BLANK

Category: Physical Custody

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

2024 UT App 84 – Corn v. Groce

THE UTAH COURT OF APPEALS

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

Opinion No. 20220526-CA Filed May 31, 2024

Second District Court, Farmington Department

The Honorable Ronald G. Russell No. 194700657

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

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

CHRISTIANSEN FORSTER, Judge:

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

BACKGROUND

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ISSUES AND STANDARDS OF REVIEW

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

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

ANALYSIS

I. Custody and Parent-Time

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

A.        Statutory Standard for Modification of a Custody Order

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

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

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

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

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

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

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

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

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

B.        Modification of Parent-Time

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

1.         Allegations of Changed Circumstances

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

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

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

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

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

2.         Stipulated Order

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

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

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

3.         Temporary Order

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

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

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

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

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

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

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

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

II. Child Support

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

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

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

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

CONCLUSION

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

¶51 Affirmed.


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

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

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

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

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

2024 UT App 91 – In re R.D. – Juvenile Court Jurisdiction – Parental Presumption

2024 UT App 91 – In re R.D.

THE UTAH COURT OF APPEALS

IN THE INTEREST OF R.D. AND Z.J., PERSONS UNDER EIGHTEEN YEARS OF AGE.

K.J., Appellant, v. N.J. AND A.J., Appellees.

Opinion No. 20220798-CA Filed June 27, 2024, Second District Juvenile Court, Ogden Department

The Honorable Debra J. Jensen No. 1174368

K. Andrew Fitzgerald, Attorney for Appellant, Jason B. Richards, Attorney for Appellees Martha Pierce, Guardian ad Litem

JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1 A mother and her children were in the company of the mother’s boyfriend as he allegedly robbed a business. The children had recently been adjudicated as abused by their father, who was living with the mother at the time of the abusive events, and were thus under the jurisdiction of the juvenile court. Fearing that this latest incident might result in the children being placed in foster care, the mother sent the children to her parents in Texas. The children have been in Texas ever since. After the children moved in with them, the grandparents intervened in the juvenile court case and petitioned the court for guardianship and custody, which the court granted. The mother now appeals, asserting, in addition to other claims of error and ineffective assistance of counsel, that the juvenile court lacked jurisdiction to grant the guardianship and custody. We affirm on all grounds.

BACKGROUND[1]

¶2 K.J. (Mother) has two children (the Children) by the same man (Father)—a girl born in December 2015 and a boy born in January 2018.

¶3 In October 2018, law enforcement was dispatched to a disturbance at the family home. Father was intoxicated, had become “destructive,” and was “not making much sense.” Father transported to the hospital. Within a few days of this incident, Mother sent the Children to live with her parents, N.J. and A.J. (Grandparents), in Texas, where they stayed about three months.

¶4 In February 2019, law enforcement was again dispatched to the family home. Father was again found intoxicated, and he had locked Mother out of the residence. It was reported that Father would “jump on” Mother and “shake her.”

¶5 In April 2019, law enforcement responded to a call involving aggravated assault at the family home. Father was yet again intoxicated, and he had pushed Mother into a wall of their apartment, an action that knocked her to the ground. Father had then grasped Mother from behind and had begun hitting her, giving her a bloody nose. Father had also choked Mother, causing her to nearly lose consciousness. The Children were present during this assault.

¶6 A few days after this incident, having received a referral regarding the Children, the Utah Division of Child and Family Services (DCFS) initiated a home visit. Mother admitted that law enforcement had been called to the home due to Father’s “drinking and getting out of control.” But she “minimized the domestic violence incidents,” noting that that she could usually get the Children to bed and sleeping so they would not hear any of the parents’ arguments. Mother asked the DCFS caseworker to tell Father that she still wanted “to be with him,” but the caseworker advised Mother that doing so would be a violation of a no contact order that was in place. And as the caseworker was leaving the home, Mother said, “So what [you are] saying is the best thing I can do is go to court next week and ask for the no contact order to be dropped?” The caseworker responded that was not what was being communicated, and she discussed with Mother “the concerns of her failure to protect the [C]hildren from the ongoing domestic violence.” Mother responded that she just wanted to speak with Father.

¶7 About a week later, DCFS spoke with Father, who was at this point incarcerated. He admitted that there had been a “scuffle” in which he had “knocked” Mother in the nose but claimed there had only been one physical altercation between the two of them.

¶8        In May 2019, DCFS initiated proceedings, pursuant to Utah Code section 80-3-201(1), by filing a petition for protective supervision services (PSS petition) that alleged the Children were abused, neglected, or dependent.[2] Mother and Father both entered rule 34(e) pleas in response to the allegations contained in the PSS petition. See Utah R. Juv. P. 34(e) (“A respondent may answer by admitting or denying the specific allegations of the petition, or by declining to admit or deny the allegations. Allegations not specifically denied by a respondent shall be deemed true.”).

¶9 In July 2019, the juvenile court determined that the Children were subject to the jurisdiction of the juvenile court and adjudicated them “abused children” by Father in that they “suffered non-accidental harm or threatened harm” when Father “committed domestic violence” in their presence by assaulting Mother. Accordingly, the court appointed a guardian ad litem (GAL) to represent the best interests of the Children; ordered DCFS to provide protective supervision services; ordered Mother and Father to comply with a family plan that included mental health assessments, a domestic violence assessment, completion of a parenting course, and maintenance of stable housing and income; and ordered Father to complete drug and alcohol assessment and treatment. The juvenile court further ordered Mother and Father to “have no contact with each other in the presence” of the Children.

¶10 Notably, the court made a custody determination at this juncture in two respects. First, at least impliedly, it determined that the Children would remain in the custody of Mother, albeit subject to the jurisdiction of the court pursuant to the provisions of the family plan. Second, it placed severe restrictions on Father’s parent-time with the Children. Specifically, the court ordered that Father “shall not return to the family home until further order” of the court. And the court specified that “[v]isitation between [Father] and the [C]hildren shall be reasonable and supervised as approved by the [GAL], until further order of the [c]ourt.”

¶11 Not long after the adjudication, Mother began a relationship with another man (Boyfriend). This relationship too was marked by incidents of domestic violence. In one instance, Boyfriend called police claiming that Mother tried to hit him with her car, while a witness said it was Boyfriend who jumped on the hood of Mother’s car. But a more serious incident—at least insofar as it concerned the safety of the Children—happened when Boyfriend allegedly robbed an oil-change shop while Mother and the Children were with him in Mother’s car. This prompted Mother, in October 2019, to arrange for the Children to go to Texas to live with Grandparents again. Mother was apparently “afraid that the [Children] would go to foster care if [authorities] thought [she] was involved in the robbery.” The Children have been in Texas ever since.

¶12 In June 2020, Grandparents moved to intervene in the Children’s welfare action and petitioned the juvenile court for temporary child custody. The court granted the motion and awarded them temporary custody. In an October 2020 hearing, the court changed the Children’s permanency goal to permanent custody with a relative and terminated reunification services with Mother and Father. Also in October 2020, Grandparents petitioned for permanent custody and guardianship, which was supported by the GAL. Mother and Father opposed

Grandparents’ petition. As relevant here, Mother argued that there had been a substantial and material change in her circumstances and requested the Children be returned to her custody. In December 2020, the court released DCFS from the case.

¶13 In August 2022, the juvenile court entered detailed findings, concluding that Mother had not changed her circumstances and that it was necessary for the welfare of the Children that Grandparents be awarded permanent custody and guardianship.[3]

¶14      Mother appeals.

ISSUES AND STANDARDS OF REVIEW

¶15 Mother first contends that the juvenile court lacked jurisdiction under the Utah Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), see generally Utah Code §§ 78B13-101 to -318, to enter custody orders in favor of Grandparents. Whether a court has jurisdiction is a matter of law reviewed for correctness. In re adoption of B.B., 2017 UT 59, ¶ 16, 417 P.3d 1.

¶16 Next, Mother argues that the juvenile court violated the Interstate Compact on the Placement of Children (ICPC), see generally Utah Code §§ 80-2-901 to -910, by failing to ensure that Grandparents were fit for custody of the Children prior to placement. “The proper interpretation and application of a statute is a question of law which we review for correctness.” In re adoption of B.H., 2019 UT App 103, ¶ 9, 447 P.3d 110 (cleaned up), aff’d, 2020 UT 64, 474 P.3d 981.

¶17 Mother next asserts that her trial counsel (Counsel) was ineffective for failing to call her therapist to testify on her behalf regarding her current mental health status. “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.” In re C.M.R., 2020 UT App 114, ¶ 11, 473 P.3d 184 (cleaned up).

¶18 Mother lastly maintains that the juvenile court erred in applying an incorrect standard of proof, arguing that the custody dispute should have been governed by the parental presumption. The application of the correct standard of proof, including the juvenile court’s “interpretation of the parental presumption, presents a legal issue, which we review for correctness.” In re A.T., 2020 UT App 50, ¶ 11, 464 P.3d 173.

ANALYSIS

I. Jurisdiction

¶19 Mother argues that the juvenile court lacked jurisdiction to consider Grandparents’ custody petition because the Children had been residing in Texas for more than six months prior to the petition. Mother’s argument is grounded in the UCCJEA, which states, in pertinent part, that

a court of this state has jurisdiction to make an initial child custody determination only if . . . this state is the home state of the child on the date of the commencement of the proceeding[] or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.

Utah Code § 78B-13-201(1)(a). In developing this argument, Mother points to the definition of a child custody proceeding found in the Utah Code:

“Child custody proceeding” means a proceeding in which legal custody, physical custody, or parenttime with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear.

Id. § 78B-13-102(4).

¶20 From these statutory provisions, Mother argues that the PSS petition filed by DCFS did not indicate that “legal custody” or “physical custody” of the Children was at issue, asserting “the PSS petition was arguably not a ‘child custody proceeding’ for purposes” of the UCCJEA. Mother further argues that because the Children had been in Texas for more than six months by the time Grandparents petitioned for custody in June and August 2020, “Texas was the ‘home state’ of the Children under” the UCCJEA and Utah did not have jurisdiction to consider Grandparents’ custody petition.

¶21 Mother is mistaken. The statutory language makes it clear that the Utah juvenile court had jurisdiction over the custody petition. Under the plain language of the UCCJEA, Utah was the “home state” of the Children “on the date of the commencement of the proceeding” that determined child custody. See id. § 78B-13201(1)(a) (“[A] court of this state has jurisdiction to make an initial child custody determination only if . . . this state is the home state of the child on the date of the commencement of the proceeding . . . .”). And a “child custody proceeding” includes “a proceeding in which . . . parent-time with respect to a child is an issue.” See id. § 78B-13-102(4) (emphasis added).

¶22 Here, the “child custody proceeding” commenced when the juvenile court adjudicated the PSS petition. While it is true that the PSS petition—filed in May 2019 when the Children were living in Utah—did not mention legal custody, physical custody, or parent-time, it did recount three incidents of domestic violence, one of which was committed in the presence of the Children, perpetrated by Father. Based on these allegations, DCFS asked the juvenile court to adjudicate the Children “abused, neglected and/or dependent” because they had “suffered non-accidental harm or threatened harm . . . [w]hen [Father] committed domestic violence in the presence of the [C]hildren by hitting [Mother,] causing her a bloody nose, choking her, and knocking her to the ground.”

¶23 In adjudicating the PSS petition, the court specifically found that the Children were “abused” by Father in that the Children had “suffered non-accidental harm or threatened harm” when Father “committed domestic violence” in their presence.

And, as it was allowed to do given the finding of abuse,[4] the juvenile court also made a “custody” determination—at least according to the terms of the UCCJEA—when it limited Father’s parent-time. Specifically, the juvenile court ordered that Father “shall not return to the family home until further order” of the court. And it further specified that “[v]isitation between [Father] and the [C]hildren shall be reasonable and supervised as approved by [DCFS] and the [GAL], until further order of the [c]ourt.”

¶24 The Utah juvenile court obtained jurisdiction as soon as it entertained the PSS petition because two conditions were met. First, the PSS petition resulted in a “proceeding for . . . abuse . . . and protection from domestic violence.” Id. § 78B-13-102(4). Second, in that proceeding, “parent-time with respect to [the Children was] an issue.” Id. Accordingly, under the terms of the UCCJEA, the PSS petition gave rise to a child custody determination because parent-time—specifically with respect to Father—was “an issue.” Id. And the juvenile court had jurisdiction from that time on because Utah was the “home state of the [Children] on the date of the commencement” of the PSS petition and resulting proceeding. See id. § 78B-13-201(1)(a).

¶25 Once jurisdiction attached at the commencement of proceedings by the filing of the PSS petition, it remained intact. Mother argues the opposite—that while Utah may have had jurisdiction of the initial matters in the PSS petition, jurisdiction switched to Texas for the custody matters related to

Grandparents. We rejected a similar argument in In re A.J.B., 2017 UT App 237, 414 P.3d 552, where we stated that “once a state makes an initial child custody determination, that state obtains exclusive, continuing jurisdiction, which exists until that state relinquishes or is divested of its exclusive jurisdiction in accordance with the UCCJEA or a similar act.” Id. ¶ 16 (cleaned up). Because the juvenile court never relinquished its jurisdiction over the case here, “whether pursuant to section 207 of the UCCJEA or any other statute,” it retained jurisdiction over the Children. See id.see also Utah Code § 78B-13-207(1) (“A court of this state that has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.”).

¶26 In sum, the Utah juvenile court’s jurisdiction commenced on the filing of the PSS petition—which alleged abuse, neglect, and dependency due to domestic violence—and resulted in limitations on Father’s parent-time. Accordingly, Mother’s first claim of error fails.

II. ICPC Violation

¶27 Mother next contends that the juvenile court also violated the ICPC by failing to ensure that Grandparents were fit for custody before placing the Children with them.[5]

¶28 The purpose of the ICPC is to ensure that “[e]ach child requiring placement” receives “the maximum opportunity to be placed in a suitable environment and with persons or institutions having appropriate qualifications and facilities to provide necessary and desirable care.” Utah Code § 80-2-905 art. I(1). The ICPC also allows the “appropriate authorities in a state where a child is to be placed [to] have full opportunity to ascertain the circumstances of the proposed placement, thereby promoting full compliance with applicable requirements for the protection of the child.” Id. § 80-2-905 art. I(2). Moreover, the ICPC ensures that the “proper authorities of the state from which the placement is made may obtain the most complete information on the basis of which to evaluate a projected placement before it is made.” Id. § 80-2-905 art. I(3).

¶29 By its own terms, the ICPC is oriented toward facilitating interstate placements in the context of anticipated adoptions coordinated by state authorities or private agencies, a point that it makes explicitly clear:

This compact shall not apply to . . . [t]he sending or bringing of a child into a receiving state by [the child’s] parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt, or . . . guardian and leaving the child with any such relative or nonagency guardian in the receiving state.

Id. § 80-2-905 art. VIII(1). Thus, the ICPC exempts parents from the requirement of ascertaining the suitability of the placement if the parent is sending the child to one of the identified relatives or guardians.

¶30 Here, Mother is the one who sent the Children to stay with Grandparents, a point about which there is no disagreement. Mother sent the Children to live with Grandparents after a criminal episode allegedly committed by Boyfriend in the presence of the Children because she was concerned that her alleged involvement in the incident might lead to the placement of the Children in foster care. Thus, the sending of the Children to live with Grandparents was voluntarily and directly done by Mother while the Children were in her custody. It was only later, after Grandparents petitioned for custody due to Mother’s persistent instability and ongoing involvement in relationships plagued by domestic violence, that the juvenile court entered custody orders for Grandparents. And by this time, the Children were physically living in Texas.

¶31 The provisions of the ICPC that work to ensure the suitability of the placement to which a child is sent simply do not apply here because Mother herself sent the Children to live with Grandparents long before they petitioned for custody. Accordingly, Mother’s second claim of error fails.

III. Ineffective Assistance

¶32 Mother’s next claim is that she received ineffective assistance when Counsel failed to call her therapist to testify “as to her current mental health status in terms of her ability to parent the Children effectively.” Mother argues that having her therapist testify would have shown that “she was actively engaged in and had never stopped working on her mental health issues/concerns,” thus allowing the juvenile court “to make better informed decisions” about her parenting abilities.

¶33 Parents are entitled to the effective assistance of counsel in child welfare proceedings. See In re. E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994) (recognizing an implicit guarantee of effective assistance of counsel in a proceeding to terminate the fundamental right of parenting one’s children); see also Utah Code § 78B-22-201(1)(b). “To prevail on an ineffective assistance of counsel claim, Mother must show that (1) Counsel’s performance was deficient and (2) this deficient performance prejudiced the defense. Because failure to establish either prong of the test is fatal to an ineffective assistance of counsel claim, we are free to address Mother’s claims under either prong.” In re C.M.R., 2020 UT App

114, ¶ 19, 473 P.3d 184 (cleaned up). For the deficiency prong, Mother must demonstrate “that, considering the record as a whole, Counsel’s performance was objectively unreasonable.” In re R.G., 2023 UT App 114, ¶ 16, 537 P.3d 627. “In other words, Mother must show that . . . Counsel rendered a deficient performance in some demonstrable manner, and that Counsel’s performance fell below an objective standard of reasonable professional judgment.” In re C.M.R., 2020 UT App 114, ¶ 20 (cleaned up).

¶34 Here, Counsel had an easily discernable strategic reason to refrain from calling Mother’s therapist to report on her current mental health progress. The record indicates that the juvenile court made findings that Mother had been untruthful throughout the proceedings and was not taking her mental health treatment seriously. Specifically, the court found that Mother (1) had not “internalized her treatment”; (2) was not “truthful with [DCFS], her treatment providers, her parents, or the [c]ourt”; (3) did not disclose domestic violence incidents involving Father; (4) claimed that she “was fully engaging in her individual counseling and being honest with her therapist” while also admitting through her testimony that she was “not fully honest [with her therapist] about the extent of her contact” with Boyfriend; and (5) was “vague” in stating that she did not know if she was present when Boyfriend committed the robbery with the Children in the car. The court also stated that “[b]ecause of [Mother’s] dishonesty to the [c]ourt for nearly two years,” it had no way of knowing whether Mother was currently in contact with Boyfriend. And it concluded, “She has continued to violate [c]ourt orders, . . . and she continues to not understand the dangerous situation she puts [the Children] in when bringing people around them with violence and drug use problems.”

¶35 Knowing of Mother’s serious credibility problems— problems obviously well known to the court—Counsel had a sound strategic reason not to call her current therapist as a witness. Mother’s ongoing pattern of lying, not following court orders, and failing to internalize her therapy would have given Counsel little reason to suspect that anything had changed with respect to her behavior. Counsel might well have feared that calling her current therapist would have, at best, done nothing to help Mother’s case or, more likely, compounded the honesty concerns that already plagued her.

¶36 Moreover, Counsel would have legitimate concerns about what might be revealed on cross-examination. While limiting exposure of inconsistencies that would exacerbate Mother’s credibility issues might be possible on direct examination, Counsel would have no such control over the direction of questioning on cross-examination, where opposing counsel would certainly take the opportunity to highlight Mother’s already glaring credibility issues.

¶37 Because Counsel had a strategically reasonable basis for not calling the therapist as a witness, Mother’s ineffective assistance claim necessarily fails.

IV. Burden of Proof

¶38 Mother’s final assertion is that the juvenile court applied the incorrect standard for the post-adjudication hearing. More specifically, Mother argues that the court “applied the wrong standard by requiring proof” from Grandparents of what was necessary for the welfare of the children, see Utah Code § 78A-6357(4)(a), rather than considering the more demanding parentalpresumption standard. The parental presumption means that “where one party to [a custody dispute] is a nonparent, there is a presumption in favor of the natural parent, even if an ordinary best-interest inquiry would come out in favor of the nonparent.” In re A.T., 2020 UT App 50, ¶ 12, 464 P.3d 173 (cleaned up).

Parental Presumption

¶39 Mother was not entitled to the parental presumption. Our supreme court has expressly stated that “the parental presumption does not apply . . . to cases brought before the juvenile court on abuse, neglect, or dependency petitions. In such cases, the petition alone is sufficient to overcome the parental presumption for purposes of adjudicating the allegations in the petition.” In re K.F., 2009 UT 4, ¶ 69, 201 P.3d 985 (cleaned up); accord In re A.S.A., 2012 UT App 151, ¶ 3, 279 P.3d 419. And “in cases in which abuse, neglect, or dependency is established, the usual parental presumption that prevents the State (a nonparent) from intervening in parental decision-making no longer applies, and the State (supervised by the juvenile court) may take custody of children, even over their parents’ objections, and place them appropriately.” In re A.T., 2020 UT App 50, ¶ 14.

¶40 Here, not only had DCFS filed a petition alleging abuse, neglect, or dependency, but the juvenile court had actually adjudicated the Children as abused. This court long ago observed that “the legislature has determined, as evidenced by the statutory scheme, that in cases involving a petition alleging the abuse, neglect, or dependency of a child, the parental presumption does not apply. . . . The legislature has determined that abuse or neglect of a child at the hands of a parent, or dependency of a child, is incompatible with the presumption that the child is best served by being in the parent’s custody.” In re J.M.V., 958 P.2d 943, 948 (Utah Ct. App. 1998). Since the Children had been so “adjudicated and the court had continuing jurisdiction over them, it was also within the court’s dispositional authority to vest legal custody” in DCFS or in another appropriate person. See In re S.F., 2012 UT App 10, ¶ 44, 268 P.3d 831 (cleaned up); see also Utah Code § 80-3-405(1)– (2) (“Upon adjudication . . . , [t]he juvenile court may vest custody of an abused, neglected, or dependent minor in [DCFS] or any other appropriate person . . . .”). Thus, Mother’s parental presumption didn’t apply because the juvenile court exercised continuing jurisdiction over the Children after the adjudication, which allowed the court “to impose any of the dispositional choices available to it.” See In re M.J., 2011 UT App 398, ¶ 56, 266 P.3d 850; see also In re S.A., 2016 UT App 191, ¶ 6, 382 P.3d 642 (“The adjudication of a child as dependent, neglected, or abused forms the basis for juvenile court jurisdiction, thereby making all of the dispositional options . . . available to that court.”).

¶41 In sum, after the juvenile court’s adjudication pursuant to Mother’s entry of a rule 34(e) plea in response to the allegations of abuse, neglect, or dependency contained in the PSS petition, Mother was not entitled to invoke the parental presumption.

Burden of Proof

¶42 Even deprived of the parental presumption, Mother argues that the juvenile court held her “to a higher standard than required under the rules for her to modify a temporary order of custody,” thereby shifting the burden to her rather than keeping it with Grandparents. It appears that Mother is arguing that the juvenile court erred not in applying the wrong burden of proof to Grandparents—namely “by clear and convincing evidence”—but that it applied that same standard to her as well. But because Mother was not entitled to the parental presumption, the question becomes what standard of proof the juvenile court should have applied to Mother’s petition to modify or restore custody.

¶43 Mother’s petition to modify or restore custody was considered along with Grandparents’ petition for custody. The juvenile court recognized that modifications to custodial orders are generally “treated as disposition hearings and subject to the preponderance of the evidence standard.” However, because DCFS was no longer a party to this case at this point, the juvenile court determined that it was “more similar to a custody dispute between a parent and non-parent.” And given this circumstance, the court concluded that the dispute “should proceed at the clear and convincing standard of proof for all parties.”

¶44 It appears that the juvenile court applied the wrong standard of proof to Mother’s petition to modify or restore custody. Modifications of an interim order, which was the procedural situation here, are governed by rule 47 of the Utah Rules of Juvenile Procedure. See Utah R. Juv. P. 47(b)(2)–(3), (c) (providing the process for modification of prior dispositional orders). And the burden of proof employed in imposing “any of the dispositional choices” available to the juvenile court, In re M.J., 2011 UT App 398, ¶ 56, is the preponderance of the evidence standard, cf. Utah R. Juv. P. 41(c) (“[M]atters regarding child custody, support, and visitation certified by the district court to the juvenile court must be proved by a preponderance of the evidence . . . .”).

¶45 While Mother may be right that the clear and convincing standard should not have been applied to her petition to modify, she has made no showing that an application of the correct standard of proof—preponderance of the evidence—would have resulted in a better outcome. Thus, any error of the juvenile court as to the standard of proof has not been shown to have prejudiced Mother. Cf. In re L.B., 2015 UT App 21, ¶ 6, 343 P.3d 332 (per curiam) (“Harmless error is an error that is sufficiently inconsequential that there is no reasonable likelihood that it affected the outcome of the proceedings.” (cleaned up)); accord In re A.M., 2009 UT App 118, ¶ 21, 208 P.3d 1058.

¶46 First, Mother makes no showing that Grandparents failed to demonstrate that it was in the Children’s best interest to award them permanent custody and guardianship. Thus, the application of the wrong standard of proof—which was more rigorous in any case—was largely irrelevant to Grandparents’ ability to prove their case.

¶47 Moreover, the juvenile court entered extensive factual findings. Based on these findings, the court concluded that Mother had “not changed her circumstances,” making it unnecessary to conduct an examination of the Children’s best interests with regard to Mother’s petition to modify custody. Such an examination was unnecessary because a change of circumstance is necessary to restore custody to a parent whose legal custody has been transferred by the juvenile court. See Utah Code § 78A-6-357(3)(b) (“A parent or guardian may only petition the juvenile court [for restoration of custody] on the ground that a change of circumstances has occurred that requires modification or revocation in the best interest of the child or the public.”). Mother has not challenged the court’s finding that she has not changed her circumstances. Nor has she made any attempt to show how the court’s application of a less rigorous burden of proof would have made a difference in its determination that a consideration of the Children’s best interests was unnecessary given the lack of the change in circumstances.

¶48 Because Mother has not demonstrated how this alleged error regarding the increased burden of proof prejudiced her, this claim fails.

CONCLUSION

¶49 Mother’s challenge to the jurisdiction of the Utah juvenile court fails because the court’s jurisdiction commenced with the filing of the PSS petition, which resulted in limitations on Father’s parent-time and the continued jurisdiction of the juvenile court. Mother’s claim that the juvenile court violated the ICPC fails because she voluntarily sent the Children to live with Grandparents. Mother’s ineffective assistance claim falls short for lack of deficient performance. And the parental presumption was unavailable to Mother owing to the juvenile court’s jurisdiction over the Children, so Mother has not demonstrated prejudice on her burden-of-proof claim.

¶50      Affirmed.

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


[1] We limit our discussion to “those background facts necessary to resolve the issues on appeal.” Blosch v. Natixis Real Estate Cap., Inc., 2013 UT App 214, ¶ 2 n.2, 311 P.3d 1042 (cleaned up). And we recite the evidence in a light most favorable to the juvenile court’s findings. See In re adoption of B.H., 2020 UT 64, n.2, 474 P.3d 981.

[2] While courts and practitioners frequently refer to a petition for protective supervision services, see, e.g., In re M.J., 2011 UT App 398, ¶ 2, 266 P.3d 850; In re T.M., 2003 UT App 191, ¶ 2, 73 P.3d 959, the term does not formally exist in the juvenile code. Instead, Utah Code section 80-3-201(1) states that “any interested person may file an abuse, neglect, or dependency petition.” The PSS petition filed by DCFS in this case referenced section 78A-6-304, which has since been renumbered and amended as section 80-3201. See Act of Mar. 3, 2021, ch. 261, § 64, 2021 Utah Laws 1752, 1799–800.

[3] The court found that while Father had met the burden of proof showing a change in circumstances, a change of custody was nevertheless in the best interest of the Children.

[4] A custody determination is implicit in a petition asking a juvenile court for a finding of abuse, which is precisely what DCFS presented here. The statute does not require a talismanic invocation of the words “custody” or “parent-time,” because it is presumed that once a finding of abuse is reached, custody or parent-time will naturally be addressed. Indeed, section 80-3-405 states that the “juvenile court may vest custody of an abused, neglected, or dependent minor in [DCFS] or any other appropriate person.” See Utah Code § 80-3-405(1)–(2).

Moreover, that DCFS did not mention “custody” or “parent-time” in the PSS petition did not deprive the juvenile court of jurisdiction, because the petition is not where the issue (continued…) must arise for a proceeding to become a “[c]hild custody proceeding.” See id. § 78B-13-102(4). The statute merely says that a child custody proceeding “includes a proceeding for,” among other things, “neglect, abuse, dependency,” or “protection from domestic violence, in which the issue” of “legal custody, physical custody, or parent-time with respect to a child . . . . may appear.”

Id.

[5] Grandparents argue that this challenge is unpreserved, an assertion that has some merit. However, “if the merits of a claim can easily be resolved in favor of the party asserting that the claim was not preserved, we readily may opt to do so without addressing preservation.” State v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415 (cleaned up). “[B]ecause we can easily dispose of” Mother’s ICPC claim on its “merits, we choose to exercise our prerogative to simply assume that [it was] preserved and proceed to consideration of the merits.” Id.

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

How Often Do Mothers Get Full Custody of Their Children After Divorce?

Always? No.

Frequently? Yes.

Usually. Yes.

Whether they deserve it or not? Usually, yes.

Are mothers awarded custody of children as much as they used to be a generation or two ago? No?

So, what’s going on?

Volumes have been written on the subject of how custody of children should be awarded to divorced or separated/unmarried parents, but to summarize the history of how that question has been resolved:

There was a time when fathers were awarded custody of children back when men controlled all the property and wealth and when men were either more self-sufficient than women or were paid far more than women. The idea then was essentially an economic one: award custody to the parent who was in the better position to support the children financially.

Then the pendulum swung the other way with the “tender years doctrine,” defined in Black’s Law Dictionary as follows:

Black’s Law Dictionary (11th ed. 2019), tender-years doctrine

tender-years doctrine (1954) Family law. The doctrine holding that custody of very young children (usu. five years of age and younger) should generally be awarded to the mother in a divorce unless she is found to be unfit. • This doctrine has been rejected in most states and replaced by a presumption of joint custody. See MATERNAL-PREFERENCE DOCTRINE; PRIMARY-CAREGIVER DOCTRINE.

You’ll note that in the Black’s Law Dictionary definition quoted above that it states, “[The tender-years doctrine] has been rejected in most states and replaced [nowadays] by a presumption of joint custody.” That’s not entirely true.

While the trend is moving toward a presumption that, where practicable, parents should exercise joint physical custody of children don’t be fooled into believing this trend is sweeping the nation like wildfire. The pace is slower than that. The trend is undeniable, but some jurisdictions have been quicker to adopt the joint physical custody presumption than others. Some jurisdictions are more resistant to adopting the presumption than others. Even in jurisdictions that claim to adopt a presumption of joint custody, the actual practice in the courts is often starkly at odds with law on books.

This means that while it is truly easier than it’s been in more than a hundred years for fathers to obtain an award of joint custody of their children, it’s by no means guaranteed. The tender-years/maternal-preference doctrine is deeply entrenched in the culture, as is the belief that men as naturally inferior parents. Fit, loving, devoted fathers who want to be there for their children as much as possible still generally (generally, not in all cases) have a very difficult time persuading courts that joint custody is not only in the best interest of the children but in the best interests of the family members collectively. If you are a father hoping to be awarded joint custody of your children, be prepared to fight ten times harder for it that you imagine. I mean it. No, really, I’m not exaggerating. I mean it. Forewarned is forearmed.

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

Eric Johnson’s answer to How often do mothers get full custody of their children after divorce? – Quora

Tags: , , , , , , , , ,

What Would I Have Done Differently If I Were In My Parents’ Shoes? By Braxton Mounteer, Legal Assistant

Like many people, I am a child of divorce. While I may not understand every reason why my parents chose to end their marriage (I was too young to understand at the time), I can look back on how I was raised, both pre- and post-divorce, and see what worked and what only caused problems. Hindsight is 20/20, after all.

I know that I cannot go back in time to do things differently, but if my experience might help divorcing parents who are contemplating these issues and help them avoid the difficulties and disappointments I encountered, this post will be among my best.

One of the things that affected me the most was how my divorced parents handled the matter of my clothes. Having two sets of similarly styled clothes might not have mattered to some people, but it always felt like a continental divide to me. I am the same person at both homes, but no matter what I did, I was never comfortable in either set of clothes. They always felt like I was borrowing clothing from a twin that I had just missed in passing.

My parents lived close enough that during major holidays, we did mid-day drop offs. On paper, this meant that I got two Christmases (and other holidays) on the same day. In reality, I was always late to the party. Always too early or too late to enjoy the holiday.

I love both my parents, but two Christmases gets old very quickly. I was surprised to find that as a child I had a limited amount of avarice during that particular holiday. Both parents want child-like wonder, and it always felt forced to drum up that much emotion for each holiday.

What I would have done differently (and what I did do when I was older) is use a suitcase. I combined both sets of clothing and made one set that I used all the time. It wasn’t the best solution to the problem, but it did help. To fix the holiday problem, I would adjust the schedule so that the holiday wouldn’t have been so taxing for my siblings and me.

Ultimately, the worst issues of my parents divorce are not something that I could have fixed as a child. For those issues I wish my parents would have come to me and my siblings together (parents together talking with their children together), to learn what our needs were and how they could meet them as best they could under the circumstances.

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

Tags: , , , , , ,

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

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

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

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

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

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

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

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

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

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

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


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

Tags: , , , , , ,

2024 UT App 47 – In re K.J. – removal, shelter hearing

2024 UT App 47 – In re K.J.

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF K.J., M.J., AND K.J.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

D.F. AND K.J., Appellants, v. STATE OF UTAH, Appellee.

Opinion Nos. 20230102-CA and 20230103-CA Filed April 4, 2024

First District Juvenile Court, Logan Department The Honorable Bryan P. Galloway No. 1218130

Alexandra Mareschal, Kirstin Norman, and Jason B. Richards, Attorneys for Appellant D.F. Emily Adams, Attorney for Appellant K.J. Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee Martha Pierce, Guardian ad Litem

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES GREGORY K. ORME and JOHN D. LUTHY concurred.

HARRIS, Judge:

¶1 In separate appeals that we consider together in this opinion, K.J. (Father) and D.F. (Mother) (collectively, Parents) challenge the juvenile court’s orders removing their three children (Children) from their home and, later, adjudicating the Children abused and neglected. Parents’ main challenge concerns the court’s adjudication that they abused and neglected the Children.          Parents also assert that, in one respect, they received ineffective assistance of counsel. For the reasons discussed, we find Parents’    arguments on these two topics unpersuasive.

¶2     But Parents also assert that, during the shelter hearing held at the beginning of the case, the juvenile court did not undertake a proper and complete analysis of the factors the governing statute required the court to consider. In this respect, Parents’ arguments have merit, and we remand the case so that the juvenile court can conduct the proper statutory analysis.

BACKGROUND

¶3 Parents are the legal and biological parents of three “medically complex” children: Kevin, Mia, and Kaleb.[1] The family moved to Utah in 2022, after having lived in Nevada and Arizona; at that time, Kevin was five years old, Mia was four, and Kaleb was not quite two. Parents believed that the Children suffered from a long list of various medical maladies; when the family arrived in Utah, all three Children—despite having largely different medical diagnoses—had surgically placed gastric feeding tubes (G-tubes), were developmentally delayed, and used wheelchairs for mobility.

¶4 In July 2022, Kevin was rushed to a local hospital by ambulance after Mother reported that he had suffered a seizure. Mia was hospitalized at the same time due to concerns about weight and dehydration. Kevin and Mia were transferred to Primary Children’s Medical Center (PCMC) in Salt Lake City; Kevin was treated with IV fluids to address “severe hypernatremia” due to dehydration. Kevin and Mia ended up staying at PCMC for nearly two weeks, and Kevin was even admitted to the pediatric intensive care unit. While Kevin and Mia were at PCMC, medical professionals there became concerned that they were being medically neglected. In particular, hospital personnel observed that Kevin and Mia were “severely underweight,” despite the presence of G-tubes, and “were considered a failure to thrive.”

¶5   After Kevin and Mia were discharged from PCMC, all three Children were referred to a pediatric nurse practitioner (Nurse Practitioner) for follow-up primary care. When the Children arrived at her medical clinic, Nurse Practitioner discovered that the Children—partly due to only recently having arrived in Utah—were not yet set up for medical insurance. But after examining the Children, Nurse Practitioner agreed to treat them anyway, despite their lack of insurance, because in her view “it was medically necessary to see them regardless of the insurance difficulties.” As she saw it, “these kids needed medical care whether [she] got paid” or not, because they were facing “significant medical issues” that she considered potentially “life and death” matters. The Children arrived at her clinic in wheelchairs and were developmentally delayed and nonverbal. None were toilet trained. Over the course of her treatment— which lasted several weeks—Nurse Practitioner also observed that the Children had not been “gaining [weight] as they [had been] in the hospital,” which made her wonder whether the Children might at some point need “to be rehospitalized.”

¶6 A few weeks later, a pediatrician (Pediatrician) was assigned to the Children. When he first saw the Children, he observed that they were all “nonverbal,” and while Kevin had some ability to walk on his own, Mia and Kaleb were “nonambulatory.” During the course of his treatment of the Children, he worked with them to improve their motor skills and their ability to walk, and he monitored their weight, which he indicated was the thing he was “following most closely.” Soon after Pediatrician took over primary care of the Children, Kaleb came in for his “two-year well[ness] visit.” During that visit, Mother indicated that Kaleb had spina bifida, which is “a neural defect at the base of the spine” that can often be fixed with surgery. Mother insisted that Kaleb had already had the surgery to correct the spina bifida, and she even pointed to Kaleb’s back where she indicated there was a scar from the surgery. But Pediatrician saw no scar.

¶7 At some point after Kevin and Mia were released from PCMC, a physician at Nurse Practitioner’s clinic contacted the Utah Division of Child and Family Services (DCFS) to notify them about potential issues with the Children. Thereafter, DCFS assigned caseworkers to investigate the matter, and those caseworkers made some ten visits to Parents’ home, prior to removal, to check on the Children and to assess the situation. These visits occurred at different times of day, yet in every visit except for one, the Children were all confined in “Pack ‘n Play” playpens. Parents stated that the Children needed to be in the playpens so that their G-tubes could function properly, but caseworkers observed that Parents had—but were not using— portable devices that would have maintained a “continuous feed” from the feeding tubes without restricting the Children’s movement. On one visit, one of the caseworkers asked Mother to show her the Children’s medications, and in response Mother brought out a large “two feet by three feet” sized tote bag “full of prescription bottles and different ointments.” During this time, Kevin—who was five years old and eligible to begin kindergarten—was not enrolled in school and therefore was not receiving any of the services a school could potentially provide to a medically complex child.

¶8 In addition to receiving primary care from Nurse Practitioner and Pediatrician , the Children were also referred to and treated by the Pediatric Complex Care Clinic at PCMC. They missed their first scheduled appointment with the clinic, which caused the lead physician there (Physician) a great deal of concern, because she knew that “it was critical that [PCMC] follow up with” the Children. Physician notified DCFS of the missed appointment, which was eventually rescheduled for about three weeks later.

¶9       At that rescheduled visit, Mother reported to Physician that the Children were all suffering from “dysphagia,” which is the “inability to swallow food properly.” Physician observed that Kevin and Mia had “continued to lose weight” since their discharge from the hospital. This was troubling, because the Children all had G-tubes, which exist primarily to make sure the Children are receiving enough nutrition; as one member of the PCMC team testified, “a child with a G-tube whose caregiver is fully responsible for that nutrition intake should not be experiencing failure to thrive in the absence of a disease or pathology that could cause failure to thrive.”

¶10 PCMC doctors investigated whether there could be any medical reason for the Children’s continued malnutrition and failure to gain weight, and eventually concluded that “none of the [C]hildren [had] a pathology consistent with a disease process that could cause failure to thrive.” Indeed, the PCMC team eventually determined that the Children’s “malnourishment and poor growth [were] directly related to insufficient caloric intake,” despite their G-tubes, and that the Children’s “failure to thrive was not due to their medical conditions but due to [Parents’] neglect . . . in feeding them appropriately.”

¶11 In addition, after her examination of the Children, Physician was concerned “that the [medical] history being provided by” Parents was “not consistent with what” she was “seeing on physical exam.” Given these concerns, the PCMC team then set out to review the Children’s various medical diagnoses, as reported by Parents, with the goal of verifying or eliminating each of them. As reported by Parents, the Children suffered from the following medical maladies, among others:

·         Kevin had suffered a stroke either in utero or shortly after birth, and had Ehlers-Danlos syndrome, Erb’s palsy, a seizure disorder, hearing loss, premature birth, sleep apnea, and an “allerg[y] to the sun.”

·         Mia had DiGeorge syndrome, blindness, hearing loss, premature birth, cerebral palsy, and prediabetes.

·         Kaleb had spina bifida, gastroparesis, premature birth, clubfoot affecting both feet, urinary retention issues that required catheterization, and hydrocephalus.

In an effort to confirm these diagnoses, the PCMC team requested, obtained, and reviewed over 7,000 pages of medical records regarding the Children, including records from Nevada and Arizona. After completing their review, and after examining the Children both before and after removal, the PCMC team was able to confirm some of the diagnoses. For instance, Kaleb does suffer from clubfoot in both feet, and Mia does have a genetic disorder similar to DiGeorge syndrome. But with regard to most of the diagnoses, the PCMC team concluded that Parents’ assertions were simply unsupported by any medical evidence. In particular, they eventually determined that Kevin does not suffer from Ehlers-Danlos syndrome or any seizure disorder, and that he did not have a stroke either in utero or shortly after birth; that Mia was not legally blind; and that Kaleb did not have spina bifida or hydrocephalus and did not need catheterization.

¶12     Based on these conclusions, and on their examination of the Children, the PCMC team determined that Kevin and Kaleb “had been the victim[s] of” “medical child abuse,”[2] and that the team had “serious concerns” in that regard about Mia. They called for “hospital admission” for the Children to “de-escalate elements of [their] care that are unfounded” and to “restart crucial interventions that have been ignored,” with a focus on “nutrition and aiding age-appropriate development.” And they recommended “development of a long-term plan for trauma- informed counseling and adherence to broad therapies, including speech therapy, occupational therapy, and physical therapy.”

¶13 The PCMC team then met with DCFS caseworkers to explain their findings. Based in part on the information its agents learned at that meeting, the State determined to seek removal of the Children from Parents’ home, and the very next day the State sought and obtained a removal warrant.

¶14 After obtaining the warrant, DCFS caseworkers traveled to Parents’ home to remove the Children. When they arrived, the caseworkers again found the Children in their playpens. Parents were cooperative, however, and Mother changed the Children’s clothes in preparation for the drive to PCMC. One caseworker observed that the Children were “a little stinky” and “had an odor to them like they hadn’t bathed in a few days.” The drive to the hospital was uneventful; Kaleb “babbled . . . baby talk,” while Kevin and Mia were “lethargic” and had a “very flat affect.”

¶15 When the Children arrived at PCMC, hospital staff immediately noticed that the Children exhibited “very poor hygiene” and observed that the Children were each double or triple diapered and that the diapers were “sopping through.” After the wet diapers were removed, hospital staff discovered that the Children had “fairly extensive [skin] breakdown in the diaper area” that was severe enough to require the assistance of the hospital’s “wound clinic.” Hospital staff noted that these sorts of wounds do not occur “overnight” and were the result of “there being wetness on the skin without appropriate response for some period of time.” The Children also had “irritability and breakdown” around their G-tube sites; as with the diaper-area wounds, these wounds also required the assistance of the hospital’s wound clinic.

¶16 Medical personnel also observed that the Children were “malnourished and under expected weight for [their] ages.” Kevin was determined to be “severely malnourished,” while Mia and Kaleb were determined to be “moderately malnourished.” And blood tests on Kaleb “revealed abnormalities very concerning for chronic malnutrition.”

¶17 The doctors considered the Children’s malnutrition to be concerning, and they set about to discover why the Children were unable to regularly eat solid food. All three Children were administered “swallow studies” to determine their “ability to eat and drink by mouth.” Kevin had such a severe “oral aversion to food and drink” that hospital personnel were unable to complete the test, and he was referred to a “speech/language pathologist” to help him overcome the aversion. Mia was “found to have a significant oral aversion to liquids,” and was also referred to a “speech/language pathologist.” Kaleb, on the other hand, was determined to have no oral aversion and was “eager to eat and engaged with all thicknesses of feeds.” Doctors concluded that Kevin and Mia’s oral aversion was “likely the result of not being provided with solid food” at home, and that Kaleb’s test results indicated a “serious concern” that he “did not need a feeding tube” at all.

¶18 Following removal, the Children stayed in the hospital for six days “to medically stabilize them and properly diagnose their conditions” through further examination and testing. During this time, the PCMC team was (as noted above) able to confirm the conclusions it had reached based on the earlier records review.

¶19     Upon discharge from PCMC, the Children were placed into foster care. Kevin and Mia were placed in the same homes, a temporary one at first for a few weeks before being moved to a more permanent placement. Kaleb was placed with a different foster family. Once in foster care, the Children showed rapid and measurable improvement. After having Kevin and Mia for only about a month, their foster mother reported that, while Kevin could only “scootch around the house on his hiney” when he arrived, he eventually learned not only to walk but to run, and he could often be seen doing “laps” around the kitchen island. He also began to allow his teeth to be brushed (something he had refused to allow at first), had become “a lot more personable” and affectionate, and began attending kindergarten and “loves school.” Mia had some ability to walk when she arrived but was “[v]ery unstable”; over time, however, she had learned to “run really fast.” The foster mother obtained glasses for Mia, which helped her navigate the world better. In the beginning, Mia refused to bathe, and would start “screaming and rocking and shaking” when asked to do so, but over time had become accustomed to it and “now she loves bath time.” And Kaleb’s foster mother reported that Kaleb could not crawl, walk, or talk when he arrived, but within a few weeks he learned how to not only crawl but walk with the help of furniture, and he was able to say several words.

¶20 The foster parents also reported that they had enrolled the Children in appropriate schooling. Kevin was enrolled in kindergarten, where he began to receive speech and occupational therapy through the school. Mia was enrolled in preschool, where she was given an individualized education plan that included speech therapy. And Kaleb was enrolled in a state-run program known as “Up to Three,” where he was able to obtain physical and speech therapy.

¶21 With regard to nutrition and weight gain, all three Children demonstrated swift and marked improvement in foster care. It wasn’t long before the Children no longer required 24- hour G-tube feeding; soon, the Children were receiving feedings through the tube only at night and just two or three times during the day. All of them were soon eating solid foods; Kevin’s foster mother reported that he had “tried 20 new foods” and he liked “spaghetti and pasta and yogurt and ice cream.” Following an appointment about a month after foster placement, Physician noted that Kevin “looks to be doing great” and stated that, from “a weight perspective, he is gaining weight appropriately.” And she noted that Mia “looked to be in excellent physical health.”

¶22 Soon after the Children were removed from Parents’ care, Pediatrician set up a meeting to inform Parents of the Children’s condition and accurate diagnoses. Parents refused to accept the PCMC team’s conclusion that many of the previous diagnoses were inaccurate; indeed, Pediatrician described Parents’ reaction as one of “scoffing and disbelie[f] and unacceptance.” Pediatrician later stated that, because of Parents’ “blatant disregard of facts from medical tests and expert opinions from specialists,” he “would be very worried” about the Children if they were to be placed back in Parents’ care.

¶23 In the meantime, legal proceedings began in the juvenile court. One week after removal, the court held a shelter hearing, at which it heard testimony from Mother, Father, and one member of the PCMC medical team. At the conclusion of the hearing, the court stated that it was “convinced by a preponderance [of the evidence] that the [C]hildren were being neglected” by Parents. The court noted that daily oversight of the Children had been Parents’ responsibility, and that this “oversight was done in a way that was neglectful.” It specifically mentioned that, upon arrival at the hospital after removal, the Children all had “soiled” diapers and “open sores” in the diaper area as well as around the G-tube sites. The court noted that the Children “needed a great deal more medical oversight” than they had been getting, and that “at the very least” the case presented “medical neglect” with a “strong indication” that there was also “medical abuse.” The court stated that it had been “up to [Parents] to identify [the issues] and care for these [C]hildren,” who “were not thriving.”

¶24 After making its findings of neglect, the court finished its shelter analysis with the following remarks:

The [c]ourt does find that given the current state of the [C]hildren, exigent circumstances existed with regards to the removal. The removal was proper. At this particular time until there is a plan in place, the continued removal is necessary. Okay? At some point in time if a plan is in place and the parents have shown the ability to take into consideration the current medical condition of the [C]hildren and have shown the ability to work with the professionals that are providing that care for the [C]hildren, I don’t see why it cannot at least be considered that the ongoing continued removal would not be necessary. Okay?

At this point, I just don’t have enough with regards to that. The only thing I have is that there was testimony that if placed back in the care of [Parents], this is going to get worse and worse and worse. I don’t think that has to be the case really.

So I do find removal proper, . . . [a]nd I do find that exigent circumstances, emergency circumstances did exist with relation to the removal at the time the [C]hildren were removed which absolved [DCFS] of the need to provide reasonable efforts to keep the [C]hildren in the home.

¶25 Later, the court issued an order memorializing its oral ruling. It found that “[t]he lack of physical care that the [C]hildren received by [Parents] constitutes neglect,” and that the Children were “clearly not thriving.” The court found that “[r]emoval of the [C]hildren from the home was proper and in [their] best interest,” and that it was “contrary to [their] well-being . . . to remain in the home.” And it found that, “because an emergency situation . . . existed at the time of removal, . . . any lack of pre- placement preventative efforts was appropriate and justified.”

¶26 About six weeks later, the juvenile court held an adjudication trial. Over three trial days, the court heard from thirteen witnesses, including the involved DCFS caseworkers, Nurse Practitioner, Pediatrician, the foster parents, and various members of the PCMC medical team. They all testified about the events described above. At one point during the trial, the Children visited the courtroom, an event the court noted for the record, stating that it “was able to” see the Children and “watch them interact with” Parents. At the conclusion of the trial, the court took the matter under advisement.

¶27 Some ten days later, the court issued a lengthy written ruling in which it summarized the evidence presented at trial and then determined that the Children had been abused and neglected by both Parents. With regard to abuse, the court found that the Children had “suffered or been threatened with nonaccidental harm in that unnecessary medical interventions have been performed that have caused physical harm” to the Children. In support of this finding, the court pointed to six different “unnecessary medical interventions”: (1) a CT scan performed on Kaleb in 2022 that was against medical advice; (2) Mother’s “[i]ntermittent catheterization” of Kaleb; (3) various medical tests performed on Kevin that “expos[ed him] to radiation unnecessarily”; (4) various unnecessary blood draws on Mia;

“bronchoscopies and modified Barium swallow studies” performed on all three Children that “may not have been necessary”; and (6) Parents’ actions in “maintaining the [C]hildren on G-tubes” and “constant[ly] plac[ing]” them in playpens, actions the court found had “harmed the [C]hildren to the point that they became unable to eat food orally or develop the ability to walk.”

¶28     With regard to neglect, the court’s conclusion rested on two separate grounds. First, the court pointed to the Children’s condition upon arriving at the hospital, finding that they were “malnourished” without any “medical reason” and “[d]espite placement of feeding tubes and 24/7 feeding,” and that they were “nonverbal and unable to walk” because of parental neglect and not because of “their medical complexity.” Based on their condition at the time of removal, the court concluded that the Children were neglected because Parents had failed “to provide for their basic physical needs on a day-to-day basis.”

¶29 Second, the court pointed to Parents’ belief that the Children had various medical maladies, many of which did not appear to be borne out by medical evidence, noting by way of example that there is no evidence that Kaleb has spina bifida or hydrocephalus. In that same vein, the court found that the Children “have not received appropriate interventions for their developmental needs,” noting specifically that Mia had not received appropriate medical treatment for certain neurological conditions and that none of the Children had been “enrolled in any physical therapy, occupational therapy, feeding therapy, or speech therapy since the family arrived in Utah.” Accordingly, the court concluded that the Children were neglected because Parents had “failed or refused to provide proper and necessary subsistence [and] medical care when required.”

¶30 After finding both abuse and neglect, the court concluded that “continued removal” was “in the best interest” of the Children, and that DCFS had “made reasonable efforts to prevent the removal,” but that those efforts had been “unsuccessful.” The court ordered that the Children “be placed in [DCFS’s] custody and guardianship for appropriate placement.”

ISSUES AND STANDARDS OF REVIEW

¶31 Parents now appeal, and they raise three issues for our review. First, Parents challenge the juvenile court’s determination, made after the adjudication trial, that they had abused and neglected the Children. In this context, “we apply differing standards of review to findings of fact, conclusions of law, and determinations of mixed questions of law and fact.” In re M.S., 2023 UT App 74, ¶ 23, 533 P.3d 859 (quotation simplified). The factual findings underlying an abuse or neglect adjudication are reviewed deferentially and are reversed only if clearly erroneous. See In re K.K., 2023 UT App 13, ¶ 21, 525 P.3d 519. But the court’s ultimate determination regarding abuse or neglect is reviewed for correctness, because making that determination, which involves applying a given set of facts to statutory criteria, “is primarily a law-like endeavor.” See In re M.S., 2023 UT App 74, ¶ 23 (quotation simplified).

¶32 Second, Parents assert that, in one respect, their attorneys rendered constitutionally ineffective assistance. “When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the [party] was deprived of the effective assistance of counsel as a matter of law.” State v. Kitzmiller, 2021 UT App 87, ¶ 14, 493 P.3d 1159 (quotation simplified).

¶33 Finally, Parents challenge the juvenile court’s earlier order following the shelter hearing, asserting that the court failed to engage in the proper statutory analysis before issuing its order finding that removal was necessary. In particular, Parents assert that the court did not properly analyze whether DCFS had made reasonable efforts to prevent removal, and that the court did not properly analyze whether there were services available, going forward, that might have prevented removal. At root, Parents’ assertion is that the juvenile court misapplied the shelter statute. “We review [a lower] court’s application of a statute for correctness.” Estate of Higley v. Utah Dep’t of Transp., 2010 UT App 227, ¶ 6, 238 P.3d 1089 (quotation simplified).

ANALYSIS

Adjudication Order

¶34 Parents’ main challenge is to the merits of the juvenile court’s adjudication order, in which the court determined that the  Children were abused and neglected as to both Parents. For the reasons discussed, we affirm the juvenile court’s determination that Parents neglected the Children. In light of that ruling, and given the posture of Parents’ arguments on appeal, we need not consider the merits of the court’s abuse adjudication.

Neglect

¶35 We first consider Parents’ challenge to the juvenile court’s neglect adjudication. In this context, “[n]eglect” includes parental “action or inaction causing” any one of six different results. See Utah Code § 80-1-102(58)(a). Yet not all six results are necessary for a neglect determination; when “the juvenile court [finds] neglect under several subsections, to affirm we need conclude only that neglect was established under one of the bases.” In re G.H., 2023 UT App 132, ¶ 28, 540 P.3d 631.

¶36 In this case, the juvenile court determined that Parents had neglected the Children under two of the six statutory subsections. First, based on the condition of the Children at removal, the court determined that Parents’ action or inaction caused a “lack of proper parental care of a child by reason of the fault or habits of the parent.” See Utah Code § 80-1-102(58)(a)(ii). Second, and alternatively, the court determined, based on the Children’s medical conditions, that Parents had failed or refused “to provide proper or necessary subsistence or medical care, or any other care necessary for the child’s health, safety, morals, or well-being.” Id.

§ 80-1-102(58)(a)(iii). For the reasons discussed, we conclude that the juvenile court’s first ground is supported by the evidence in this case, and we therefore need not reach the second.

¶37 In our view, the Children’s condition at removal alone was sufficient for the juvenile court to determine that the Children were neglected. The Children were all malnourished, one of them “severely” so. They were all underweight and failing to thrive. Moreover, they all had mobility problems; none of them could walk in an age-appropriate manner. And none were toilet-trained. In addition, they arrived at PCMC with open sores in their diaper areas and around their G-tube sites that were severe enough to require consultation with the hospital’s wound clinic.

¶38 Even though the Children are medically complex, the juvenile court found that there was no medical reason for their malnourishment, failure to thrive, or open wounds. That finding was not clearly erroneous. It should go without saying that allowing open wounds to develop or remain untreated is not medically necessary; certainly, Parents make no assertion to the contrary. And with regard to malnourishment and failure to thrive, PCMC doctors investigated whether there could be any medical reason for the Children’s continued malnutrition and failure to gain weight, and eventually concluded that no such medical cause existed here. Absent a medical cause, children with G-tubes should not be malnourished. Following examination and testing, the PCMC team eventually determined that the Children’s “malnourishment and poor growth [were] directly related to insufficient caloric intake,” despite G-tubes, and that their “failure to thrive was not due to their medical conditions but due to [Parents’] neglect . . . in feeding them appropriately.”

¶39   Parents resist the court’s neglect determination by pointing to the neglect statute’s exception for “reasonable and informed” health care decisions. See id. § 80-1-102(58)(b)(ii) (“Neglect does not include . . . a health care decision made for a child by the child’s parent or guardian, unless the state . . . shows . . . that the health care decision is not reasonable and informed.”). They assert, in essence, that their care of the Children has consisted of a series of health care decisions that the State has not shown to be unreasonable or uninformed. And on that basis they argue that the court’s neglect determination was incomplete and improper.

¶40 Parents’ arguments might have more force if the reason the State was asserting neglect had to do with a specific medical decision Parents made for the Children—say, for instance, their decision to place G-tubes in all three Children. But in this case, the juvenile court’s neglect determination was—at least in relevant part—not based on any specific health care decision but, instead, on the Children’s condition at the time of removal. On that score, Parents—unlike the parents in In re M.S., 2023 UT App 74, ¶¶ 41– 48, 533 P.3d 859, who asserted that their baby’s low weight was due to their decision to exclusively use breast milk rather than formula—make no effort to defend the Children’s malnutrition and failure to thrive by pointing to any particular health care decision, whether reasonable and informed or not. Indeed, as noted, PCMC doctors concluded, after examination and testing, that there was no medical justification for the Children’s malnutrition and failure to thrive. Under these circumstances, the statutory exception to “neglect” for “reasonable and informed” health care decisions simply has no application.

¶41 We therefore affirm the juvenile court’s determination that, based on the Children’s condition at removal, Parents—through their own “fault or habits”—had failed to provide “proper parental care” to the Children. See Utah Code § 80-1-102(58)(a)(ii). Because we affirm under subsection (a)(ii), we need not further discuss the court’s alternative neglect determination, made under subsection (a)(iii). See In re G.H., 2023 UT App 132, ¶ 28.

Abuse

¶42 Moreover, because we affirm the juvenile court’s neglect determination, we need not—in this case—consider the merits of the court’s abuse determination. Juvenile court jurisdiction over a child can be based on, among other things, either abuse or neglect. See In re G.B., 2022 UT App 98, ¶ 32, 516 P.3d 781 (“Importantly, jurisdiction could properly be based on either the abuse determination or the neglect determination.”). Our decision affirming the juvenile court’s neglect adjudication means that the court has continuing jurisdiction over the Children, regardless of the merits of Parents’ challenge to the court’s abuse adjudication.

¶43 In situations like this one, the propriety of the court’s abuse adjudication ends up being an inconsequential point, unless the affected parent can demonstrate that there will be “collateral consequences associated with an abuse determination that do not follow from a neglect determination.” Id. ¶ 34. In this case, Parents make no effort to articulate any collateral consequences that might follow from an abuse adjudication that are not already present from a neglect adjudication. And when asked during oral argument if we would need to address abuse if we were to affirm on neglect, Parents agreed that, in that situation, we would not need to address abuse. We therefore have no occasion to consider the merits of Parents’ challenge to the court’s abuse adjudication.

Ineffective Assistance of Counsel

¶44 Next, Parents assert that their attorneys provided ineffective assistance during the adjudication proceedings by failing to consult with or call an expert who could have testified about “medical child abuse” and about Parents’ state of mind and intentions regarding their care of the Children. Under the circumstances of this case, we reject Parents’ claim of ineffective assistance of counsel.

¶45 In child welfare cases, we employ the “Strickland test to determine a claim for ineffective assistance of counsel.” See In re E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994) (citing Strickland v. Washington, 466 U.S. 668 (1984)), cert. denied, 890 P.2d 1034 (Utah 1994). Under that test, Parents “must show that (1) counsel’s performance was deficient and (2) this deficient performance prejudiced the defense.” In re C.M.R., 2020 UT App 114, ¶ 19, 473 P.3d 184 (quotation simplified). “To demonstrate deficient performance,” Parents “must persuade this court that, considering the record as a whole, [c]ounsel’s performance was objectively unreasonable.” In re R.G., 2023 UT App 114, ¶ 16, 537 P.3d 627. And to show prejudice, Parents “must demonstrate a reasonable probability that the outcome of [their] case would have  been different absent counsel’s error.” In re C.M.R., 2020 UT App 114, ¶ 21 (quotation simplified). “A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding.” Id. (quotation simplified). In this case, Parents cannot meet either element of the Strickland test.

¶46 In support of their ineffective assistance claim, Parents have submitted a declaration from a forensic pathologist (Expert) who indicates that he has experience in cases of medical child abuse. Expert offers his view that, in most cases of medical child abuse, the “responsible parent . . . receives some form of secondary benefit, either financial or psychologic, from the inappropriate and unwanted medical care the child receives.” But he states that, in other cases, the unnecessary medical care is the result of “miscommunication between medical providers and patients” and of “the unsophistication and/or limited cognitive resources” of the parents. Expert states that, in order to offer a useful opinion in this case, he would need to undertake “an adequate psychologic and cognitive assessment” of Parents. He has not yet undertaken any such assessment, although he notes that he has reviewed the reports of another examiner who assessed Parents, and he offers his view that these reports “appear to endorse mental functioning deficits” on Parents’ part “that could lead to inaccurate conceptualizations of [the Children’s] medical conditions and treatment needs,” and that nothing he sees in those reports “implies [that Parents] are putting [the Children] at risk for selfish or self-aggrandizing motives.”

¶47 Under the circumstances presented here, a reasonable attorney could have decided not to consult Expert. The opinions Expert offers speak only to medical child abuse, and not to whether Parents neglected the Children by not feeding them enough and not enabling them to grow and thrive despite their medical maladies. As noted above, we affirm the juvenile court’s neglect determination without reaching the merits of any questions about the propriety of the Children’s various medical diagnoses. Because Expert has nothing useful to say about Parents’ manifest neglect of the Children notwithstanding their diagnoses, a reasonable attorney could have determined that consultation with Expert was not necessary or helpful. Accordingly, we conclude that Parents have not demonstrated that their attorneys performed deficiently.

¶48 For much the same reason, Parents have also not shown prejudice. Even if their attorneys had consulted with and retained Expert, his testimony—given that it goes only to abuse and not to Parents’ neglect of the Children as evidenced by the Children’s condition at removal—would not have made a difference to the outcome of this case.

¶49 Thus, we conclude that Parents have not borne their burden of demonstrating that their attorneys rendered constitutionally ineffective assistance.

The Shelter Order

¶50 Finally, we consider Parents’ challenge to the juvenile court’s earlier shelter order. Before considering the merits of that challenge, we address one preliminary issue: whether Parents have properly appealed the shelter order. After concluding that Parents have properly mounted an appeal from the shelter order, we proceed to address the merits of Parents’ arguments.

Appealability

¶51 We do not see very many appeals from shelter orders. We suspect that this is because shelter hearings occur at the very beginning of any child welfare case, and because orders coming out of those hearings are not considered final orders that are immediately appealable as of right. We therefore take this opportunity to discuss the appealability of shelter orders, and we

conclude that Parents have properly appealed from the shelter order here.

¶52 “As a general rule, an appellate court does not have jurisdiction to consider an appeal unless the appeal is taken from a final order or judgment that ends the controversy between the litigants.” In re J.E., 2023 UT App 3, ¶ 17, 524 P.3d 1009 (quotation simplified). And, at least conceptually, “the finality of an order in juvenile proceedings is determined the same way as the finality of an order in other courts.” Id. ¶ 18 (quotation simplified). “But it is fair to say that, in appeals from juvenile court, finality is viewed somewhat more flexibly than in the district court context.” Id. ¶ 19. In juvenile court cases, “the determining factor” as to finality “is whether [the order in question] effects a change in the permanent status of the child.” Id. (quotation simplified). Using this “pragmatic analysis of the order itself,” Utah appellate courts have concluded that, in juvenile court cases, “appeals may be heard from more than one final judgment.” Id. (quotation simplified). In particular, adjudication orders and termination orders are considered final orders that are appealable as of right, while “shelter orders” are “not considered final.” Id. ¶ 20; see also In re S.A.K., 2003 UT App 87, ¶ 13, 67 P.3d 1037 (“An adjudication order is one such judgment that we have found to be final for purposes of appeal.”); In re M.V., 937 P.2d 1049, 1051 (Utah Ct. App. 1997) (per curiam) (holding that, because a shelter hearing only creates temporary orders, “a shelter hearing order . . . is not final and appealable as a matter of right”).

¶53 Because shelter orders are not considered to be final orders, they are not immediately appealable as of right.[3] To properly appeal such orders as a matter of right, the party wishing to challenge the shelter order must wait until the court has entered a final appealable order. At that point, the party may take an appeal from the final order, which appeal “may include challenges to interlocutory orders” issued by the court prior to entry of the final order. Jensen v. Jensen, 2013 UT App 143, ¶ 2 n.1, 304 P.3d 878 (per curiam); accord U.P.C., Inc. v. R.O.A. Gen., Inc., 1999 UT App 303, ¶ 13, 990 P.2d 945.

¶54 In this situation, the adjudication order was the first final and appealable order issued by the juvenile court following entry of the shelter order. Thus, Parents’ opportunity to appeal the shelter order as of right presented itself upon entry of the court’s adjudication order. And Parents seized that opportunity by filing their notices of appeal. In each notice, Parents specified that they were appealing from the court’s adjudication order; they did not specify that they also wanted to appeal from the court’s interim shelter order, but parties are not required to include such specification in the notice of appeal. See Wilson v. Sanders, 2019 UT App 126, ¶ 28, 447 P.3d 1240 (“The language of rule 3(d) [of the Utah Rules of Appellate Procedure] does not require a party appealing from an entire final judgment to specify each interlocutory order of which the appellant seeks review.” (quotation simplified)), cert. denied, 456 P.3d 388 (Utah 2019). Parents then indicated in their appellate petition, filed a few months later, that they were challenging not only the adjudication order but also the interlocutory shelter order.

¶55 Thus, Parents took all the right steps to appeal the juvenile court’s shelter order. Such orders are not immediately appealable as of right, but a challenge to such orders may be included in any appeal from the next subsequently entered final order. Parents properly included their challenge to the shelter order in their appeal from the next final order entered by the juvenile court: the adjudication order.

B. Parents’ Challenge to the Shelter Order

¶56 Having concluded that Parents have properly mounted an appeal from the juvenile court’s shelter order, we proceed to consider the merits of Parents’ appellate challenge. In this case, Parents raise a very specific objection to the shelter order. They assert that the court did not properly address two of the required components of the statutorily mandated removal analysis:

“whether reasonable efforts were made to prevent or eliminate the need for removal,” and (2) “whether there are available services that would prevent the need for continued removal.” See Utah Code § 80-3-301(10)(a)(i). In considering the merits of Parents’ challenge, we first conclude that the juvenile court did indeed err in its application of the shelter statute. In a separate section, we then discuss the appropriate remedy in this situation.

1

¶57 Utah law requires juvenile courts, before removing a child from a parent’s home, to make several specific findings. At issue here are the requirements of subsection 10(a) of the shelter statute. That subsection states, in relevant part, as follows:

(i) The juvenile court shall make a determination on the record as to whether reasonable efforts were made to prevent or eliminate the need for removal of the child from the child’s home and whether there are available services that would prevent the need for continued removal.

(ii) If the juvenile court finds that the child can be safely returned to the custody of the child’s parent or guardian through the provision of the services described in Subsection 10(a)(i), the juvenile court shall place the child with the child’s parent or guardian and order that the services be provided by [DCFS].

Id. § 80-3-301(10)(a).

¶58 Thus, this statutory provision requires juvenile courts to make, “on the record,” two separate but related determinations. See id. § 80-3-301(10)(a)(i). The first one is a backward-looking inquiry that asks whether, prior to removal, DCFS has made “reasonable efforts” to “prevent or eliminate the need for removal.” Id. However, if DCFS’s “first contact with the family occurred during an emergency situation in which the child could not safely remain at home,” the juvenile court need not engage in a traditional reasonable-efforts analysis but, instead, “shall make a finding that any lack of preplacement preventive efforts . . . was appropriate.” Id. § 80-3-301(11).

¶59 The second—and related—determination requires analysis of “whether there are available services that would prevent the need for continued removal.” Id. § 80-3-301(10)(a)(i). As we understand it, this inquiry is different from the reasonable-efforts analysis, in that it looks forward rather than backward. As relevant here, the question is not whether reasonable efforts have been made in the past, but whether services are available, going forward, that could “prevent the need for continued removal.” Id.

¶60 With regard to the first part of this inquiry, the court in its oral ruling offered its view that “emergency circumstances did exist” at the time of removal “which absolved [DCFS] of the need to provide reasonable efforts.” And in its later written order, it found that, “because an emergency situation and aggravated circumstances existed at the time of removal, and the [C]hildren could not safely remain in [Parents’] home, any lack of pre- placement preventative efforts was appropriate and justified.”[4]

¶61 Parents assert that this analysis was erroneous because the “emergency” exception that absolves DCFS from making reasonable pre-removal efforts to prevent removal applies only in cases in which DCFS’s “first contact with the family occurred during an emergency situation,” see id. § 80-3-301(11) (emphasis added), a situation not applicable here. The State advances a broader interpretation of this statutory exception, but in our view Parents’ interpretation is the correct one.

¶62 The State agrees with Parents that, in situations in which DCFS’s first contact with the family is in an emergency situation, the statute requires the court to make a finding that any lack of reasonable efforts was appropriate. See id. But it asserts that this provision does not prevent a court from “mak[ing] a finding of exigency in any case where [DCFS] has already been working with the parents,” and it posits that a juvenile court has the authority to dispense with the pre-removal reasonable-efforts inquiry anytime it believes the situation is emergent. We disagree.

¶63 The previous subsection requires that a pre-removal reasonable-efforts finding be made. See id. § 80-3-301(10)(a)(i). There are no exceptions built into this subsection. To be sure, there is an exception built into the next statutory subsection, but that provision, on its face, applies only to situations in which DCFS’s first encounter with the family occurred in an emergency situation. We decline the State’s invitation to read a broader emergency exception into the statute. See St. Jeor v. Kerr Corp., 2015 UT 49, ¶ 13, 353 P.3d 137 (“[W]e will not read additional limitations into [a rule] that the language cannot bear.”); Greene v. Utah Transit Auth., 2001 UT 109, ¶ 15, 37 P.3d 1156 (“[W]e will not disturb explicit legislative requirements and read into the statute an actual notice exception.”). We conclude that subsections (10) and (11) of the shelter statute, when read together, contemplate an exception to the reasonable-efforts requirement that is applicable only when DCFS’s first encounter with the family occurs during an emergency situation.[5]

¶64   That narrow exception is not applicable here. DCFS was first notified of potential problems with the Children in August 2022, some three months before removal. Between DCFS’s first notification (in August) and removal (in November), DCFS assigned caseworkers to the family, and those caseworkers made at least ten visits to Parents’ home. This is simply not a situation in which DCFS’s “first contact with the family” occurred in an emergency situation, and therefore the “emergency” exception to the reasonable-efforts inquiry does not apply here. The juvenile court therefore erred in applying that exception in this case, and it should have proceeded, at the shelter hearing, to consider whether DCFS had made reasonable pre-removal efforts to avoid taking the Children out of Parents’ home.

¶65   The juvenile court’s error in this regard, however, appears to have been rendered moot by the court’s later finding, made after the adjudication trial, that DCFS had “made reasonable efforts to prevent the removal of the [C]hildren, but those efforts were unsuccessful.” While Parents complain that the court did not undertake this analysis after the shelter hearing, they do not make any effort to challenge the finding that the court eventually made just two months later after the adjudication trial. Under these circumstances, any error the court made by relying on the emergency exception at the shelter hearing, and by failing to make a “reasonable efforts” finding at that time, has been rendered inconsequential by the court’s later unchallenged finding that DCFS had indeed made reasonable efforts to prevent removal.

¶66 We turn now to the second part of the inquiry, the part that requires the court to determine, on a going-forward basis, “whether there are available services that would prevent the need for continued removal.” See Utah Code § 80-3-301(10)(a)(i). In this vein, the court stated, in its written order, as follows:

If, at some point, there is a plan in place and [Parents] have shown the ability to take into consideration the current medical condition of the [C]hildren, and have shown the ability to work with the professionals providing that care for the [C]hildren, the [c]ourt would re-consider whether ongoing and continued removal would be necessary.

This comment indicates that the court was of course aware that services do exist—such as physical, speech, and occupational therapy for the Children and medical education and in-home health care assistance for Parents—that are designed to improve situations like the one presented here. And it indicates that the court was making an effort to apply the second part of the statutory analysis.[6] But the court, in its analysis, did not take the next analytical step and assess whether specific services could be provided to the family, in that moment and going forward, that might obviate the need for removal. See id. Simply stating that, at some point in the future, the court might reconsider its removal order is not sufficient; indeed, in most child welfare cases, the initial permanency goal is reunification, and juvenile courts nearly always stand ready to reconsider removal orders in appropriate cases. The shelter statute requires a more exacting analysis prior to removal, and the court’s failure here to ask and answer the correct statutory question was error.

¶67 And unlike the court’s error regarding the backward- looking reasonable-efforts determination, this error was not later remedied by later findings made after the adjudication trial. The State points to no similar finding made after the trial, and we are aware of none.

¶68 We therefore conclude that the juvenile court made two errors in its attempt to comply with the shelter hearing statute. First, it misapplied the “emergency” exception to its obligation to make a backward-looking reasonable-efforts determination at the shelter hearing. Second, it failed to make a specific forward- looking determination about whether services could be provided to the family that would serve to obviate the need for removal. The first error was rendered inconsequential by later findings. But the second one wasn’t, and we must therefore consider what the proper remedy is, in this situation, to address the court’s error.

¶69 Before doing so, we take the opportunity to emphasize the importance of completing the proper statutory analysis at the shelter hearing. While such hearings take place early in the case and are generally not comprehensive trials, they can assume a position of great importance in the arc of a child welfare case. To be sure, removal orders are temporary nonfinal orders that can be—and in many cases are, see, e.g.In re M.S., 2023 UT App 74,

¶¶ 2–21, 533 P.3d 859 (considering a situation where a child was placed back into the parent’s home at a later hearing, after initial removal)—amended or modified, but removal orders nevertheless memorialize a seminal moment in a child welfare case. Such cases often proceed much differently after the shelter hearing depending on whether the child was (or was not) removed. It is therefore vital that courts undertake the analysis required by the shelter statute, and that, before removal, they engage with both the backward-looking reasonable-efforts analysis as well as the forward-looking services analysis.

¶70 The importance of getting shelter hearings right the first time is highlighted by the difficulty of putting the removal genie back in the proverbial bottle. As this case illustrates, by the time appellate review of a shelter order can take place, the family’s situation will often look much different than it did at the shelter hearing. While post-adjudication events are not part of the record submitted to us on appeal, we are nevertheless aware that, while    this appeal has been pending, significant events have taken place that might affect the way the juvenile court analyzes the question of whether services are available that could obviate the need for continued removal. For instance, we are aware that criminal child abuse charges have been filed against Parents. In addition, we are aware that, since the adjudication hearing, Parents have received certain services, and the court has had the opportunity—at a permanency hearing held in January 2024—to assess the efficacy of those services. And there have doubtless been other developments that have occurred in the previous sixteen months of which we are appropriately unaware.

¶71 In this case, by way of remedy, Parents ask us to vacate the initial removal order and remand the case so that the juvenile court can conduct an entirely new shelter hearing. We do not view this as an unreasonable request; indeed, when an error is made at a hearing, a common remedy is to remand the case for the court to conduct a new hearing. But even though we do not view Parents’ request as unreasonable, in this situation the request is not entirely practical. After all, the situation is much different now from what it was in November 2022, and in cases involving children, our usual remand instructions include an admonition to the court to conduct any new hearing, on remand, in present-tense fashion, as of the date of the renewed hearing, taking into account all that has happened in the child’s situation since. See In re   Z.C.W., 2021 UT App 98, ¶ 12, 500 P.3d 94.

¶72 Under the circumstances, we agree with Parents that the juvenile court’s error cannot go entirely unremedied, and that the case should therefore be remanded so that the juvenile court can complete the analysis required by the shelter statute and, in particular, consider “whether there are available services that would prevent the need for continued removal.” See Utah Code § 80-3-301(10)(a)(i). But this inquiry should not be undertaken as of the date of the initial shelter hearing; instead, this inquiry should, on remand, be conducted in present-tense fashion, taking into account all relevant existing developments. See In re Z.C.W., 2021 UT App 98, ¶ 12.[7] Moreover, we offer no specific instruction to the juvenile court as to whether, and to what extent, it must hold an evidentiary hearing on remand; we conclude only that the court must properly complete the required statutory analysis and that it “must—in some manner—consider and appropriately deal with proffered new evidence.” See id. ¶ 15. And we do not, in this opinion, order that the removal order be vacated; the juvenile court may order that relief, if it deems such relief appropriate, only after completing its analysis on remand.

¶73     Finally, we wish to make clear that we harbor no opinion as to how the juvenile court’s renewed analysis should come out; given the realities of chronology, the juvenile court (conducting a present-tense analysis) will have a lot more information than we do now, on this record, about how the Children are doing and how Parents have responded to the situation during the period between the shelter hearing and the permanency hearing. It may well be that the court reaches the same result, after conducting a more complete shelter analysis, that it reached at the permanency hearing in January 2024. On the other hand, it may be that the court, after conducting the proper shelter analysis, finds it appropriate to vacate or amend one or more of its previous orders. But either way, it is important that courts conducting shelter hearings, before they take the rather drastic step of removing children from a parent’s home, follow the requirements of the shelter statute. We remand the matter so that these requirements may be satisfied in this case, albeit belatedly.

CONCLUSION

¶74 We discern no error in the juvenile court’s determination that, based on the condition of the Children upon removal, the Children were neglected by both Parents. And we reject Parents’ assertion that their attorneys rendered ineffective assistance during the adjudication process.

¶75 However, we conclude that the juvenile court did not conduct the proper statutory analysis at the initial shelter hearing. We therefore remand this case to the juvenile court so that it can complete the required analysis and assess, in present-tense fashion, whether there are services available that can prevent the need for continued removal.

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


[1] For readability, we use pseudonyms (rather than initials) to      refer to the Children.

[2] In its reports regarding the Children, the PCMC team stated that “medical child abuse” is “a form of child maltreatment characterized by the fabrication or exaggeration of medical history, symptoms, and even exam findings and/or the induction of symptoms by a caregiver.” Medical child abuse “occurs when a child receives unnecessary and harmful or potentially harmful medical care at the instigation of the caregiver,” and it “results in manipulation of the medical system leading to child maltreatment in the form of unnecessary medical examinations, diagnostic [2]testing . . . , imaging, and invasive procedures.” Medical child abuse, in the past, was called “Münchausen syndrome by proxy.”

[3] Parties can, of course, request permission to appeal any interlocutory order (including shelter orders) under rule 5 of the [3]Utah Rules of Appellate Procedure. But parties are not required to seek review under rule 5, and such review is in any event completely discretionary with the appellate court. See Utah R. App. P. 5(a), (g). In this case, Parents did not seek permission to appeal the shelter order under rule 5, but this fact does not affect their ability to later appeal the shelter order following the eventual entry of a final order. See State v. Troyer, 866 P.2d 528, 530 (Utah 1993) (stating that “the scope of appellate review from a final judgment” is not “in any way affected or limited by the possibility that any one or more of the trial court’s rulings might have formed the basis of a petition for an interlocutory appeal”); see also In re S.F., 2012 UT App 10, ¶ 28, 268 P.3d 831 (stating that the fact that a parent “could have elected to petition for interlocutory appeal” from an earlier nonfinal order “does not eliminate our authority to review” the earlier order “once the neglect and termination proceedings were completed and an appeal timely filed”), cert. denied, 280 P.3d 421 (Utah 2012).

[4] There are other statutory provisions that, in specific cases, may operate to excuse or render irrelevant any lack of pre-removal reasonable efforts. See, e.g., Utah Code § 80-2a-201(6) (stating that, “in cases where sexual abuse, sexual exploitation, abandonment, severe abuse, or severe neglect are involved, the state has no duty to make reasonable efforts or to . . . maintain a child in the child’s home”); id. § 80-2a-302(4) (same); id. § 80-3-301(12) (same). No party asserts that any of these other Utah statutes are applicable here. In a supplemental authority letter submitted to us after oral argument, however, the guardian ad litem (GAL) asserts—for the first time—that the juvenile court’s allusion to “aggravated circumstances” was an implicit effort to resort to a provision of federal law, which provides that “reasonable efforts . . . shall not be required . . . if a court of competent jurisdiction has determined that the parent has subjected the child to aggravated circumstances.” 42 U.S.C. § 671(a)(15)(D)(i). As an initial matter, we note that parties may not raise new legal theories in post- argument supplemental authority letters. Cf. State v. Seat, 2022 UT App 143, ¶ 39 n.4, 523 P.3d 724 (stating that parties are “not permitted to raise a new question for the first time at oral argument” before this court). But more substantively, the GAL’s argument fails on its face; even if we assume, for purposes of the discussion, that the juvenile court’s comment was actually a reference to a federal statutory exception to the reasonable-efforts requirements, resort to the federal statute is unhelpful here because, at the time of the shelter hearing, no “court of competent [4]jurisdiction” had made any determination that Parents had done anything wrong.

[5] We can certainly envision policy concerns that might support a broader exception to the reasonable-efforts requirement that could apply in any emergency situation, regardless of whether DCFS had already been working with the affected family. We note here, as we sometimes do, that our legislature is free to amend the statute if it believes we have misinterpreted legislative intent.

[6] On this basis, we reject the State’s assertion, also advanced by the GAL, that Parents failed to preserve any objection to the court’s application of the shelter statute. Our supreme court has made clear that there is no preservation problem where the trial court “not only had an opportunity to rule on the issue . . . but in [6]fact did rule on it.” See Fort Pierce Indus. Park Phases II, III & IV Owners Ass’n v. Shakespeare, 2016 UT 28, ¶ 13, 379 P.3d 1218 (quotation simplified).

[7] In In re Z.C.W., 2021 UT App 98, 500 P.3d 94, our instruction that the renewed hearing be conducted, on remand, in present- tense fashion was a function of the applicable statute using a present-tense locution. See id. ¶ 13 (interpreting a statute requiring juvenile courts to assess “whether termination is in the best interest of the child” (quotation simplified)). The statute at issue here also uses a present-tense locution. See Utah Code § 80-3- [7]301(10)(a)(i) (requiring assessment of “whether there are available services that would prevent the need for continued removal” (emphasis added)). We therefore conclude that, in this situation, a present-tense perspective is required on remand.

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

What Are the Odds That I Can Get Custody of My Daughter if I Have a Serious Criminal Record?

Without knowing more about your criminal record, I can still safely predict that having almost any kind of chronic or significant criminal record reduces your chances of being awarded custody of a child simply because having a criminal record indicates some kind of character flaw or moral failing, and good character and morals are a factor in determining parental fitness.

The kinds of crimes that have the greatest impact on the child custody analysis and award likely come as no surprise to anyone: child abuse (physical abuse, sexual abuse, psychological and emotional abuse), child neglect, physical, sexual, and emotional abuse of a spouse, violent crimes, and substance abuse.

Clearly, a history of shoplifting convictions is not as bad—from a parental fitness perspective—as a history of multiple felonious assault or child abuse or drug abuse or DUI convictions, but a criminal “lifestyle” is still one that a court would have a hard time knowing about and yet still subjecting a child to such a life with criminal parent.

If you had a long or serious criminal history, but worked long and hard and earnestly to reform (i.e., you realized the error of your ways, you regret the wrongs you did, you’ve changed for the better, and you are trying your best to make amends), that may persuade the court that your criminal history is no longer relevant or at least not as relevant as it would have been had your history indicated no remorse and no efforts to repent.

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

Tags: , , , , , , ,

Do Many Women Lie About DV in Divorce and Child Custody Court Cases?

Yes. Many women (not all, but many more than we’d like to believe unquestionably lie and make outright false or grossly exaggerated domestic violence claims. The temptation to tell such lies is just too great for many women when they see the leverage and advantage it gives them in divorce and child custody cases, the immediate “temporary” custody of the children and associated child and spousal support and possession of the marital home, and the money to be had by being awarded sole or primary child custody and/or alimony in part due to making claims that the husband/father is a spouse and/or child abuser.

Do men do the same? Of course some men do. But rarely are they believed. So, that keeps the liars in check to some extent, at the expense of actual male domestic violence victims.

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

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

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

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

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

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

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

Tags: , , , , , , ,

Mother Made False Accusations Against a Father to Win Custody and Had a Restraining Order Put in Place With No Evidence to Back Her Reason, Can This Be Overturned?

Can it be overturned? It is possible.

Will it be overturned? The odds don’t favor Dad. While some fathers who are falsely accused do obtain vindication, the odds are against them. Why?

There is an undeniable bias in favor of mothers who claim to be victims of abuse or who claim that their husbands/children’s father is abusive. Courts err on the side of caution, take a “better safe than sorry” approach. There are many reasons for this, including but not necessarily limited to: beliefs that women don’t lie about abuse, belief that children are generally better off in the sole or primary custody of their mothers, and cynically calculating that it’s better for the judge’s career to issue protective orders against men who are either innocent or there is a question of their innocence than it is to “take the chance” on innocent until proven guilty. When court’s engage in such behavior, it’s lazy, it’s cowardly, it’s judicial malfeasance.

How can/does a falsely accused parent (father or mother, for that matter) clear his/her good name? Short of the kinds of things one cannot control (i.e., suddenly getting a new, sympathetic judge because the old judge retired or got sick, etc.), the most effective way is: presenting the court with evidence so overwhelming that the court cannot deny it, cannot disregard it without looking biased and/or incompetent. Easier said than done, and not always possible, but it’s really the only moral option.

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

https://www.quora.com/Mother-made-false-accusations-against-a-father-to-win-custody-and-had-a-restraining-order-put-in-place-with-no-evidence-to-back-her-reason-can-this-be-overturned/answer/Eric-Johnson-311

Tags: , , , , , , , , ,

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

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

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

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

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

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

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

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

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

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

Tags: , , , , , , ,

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

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

For example, in Utah, we have § 30-3-35.2, entitled “Equal parent-time schedule.” It provides, in pertinent part: “(b) An order *under this section** shall result in 182 overnights per year for one parent, and 183 overnights per year for the other parent.” (emphasis mine)

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

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

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

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

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

Tags: , , , , , , ,

What Must or Should I Do In This Situation?

What do I do If custody order says visitation is from 4 – 8 meeting at police station when there is no school but if there is school that day but child gets out at 12:30 is that consider no school or parent gets to get him earlier?

Does the court order describe what happens in this situation?

If not, does the other parent want to exercise visitation starting at 12:30?

If you were the other parent, would you want to exercise visitation starting at 12:30 in this situation? If so, and if the other parent wants to exercise visitation starting at 12:30, and if there is no good reason for the other parent not to exercise visitation starting at 12:30, why shouldn’t the other parent start exercising visitation that day, starting at 12:30? Do as you would be done by.

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

https://www.quora.com/What-do-I-do-If-custody-order-says-visitation-is-from-4-8-meeting-at-police-station-when-there-is-no-school-but-if-there-is-school-that-day-but-child-gets-out-at-12-30-is-that-consider-no-school-or-parent-gets-to/answer/Eric-Johnson-311

Tags: , , , , ,

What are the child custody factors that judges consider?

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

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

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

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

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

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

             (i) physical needs;

             (ii) emotional needs;

             (iii) educational needs;

             (iv) medical needs; and

             (v) any special needs;

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

             (i) parenting skills;

             (ii) co-parenting skills, including:

     (A) ability to appropriately communicate with the other parent;

     (B) ability to encourage the sharing of love and affection; and

     (C) willingness to allow frequent and continuous contact between the child and the other parent, except that, if the court determines that the parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration; and

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

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

     (e) the emotional stability of the parent;

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

     (g) whether the parent has intentionally exposed the child to pornography or material harmful to minors, as “material” and “harmful to minors” are defined in Section 76-10-1201;

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

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

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

     (k) the parent’s financial responsibility;

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

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

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

     (o) the relative benefit of keeping siblings together;

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

     (q) the relative strength of the child’s bond with the parent, meaning the depth, quality, and nature of the relationship between the parent and the child; and

     (r) any other factor the court finds relevant.

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

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

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

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

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

*****

(6)

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

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

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

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

*****

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

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

*****

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

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

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

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

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

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

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

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

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

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

Equal physical custody factors

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

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

         (i) the equal parent-time schedule is in the child’s best interest;

         (ii) each parent has been actively involved in the child’s life; and

         (iii) each parent can effectively facilitate the equal parent-time schedule.

     (b) To determine whether each parent has been actively involved in the child’s life, the court shall consider:

         (i) each parent’s demonstrated responsibility in caring for the child;

         (ii) each parent’s involvement in child care;

         (iii) each parent’s presence or volunteer efforts in the child’s school and at extracurricular activities;

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

         (v) each parent’s involvement in preparation of meals, bath time, and bedtime for the child;

         (vi) each parent’s bond with the child; and

         (vii) any other factor the court considers relevant.

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

         (i) the geographic distance between the residence of each parent and the distance between each residence and the child’s school;

         (ii) each parent’s ability to assist with the child’s after school care;

         (iii) the health of the child and each parent, consistent with Subsection 30-3-10(6);

         (iv) the flexibility of each parent’s employment or other schedule;

         (v) each parent’s ability to provide appropriate playtime with the child;

         (vi) each parent’s history and ability to implement a flexible schedule for the child;

         (vii) physical facilities of each parent’s residence; and

         (viii) any other factor the court considers relevant.

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

     (b) An order under this section shall result in 182 overnights per year for one parent, and 183 overnights per year for the other parent.

     (c) Under the equal parent-time schedule, neither parent is considered to have the child the majority of the time for the purposes of Subsection 30-3-10.3(4) or 30-3-10.9(5)(c)(ii).

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

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

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

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

         (i) one parent shall exercise parent-time starting Monday morning and ending Wednesday morning;

         (ii) the other parent shall exercise parent-time starting Wednesday morning and ending Friday morning; and

         (iii) each parent shall alternate weeks exercising parent-time starting Friday morning and ending Monday morning.

     (b) The child exchange shall take place:

         (i) at the time the child’s school begins; or

         (ii) if school is not in session, at 9 a.m.

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

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

         (i) order the holiday schedule described in Section 30-3-35; and

         (ii) designate which parent shall exercise parent-time for each holiday described in Section 30-3-35.

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

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

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

     (c) The court shall designate which parent may make the earlier designation described in Subsection (5)(b)(i) for an even numbered year with the other parent allowed to make the earlier designation in an odd numbered year.

     (d) The two consecutive weeks described in Subsection (5)(a) take precedence over all holidays except for Mother’s Day and Father’s Day.

Parent-time factors

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

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

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

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

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

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

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

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

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

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

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

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

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

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

30-3-33.  Advisory guidelines.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

     (a) the best interests of the child;

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

     (c) any other factors the court considers material.

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

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

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

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

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

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

(1) If the parties are unable to agree on a parent-time schedule, the court may:

     (a) establish a parent-time schedule; or

     (b) order a parent-time schedule described in Section 30-3-3530-3-35.130-3-35.2, or 30-3-35.5.

(2) The advisory guidelines as provided in Section 30-3-33 and the parent-time schedule as provided in Sections 30-3-35 and 30-3-35.5 shall be considered the minimum parent-time to which the noncustodial parent and the child shall be entitled.

(3) A court may consider the following when ordering a parent-time schedule:

     (a) whether parent-time would endanger the child’s physical health or mental health, or significantly impair the child’s emotional development;

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

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

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

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

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

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

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

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

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

     (k) the availability of the noncustodial parent to care for the child when the custodial parent is unavailable to do so because of work or other circumstances;

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

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

     (n) the parent-time schedule of siblings;

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

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

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

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

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

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

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

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

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

Lamb v. Lamb, 2024 UT App 16 – divorce, custody, business, home equity

2024 UT App 16

THE UTAH COURT OF APPEALS

JOSEPH EARL LAMB,

Appellee,

v.

SONYA ELIZABETH LAMB,

Appellant.

Opinion

No. 20210787-CA

Filed February 8, 2024

Third District Court, Salt Lake Department

The Honorable Robert P. Faust

No. 174904728

Mary Deiss Brown, Attorney for Appellant

Gregory G. Skordas, Gabriela Mena, and Allison R.

Librett, Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which

JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1 Joseph Earl and Sonya Elizabeth Lamb’s divorce was decided at a bench trial.[1] As relevant here, Joseph was awarded custody of their children, ownership of a family business, and half the equity of the marital home. Sonya now challenges the court’s custody determination and the award of the business. She also challenges the manner in which the court determined the equity in the marital home. We affirm the district court’s rulings in all aspects.

BACKGROUND[2]

¶2        Joseph and Sonya married in 2007 and separated in July 2017. We address separately each of the district court’s determinations with which Sonya takes issue.

The Custody of the Children

¶3        Joseph and Sonya have three children, all of whom were minors when they divorced in August 2021. In November 2017, at a hearing for temporary orders, Sonya’s counsel told the court that Sonya had been the children’s primary caregiver “until recently.” Sonya also admitted that she was arrested in July 2017 and was facing charges for possession and use of drugs, but she asserted that she had “taken responsibility,” had “stopped using drugs,” was “sober and more than capable of caring for the children and continuing on as their primary caregiver,” and had “been attending Narcotics Anonymous and Al-Anon meetings.” Sonya asserted that Joseph had a “serious drug addiction problem.” Joseph claimed that Sonya had vacated the marital home shortly before her arrest, and he revealed that he obtained a protective order against her. The court acknowledged the allegations both sides made against the other but noted that Joseph currently had the children in his care and was living in the marital home. The court then determined that Joseph should maintain “custody of the children on a temporary basis.”

¶4        Apparently, the children remained in the temporary custody of Joseph until the parties’ divorce trial, where the court received the testimony of a “reunification therapist” (Family Therapist), who had been hired by the parties after the custody evaluator had been “unable to perform an evaluation due to the children spending less than minimum time” with Sonya.

¶5        Based on the testimony of Family Therapist, which we recount when relevant in our analysis below, the court found that “unification” between Sonya and the two older children was “lacking” because of acrimonious relationships. The court noted that Family Therapist had testified that progress in reunification therapy would “influence what possible custody” Sonya might have in the future relative to the older children. The court determined that it was “in the best interest of the children that reunification therapy” continue to allow Sonya the opportunity “to reunify her relationship with the children.”

¶6        Accordingly, the court found that it was in the children’s best interest that Joseph be “awarded sole physical custody and final decision making authority,” with both parties being awarded joint legal custody. With regard to the youngest child, the court awarded supervised parent-time to Sonya one night a week. The court awarded Sonya no parent-time with the older two children. The court noted that supervised parent-time for Sonya would “be flexible” and might “increase after the current reunification issues” and Sonya’s “medical issues” were addressed. The court also stated that Sonya’s “non-use of cannabis” needed to be verified because marijuana use was “a contributing factor” that brought on her mental health episodes.

The Business

¶7        During their union, the parties were financially supported, at least in part, by a business that distributed supplies to gas stations. During the divorce proceedings, Joseph maintained that he was in the process of purchasing the business from his father but that he did not have the money to pay for it. Joseph explained that he drew a salary for his work with the business. In contrast, Sonya maintained that she and Joseph agreed to buy the business in 2010 and that they completed paying off the business in 2016. Sonya claimed that she and Joseph signed a document “to take over the business” but that she did “not have the document.” Sonya did produce a different document that explicitly stated the business was being sold only to Joseph.

¶8        The district court awarded the business to Joseph, along with all its debts and obligations. In addition, the court, apparently recognizing that the business was possibly still owned by Joseph’s father, ordered that any money Joseph borrowed against the marital home to purchase the business would “not be used to reduce the total equity in the home” so as to reduce Sonya’s share of the home’s value. In making this award to Joseph, the court was clear that it was basing its decision “on the testimony” provided by Joseph.

The Marital Home

¶9        Based on a Zillow estimate[3] provided by Sonya, the court determined the value of the marital home to be $998,659, but the equity in the home was reduced by mortgages and liens on the property. Joseph testified that three mortgages, totaling $402,000, were on the property.[4] And the home was additionally encumbered by eleven liens. Two of these liens, totaling $2,414, were attributed to Sonya and Joseph. The remaining nine, totaling $256,521, were tax liens and civil judgments incurred by the previous owner of the home.[5]

¶10      The court received evidence that when Joseph and Sonya purchased the home in November 2009, it was subject to some existing debt. Joseph testified as follows:

Counsel: “Was there anything particular about that purchase [of the home]?”

Joseph: “We didn’t have the credit or the means to get into a home at the time, so my brother is a real estate agent and he’s good friends with [the previous owner] and said, ‘Hey, this house is available. If you like it, I can probably get you into it.’ And so we took him up on that and (inaudible) that we had to take on (inaudible).”

Counsel: “So there were other debts on that house when you purchased it?”

Joseph: “Yes        I didn’t know about all of them at the time, but yes.”

Counsel: “What are those debts?”

Joseph: “There’s a lot of tax liens from [the previous owner] throughout the years. There’s a couple of (inaudible) from Sonya and I, medical bills that weren’t paid. . . .”

Counsel: “And have you paid off the tax liens? The liens on the house?”

Joseph: “No.”

Thus, in a somewhat unusual arrangement, the parties appear to have purchased the home subject to certain liabilities, even if they did not know the precise extent of those liabilities. Presumably, these liabilities would have been offset by a reduction in the purchase price, making the home more affordable.

¶11      Adding the mortgages and liens together for an amount of $660,935, the court determined that equity in the home was $337,724. The court ordered Joseph to pay Sonya $168,862 as her share of that equity.

¶12      Sonya appeals.

ISSUES AND STANDARDS OF REVIEW

¶13 Sonya identifies multiple ways in which she believes the district court erred. But “[f]or the sake of brevity,” we “consolidate these grounds” and “set out in the opinion only so much . . . as we deem necessary to a decision of the questions involved herein.” Patterick v. Carbon Water Conservancy Dist., 145 P.2d 503, 505 (Utah 1944), overruled on other grounds by Timpanogos Plan. & Water Mgmt. Agency v. Central Utah Water Conservancy Dist., 690 P.2d 562 (Utah 1984).

¶14      Sonya first contends that the district court abused its discretion in making custody and parent-time decisions because it lacked sufficient information to make those decisions. “We review custody determinations deferentially, and so long as the district court’s discretion is exercised within the confines of the legal standards we have set, and the facts and reasons for the decision are set forth fully in appropriate findings and conclusions, we will not disturb the resulting award.” Kingston v. Kingston, 2022 UT 43, ¶ 20, 532 P.3d 958 (cleaned up).

¶15      Sonya next contends that the district court’s findings were “entirely inadequate to explain” its reasoning for awarding ownership of the business to Joseph. “We review the legal sufficiency of factual findings—that is, whether the trial court’s factual findings are sufficient to support its legal conclusions— under a correction-of-error standard, according no particular deference to the trial court.” Brown v. Babbitt, 2015 UT App 161, ¶ 5, 353 P.3d 1262 (cleaned up).

¶16      Lastly, Sonya argues that the district court’s “procedures and decisions regarding the division of equity in the marital home were illogical and manifestly unjust.” “Determining and assigning values to marital property is a matter for the trial court, and an appellate court will not disturb those determinations absent a showing of clear abuse of discretion.” Mintz v. Mintz, 2023 UT App 17, ¶ 12, 525 P.3d 534 (cleaned up), cert. denied, 531 P.3d 730 (Utah 2023).

ANALYSIS

  1. A Note on Briefing

¶17      Sonya’s briefing is plagued by significant deficiencies and does not comply with the Utah Rules of Appellate Procedure for appropriate briefing. First, excluding the cases cited for the standards of review, Sonya cites only a single case in her opening brief, and she does so in a perfunctory fashion—making only a shallow attempt to explain its relevance to the issues. Sonya continues this trend in her reply brief, where she cites no cases at all. In this regard, she falls far short of appellate expectations. “A party may not simply point toward a pile of sand and expect the court to build a castle. In both district and appellate courts, the development of an argument is a party’s responsibility, not a judicial duty.” Salt Lake City v. Kidd, 2019 UT 4, ¶ 35, 435 P.3d 248; see also Utah R. App. P. 24(a)(8) (“The argument must explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal.”); id. R. 24(b)(3).

¶18      Second, in her statement of the case, Sonya fails to include a single citation to the record. This is in contravention of our clearly stated rule. See Utah R. App. P. 24(a)(6) (“The statement of the case must include, with citations to the record: (A) the facts of the case, to the extent necessary to understand the issues presented for review; (B) the procedural history of the case, to the extent necessary to understand the issues presented for review; and (C) the disposition in the court or agency whose judgment or order is under review.” (emphasis added)). We note that Sonya somewhat more adequately cites the record in the argument section of her brief, but that is not what the Utah Rules of Appellate Procedure require, and by ignoring the rules to suit her briefing preferences, she does little to bolster judicial efficiency.[6]

¶19      We point out these deficiencies not to ridicule, disparage, or shame counsel, but to provide warning that future briefing of this nature will likely be deemed inadequate and that any arguments on the merits may not be substantively considered by this court. This court receives hundreds of briefs each year. They vary in quality and in their adherence to the rules. We recognize that members of the bar have a lot on their plates and occasionally miss a typo or overlook a citation. But wholesale disregard of briefing rules is quite beyond the pale and can have unwelcome consequences for attorneys (and their clients) who choose this risky path. See Ostler v. Department of Public Safety, 2022 UT App 6, ¶ 27, 505 P.3d 1119 (“We . . . retain discretion to not address an argument that is inadequately briefed.” (cleaned up)); accord State v. Schwenke, 2007 UT App 354U, para. 2; State v. Garner, 2002 UT App 234, ¶¶ 8–13, 52 P.3d 467. And we hasten to point out that the risk of ignoring briefing requirements should come as no surprise to any attorney in Utah owing to our multiple references to the issue over the years. See Trees v. Lewis, 738 P.2d 612, 612–13 (Utah 1987) (stating that the merits of a dispute need not be reached if an appellant “has not supported the facts set forth in [a] brief with citations to the record” as required by rule 24(a)(6) of the Utah Rules of Appellate Procedure); State v. Price, 827 P.2d 247, 249 (Utah Ct. App. 1992) (“We have routinely refused to consider arguments which do not include a statement of the facts properly supported by citations to the record.”); Koulis v. Standard Oil Co. of Cal., 746 P.2d 1182, 1184 (Utah Ct. App. 1987) (“If a party fails to make a concise statement of the facts and citation of the pages in the record where those facts are supported, the court will assume the correctness of the judgment below.”). That we have exercised our discretion to address the merits of the issues on appeal here should not be taken as an imprimatur sanctioning inadequate briefing but as a conduit to raise awareness of the risk of ignoring the rules.

¶20 We take this occasion to recall the advice offered by our supreme court several decades ago:

If the questions involved in a case are of sufficient importance to justify asking this court to decide them, they are worthy of the careful consideration of counsel presenting them. It is the duty of attorneys practicing in this court to present to the court the authorities supporting their views and to assist the court in reaching a correct conclusion.

State v. Thomas, 1999 UT 2, ¶ 13, 974 P.2d 269 (cleaned up). With that, we remind counsel of their responsibility to assist the judiciary in advancing jurisprudence through diligent advocacy, adherence to our rules, and competent representation.

  1. Custody and Parent-Time
  2. Disclosure

¶21      Sonya argues that the district court erred in admitting Family Therapist’s testimony when Joseph had not timely disclosed him as an expert witness pursuant to rule 26 of the Utah Rules of Civil Procedure, which requires disclosure “within 14 days after the close of fact discovery.” Utah R. Civ. P. 26(4)(C)(i). Sonya’s briefing on this point leaves much to be desired. She entirely ignores what happened at trial, instead substituting her own retrospective take on what she believes should have happened without attempting to explain why her timeliness argument should now be considered. Providing some persuasive caselaw—which may or may not exist—would have gone far to support her argument. But like the rest of her briefing, this part is inadequate.

¶22      A review of the record shows that Sonya did not object to Family Therapist’s testimony on the grounds of untimely disclosure. Instead, Sonya argued that Family Therapist had “far exceeded any kind of mandate,” that he had not signed confidentiality waivers, and that allowing his testimony created patient privacy and ethical violations. In her objection at trial, rule 26 was mentioned only in passing and not in a way that would suggest she was objecting on timeliness grounds. It certainly would not have been clear to opposing counsel that a rule 26 timeliness issue was being raised such that he would have known to argue a harmlessness or good-cause defense for the failure to disclose, which would have been an easy argument to make given that both Joseph and Sonya had jointly retained Family Therapist and Sonya knew about Family Therapist several years before trial. And it would not have been clear to the district court that it was being asked to rule on a timeliness-based objection. For these reasons, Sonya did not preserve any such objection for appellate review. See State v. Centeno, 2023 UT 22, ¶ 57, 537 P.3d 232 (“It is well established that we will not address the merits of an unpreserved issue absent a showing that an exception to the preservation rule applies.”).

  1. Hearsay

¶23 Sonya additionally argues that Family Therapist’s testimony, insofar as he testified as a fact witness, “was inadmissible hearsay and based entirely on his conversations with the parties and their children as their reunification therapist.” Sonya’s hearsay argument is difficult to follow and poorly briefed. Instead of analysis in support of her hearsay argument, she provides scant and unsupported assertions.

¶24      Sonya objected below to Family Therapist’s testimony on the grounds that it was hearsay. But the court ruled that it was not hearsay, concluding that Family Therapist’s testimony was not offered “for the truth of the matter asserted.” Rather, the court ruled that the “focus of [the] questioning” was, first, to allow the court “to find out how [the children were] doing, if they’re capable of going forward” and, second, to identify the present “obstacles” to “structuring visitation with [Sonya].” On appeal, Sonya makes no attempt to engage with the court’s reasoning, instead limiting her analysis to a blanket assertion that “it [was] evident” Family Therapist was “allowed to testify as an expert, offering hearsay, opinions and recommendations in [a] manner that simply is not permitted by the Rules of Civil Procedure.” Such superficial and undeveloped argument is simply not persuasive, most especially because it does not address the alleged error in the court’s reasoning. It is well settled that appellants who fail to “address the district court’s reasoning” also fail to carry their “burden of persuasion on appeal.” See Federated Cap. Corp. v. Shaw, 2018 UT App 120, ¶ 20, 428 P.3d 12; see also Spencer v. Spencer, 2023 UT App 1, ¶ 27, 524 P.3d 165; Bad Ass Coffee Co. of Haw. v. Royal Aloha Int’l LLC, 2020 UT App 122, ¶ 48, 473 P.3d 624.

  1. Custody Factors

¶25 Sonya next argues that the court did not address the custody factors outlined in section 30-3-10 of the Utah Code, making its custody findings insufficient. More specifically, Sonya argues that the court’s factual findings were deficient due to the court’s reliance on the testimony of Family Therapist in making those findings.

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

¶27      Here, the factors about which the court received significant evidence concerned Sonya’s ability to function as a parent, which the court received as testimony from Family Therapist. As we have explained above, Sonya’s challenges to the admissibility of Family Therapist’s testimony fail, and we accordingly conclude that the district court acted well within its discretion in relying on his testimony.

¶28      Regarding Sonya’s ability to parent the two older children, Family Therapist testified that they were “very angry” with Sonya and “announced that they would never see or talk to her again.” Their anger was due to their religious sensibilities and Sonya’s announcement that she was pregnant by a man other than their father during the pendency of the divorce.

¶29      With regard to Sonya’s parenting, Family Therapist stated that the youngest child was very frightened after “his last visit with [Sonya] when she was struggling psychiatrically.” Moreover, Family Therapist also testified the youngest child was beginning to see himself as Sonya’s “partner,” resulting in the child “becoming parentified.”[7]

¶30 Family Therapist further indicated that while he was unaware of Sonya’s “current condition or functioning,” Sonya had been “hospitalized and diagnosed with some issues.” He asserted that “safety” needed to be addressed, meaning that Sonya required a psychiatric evaluation to demonstrate that her “situation” was “under control.” He also indicated that Sonya needed to work on “being forthright with medications.” Sonya, by her own admission, had “suffered an isolated manic episode” related to bipolar disorder and “called the police for assistance” because she was suffering from “visual and auditory hallucinations.”

¶31    Sonya’s briefing on this point misses the mark because it entirely relies on the assumption that Family Therapist’s testimony was inadmissible, an assumption we conclude is without foundation. See supra ¶¶ 21–24. She does not explain why, in light of Family Therapist’s admissible testimony, the court’s consideration of the statutory custody factors was insufficient. Sonya’s briefing makes no attempt to explain why the court is not allowed to rely on the evidence it receives when making custody decisions.

¶32 Moreover, Sonya does not identify any “significant evidence,” see Twitchell, 2022 UT App 49, ¶ 21, as to the other factors in section 30-3-10 that the court received but left unaddressed. Instead, her briefing advances an argument that is entirely conclusory and unsupported by record citation or legal authority:

Although § 30-3-10 gives broad discretion to the court as to the relevance and appropriate weight to give each factor, the district court in this case simply did not have any information that would allow it to make findings as to most of the statutory factors. For instance, the district court did not know who the primary caretaker of the children during the marriage was. The district court did not know anything about the marriage. The district court would not permit any testimony relevant to Joseph’s moral character or his history of drug abuse and sexual proclivities. The Court would not allow any testimony as to Joseph’s inability and unwillingness to co-parent with Sonya. At the end of the day, the Court simply sidestepped its responsibility as an independent factfinder and deferred to [Family Therapist].

This might be a good argument if Sonya had supported it with citations to the record and to legal authority. As this argument stands before us, we are unable to verify what it asserts. But we suspect that Sonya might be indulging in hyperbole here. Indeed, Sonya’s assertion that “the district court did not know anything about the marriage” is patently false. Our review of the record indicates that the court, in fact, knew quite a bit about the marriage, such as its financial situation, issues related to the children, and the problems that led to its demise, to name just a few topics within its familiarity. And with regard to Joseph’s alleged use of illegal drugs, we found only one instance (subsequently echoed by Sonya’s attorney) in the record where Sonya asserted before the district court that Joseph had a “cocaine habit.” But the district court was free to “disregard such testimony if it [found] the evidence self-serving and not credible,” since the factfinder “is in the best position to judge the credibility of witnesses.” See Clark v. Clark, 2023 UT App 111, ¶ 37, 537 P.3d 633 (cleaned up). An isolated allegation made in passing certainly does not amount to “significant evidence,” see Twitchell, 2022 UT App 49, ¶ 21, especially given the district court’s role as the factfinder to judge the credibility of witnesses, see Ouk v. Ouk, 2015 UT App 104, ¶ 14, 348 P.3d 751. And as to the other statutory custody factors that Sonya asserts the court left unaddressed, she has not pointed us to any significant evidence that the court received with respect to those factors.

¶33      Thus, unlike the situation in Twitchell, where we concluded “that the district court exceeded its discretion by failing to include in its findings any discussion of the evidence relating to the abuse allegations against [the mother], her alleged neglect of [the child,] and her moral character, as well as the effect that evidence had on its best-interest analysis,” see 2022 UT 49, ¶¶ 22–23, 25, here there simply wasn’t significant evidence presented regarding section 30-3-10’s other custody factors. This lack of evidence—insofar as there was a lack—was not the court’s fault; it was Sonya’s fault for not presenting it. After all, a court cannot be faulted for failing to consider evidence that was not presented to it. In contrast, given the substantial evidence the court did receive about the serious mental health issues Sonya faced, we conclude that the district court did not abuse its discretion in its consideration of the statutory factors when determining that awarding physical custody to Joseph was in the best interest of the children.

¶34 In sum, Sonya has failed to show that the district court abused its discretion in accepting and relying on the testimony of Family Therapist in making custody determinations or that the district court did not properly address the statutory factors in determining custody of the children.

III. Ownership of the Business

¶35      Both parties agree that the district court concluded that the business was not a joint marital asset. The district court awarded the business to Joseph “[b]ased on [Joseph’s] testimony.” Along with awarding the business to Joseph, the court stated that Joseph was “responsible for payment of the purchase price of the business.”

¶36      Sonya’s briefing on this point is challenging because it consists largely of recounting financial matters pertaining to the marriage but unrelated to the ownership of the business. She then asserts, with no discernible effort to explain why, that the “findings/conclusions were entirely inadequate to explain the Court’s reasoning for giving ownership” of the business to Joseph. Her argument is difficult to follow, but its essence, insofar as we can tell, appears to be that the court erred in believing Joseph’s testimony over hers.

¶37 We disagree with Sonya that the court erred in crediting Joseph’s testimony regarding the ownership of the business over Sonya’s. Again, the court stated in its factual findings that its award of the business to Joseph was “[b]ased on [his] testimony.” In making this credibility determination, the court acted well within its discretion. “[W]here there exists evidence sufficient to support a court’s rulings regarding a divorcing couple’s finances, that ruling will be upheld on appeal, even if evidence was presented that might have cut the other way.” Clarke v. Clarke, 2023 UT App 160, ¶ 27. This is because “the fact-finder is in the best position to judge the credibility of witnesses and is free to disbelieve their testimony. Even where testimony is uncontroverted, a trial court is free to disregard such testimony if it finds the evidence self-serving and not credible.” Ouk v. Ouk, 2015 UT App 104, ¶ 14, 348 P.3d 751 (cleaned up); see also Kimball v. Kimball, 2009 UT App 233, ¶ 20 n.5, 217 P.3d 733 (“[I]t is the trial court’s singularly important mission to consider and weigh all the conflicting evidence and find the facts.”).

¶38      Here, the district court was in the best position to judge the credibility of the parties. It clearly found Joseph’s testimony regarding the ownership of the business to be more credible. Sonya has provided no reasoned argument—apart from her assertion that she disagrees with it—as to why the district court’s conclusion that the business was not marital property was erroneous. Accordingly, Sonya has failed to meet her “burden on appeal to show that no reasonable person would take the view adopted” by the district court, and we therefore conclude that the district court did not err in awarding the business, along with its liabilities, to Joseph. See Ouk, 2015 UT App 104, ¶ 14.[8]

  1. Equity in the Marital Home

¶39      Sonya’s final claim is that the district court abused its discretion in dividing equity in the marital home. “In divorce actions, a district court is permitted considerable discretion in adjusting the financial and property interests of the parties, and its actions are entitled to a presumption of validity.” Gardner v. Gardner, 2019 UT 61, ¶ 18, 452 P.3d 1134 (cleaned up). Thus, in such proceedings,

we will reverse only if (1) there was a misunderstanding or misapplication of the law resulting in substantial and prejudicial error; (2) the factual findings upon which the award was based are clearly erroneous; or (3) the party challenging the award shows that such a serious inequity has resulted as to manifest a clear abuse of discretion. Because we can properly find abuse only if no reasonable person would take the view adopted by the trial court, appellants have a heavy burden to show that an alleged error falls into any of these three categories.

Id. (cleaned up).

¶40      Sonya’s claim focuses on three aspects of the court’s valuation of the home: (1) the mortgage amount, (2) the use of the Zillow estimate, and (3) the amount of the liens on the home. We address each in turn.

¶41      The Mortgage Amount. Sonya complains that the district court, based on Joseph’s testimony, should have used $298,000 as the amount owing on the mortgages rather than $402,000, an adjustment that would have benefitted her by increasing the equity she would have received. “Generally, the marital estate is valued at the time of the divorce decree or trial. However, in the exercise of its equitable powers, a trial court has broad discretion to use a different date, such as the date of separation, when circumstances warrant. If the trial court uses a date other than the date of the divorce decree, it must support its decision with sufficiently detailed findings of fact explaining its deviation from the general rule.” Rothwell v. Rothwell, 2023 UT App 50, ¶ 39, 531 P.3d 225 (cleaned up), cert. denied, 537 P.3d 1011 (Utah 2023). In response to Sonya’s motion for amended findings, the court explained, “[Joseph’s] statement of the mortgage balance of $298,000 was referring to the total amount of all three (3) mortgages. The Court also took that into evidence taking into account that it was [Joseph’s] best estimate according to what his monthly mortgage payments are and how much was deducted from the principal each month.” We understand this to mean that the court took into consideration that it was through Joseph’s extraordinary post-separation payment efforts that the mortgage amount had been reduced. Moreover, Sonya concedes in her reply brief that it was within the district court’s discretion to use the earlier mortgage total. Accordingly, we see no abuse of discretion in the court’s use of the date of the separation to determine the amount of the mortgages.

¶42      The Zillow Estimate. Sonya next complains that the home should have been valued at about $260,000 more than was indicated by the Zillow estimate the court used. The glaring problem with this aspect of Sonya’s complaint is that it was her counsel’s idea to use the Zillow estimate. In open court, her counsel looked up the estimate and announced it to the court. And the court proceeded to base its calculations on the very data Sonya’s counsel supplied. We simply will not countenance Sonya’s assertion that the district court erred in proceeding to use the estimate that Sonya herself, through counsel, provided. Sonya invited any error in this regard. See Somer v. Somer, 2020 UT App 93, ¶ 14, 467 P.3d 924 (“Where a party makes an affirmative representation encouraging the court to proceed without further consideration of an issue, an appellate court does not consider the party’s objection to that action on appeal.” (cleaned up)). In her briefing on appeal, Sonya points to nothing in the record that would have allowed the court to value the home using anything other than the Zillow estimate. Sonya does not challenge that the court acted on the only information it had and that Sonya herself provided. Accordingly, “given the absence of any expert financial testimony, . . . the paucity of assistance the parties offered the court,” and the representations made by Sonya’s counsel regarding the marital home’s value, we conclude that “the court in this instance made findings within its discretion and supported by the evidence it was given.” Clarke v. Clarke, 2023 UT App 160, ¶ 55.

¶43      The Liens. Sonya argues that the district court abused its discretion in counting third-party liens against the equity in the home. Given the evidence the court received, we see no error on the part of the court in this regard. Indeed, there was evidence to support the court’s determination that the third-party liens should be included in the calculation of the home’s equity. Joseph testified that when he and Sonya purchased the home, they did so knowing that they were assuming responsibility for some of the previous owner’s debts. This is an admittedly odd arrangement, but Joseph testified that they were willing to accept it because they were not in a financial position to purchase the home otherwise. Sonya offered no testimony or other evidence to contradict Joseph’s assertion, and she still points to nothing presented at trial that contradicted this evidence. Accordingly, we conclude that the factual findings that included the liability associated with the third-party liens were not clearly erroneous and that the court did not abuse its discretion in calculating the home’s equity.

CONCLUSION

¶44      Sonya has not demonstrated that the district court abused its discretion in its custody determination, in awarding the business to Joseph, or in its division of equity in the marital home. Affirmed.

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


[1] Because the parties share a surname, we refer to them by their given names.

[2] As addressed below, neither party’s briefs included sufficient citations to the record. This shortcoming has necessitated us combing the record to establish some semblance of a background, something we are not obligated to do. See State v. Wright, 2019 UT App 66, ¶ 47 n.6, 442 P.3d 1185 (explaining the parties’ duty to cite the record in appellate briefs), cert. denied, 456 P.3d 391 (Utah 2019). Accordingly, our recitation of the facts is necessarily minimal as we limit it to what is essential to resolve the issues on appeal.

[3] Neither party produced an appraisal of the home or an appraisal witness at trial, leading the court to ask the parties, “Does anybody have any valuation [of the home] at all?” Sonya’s counsel answered, “Well, we could do it [with] Zillow.” At this point, while in court, Sonya’s counsel looked up the value and reported, “According to Zillow as of today, the estimated value is $998,659.” No objection was lodged at trial to the court receiving this information. “Zillow is a commercial website that provides, among other things, an estimated market value for many residential properties.” Chaudry v. Chaudry, No. 1794, 2021 WL 2910977, at *9 n.7 (Md. Ct. Spec. App. July 12, 2021).

[4] This number reflected the amount owing at the time of separation. At the bench trial, Joseph testified that the amount was currently about $298,000.

[5] Joseph’s counsel provided a LexisNexis report as evidence of the liens on the home. This report was admitted as evidence with no objection.

[6] Nor did Joseph’s counsel provide a single citation to the record in his brief. This shortcoming is most unhelpful. While an appellee is not required to file a brief, see, e.g.AL-IN Partners, LLC v. LifeVantage Corp., 2021 UT 42, ¶ 19, 496 P.3d 76, we observe that if a brief is filed, it would behoove counsel to provide record citations. After all, and at the risk of stating the obvious, record citations are required because in their absence it’s difficult, and at times impossible, to figure out what the parties are referencing.

[7] “Parentification is often referred to as growing up too fast. Typically, it occurs when a child takes on parental responsibility for their siblings or even their parents, taking care of a sibling or parent physically, mentally, or emotionally. This can damage a child’s mental well-being and lead to long-term mental health conditions such as depression and anxiety.” Amber Felton, What Is Parentification, Web MD, https://www.webmd.com/parenting /what-is-parentification [https://perma.cc/N6TT-Y7QN].

[8] Sonya also argues that the district court violated her constitutional due process rights by its “ongoing interference” with her counsel’s presentation of her case. Quite frankly, apart from a litany of complaints about the court requiring counsel to keep her questioning relevant, the contours of her argument on appeal are difficult to discern, and she fails to cite a single case in support of the argument. Accordingly, we decline to consider her due process argument because it is inadequately briefed. See Utah R. App. P. 24(a)(8) (“The argument must explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal.”); see also Orlando Millenia, LC v. United Title Services of Utah, Inc., 2015 UT 55, ¶ 30 n.3, 355 P.3d 965 (“The briefing on this claim . . . is inadequate. [The appellant’s] briefing on this issue fails to cite any authority and makes no attempt to connect the law to the facts of this case.”).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tags: , , , , , , ,

House Bill 193 (HB0198 (utah.gov))

Another bill under consideration during the 2024 Utah legislative session is House Bill 193 (HB0198 (utah.gov)).

This bill would, if passed into law, 1) make clear that a “totality of circumstances” analysis applies when  a juvenile court determines whether to terminate parental rights; 2) provide that the existence of a placement option that does not require the termination of parental rights does not preclude a finding, based on the totality of the circumstances, that termination of parental rights is strictly necessary to promote the child’s best interest; and 3) as applicable, require the juvenile court to include the considerations described in Utah Code Sections 80-4-303 and 80-4-304 when determining the best interest of the child.

While Utah caselaw already made clear that a “totality of circumstances” analysis applies when a juvenile court determines whether to terminate parental rights. And the Utah Code already requires a juvenile court to include in its determinations in Sections 80-4-303 and 80-4-304 when determining the best interest of the child, it does not appear to me that making this clear in the statute itself is a bad thing.

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

Tags: , , , , , , , ,

H.B. 194

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

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

Tags: , , , , , , ,

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

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

This bill, according to its own description:

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

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

Utah Code § 30-3-10.4

Utah Code § 30-3-33

My thoughts on this bill:

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

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

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

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

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

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

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

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

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

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

AMENDMENTS TO CUSTODY AND PARENT-TIME

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

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

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

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

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

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

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

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