Bjerke v. Johnson, 727 N.W.2d 183, 190 (Minn. Ct. App. 2007) (“The foreseeability of a sexual assault often hinges on whether the defendant was aware of prior similar behavior by the third party. Indeed, sexual assault will rarely be deemed foreseeable in the absence of prior similar incidents.” (cleaned up)), aff’d, 742 N.W.2d 660 (Minn. 2007).[7] Finally, AW points to no evidence that Stepfather had taken any liberties with or made any inappropriate advances toward her prior to the incident at issue here. See Doe v. Franklin, 930 S.W.2d 921, 924–29 (Tex. App. 1996) (concluding that summary judgment was not appropriate on a negligence claim where a grandmother left her granddaughter alone with the grandfather after the granddaughter told the grandmother he had sexually abused her).[8] Therefore, seeing insufficient evidence in the record that Marelli should have reasonably foreseen the threat of Stepfather sexually abusing AW, we affirm the district court’s grant of summary judgment on AW’s claim of negligent sexual abuse.

CONCLUSION

¶29 We conclude that the district court correctly granted Marelli’s motion for summary judgment, thereby disposing of all three of AW’s claims against her.

¶30 Affirmed.

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


[1] Dear Reader: Judge Mortensen recognizes that you may be accustomed to the use of periods after each letter when we use initials in place of a party or witness name. However, he chooses to depart from that practice now and in the future. Removing the periods is both space saving and easier on the eyes.

[2] We recite the facts of the case and draw all reasonable inferences in the light most favorable to AW as the nonmoving party. See USA Power, LLC v. PacifiCorp, 2010 UT 31, ¶ 33, 235 P.3d 749 (“[I]n a summary judgment proceeding, all facts and the reasonable inferences to be made therefrom should be construed in a light favorable to the non-moving party.”).

[3]  “In Utah, a claim for IIED is actionable if: (i) the defendant’s conduct is outrageous and intolerable; (ii) the defendant intends to cause emotional distress; (iii) the plaintiff suffers severe emotional distress; and (iv) the defendant’s conduct proximately causes the plaintiff’s emotional distress.” Chard v. Chard, 2019 UT App 209, ¶ 57, 456 P.3d 776 (cleaned up).

[4] The zone-of-danger rule set forth in section 313 of the Restatement (Second) of Torts allows a plaintiff within the physical zone of danger resulting from a defendant’s actions “to recover for emotional distress caused by fear for personal safety even though the plaintiff suffered no physical harm as a result of the defendant’s breach of duty.” Mower v. Baird, 2018 UT 29, ¶¶ 51–52, 422 P.3d 837 (cleaned up); see also Restatement (Second) of Torts § 313 (Am. L. Inst. 1965).

[5] The district court and parties have assumed a duty existed by moving directly to step two of the Mower analysis. Therefore, for purposes of this appeal, we do the same and move directly to the three prongs under step two. However, this is not an indication of whether a duty did in fact exist under step one of the Mower analysis in this case.

[6] In her complaint, AW asserted that Marelli’s failure to report Stepfather’s sexual abuse to the proper authorities also constituted negligence—a claim which the district court determined failed. AW does not raise this issue on appeal; therefore, we will not address it.

[7] To support her argument that Marelli should have foreseen the threat that Stepfather posed, AW cites O.L. v. R.L., 62 S.W.3d 469 (Mo. Ct. App. 2001), which states that “[a]s the gravity of possible harm from sexual molestation of a young child is high, we recognize that it may require a lesser showing of likelihood than with other types of injuries.” Id. at 477. However, in O.L., the court concluded that summary judgment was appropriate as the harm was not foreseeable where a grandmother left her grandchild with the grandfather, who then sexually abused the child. Id. at 481. The evidence presented included the fact that the grandfather physically abused the grandmother decades previously and broke her nose, which the child’s father knew about and considered “so remote in time that he had no qualms” with leaving his child in the grandfather’s care. Id. at 478–79. The parents additionally presented evidence that fifteen years prior to the abuse of the child, the grandfather subscribed to Playboy magazine for one year. Id. at 479. Finally, the parents relied on speculative evidence that the grandfather sought extramarital sexual liaisons through advertisements and at a social gathering. Id. The court concluded that the evidence presented was “so tenuous that it [could not] give rise to a genuine dispute as to whether a reasonable person knew or should have known that [the] grandfather might pose a danger to [the grandchild] if she was left unsupervised in his care, thereby breaching a duty of care.” Id. at 481. While the evidence here, namely the incident involving Neighbor’s daughter, is much more related in time and conduct to the abuse AW suffered, it is still tenuous as we have discussed and does not meet even a requirement of a “lesser showing of likelihood,” id. at 477, if that standard were to apply in Utah.

[8] 8. AW cites Doe ex rel. Pike v. Pike, 424 F. Supp. 3d 170 (D. Mass. 2019), to support her argument that a reasonable jury could conclude the harm of sexual abuse was reasonably foreseeable. The case is unpersuasive. In Pike, a granddaughter in the care of her grandparents suffered sexual abuse from her grandfather. Id. at 172. The court concluded that summary judgment was inappropriate because, viewing the evidence in the light most favorable to the nonmoving party, a jury could find that “a reasonable person in [the grandmother’s] position would have or should have known that [the grandfather] was abusing [the granddaughter].” Id. at 182. As AW points out in her brief, the court based this determination on such evidence as “[the grandmother’s] own observations of [the grandfather’s] conduct toward [the granddaughter] and their other grandchildren, including observing him playing the radio game [which involved twisting the children’s nipples], engaging in the tickle game to excess, being in the vicinity when the abuse occurred and ‘locking eyes’ with [the granddaughter] while she sat next to [the grandfather] on the couch and his hands were under the blanket hidden from view.” Id. This evidence involved multiple incidents and red flags that the grandmother chose to ignore, unlike the singular incident here when Stepfather allegedly wrote on Neighbor’s daughter. Furthermore, the Pike court additionally based its decision on the evidence, which AW fails to note, that the grandmother knew the grandfather had been accused of sexual assault previously. Id. With all this evidence taken into account, we do not view Pike as analogous or persuasive.

Tags: , , , , ,

How do you survive if the narcissist won custody of your kids and you have to accept it?

Hard truths incoming.

When dealing with a co-parent who is afflicted with a personality disorder, do these things, and do them all at the same time:

1) Examine your own personality flaws first. Acknowledge and work to correct your own personality flaws. You may gain insights into the other parent you couldn’t see before. If you must complain about the other parent’s personality flaws, do not do so without acknowledging and working to correct your own personality flaws. Be gracious (and that means when you don’t want to be).

In short: be humble, meaning open-minded, principled, and focused on solving the problem, not on self pity. Otherwise, you risk overlooking some (perhaps all) of the solutions, if there are any, to the problems you have with the other parent.

3) Adjust and adapt. When dealing with a co-parent who is afflicted with a personality disorder, you’re almost surely wasting time if you try to force or even to persuade the other parent to change. It is not fair that you have to do all the adjusting and adapting, but lamenting that fact is a waste. You need to understand and accept (“agree” is even better than “accept”) the fact that adjusting and adapting may be the only way to reach what peace and happiness there is to be had under the circumstances.

4) Engage in all of your dealings with the other parent with class. Fighting fire with fire burns you up emotionally and spiritually. Our children notice far more than we believe. “The true test of a man’s character is what he does when no one is watching.” ― John Wooden

5) Reach out to God, sincerely. Lay your burdens at his feet and ask Him for help and guidance. He will “reach your reaching”.

For you own sake, be this way. It will take time and effort, but it will bring you peace and enable you to make the best of your situation).

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

Tags: , , , , , , ,

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

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

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

Tags: , , , , , , ,

Encourage Your Legislators to Vote Against H.B. (House Bill) 272 (2024 Utah General Legislative Session)

According to the “General Description” of H.B. 272, what’s not to like?:

Highlighted Provisions:

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.

H.B. 272’s intentions are laudable, but the implementation, if H.B. 272 was made law, would be disastrous (and I choose my words carefully).

We don’t need more laws to prevent domestic violence and child abuse, reason being that more laws never have prevented and never will prevent (because they cannot prevent) domestic violence and child abuse.

Can you identify a single domestic violence victim who wouldn’t have been victimized but for a lack of legislation? Laws in the abstract don’t protect anyone. It’s the fair, effective, creation and enforcement of (needed) laws that protects. Passing more laws cannot guarantee anyone’s safety; laws and court orders don’t stop fists and bullets.

There are real DV and child abuse cases in the courts, but there are far too many fake ones in the courts (more than you likely imagine), and everyone knows why courts are afraid to acknowledge and condemn it: because they’re afraid they’ll be branded as “insensitive” and “uncaring” about DV and child abuse. So judges and commissioners who don’t want to “get it wrong,” overcompensate by “finding” DV and abuse that isn’t there. That way, nobody can claim the courts don’t care, and if innocent people go to prison and become pariahs as a result, “well, better him/her than me.” That’s not justice. That’s not rule of law.

Regarding the proposal in H.B. 272 for amending Section 30-3-10, determining credibility is the sole province of the court. Thus, the problem with “a credible allegation of child abuse” is that few courts can resist the temptation to err on the side of caution by treating virtually any allegation of child abuse as “credible”. To err on the side of caution is still error. Worse, it’s error knowingly committed for the sake of protecting the commissioner or judge from being criticized (or worse) for “getting it wrong.” See the article: Erring on the Side of Hidden Harm.

When judges are told “you need to do a better job identifying protecting DV and child abuse victims,” you’re telling judges to do a job that is not theirs. Overwhelmed judges will (unfortunately) respond to such unfair burdens simply by “finding” more DV and child abuse victims, and then say to the legislature, “Satisfied now?” That benefits no one. It erodes public trust in the courts.

There is a tremendous volume of false DV and child abuse claims. Indeed, I deal with more false claims than real claims at the district court level as a divorce and family law attorney. If you feel judges must “get more training” in the field of DV and child abuse, then requiring them to learn how better to identify real DV and child abuse inherently requires requiring them to learn how better to identify fake DV and child abuse claims.

It is unfair to demand of judges that they compensate for what the litigants might fail to do, i.e., gather and present the evidence necessary to prevail.

“More DV and abuse detection training for judges” sounds good but isn’t. If the state can’t afford more and better judges (and we need to accept that, if it can’t), “more DV and abuse training” is a counterproductive half-measure. If the legislature wants to spend more money on judge training, then spend that money helping judges learn and develop better command of the law, of evidence, and of sound adjudication.

The idea that state district court judges “need more training” in every particular dispute they hear is a problem generally. Our judges cannot become experts on every area of law, nor are they expected to be. All that a judge needs to do competently (and can be expected to do competently) is weigh the evidence presented to him/her correctly and apply the facts to the law that governs the case correctly.

We could “protect kids” from abuse by locking up every parent–that way they can’t abuse their kids. Of course, that way they can’t love and take care of their kids either. We will never solve DV and child abuse with more laws, but we will victimize the innocent if we howl for more witch hunt lawmaking.

Draconian creation and/or enforcement of laws like those proposed by H.B. 272 “protects” some by violating the rights of others. As does legislating and adjudicating on a “better safe than sorry” basis (regardless of whether it’s sincere), instead of on the facts (including the lack thereof). Experts can be helpful, but most cause more confusion than they dispel. Child custody cases today don’t suffer from a lack of expert input, rarely from a lack of needed or even warranted expert input, competent expert input, or justice-promoting expert input. “Expertise” on abuse (whatever this ever-expanding definition of “abuse” is coming to mean) is too subjective and pseudoscientific. This is why HB 272 would ultimately do more harm than good.

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

Tags: , , , , , , , , , ,

Does an ex-spouse have claims to properties purchased during the marriage but name is not on deed, deed states married man and no mention of the property or distribution in the divorce?

I can answer this question in the context of the law of Utah, which is the jurisdiction where I am licensed to practice divorce and family law. To learn the answer to the question for another state, you would need to consult the law of that jurisdiction and/or consult with an attorney who is licensed in that state.

If your question is, “Do I have a claim to property my spouse purchased during the marriage but did not disclose the existence of during the divorce proceedings (meaning that I discovered its existence only after the decree of divorce was entered by the court)?”, then the answer is (in Utah):

Yes, you may have a claim. Now that means you have an argument for an award of some or all of (or a money judgment for some or all of the value of) that undisclosed property to you. You do not have an automatic right to any such award, but you may have a strong argument for it. If you want to pursue your claim, you should almost always pursue as soon as you possibly can. Delays in asserting and prosecuting a claim can weaken your claim.

Utah Rules of Civil Procedure, Rule 26.1 provides, in pertinent part:

(f) Sanctions. Failure to fully disclose all assets and income in the Financial Declaration and attachments may subject the non-disclosing party to sanctions under Rule 37 including an award of non-disclosed assets to the other party, attorney’s fees or other sanctions deemed appropriate by the court.

Note: separate property usually remains separate property in a divorce. Separate property has three (which is basically two) different forms in a marriage: 1) property one owned (and “property” in this sense includes money you owned) before marriage (premarital property) and 2) property purchased with separate property funds. Separate property also includes money or property you obtained during the marriage if you obtained it by gift from someone other than your spouse and it also includes money or property you inherited during the marriage. So if, while married, you inherited a house from your parent, that house would be your separate property. Now one can convert (the legal term is “transmute”) separate property into marital property (by transferring title from yourself to you and your spouse jointly, or by spending money you inherited by adding a room to the marital home, or by spending your inheritance on a fancy cruise for you and our spouse—you get the idea), but if the separate property is not transmuted, it usually (usually) remains your separate property, although Utah law permits a court to award separate property to the other spouse, if circumstances warrant it.

Elman v. Elman (245 P.3d 176, 2002 UT App 83 (Utah Court of Appeals 2002):

¶ 18 Generally, trial courts are . . . required to award premarital property, and appreciation on that property, to the spouse who brought the property into the marriage. See Dunn v. Dunn, 802 P.2d 1314, 1320 (Utah Ct.App.1990); see also Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988).

¶ 19 However, separate property is not “totally beyond [a] court’s reach in an equitable property division.” Burt v. Burt, 799 P.2d 1166, 1169 (Utah Ct.App.1990). The court may award the separate property of one spouse to the other spouse in “‘extraordinary situations where equity so demands.’” Id. (quoting Mortensen, 760 P.2d at 308); see also Rappleye v. Rappleye, 855 P.2d 260, 263 (Utah Ct.App.1993) (“‘Exceptions to this general rule include whether … the distribution achieves a fair, just, and equitable result.’” (quoting Dunn v. Dunn, 802 P.2d 1314 at 1320)).

And there are these authorities too:

“The general rule is that equity requires that each party retain the separate property he or she brought into the marriage, including any appreciation of the separate property.” Dunn v. Dunn, 802 P.2d 1314, 1320 (Utah Ct.App.1990). Such separate property can, however, become part of the marital estate if (1) the other spouse has by his or her efforts or expense contributed to the enhancement, maintenance, or protection of that property, thereby acquiring an equitable interest in it, or (2) the property has been consumed or its identity lost through commingling or exchanges or where the acquiring spouse has made a gift of an interest therein to the other spouse. (Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988) (citation omitted)).

Premarital property, gifts, and inheritances may be viewed as separate property, and in appropriate circumstances, equity will require that each party retain separate property brought to marriage; however, the rule is not invariable. Burke v. Burke, 733 P.2d 133 (Utah 1987).

A material misrepresentation or concealment of assets or financial condition as a result of which alimony or property awarded is less or more than otherwise would have been provided for is a proper ground for which the court may grant relief to the party who was offended by such misrepresentation or concealment, absent other equities such as laches or negligence…. However, before relief can be granted, it must be determined that the alleged misrepresentation or concealment constitutes conduct, such as fraud, as would basically afford the complaining party relief from the judgment. (Clissold v. Clissold, 30 Utah 2d 430, 519 P.2d 241, 242 (1974) (citations omitted), overruled in part on other grounds by, St. Pierre v. Edmonds, 645 P.2d 615, 619 n. 2 (Utah 1982); accord Boyce v. Boyce, 609 P.2d 928, 931 (Utah 1980) (noting that “[c]learly, a court should modify a prior decree when the interests of equity and fair dealing with the court and the opposing party so require”); Reid v. Reid, 245 Va. 409, 429 S.E.2d 208, 211 (1993) (ruling that “[o]nce the amount of spousal support is determined, the statutes and case law specifically limit the divorce court’s authority to retroactively modify that amount, absent fraud on the court ”) (emphasis added).

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

Tags: , , , , , , , , ,

How to prepare for a consultation with a lawyer By Braxton Mounteer, legal assistant

You have just been served with a summons and complaint (or petition) for divorce. Now have to traverse the minefield that is finding a good divorce attorney. It’s harder to find a good lawyer than you think. I wish that weren’t true, but it is.

How do you prepare for initial consultations with the attorneys you are considering? I have found three things that can and will help you during your initial consultation.

You do not need to have clear objectives when you go to your initial consultation, but you should not be lost in the woods. You should have an idea of what you want in your divorce and be able to explain why and why what you want is fair (wanting to take your spouse for everything he or she is worth is not a winning strategy). You will likely have a good idea of what you want regarding custody of the children and the division of marital property and marital debt, so tell the attorney during your initial consultation and ask whether he or she agrees with your positions (and please be on the lookout for attorneys who will tell you what you want to hear, so that you’ll open your wallet and pour its contents into the lawyer’s hands).

All lawyers are not created equal. For far too many divorce lawyers the legal profession is a business, and you are a “sale”. Be wary of lawyers that promise you the moon. They usually want what’s in their best interest, not what’s in your and your children’s best interest.

Come to the consultations with an open mind. What you believe the law is or should be is quite often not that way. Rather than react with disgust, try to understand the law. You may still believe the law is silly once you understand it, but if you don’t understand it, you can’t work within the framework of the law knowledgeably and successfully.

A good lawyer will not sugar-coat the situation for you. He or she will give you a frank, honest opinion, even if that opinion may lead you to choose someone else. I know that’s what my boss does, but I also know that’s not what all lawyers do. Find a lawyer who will give you his or her honest opinion about the merits of your case and what you can realistically expect.

Finally, to maximize the value of your consultation, be prepared. Bring the documents with you that you believe may be relevant and useful for the attorney to review. If your spouse has already filed a divorce action against you and has served you with the complaint or petition for divorce, bring a copy of that with you to the consultation. It is easier to get an accurate look at your case when the lawyer can actually read what has been served on you.

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

Tags: , , , , , , , , , ,

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.

Tags: , , , , , , , , , ,

Why do attorneys tell people not to talk to the police? What if I’m innocent or just want to help them?

Let’s discuss this principle in the context of DUIs, but the principle applies in any situation in which you could be questioned in regard to any crime.

What is hard for many people to believe is that quite often (more often than decent people want to believe) the police aren’t in fact trying to catch drunk drivers (‘nothing wrong with catching drunk drivers—more power to them for it) but trying to make bogus arrests for DUI, so that the city can collect the fines and so that officers can advance their careers (‘nothing right about that).

You need to know that while all decent and law-abiding people want to help decent and law abiding law enforcement officers do their jobs well, not all officers are decent and law abiding. Unfortunately, 1) it’s impossible to distinguish a good officer from a corrupt one when you’re being questioned, until it’s too late; and 2) corrupt officers exploit innocent people by getting them to talk. This is why the innocent don’t talk to the police (about anything, not just at traffic stops): the more the innocent talk (and the more guilty talk, but that’s not the point here), the more rope they give corrupt law enforcement officers to twist and to hang them with.

Professor James Duane puts it even better here (these are excellent videos, very engaging, and the advice could literally protect you and your loved ones from being abused by corrupt police officers and prosecutors):

https://youtu.be/d-7o9xYp7eE?si=V5baCl5dMTsxgKZ9

https://youtu.be/-FENubmZGj8?si=4Wgg71H5XbNIBsEZ

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

Tags: , , , , , , , ,

What’s wrong with divorce mediation in Utah?

Much.

And much that you can prevent, once you know what to avoid, what to do, and why.

Profiteering mediators. It’s hard to find anyone selling goods or services these days who isn’t trying to take advantage of the client or customer. Mediators (not all mediators, but many—more than I’d care to admit) are no exception.

Overworked, understaffed judges that don’t want to do their jobs, and so they pressure divorce litigants into settling. I’ve personally witnessed judges and commissioners telling divorce litigants that they should settle because “I [the judge] will probably do a worse job with your case than you can.”

A fundamental misunderstanding of how and why successful mediation succeeds. Courts and lawyers have lost sight of what makes for good mediation, i.e., conflict resolution that is faster, less expensive, less acrimonious, more suited to the particular circumstances of the family, and more likely to result in less future litigation.

“Shuttle mediation”. If you are preparing for your divorce mediation, learn about shuttle mediation and avoid it.

  • With rare exception (such as when a party is truly terrified of being in the same room with another, or if there is a protective order in place that bars the parties from being in each other’s physical presence), shuttle mediation is an inexcusable waste of time, money, and duplicative effort.
  • Shuttle mediation at least doubles the time a mediation would otherwise take were the parties speaking to each other across the same table or in the same Zoom meeting.
  • Because the only participant in shuttle mediation who speaks to the disputing parties is the mediator (the parties don’t speak to each other directly in shuttle mediation), the mediator can manipulate the negotiation process by telling one party one thing and the other party something completely different (and many mediators cannot resist that temptation).
  • Many mediators like shuttle mediation because by doubling or even tripling the amount of time it causes mediation to take, mediators thus double or triple their fees over what they’d otherwise earn were the parties all in the same room or in the same Zoom conference.
  • The way mediation is scheduled and held is also incredibly inefficient and wasteful. Parties should go to mediation after exchanging with each other written comprehensive settlement proposals. So much time is wasted in mediation doing anything but actual negotiation.

While you are required to engage in mediation to try to settle your divorce case, you are not required to engage in shuttle mediation. If your spouse will see reason and agree to avoid shuttle mediation, then ensure that your mediator is not a shuttle mediator.

Mediation isn’t necessary if the parties and their respective attorneys are willing to negotiate without a mediator. If the parties can discuss the case and negotiate without a mediator, they are free to do so. Few attorneys, however, are willing to do this. Why I do not know. But if you are a client and you believe your spouse (and his/her attorney) is willing to meet in settlement negotiations without a mediator, try it! If such negotiations fail, you can always go to mediation next.

Parties (usually because of their attorneys) wait too long to discuss and negotiate settlement. Attorneys make less money when cases settle sooner than later. Don’t go into mediation unprepared, of course, but don’t put it off any longer than necessary.

Too much time in mediation sessions is not spent in actual negotiation. Consequently, mediation ends up being incredibly inefficient and wasteful. Often the first 2/3 of the time spent in mediation is spent “getting up to speed,” with the mediator giving an “introductory speech” about how mediation works and with both the mediator and often unprepared attorneys trying to get an understanding of the case and what the issues are. All of that can and should be dealt with before the mediation settlement conference itself.

  • The mediator should send the parties a link to his/her written and recorded “introduction to mediation” presentation to read/listen to/watch before everyone meets in the mediation settlement conference.
  • The parties should meet in mediation only after:

o   expeditiously conducting necessary discovery, so that the material and relevant facts are known to the parties; and

o   then exchanging with each other (and providing the mediator with copies of) their written comprehensive settlement proposals, so that everyone knows in advance 1) what the issues are and 2) what the initial respective positions of the parties on the issues are.

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

Tags: , , , , , , ,

I Can Prepare a Prenuptial Agreement for You, but With Rare, Particular Exception, I Advise Against It.

Most attorney websites that contain “articles” on prenuptial agreements aren’t really articles but thinly veiled sales pitches for prenuptial agreements. This post is not one of those.

I have always believed and still believe that prenuptial agreements breed distrust, disloyalty, and defeatism in marriage for young people who contemplate marriage for the first time. That stated, at this point in my career as a divorce attorney (27 years), I struggle more than ever over the value and appropriateness of prenuptial and postnuptial agreements. Why?

One reason: if you trust the legal system to do right by you and your family, your trust is misplaced. So very many family law attorneys are profiteers. Courts are understaffed, judges and commissioners get jaded, expedience too often substitutes for evidence. I cannot put it more clearly and concisely than this: “Extricate yourself from the system, don’t try to vindicate yourself within it” (Peretz Partensky). A prenuptial or postnuptial agreement may (may) have value if it keeps the control of your divorce in your and your spouse’s hands instead of in the hands of a court.

Another reason: divorce laws and their application are unfair to men. Now, certainly there is plenty of unfairness to go around in the court’s treatment of women too, men generally get treated worse. Permit me to explain my perspective.

Men still generally have greater incomes and greater wealth than women generally. In no-fault divorces, men generally get soaked far more often than women. There are good men out there who married in the utmost good faith whose wives did more than simply use them up and cast them aside by divorcing them; they essentially enslaved their husbands for the rest of their good years (and into their not so good years) by stripping them of at least half of all they had, driving their husbands into debt, and burdening them with oftentimes ludicrous child support and alimony obligations. Because the law permits it.  A YouTuber named Pearl (https://www.youtube.com/@JustPearlyThings) and her guests discuss this at length. As a result of the sheer volume of discussion alone, they do a good job of examining the problem. Although her content is principally light and entertaining, the reality and the cognitive dissonance underlying her content is compelling.

The solution to the misery of divorce does not lie, however, in “making divorce laws fairer.”

Ensuring fairness and equity in divorce is important, no question, but the “divorce problem” is much greater than a legal problem and its solution does not even begin to lie in merely changing laws or enforcing them better. Obviously, divorce needs to exist to remedy serious threats and injustices that cannot be remedied any other way. But divorce is far too easy now, and marriage is criminally undervalued. It’s destroying our culture.

This may seem odd coming from a divorce attorney, but I believe to my core in marriage and family. We all need to devote ourselves to fostering and preserving and improving marriage and family life as the greatest source and protector of personal and societal purpose, peace and prosperity. There are causes bigger than ourselves and that are worthy of our sacrifices to see them succeed. Marriage and family are two of them. We are better individually by being loving and devoted members of a nuclear family. Even Kramden (https://en.wikipedia.org/wiki/The_Honeymooners)- or Bickersons (https://en.wikipedia.org/wiki/The_Bickersons )-style marriage and family life is far better than a world littered with broken marriages and families, self-absorption, and loneliness. Children need and deserve (it is their right!) to be reared in a nuclear family by a loving mother and father.

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

Tags: , , , , , , ,
Click to listen highlighted text!