Category: Parentage

How much does a parent have to pay in child support? What is the legally set amount?

Some people believe that child support is the same for all parents. They believe that every parent who is ordered to pay child support pays the same amount of money per child. This is not how child support is calculated in most jurisdictions, and Utah is no exception.

Child support is based upon several factors before it is calculated and ordered:

  • the incomes of both parents;
  • the number of children there are; and
  • the number of overnights that each parent spends with the child or children on an annual basis

Some other factors can affect child support calculations, such as whether a child has special needs, but generally, child support is a factor of parent income and the number of overnights the children spend with each parent. Allow me to explain with this hypothetical example:

John and Jane are the parents of three minor children.

John’s gross monthly income (we use gross monthly income as the income figures for calculating the monthly base child support obligation) is $5,400 per month, and Jane’s monthly gross income is $2,600 per month.

To calculate child support in various custody situations, we are going to utilize the Utah State Office of Recovery Services Child Support Calculator.

If the children spend an equal number of overnights with both parents on an annual basis, then child support looks like this because it is calculated this way under Utah Code § 30-3-35.2[1]:


(d) Child support for the equal parent-time schedule shall be consistent with Section 78B-12-208.


(i) A court shall determine which parent receives 182 overnights and which parent receives 183 overnights for parent-time.

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

Joint Custody P1 – 183 P2 – 182
Joint Custody P1 – 182 P2 – 183

If one parent has the children in his or her custody more or less than on an equal time basis, the calculation looks something like this:

  • I will show what a calculation based upon an unequal physical custody award looks like by calculating child support based upon John spending less than 111 overnights with his children annually)
  • In such a situation, we will treat John as the “noncustodial” parent. “Noncustodial parent” does not mean that John has lost all of his parental rights, but just that he does not have primary physical custody of the children (i.e., that the children are in his care and custody less than 111 overnights annually). Based upon John’s spending less than 111 overnights with the children, the Child Support worksheet would look like this, and would result in John’s child support obligation being as follows:
Sole Custody

And there is yet another way to calculate child support in a “split custody” situation. That’s a situation where, when there are multiple children, some live primarily with one parent and some live primarily with the other (in other words, they don’t spend time all together with one parent at a time).

So, let’s assume in this scenario that two of the children live with John as the custodial parent, and one of the children lives with Jane has the custodial parent of that one child. This is how the child support calculation worksheet would look and what the resulting child support obligations from each parent to the other would be:

Split Custody

As you can see, on a split custody basis, even though each parent has custody of one or more children, it ultimately comes down to one parent’s obligation being offset by what the other parent’s obligation is. This is why John pays $13 to Jane each month, even though Jane’s obligation to John is $355.94 per month because his obligation to Jane is $369.08 per month.

So John’s obligation to Jane of $369.08 per month is reduced by Jane’s $355.94 monthly obligation to John, resulting in a difference of $13.


Now, the examples I provided above are not the only ways child custody can be awarded and thus not the only ways that child support can be calculated and awarded, but these examples are the most common that you’ll see. So, now you get an idea of what happens and what the child support calculations and obligations are in these situations.

Utah Family Law, LC | | 801-466-9277

[1] This is not truly an equal custody award because one parent is awarded 183 overnights with the children annually. It does not have to be this way, and indeed, I submit it should not be this way. If you are a parent who wants a true equal custody award made, then calculate custody and child support this way:

  • Agree that each parent is awarded 182.5 overnights with the children annually and note that this will result in one parent naturally having the children in his/her care and custody 183 overnights in one year, then 182 overnights in the next year due to the fact that a year consists of (with the exception of leap years, which occur so rarely as to be statistically insignificant) an odd number of days, i.e., 365.
  • Calculate what child support would be for the obligor parent (“obligor” means the one who pays) if a parent had the children in his/her care and custody 183 overnights annually and 182 overnights annually, and then average those two child support obligations to get what the child support obligation is on a 182.5 overnights annually basis.
  • So, in John and Jane Doe’s hypothetical case, that would mean that John’s monthly base child support payment obligation on a 182.5 perfectly equal custody basis would be $287 per month ($272 + #302 = $574. $574 ÷ 2 = $287).
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Obstacles Fathers Face in Trying to Get Joint Custody of Their Children

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In Utah, the law is:

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

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

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

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

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

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

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

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

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

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

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

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

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

Utah Family Law, LC | | 801-466-9277

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

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

Blake v. Smith – 2023 UT App 78

2023 UT App 78








No. 20210779-CA

Filed July 20, 2023

Third District Court, Salt Lake Department

The Honorable Su Chon

No. 184900112

Julie J. Nelson, Attorney for Appellant

DeJuan Blake, Appellee Pro Se





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


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

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

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

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

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

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

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

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

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


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

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

I. Custody

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

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

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

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

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

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

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

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

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

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

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

II. Child Support

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

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

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

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

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

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

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

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

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

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


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

Utah Family Law, LC | | 801-466-9277

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

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

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

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

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If a Mom Is Abusing Her Children, and the Dad Doesn’t Want Sole Custody Because Child Support Is Cheaper, What Can the Court Do?

Thank you for your question, and forgive me for approaching this question in a way that may not answer your question as directly as it could be; I hope you will find my answer enlightening just the same.

If my purely selfish desires regarding particular controversies that I’d like to handle as a lawyer wouldn’t affect real people’s lives, then I’d love, as a divorce and family law attorney, to represent one of the parents in a case where 1) neither parent wants sole custody of the children and 2) each parent wants to foist custody of the children on the other.


Because it would shine a light on the moral and intellectual bankruptcy of the belief that it is somehow wrong to award joint equal physical custody of children to two equally fit and loving parents who both desire to be as involved in their children’s lives as possible.[1]


Because the court would find itself in the unusual position of dealing with parents fighting to get as little time with the children as possible and thus find itself having to formulate and make arguments for both parents exercising custody of their children as much as possible (instead of trying to justify an unequal custody award where equal custody could clearly work or at least merit a try).

The cognitive dissonance would be glorious—absolutely glorious—to behold. The infirmity of the “arguments” for denying two fit, loving parents equal custody would be laid bare for all to see.

Not every parent is fit to exercise joint or sole physical custody of his/her child, but parents who are 1) fit and loving; 2) desirous of ensuring their children are reared as much as possible by both of their parents; and 3) live in close enough proximity to each other to make joint equal physical custody not merely feasible but beneficial to the minor children: A) should have their parental rights upheld to the fullest extent possible by awarding joint equal physical custody because B) the “best parent” for the children is both parents.

The idea that we presumptively divide marital assets equally in divorce because that is presumptively fair is the same reason we should presumptively award joint equal physical child custody. If the presumption of dividing marital assets equally is rebutted by showing, for example, that a spouse materially dissipated marital assets or wrongfully diminished their value, then clearly an equal division of the assets would not be fair. Likewise, if the presumption of awarding equal custody is rebutted by showing that it would be deleterious to the children in some material way, then an equal custody award would not be fair to the children.

Yet the laws of most states in the U.S.A. do not adopt a presumption of joint equal physical custody (but I should note that currently the legislative trend is toward adopting presumption of equal custody), and even among those states that do, many judges in those states disfavor equal physical custody awards.

For all the good sense equal physical custody makes, it is surprisingly (scandalously) difficult to obtain an equal physical custody award.


[1] To quote the Core Principles of the National Parents Organization (

Shared parenting protects children’s best interests and the loving bonds children share with both parents after separation or divorce;

Equality between genders has been extended to every corner of American society, with one huge exception: Family Courts and the related agencies; and

The Supreme Court of the United States has found that “the interest of parents in the care, custody, and control of their children… is perhaps the oldest of the fundamental liberty interests recognized by this Court.”

Utah Family Law, LC | | 801-466-9277

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Thayne v. Thayne – 2022 UT App 122 – Change of Circumstances

2022 UT App 122








No. 20200598-CA

Filed November 3, 2022

Second District Court, Ogden Department

The Honorable Ernest W. Jones

No. 204900701

Devin Thayne, Appellant Pro Se

David C. Blum, Attorney for Appellee

SENIOR JUDGE RUSSELL W. BENCH authored this Opinion, in which JUDGE GREGORY K. ORME and JUSTICE JILL M. POHLMAN concurred.[1]

BENCH, Senior Judge:

¶1        Devin Thayne appeals the district court’s order granting Stephanie Thayne’s motion to dismiss his petition to modify child and spousal support. We agree with the reasoning of the district court and affirm.


¶2        Devin and Stephanie[2] were married in June 2010 and separated in April 2019. At the time of their separation, the parties lived in California, and their divorce proceedings therefore commenced in California. As part of their divorce proceedings, a hearing was held on December 10, 2019. At the hearing, the parties came to an agreement regarding custody and visitation schedules of their three minor children, and the court entered a stipulation and order addressing those issues that same day. At this time, both parties were anticipating a relocation to Utah, and the stipulation recognized this “period of transition” and noted, “Further order as to custody will be addressed in Utah . . . if necessary.”

¶3        At the December hearing, the parties also stipulated as to other issues, including property division, spousal support, and child support. This stipulation mentioned the impending move to Utah and the likelihood that, due to the move, “[Devin’s] annual income of $141,000 will decrease to approximately $90,000– $100,00 per year.” The stipulation also provided that Devin would pay $840 per month in spousal support, beginning January 1, 2020, and continuing for, at most, only four years (roughly half the length of the nearly nine-year marriage), and that Stephanie was “to make reasonable efforts to become self-supporting within a reasonable period of time.” Additionally, the stipulation provided that Devin would maintain health insurance for the children and that “upon [Stephanie’s] employment,” she would also provide health insurance for the children “if available at no or reasonable cost through her employment.”

¶4        The parties did, as planned, move to Utah in December 2019, and Devin’s income did resultingly drop to $90,000. Thereafter, on February 18, 2020, the California court entered a judgment of dissolution (the Judgment). The Judgment incorporated the parties’ stipulations made at the December hearing and finalized the divorce.

¶5        About two months later, on April 22, 2020, Devin filed a petition to modify the Judgment in Utah. Devin argued that “his dramatic reduction in income” amounted to a “substantial and material change in circumstances” that warranted a change to the previously ordered spousal support and child support amounts. Devin argued the changes were also warranted by a change in Stephanie’s income, stating, “[U]pon information and belief, Stephanie has initiated employment or other means to generate a regular and consistent income.” Additionally, Devin’s petition to modify raised issues surrounding the mechanics of the children’s visitation, arguing that the Judgment “fails to detail how the parties are to exchange the minor children” considering that the two older children were in school and the youngest child was not yet school-aged. He requested that he be allowed to return all three children in the morning instead of having to wait to return the youngest child at noon, as provided for in the Judgment.

¶6        Stephanie responded with a motion to dismiss or, alternatively, a motion for summary judgment. She argued that Devin’s petition to modify rested on changes in circumstances that were foreseeable when the Judgment was entered and that, therefore, his petition must be dismissed.

¶7        The district court granted Stephanie’s motion to dismiss in its entirety. The court determined that there was no indication that the Judgment was not already calculated based on Devin’s anticipated reduction in salary to $90,000–$100,00 per year. The court explained,

The order was finalized and entered after the move and the initial payments were set to be made while the parties already were to live in Utah. It stretches the imagination of the Court to the breaking point to believe that the California court would enter an order fully expecting income to have dropped before even the first payment would be made.

As to spousal support, the court recognized that “differences in earning potential . . . should be given some weight in fashioning the support award” and that this factor was presumptively already considered by the California court making the award. (Quotation simplified.) And as to visitation, the court pointed out that the issue was addressed in the Judgment, which specifically provided that the children would be delivered “at school or if no school at noon.” The court therefore determined that it did not find a “significant unforeseen change in circumstances” to support modification. (Emphasis added.) Devin now appeals.


¶8        Devin argues that the district court erroneously dismissed

his petition to modify, which dismissal was based on its determination that the facts alleged in the petition did not show an unforeseen substantial change in circumstances that would warrant modification. “We review a decision granting a motion to dismiss for correctness, granting no deference to the decision of the district court.” Miller v. Miller, 2020 UT App 171, ¶ 10, 480 P.3d 341 (quotation simplified).[3]


¶9        A party may seek changes to an award of spousal or child support when there has been a substantial change of circumstances not addressed in the divorce decree. See Utah Code Ann. § 30-3-5(11)(a) (LexisNexis Supp. 2022) (“The court has continuing jurisdiction to make substantive changes and new orders regarding alimony based on a substantial material change in circumstances not expressly stated in the divorce decree or in the findings that the court entered at the time of the divorce decree.”); id. § 78B-12-210(9)(a) (“A parent, legal guardian, or the office may at any time petition the court to adjust the amount of a child support order if there has been a substantial change in circumstances.”). But the changes in circumstances that Devin raises in his petition that have occurred since the stipulation was drafted in December 2019—namely, his decreased income and Stephanie’s availability for employment—were foreseen and addressed in that stipulation. Furthermore, these changes in circumstances that Devin raises had already occurred by the time the Judgment incorporating that stipulation was eventually entered in February 2020.

¶10 The Judgment orders Devin to pay “child support in the amount of $2,160 per month” and “spousal support in the amount of $840 per month” commencing in January 2020, shortly after relocation. And in the same section, the Judgment clearly recognizes Devin’s impending income reduction: “[Devin] anticipates that [his] annual income of $141,000 will decrease to approximately $90,000–$100,000 per year due to the relocation of himself and his employment from California to Utah.” Thus, the Judgment anticipated Devin’s lowered income, and we agree with the district court that it is implausible that the California court would have made support awards based on Devin’s old income when it recognized that a much lower income would be in effect before any payments became due.

¶11      This same support section of the Judgment also anticipates Stephanie’s future employment. The Judgment limits the maximum length of spousal support to four years[4] and states, “[Stephanie] is placed under a Gavron Admonition to make reasonable efforts to become self-supporting within a reasonable period of time.”[5] Further, the Judgment clarifies that “upon [Stephanie’s] employment[,] [she] shall obtain health insurance for the parties[’] minor children if available at no or reasonable cost through her employment.” In fact, even Devin’s petition to modify recognized that the Judgment addresses Stephanie’s future employment:

[U]pon information and belief, Stephanie has initiated employment or other means to generate a regular and consistent income. Indeed, the Judgment indicates Stephanie was required to make efforts to secure full-time employment. As such, Stephanie either has secured regular employment or now possesses the ability to secure gainful full-time employment. At a minimum, Stephanie should be imputed income at a reasonable amount considering her education, training, certificates, employment history, and any other factors reasonably considered by the Court.

So Stephanie’s return to employment was clearly anticipated in the Judgment.[6]

¶12      Thus, the Judgment addressed both the anticipated drop in Devin’s income and the possibility of Stephanie’s return to employment and accounted for them when ordering child and spousal support amounts. And therefore, these employment changes do not amount to unanticipated changes that would warrant a modification of the support amounts. Therefore, we see no error in the district court’s determination that even when viewing the alleged facts in Devin’s favor, no substantial change in circumstances had occurred that was not addressed in the Judgment; and consequently, we see no error in the dismissal of Devin’s petition to modify.

¶13      Devin, however, points to language in the stipulation that he argues implies that the Judgment was “a very loose order intended only to last until more was known in Utah.” First, he points to a general provision at the close of the Judgment stating, “The issues of child custody and visitation, child support and spousal support are transferred to the county in which the parties’ minor children will be residing in Utah effective immediately upon entry of this judgment.” But we do not agree that this language is an indication that the support awards should be revisited upon relocation; instead, where the parties had already relocated upon entry of the Judgment, the language simply demonstrates an awareness that any unanticipated issues or changes of circumstances that might arise in the future (in the nearly fifteen years before the children would all become adults) would be appropriately dealt with in Utah instead of California.

¶14 Second, Devin relies on language in the child custody stipulation that mentions relocation and then states, “Further orders as to custody will be addressed in Utah upon parties’ move, if necessary.” However, this mention (and in particular its “if necessary” limitation) simply clarifies what would happen if changes were warranted in the future and is not an indication that the California court expected the divorce decree to be modified upon relocation. Furthermore, this reference specifically mentions only the modification of child custody, which is largely unrelated to the income changes raised in Devin’s petition to modify.

¶15 Third, Devin points to the Judgment’s failure to address the issue of how the children would be claimed on the parties’ taxes as evidence that the Judgment was intended to be only temporary. But, again, this omission does not suggest that the California court expected that its support awards would be recalculated upon arrival in Utah.

¶16      Devin also raises contract principles to argue that the intent of the parties regarding future modification should have been considered by the district court when determining if modification was appropriate. But even assuming the intent of the parties would be relevant, there was no ambiguity in the stipulated agreement suggesting that immediate modification was intended after relocation to Utah, nor was there any indication that this remained an open question. Although Devin tries to introduce additional materials that he argues show such an intention, even under contract principles those materials would not be considered because of the unambiguous nature of the parties’ stipulation.[7] See Bakowski v. Mountain States Steel, Inc., 2002 UT 62, ¶ 16, 52 P.3d 1179 (“When interpreting a contract, a court first looks to the contract’s four corners to determine the parties’ intentions, which are controlling. If the language within the four corners of the contract is unambiguous, then a court does not resort to extrinsic evidence of the contract’s meaning, and a court determines the parties’ intentions from the plain meaning of the contractual language as a matter of law.” (quotation simplified)).[8]


¶17      We do not see an error in the district court’s determination that the changes in circumstances Devin raises were already addressed by the original Judgment. And as a result, we see no error in the court’s denial of Devin’s petition to modify.[9] We therefore affirm.



Utah Family Law, LC | | 801-466-9277

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Can I gain full custody if I’m bipolar?

I don’t want anything to do with my child’s father. Can I gain full custody if I’m bipolar? 

First, thank you for being so candid and blunt. This is a question that everyone on both sides of this issue have but that few have the guts to ask or have the guts to accept an equally blunt response. That stated, I will try to give you an answer in the same vein as your question: 

(Note: I cannot tell you whether there are any jurisdictions that treat bipolar disorder or other emotional or mental health conditions as absolute bars to consideration for legal or physical custody of children, but I can tell you what I know based upon the law of Utah, which is the jurisdiction where I’ve been practicing for the past 26 years) 

Now let’s talk about suffering from bipolar disorder. I’m amazed at the number of people who will say things to me like, “My child is autistic,” when the child has never been diagnosed by a competent mental health professional with autism. There are a lot of people will claim as fact that which they believe. This is often the case with personality disorders. I can’t tell you how many times people come to my office and say, “My wife has borderline personality disorder (BPD)” and “My husband is a narcissist and/or suffers from narcissistic personality disorder (NPD)” and “My spouse has bipolar disorder” without there ever being a diagnosis by a competent mental health professional. 

So, the first question we need to answer is whether you truly are bipolar or whether you and/or your spouse just believe you are.  

Next, if you are in fact bi-polar you need to determine whether your condition renders you dangerous to yourself and/or to others. By the way, this would be true of any serious mental health or serious personality disorder. If you are bipolar and or suffer other serious mental health problems, that doesn’t necessarily mean you are a danger to yourself or others. Many mental health and emotional disorders can be successfully treated with medication and/or counseling or therapy, so that someone with such a condition is no less fit as a parent than someone with a serious physical condition that is being successfully treated. 

Bottom line: merely suffering from bipolar disorder is not an absolute bar to being awarded sole or joint custody of a child. Without a showing that the bipolar disorder causes you to be a danger to yourself or to others (including your children, of course), evidence that you suffer from bipolar disorder (or other mental health or emotional disorders) is not enough to knock you out of the box. 

Utah Family Law, LC | | 801-466-9277  

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How can I better understand the importance of marriage?

As a child with divorced parents, I find it hard to answer questions such as, “What is the importance of marriage?” How can I better understand the importance of marriage?

Being a divorced parent does make it harder to make a strong case for marriage. You are afraid to look hypocritical and not credible. Fortunately, you are not alone in your predicament. 

  • Ex-con parents have the same problem when advising their children to obey the law. That doesn’t make the advice wrong.
  • Fat, out of shape parents have the same problem when advising their children to exercise and stay fit. That doesn’t make the advice wrong.
  • High school dropout parents have the same problem when advising their children to get a good education. That doesn’t make the advice wrong. 

 Although telling children to “do as I say, not as I do,” is a hard sell, there is an obvious silver lining to encouraging children to differently than you did: “Kid, you don’t need to end up like me. Learn from my example not to do as I did.” That’s authentic. That has real value. Vicarious learning is learning from the experience of others. Everyone can benefit from vicarious learning, whether it’s learning how to succeed by repeating what successful people do (and don’t do) or how to succeed by avoiding the mistakes and wrong decisions of those who failed. 

Utah Family Law, LC | | 801-466-9277  

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How does being a child of divorce change the way you approach marriage?

I saw something on Facebook recently that is applicable here. Two brothers had followed divergent paths into adulthood. One was a lonely alcoholic bum. The other was a successful and respected family man. When asked how he came to his current circumstances, each had the same answer: because my dad was an alcoholic. 

As bitter a pill as it is to swallow, it is no less true: how we respond to adversity determines our trajectory. 

That stated, most children of divorce are at greater risk of fearing commitment, of engaging in risky and shallow personal relationships as adults, of perceiving marriage as a cause of great personal suffering, and concluding that the odds of a meaningful and worthwhile marriage are slim. 

But that’s the fault of the people who let their parents’ divorce sour them on marriage. Be honest with yourselves. Marriage is in the problem. It’s one or two dysfunctional people engaging in dysfunctional behavior in a marriage who is/are the problem. 

Some people see their parents’ marriage come to a bitter and disappointing and and vow that their marriage will not suffer the same fate. I fully realize that no one can ensure that his or her spouse will not file for divorce against him or her. But fearing failure of marriage is no reason to deny yourself the blessings of marriage. Nothing ventured, nothing gained. 

Men and women are meant to be together in a marital relationship. A doesn’t mean that marriage is easy, but we can’t reach our full potential without marriage and family as part of our lives’ work and experience. Plenty of people fail to reach their potential because they fear failure. It’s understandable, but it’s equally understandable as to where the blame lies for this kind of failure. 

Utah Family Law, LC | | 801-466-9277  

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How easy is it to change your child’s last name?

I cannot answer this question as it applies in all jurisdictions, but I can answer the question as it applies in the jurisdiction where I practice divorce and family law (Utah): 

Here are the applicable Utah Code sections: 

42-1-1. By petition to district court — Contents. 

Any natural person, desiring to change his name, may file a petition therefor in the district court of the county where he resides, setting forth: 

(1) The cause for which the change of name is sought. 

(2) The name proposed. 

(3) That he has been a bona fide resident of the county for the year immediately prior to the filing of the petition. 

42-1-2. Notice of hearing — Order of change. 

The court shall order what, if any, notice shall be given of the hearing, and after the giving of such notice, if any, may order the change of name as requested, upon proof in open court of the allegations of the petition and that there exists proper cause for granting the same. 

42-1-3. Effect of proceedings. 

Such proceedings shall in no manner affect any legal action or proceeding then pending, or any right, title or interest whatsoever. 

That seems fairly easy, right? I agree, it does seem easy (it deceptively seems easy), and if all you needed to do was go by what the Utah Code says is required of you to get a name change, you’d be right. But for reasons I do not understand, there are many “unwritten rules” governing a name change in Utah, whether for an adult or a minor child. Otherwise stated, if all you did was: 

  • file a petition in the court stating: 
    • the cause for which the change of name is sought; 
    • the name proposed; 
    • that you or your minor child have/has been a bona fide resident of the county for the year immediately prior to the filing of the petition. 
  • schedule the hearing on the petition; 
    • prove three allegations that you were required to make in the petition; 
    • prove that there exists “proper cause” (whatever that means) for granting the petition for change of name; 

that should be all you need to do, according to the Utah Code. But if that is all you did, there is a good chance your petition would be denied. So what are the “unwritten rules” you need to abide by to get a name change for yourself or your minor child? A good place to find out is here: 

Utah Family Law, LC | | 801-466-9277  

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What kind of “damage” can untreated BPD in a parent cause children?

What kind of “damage” can an untreated single parent with BPD/shared custody/ cause to the kids in the long term?


Children of BPD parents often struggle with trusting others and forming intimate relationships. they often have a warped perception of reality because of the BPD parent’s influence. They often develop strong false feelings of guilt and shame and misplaced senses of responsibility for people and things for which they are not responsible. Children of divorce who have a BPD parent often feel as though they must choose love and loyalty for the BPD parent over the other parent. 

No matter how happy and successful a life and future a child of a parent with untreated BPD will have, that parent’s untreated BPD will do the child damage. Some children are able to compensate for the damage, many children will be made that much more anti-fragile from the damage, but plenty of children will struggle in life because of the parents untreated BPD. 

And how do you treat BPD effectively? I’ve heard it said by mental health professionals that it’s easier to overcome a heroin addiction than it is to treat BPD successfully. 

So pity the child of a BPD parent. Help that child as much as you can. 

Utah Family Law, LC | | 801-466-9277  

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How do I best explain to my daughters that I am divorcing their stepmom?

What is the best way for me to explain to my 3 daughters that the reason in which I am divorcing their Assistant Prosecutor stepmother is because I wouldn’t let her legally adopt them and that I had an affair with one of her former friend’s?

I realize that there may be more to your question and its context than the question itself may indicate. I realize you may or may not be the only one to blame for the deterioration of your marriage. 

Do right by both your children and your wife. Resist the temptation to “correct” one mistake by making others in an effort to cover for past wrongs you have committed. 

I’d speak with a good (a good) psychologist or qualified counselor to help me confront how and why I came to this point and how my family did. I’d seek some help to understand what I should do going forward and why I should do so, how I should and can take responsibility for my actions in the past and for the future. 

I’d speak with a good (a good) child psychologist to gain an understanding of how to break this kind of news to your children and how to discuss any questions your children may have. 

I’d speak with my pastor or priest (or whoever your religious leader may be) to get some guidance as well. 

I’d be sure to be honest with my children, in a way that is sensitive to their age and maturity and needs. 

Utah Family Law, LC | | 801-466-9277  

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Why should I pay child support if the other parent isn’t asking for it (and doesn’t need it)?

This question doesn’t come up very often, but it does come up.

I will answer this question according to the law of Utah, which is the jurisdiction where I practice divorce and family law (which includes the issue of child support, of course):

Even if it could be proven that there is no real need for a parent to pay child support, the fact that this parent would try to avoid that responsibility is so offensive to most people that the question of whether the parent should pay child support gets overshadowed by that parent’s desire or efforts to avoid paying the support.

If your question is whether it can be ordered that a parent pay no child support when the other parent has so much money that it is clear the other parent has no need of any kind of financial contribution from the other parent for the support of the child, the answer is: yes, but only if the court were to find that there is some compelling reason why only one parent should provide financial support for the child instead of both parents providing financial support.

Even in situations where one parent has more than enough money to support himself or herself and the child sufficiently and beyond, it would be rare for a court to relieve the other parent of having to make some financial contribution to the child support, even if that contribution were just a nominal or token or symbolic amount. An amount that, at the very least, is meant to signify that the parent recognizes and fulfills the obligation to be financially responsible for the child.

That stated, however, in the jurisdiction where I practice family law (Utah), whether a parent pays child support isn’t a matter left to the pure discretion of the court.

In Utah, child support is based upon a statutory mathematical formula that factors in the number of children, the gross monthly income of each of the parents, and the number of overnights the children spend with each parent to determine each parent’s financial obligation to the children on a monthly basis. Whether one parent has so much money so as to have no need for child support is not one of the statutory factors.

But as I said from the beginning, it is possible (though highly unlikely) that one could persuade a judge that he or she should not pay child support if that parent could prove 1) that paying child support in any amount would work an undue hardship on that parent and 2) that the other parent has more than enough financial resources to support the child exclusively and without contribution from the parent who is trying to avoid being ordered to pay child support.

Finally, there is nothing to prevent the parents from agreeing that one parent will not pay child support to the other, so long as they can convince the court that such an arrangement won’t be harmful to the child.

Utah Family Law, LC | | 801-466-9277

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

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

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

  1. mothers are better parents than fathers;

and thus

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

and thus

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

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

Utah Family Law, LC | | 801-466-9277

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What’s the difference between legal custody and physical custody?

Here’s a question many parents have: what is the legal definition of “joint legal custody” and “joint physical custody” in Utah when it comes to the custody of children? Is there are difference?

The answer:

“Legal custody” is not the same as “physical custody”.  Likewise, “joint legal custody” is not the same as “joint physical custody”.

Legal custody is the authority to decide matters in a child’s life, including (but not limited to) matters of health care, education, religious and moral upbringing, and the child’s overall well-being.

Physical custody is, in simple terms, the number of overnights a parent has with a child annually.

Joint physical custody. In Utah, a parent has “joint physical custody” of the child(ren) with the other parent if that parent has at least 111 overnights annually with the child(ren). Joint physical custody does not mean only 50/50 custody; while parents who share custody 50/50 are joint physical custodians, to be considered a “joint physical custodian” you must have the children overnight at least 111 overnights or more with the children annually.

See Utah Code § 30-3-10.1.  Definitions — Joint legal custody — Joint physical custody:

As used in this chapter:


(a) “Custodial responsibility” includes all powers and duties relating to caretaking authority and decision-making authority for a child.

(b) “Custodial responsibility” includes physical custody, legal custody, parenting time, right to access, visitation, and authority to grant limited contact with a child.

(2) “Joint legal custody”:

(a) means the sharing of the rights, privileges, duties, and powers of a parent by both parents, where specified;

(b) may include an award of exclusive authority by the court to one parent to make specific decisions;

(c) does not affect the physical custody of the child except as specified in the order of joint legal custody;

(d) is not based on awarding equal or nearly equal periods of physical custody of and access to the child to each of the parents, as the best interest of the child often requires that a primary physical residence for the child be designated; and

(e) does not prohibit the court from specifying one parent as the primary caretaker and one home as the primary residence of the child.

(3) “Joint physical custody”:

(a) means the child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support;

(b) can mean equal or nearly equal periods of physical custody of and access to the child by each of the parents, as required to meet the best interest of the child;

(c) may require that a primary physical residence for the child be designated; and

(d) does not prohibit the court from specifying one parent as the primary caretaker and one home as the primary residence of the child.

(4) “Servicemember” means a member of a uniformed service.

(5) “Uniformed service” means:

(a) active and reserve components of the United States Armed Forces;

(b) the United States Merchant Marine;

(c) the commissioned corps of the United States Public Health Service;

(d) the commissioned corps of the National Oceanic and Atmospheric Administration of the United States; or

(e) the national guard of a state.

Utah Family Law, LC | | 801-466-9277

Velasquez v. Chavez – 2019 UT App 185 – child surname

2019 UT App 185


No. 20180451-CA
Filed November 15, 2019

Third District Court, Salt Lake Department
The Honorable Matthew Bates
The Honorable Patrick Corum
No. 154901302

Marsha M. Lang, Attorney for Appellant
Michael P. Studebaker, Attorney for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.

HAGEN, Judge:

¶1        Dario Arthur Velasquez appeals the district court’s decision to hyphenate the surname of his biological son (the child). Velasquez argues that the court did not address the six-factor test articulated in Hamby v. Jacobson, 769 P.2d 273 (Utah Ct. App. 1989), for determining whether changing the child’s surname from Chavez to Velasquez-Chavez was in the child’s best interest. Because we conclude the district court properly considered all the relevant factors and provided sufficient findings to support its decision, we affirm.


¶2        Velasquez and Stacy L. Chavez were in a relationship and living together when Chavez became pregnant with their child. A few months into the pregnancy, Chavez ended the relationship and moved in with a former boyfriend who was the father of her daughter.

¶3        When Chavez gave birth to the child, she left the birth certificate blank as to the child’s father and gave the child the surname “Chavez.” A few weeks after the birth, Velasquez filed a Verified Petition for Decree of Paternity (the petition). Relevant to this appeal, Velasquez petitioned the court to change the child’s surname to “Velasquez.”

¶4        At the trial on the petition, the parties were present and stipulated to proffers of testimony before the court. Velasquez’s attorney argued that the child’s surname should be “Velasquez” because Velasquez believes that the child is confused as to who his “real father” is because he calls both Velasquez and Chavez’s significant other “daddy.” Velasquez’s attorney argued that the child will be stigmatized and embarrassed to have his mother’s surname because children at school “are very cruel” and will conclude he is “illegitimate.” His attorney anticipated that a hyphenated surname might be an option and expressed concerns that the name “Velasquez will be dropped off” if the child’s surname was changed to “Chavez-Velasquez.” There was also concern that the child would just go by “Chavez” if the last name was changed to “Velasquez-Chavez.” But Velasquez did not “have any objection to Chavez being a middle name.” Velasquez’s attorney argued that “for inheritance purposes, for the idea of carrying on the last name of Velasquez, for the heritage of his family, [the child] should have [Velasquez’s] last name.” At this point, the district court asked Velasquez directly, “[S]hare with me your heritage, where does your family come from?” Velasquez responded that he and his mother are from Texas and that his father was born in Mexico but has spent most of his life in Texas.

¶5        In response, Chavez’s attorney argued that Velasquez’s arguments with respect to the child’s confusion, embarrassment, and “stigmas in schools” were based on “a lot of speculation” without any support. Chavez disagreed that the child would suffer embarrassment or lack of identity without his father’s surname. Chavez’s attorney proffered that the child shared Velasquez’s middle name and that Chavez was “not opposed to the offer of the child’s last name being Velasquez-dash-Chavez.” Chavez’s attorney further explained that he had “spent a lot of time researching and trying to find any sociological or psychological literature” to make sure the child was not harmed by a hyphenated surname. The court asked Chavez where her family came from, and she responded that her family was from Colorado and that she lived in Utah. The court commented that “it is common in certain Latin cultures for a person’s last name to be the father’s last name hyphenated with the mother’s last name” and then asked if either family followed that tradition. Velasquez and Chavez each responded, “No.”

¶6        Following the proffered testimony, the district court gave its oral ruling, following the six-factor test articulated in Hamby v. Jacobson, 769 P.2d 273 (Utah Ct. App. 1989), for determining whether changing the child’s surname is in the child’s best interest. The court concluded that it was in the child’s best interest to have the surname Velasquez-Chavez to “make sure that the child understands that he has two parents that don’t live together but they’re both his parents.” The court also explained that “although this isn’t common in the heritage of the two families here, it is . . . very common in the heritage of many Latin and Hispanic families, in Utah and outside of Utah . . . [and] it’s very common in . . . other cultures in this community.”

¶7        Velasquez objected to the hyphenated last name. He personally addressed the court, arguing that it had erroneously based its decision on “Latin countries and stuff,” despite the fact that he and Chavez were both born in the United States and “the ways here in America is [to use] one last name.” The court clarified that it “mentioned that particular cultural tradition only to demonstrate that [it] found little basis to find that a hyphenated name is going to cause the child any embarrassment simply because that is so prevalent in our community today, regardless of where it comes from.”

¶8        Following the trial, the court entered findings of fact and conclusions of law and ordered that the child’s surname be changed to Velasquez-Chavez. Velasquez now appeals.


¶9 Velasquez contends the district court erred in determining that it was in the child’s best interest to hyphenate the child’s name to Velasquez-Chavez. “We review the trial court’s findings under a clearly erroneous standard and will not disturb those findings unless they are against the clear weight of the evidence . . . .” Hamby v. Jacobson, 769 P.2d 273, 279 (Utah Ct. App. 1989). But “when the evidence consists only of proffers to the trial court, the appellate court is in as good a position to review the proffer as was the trial court, as no assessment of witness credibility occurred below.” Id. at 278 (cleaned up). “Therefore, we review the facts and draw our own legal conclusions therefrom,” id. (cleaned up), and will reverse only if we “reach[] a definite and firm conviction that a mistake has been made,” id. at 279.


¶10 This court has previously held that “the best interests of the child is the paramount consideration in determining whether a child’s name should be changed.” Hamby v. Jacobson, 769 P.2d 273, 277 (Utah Ct. App. 1989). There are six factors that are relevant for determining the best interests of the child in this regard:

1) the child’s preference in light of the child’s age and experience, 2) the effect of a name change on the development and preservation of the child’s relationship with each parent, 3) the length of time a child has used a name, 4) the difficulties, harassment or embarrassment a child may experience from bearing the present or proposed name, 5) the possibility that a different name may cause insecurity and lack of identity, and 6) the motive or interests of the custodial parent.

Christensen v. Christensen, 941 P.2d 622, 624 (Utah Ct. App. 1997) (cleaned up).

¶11      Velasquez argues that the district court “did not correctly apply the [Hamby] factors in this matter in determining that the [c]hild’s name should be hyphenated and not just Velasquez after his father.” Velasquez asserts that the court improperly “used its belief that the parties have a culture and heritage from Latin or Central America because of the root of their surnames to support its decision.” Essentially, Velasquez argues that there are no facts apparent in the record to support the court’s decision to hyphenate the child’s surname and appears to challenge four of the Hamby factors: “the effect of a name change on the development and preservation of the child’s relationship with each parent”; “the difficulties, harassment or embarrassment a child may experience from bearing the present or proposed name”; “the possibility that a different name may cause insecurity and lack of identity”; and “the motive or interests of the custodial parent.” See id. (cleaned up). We address each factor in turn.

¶12 We first address the district court’s findings related to “the effect of a name change on the development and preservation of the child’s relationship with each parent.” Id. (cleaned up). The district court found that this was the most “important factor” in this case. The court noted that the child lives in “a blended family where the child has a mother and a stepfather that the child lives with,” that “the child has a half sibling” with the last name of the stepfather, and that the child has visitation with Velasquez “outside of the home.” The court explained that, under such circumstances, “the child’s last name becomes somewhat important in helping the child to identify [with] his heritage, who his parents are[,] and to understand the difference between stepfather and natural father.” Thus, the court determined that this factor weighed in favor of “making sure . . . the child does have a last name that helps the child identify with [Velasquez].” Based on these findings, we see no error in the court’s determination that a blended family supports a hyphenated surname, and Velasquez has not persuaded us otherwise.[1]

¶13 Next, we address whether the hyphenated surname will result in “difficulties, harassment or embarrassment” to the child. Id. (cleaned up). Velasquez argues that the child could suffer “possible harassment by not being considered an American by bearing a hyphenated name in the manner of a heritage and ethnicity that neither side of his family affiliates or associates themselves with.”[2] In response to the court’s questions, Chavez and Velasquez made clear that they do not identify with Latin culture, and the court recognized that there are many “blended families” and children “from various backgrounds,” including those “who are of European ancestry,” with hyphenated names, “regardless of where [the practice of hyphenated names] comes from.” Velasquez does not challenge this finding, only arguing that the court improperly based its decision on its “belief that the parties have a culture and heritage from Latin or Central America.” But the court took care to clarify that it “mentioned [the Latin or Hispanic] cultural tradition only to demonstrate that [it] found little basis to find that a hyphenated name is going to cause the child any embarrassment simply because [such a practice] is so prevalent in our community today, regardless of where it comes from.” We cannot say that the court’s determination was against the clear weight of the evidence, nor can we say that we are left with a firm and definite conviction that the court erred in weighing this factor.

¶14 With respect to “insecurity or lack of identity,” Christensen, 941 P.2d at 624, 626, the court again expressed the “need to make sure that the child properly identifies with both parents and particularly, that he understands that [Velasquez] is . . . his father.” Velasquez does not directly challenge this finding, and instead argues that with a hyphenated name the child “will likewise face many throughout his life who think he is not a third-generation American but rather a Latin American, which raises the possibility that it may cause insecurity and lack of identity.” Velasquez did not provide any support for this assertion below or on appeal and relies on mere speculation. We therefore find no error in the court’s findings with respect to this factor.

¶15      Finally, Velasquez argues that the court “overlooked” the “exhibits and evidence indicating [Chavez’s] ulterior motives.” In support of his argument, Velasquez points to Chavez’s answer to his petition. But like the district court, we discern nothing in Chavez’s answer that suggests an ulterior motive. Velasquez also complains that, in proceeding by proffer, the court deprived him of the opportunity to present evidence relating to Chavez’s motive. But both parties agreed at the outset to proceed by proffer. Nevertheless, after the court made its ruling, Velasquez claimed that the record was insufficient for purposes of appeal and asked for an evidentiary hearing. The court denied the request, noting that it had “accepted the facts [he] offered almost verbatim” and took issue only with “[his] suggestion that there was maybe some ill motive on Ms. Chavez’s part.” In fact, Velasquez never proffered any facts relating to Chavez’s motives. Instead, his attorney merely speculated that “[t]here seems to be some motive here that I don’t know” and hoped to find one by asking Chavez “on the stand . . . why in the world she wouldn’t want [the child] to have the last name Velasquez.” The district court acted well within its discretion in denying an evidentiary hearing to conduct such a fishing expedition. Because Velasquez proffered no facts to support his claim of an ulterior motive, the court properly concluded that this factor did not bear on the best interest of the child.

¶16      In light of the district court’s findings with respect to the four factors Velasquez challenges on appeal, we conclude the district court did not err in determining that it was in the child’s best interest to change his surname from Chavez to Velasquez-Chavez.


¶17      The district court’s determination that it was in the child’s best interest to change his surname to Velasquez-Chavez was not against the clear weight of the evidence and does not leave us with a firm and definite conviction that a mistake was made. Accordingly, we affirm.

Utah Family Law, LC | | 801-466-9277


[1] On appeal, Velasquez makes much of the fact that he is “the only male heir in his family” and that the child, as his only issue, “will be the only one who can carry on the surname Velasquez.” Thirty years ago, this court firmly rejected relying on the outdated notion “that a father has a protectible or primary interest in having his children bear his surname.” Hamby v. Jacobson, 769 P.2d 273, 276 (Utah Ct. App. 1989). As this court recognized, “a paternal preference for a child’s surname is improper, just as would be a preference for the maternal surname.” Id. at 277. We fail to see how Velasquez’s own interest in having the child carry on his family name bears on the child’s best interest, which is the “paramount consideration in determining whether a child’s name should be changed.” Id.

[2] Velasquez insinuates that the prospect of a hyphenated surname was generated by the court’s own misguided assumptions about the parties’ ethnicities and cultural backgrounds. But it was the parties themselves who identified a hyphenated surname as an option. Velasquez’s attorney was the first to broach the possibility of a hyphenated name in proffering that Velasquez worried that the child might drop Velasquez and use only Chavez if his surname was hyphenated. And Chavez’s attorney proffered that Chavez was “not opposed to the offer of the child’s last name being Velasquez-dash-Chavez.”

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Have you ever doubted that your child was actually yours and decided not to find out if true?

No, but over the course of my career as a family lawyer I have spoken to several men who suspected they might not be the biological father of children they were raising or had raised to adulthood, but didn’t care to know whether that was really true. It didn’t matter to them. They loved those children as their own regardless of whether there was a blood relationship between them.

This does not mean that one must never look in to the matter. Indeed, if there are medical health and treatment issues for a child that arise and family history or genetic compatibility need to be known for diagnosis and/or treatment purposes, the morally right thing to do may be getting genetic testing done.

But it can be emotionally and psychologically devastating to parents, children, and the family to start digging around into questions of paternity. Proceed with caution.

I’ve seen cases where a mother who had an affair either never bothered to find out about paternity or duped her husband into believing the child was his, then tearing that poor child away from him after divorce claiming, “You aren’t the father, so you have no rights to this child.” Thankfully, the law in my jurisdiction (Utah) has provisions for protecting a man’s relationship with a child (and the child’s relationship with that man) in these circumstances, but to get the benefit of these provisions you have to act on them and ensure your rights are legally recognized and enforced.

Utah Family Law, LC | | 801-466-9277

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Can I use to prove or disprove paternity?

Question: Can I use to order child support?

Answer: I think you’re asking whether you can use a commercial DNA testing service to prove in court that you are or are not the biological father of a child for the purposes of deciding the child support issue, the answer is:

Yes, if the mother and the court agree to accept the test results as accurate. This is unlikely, but possible.

No, if the mother and the court agree to accept the test results as accurate, in which case the court will order you and the child to submit to DNA testing approved by the court.

Utah Family Law, LC | | 801-466-9277

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I had a child from an affair but my husband is raising the baby and is on the birth certificate, can the other man get custody of my child?

I had a child from an affair but my husband is raising the baby and is on the birth certificate, can the other man get custody of my child?

I practice law in Utah, so my answer is based upon Utah law.

To answer your question: Is it possible for the biological father to get custody (as opposed to visitation) of the child? Yes. Is it likely? In my opinion, no, unless it can be proven that you are unfit to have custody of the child.

Here’s a good link: Child Custody and Parent Time

and here are some statutory references:

78B-15-602. Standing to maintain [paternity] proceeding.

Subject to Part 3, Voluntary Declaration of Paternity Act, and Sections 78B-15-607 and 78B-15-609, a proceeding to adjudicate parentage may be maintained by:

(1) the child;

(2) the mother of the child;

(3) a man whose paternity of the child is to be adjudicated;

(4) the support-enforcement agency or other governmental agency authorized by other law;

(5) an authorized adoption agency or licensed child-placing agency;

(6) a representative authorized by law to act for an individual who would otherwise be entitled to maintain a proceeding but who is deceased, incapacitated, or a minor; or

(7) an intended parent under Part 8, Gestational Agreement.

78B-15-607. Limitation — Child having presumed father.

(1) Paternity of a child conceived or born during a marriage with a presumed father, as described in Subsection 78B-15-204(1)(a), (b), or (c), may be raised by the presumed father, the mother, or a support enforcement agency at any time before filing an action for divorce or in the pleadings at the time of the divorce of the parents.

(a) If the issue is raised prior to the adjudication, genetic testing may be ordered by the tribunal in accordance with Section 78B-15-608. Failure of the mother of the child to appear for testing may result in an order allowing a motherless calculation of paternity. Failure of the mother to make the child available may not result in a determination that the presumed father is not the father, but shall allow for appropriate proceedings to compel the cooperation of the mother. If the question of paternity has been raised in the pleadings in a divorce and the tribunal addresses the issue and enters an order, the parties are estopped from raising the issue again, and the order of the tribunal may not be challenged on the basis of material mistake of fact.

(b) If the presumed father seeks to rebut the presumption of paternity, then denial of a motion seeking an order for genetic testing or a decision to disregard genetic test results shall be based on a preponderance of the evidence.

(c) If the mother seeks to rebut the presumption of paternity, the mother has the burden to show by a preponderance of the evidence that it would be in the best interests of the child to disestablish the parent-child relationship.

(d) If a support enforcement agency seeks to rebut the presumption of parentage and the presumptive parent opposes the rebuttal, the agency’s request shall be denied. Otherwise, the denial of the agency’s motion seeking an order for genetic testing or a decision to disregard genetic test results shall be based on a preponderance of the evidence, taking into account the best interests of the child.

(2) For the presumption outside of marriage described in Subsection 78B-15-204(1)(d), the presumption may be rebutted at any time if the tribunal determines that the presumed father and the mother of the child neither cohabited nor engaged in sexual intercourse with each other during the probable time of conception.

(3) The presumption may be rebutted by:

(a) genetic test results that exclude the presumed father;

(b) genetic test results that rebuttably identify another man as the father in accordance with Section 78B-15-505;

(c) evidence that the presumed father and the mother of the child neither cohabited nor engaged in sexual intercourse with each other during the probable time of conception; or

(d) an adjudication under this part.

(4) There is no presumption to rebut if the presumed father was properly served and there has been a final adjudication of the issue.

78B-15-611. Proceeding before birth.

A proceeding to determine parentage may be commenced before the birth of the child, but may not be concluded until after the birth of the child. The following actions may be taken before the birth of the child:

(1) service of process;

(2) discovery; and

(3) except as prohibited by Section 78B-15-502, collection of specimens for genetic testing.

78B-15–616. Temporary order.

(1) In a proceeding under this part, the tribunal shall issue a temporary order for support of a child if the order is appropriate and the individual ordered to pay support is:

(a) a presumed father of the child;

(b) petitioning to have his paternity adjudicated;

(c) identified as the father through genetic testing under Section 78B-15-505;

(d) an alleged father who has failed to submit to genetic testing;

(e) shown by clear and convincing evidence to be the father of the child; or

(f) the mother of the child.

(2) A temporary tribunal order may include provisions for custody and visitation as provided by other laws of this state.

78B-15-617. Rules for adjudication of paternity.

The tribunal shall apply the following rules to adjudicate the paternity of a child:

(1) The paternity of a child having a presumed, declarant, or adjudicated father may be disproved only by admissible results of genetic testing excluding that man as the father of the child or identifying another man as the father of the child.

(2) Unless the results of genetic testing are admitted to rebut other results of genetic testing, a man identified as the father of a child under Section 78B-15-505 must be adjudicated the father of the child, unless an exception is granted under Section 78B-15-608.

(3) If the tribunal finds that genetic testing under Section 78B-15-505 neither identifies nor excludes a man as the father of a child, the tribunal may not dismiss the proceeding. In that event, the tribunal shall order further testing.

(4) Unless the results of genetic testing are admitted to rebut other results of genetic testing, a man properly excluded as the father of a child by genetic testing must be adjudicated not to be the father of the child.

Utah Family Law, LC | | 801-466-9277

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