Tag: best interest of child

Allegations of Child Abuse vs. Allegations of Parental Alienation

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


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

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

Utah Family Law, LC | | 801-466-9277

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How can you appeal a child custody decision?

You have to show that the trial court that made the child custody decision committed an appealable error.

Many people believe that an appeal of a trial court’s decision is a “second bite at the apple”-style situation, that if you simply don’t like the outcome of the trial, then you can “appeal” the decision and get the appellate court to “re-try” the case on disputed facts. That is not how an appeal works.

The appellate courts do not retry cases or hear new evidence. They do not hear witnesses testify. There is no jury. Appellate courts review the procedures and the decisions in the trial court to make sure that the proceedings were fair and that the proper law was applied correctly (reference: Do appellate courts hear evidence? (

As for just how a trial court’s decision is appealed, that is a rather complicated process that few who are not attorneys (and attorneys either with experience in appellate practice or geniuses who have the time to learn appellate while working their full-time jobs) can undertake successfully.

You also need to know that there is very short time limit for filing an appeal, and that filing an appeal is very expensive (although in some jurisdictions certain kinds of appeals may, under certain circumstances, entitle a parent to the services of an appellate attorney free of charge, such as in termination of parental rights cases in the jurisdiction where I practice law (Utah)).

If you want to appeal a trial court’s decision, talk to an appellate practice attorney immediately.

Utah Family Law, LC | | 801-466-9277

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The Problem with Private Guardians ad Litem. Part 2 of 3

As any attorney can do with any client, a PGAL clearly has the right to argue on a child client’s behalf, and the Utah Code makes clear that a PGAL can express a child client’s “intentions and desires”. (See Utah Code Section 78A-2-705(13)(d))

When a PGAL tells a court, “I’ve spoken to my client, and based upon those discussions, I can tell you that his/her intentions and desires are . . .” is hearsay or, at the very least, inferential hearsay. It can’t be anything else. Such a hearsay declarant is at least subject to cross examination (URE 806).

There is a pervasive belief among Utah family law attorneys and judicial officers that a child represented by a PGAL cannot even be cross-examined. There is no legal authority for this. Indeed, all legal authority is to the contrary.

Children testify in Utah juvenile court proceedings, and when they do, they often do under various circumstances (regarding child custody and parent-time) that are substantively indistinguishable from testifying in a child custody and parent-time in a divorce or district court child custody case. When district courts try to make a distinction between testifying in juvenile court and barring testimony in district court, they fail. They must. It is a distinction without difference.

I really do not understand why everyone frames (or tries to frame) asking questions of children who are the subject of a child custody and/or parent-time dispute as inherently harmful to children. One can ask certain questions that harm, or elicit answers that harm, but all forms of questioning are not innately harmful to children. Moreover, there is a level of harm that is, frankly, justified when the value of the testimonial evidence elicited is greater than the harm caused or that may be caused (it’s why we jail witnesses who are afraid to testify against the mob, yet put them in witness protection). Where there’s a will, there’s a way.

Unless they are very young, children are not so ignorant as to have no idea what is happening in a child custody dispute case. They know that if there is a dispute over custody that one parent will be unhappy. The children aren’t surprised when one parent or both parents try to lobby to support their candidacy for “best parent” or “custodial parent”. They aren’t surprised if a court wants to know what the children have experienced, how children feel, and what the children want on the subject of the child custody and parent-time awards.

There are clearly ways to obtain valuable evidence that children and only children are uniquely able to provide (in the form of their about their experiences, observations, feelings, opinions, preferences, and desires on the subject without it harming or unduly harming them.

Utah Family Law, LC | | 801-466-9277

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What Happens if I Get Married to Someone With Kids Then Get Divorced? Do I Get To See the Kids?

I cannot speak to what the law is and how it is applied in every jurisdiction, but I can answer this question on this topic as it applies to the jurisdiction where I practice divorce and family law (Utah).

We all know that there are many stepparents who are often the only parental figure many children have ever known (in situations where the stepparent married the child’s parent when the child was an infant or very young, and in other situations where the children may be older but never knew their biological mother or father, so that the step mother or stepfather is the only kind of father or mother figure they have had in their lives). We know of minor children and of people who are now adults who become as close, or even closer, to their stepparents as they were with their biological parents. We know situations where a stepchild who is cut off from that loving and positive relationship with the stepparent has been nothing short of devastating to that stepchild.

At the same time, we know of many examples (more than you might imagine) in which a stepparent involved in a divorce with his or her stepchildren’s biological parent does not have a particularly good relationship with his/her stepchildren, but claims a desire to want visitation or parent time with his/her stepchildren or even might seek custody of his/her stepchildren as a means of gaining leverage in the divorce action and/or just plain being malicious toward the soon to be ex-spouse.

And so there are many interests that need to be considered and balanced if and when a stepparent tries to seek visitation rights with or even custody of his/her stepchildren.

Note: if a husband and wife (one or both of whom are stepparents) agree that a stepparent is important to the children and that the children should maintain a close relationship and frequent contact with the stepparent, there is nothing to prevent these divorcing spouses from agreeing to rights of parent-time or even shared custody (as long as the biological or adoptive parent or parents of the children—whose parental rights have not been terminated—or guardian or guardian at litem

are not opposed to it).

Here is how Utah currently handles such a situation (see below, effective September 1, 2022). As you will see, there is a high bar set for a stepparent who seeks an award of visitation or custody of stepchildren.

Utah Code Title 30. Husband and Wife

Chapter 5a. Custody and Visitation for Persons Other than Parents Act

Part 1

30-5a-103. Custody and visitation for individuals other than a parent.


(a) In accordance with Section 80-2a-201, it is the public policy of this state that a parent retain the fundamental right and duty to exercise primary control over the care, supervision, upbringing, and education of the parent’s children.

(b) There is a rebuttable presumption that a parent’s decisions are in the child’s best interests.

(2) A court may find the presumption in Subsection (1) rebutted and grant custodial or visitation rights to an individual other than a parent who, by clear and convincing evidence, establishes that:

(a) the individual has intentionally assumed the role and obligations of a parent;

(b) the individual and the child have formed a substantial emotional bond and created a parent-child type relationship;

(c) the individual substantially contributed emotionally or financially to the child’s well being;

(d) the assumption of the parental role is not the result of a financially compensated surrogate care arrangement;

(e) the continuation of the relationship between the individual and the child is in the child’s best interest;

(f) the loss or cessation of the relationship between the individual and the child would substantially harm the child; and

(g) the parent:

(i) is absent; or

(ii) is found by a court to have abused or neglected the child.

(3) A proceeding under this chapter may be commenced by filing a verified petition, or petition supported by an affidavit, in the juvenile court if a matter is pending, or in the district court in the county where the child:

(a) currently resides; or

(b) lived with a parent or an individual other than a parent who acted as a parent within six months before the commencement of the action.

(4) A proceeding under this chapter may be filed in a pending divorce, parentage action, or other proceeding, including a proceeding in the juvenile court involving custody of or visitation with a child.

(5) The petition shall include detailed facts supporting the petitioner’s right to file the petition including the criteria set forth in Subsection (2) and residency information as set forth in Section 78B-13-209.

(6) A proceeding under this chapter may not be filed against a parent who is actively serving outside the state in any branch of the military.

(7) Notice of a petition filed pursuant to this chapter shall be served in accordance with the rules of civil procedure on all of the following:

(a) the child’s biological, adopted, presumed, declarant, and adjudicated parents;

(b) any individual who has court-ordered custody or visitation rights;

(c) the child’s guardian;

(d) the guardian ad litem, if one has been appointed;

(e) an individual or agency that has physical custody of the child or that claims to have custody or visitation rights; and

(f) any other individual or agency that has previously appeared in any action regarding custody of or visitation with the child.

(8) The court may order a custody evaluation to be conducted in any action brought under this chapter.

(9) The court may enter temporary orders in an action brought under this chapter pending the entry of final orders.

(10) Except as provided in Subsection (11), a court may not grant custody of a child under this section to an individual who is not the parent of the child and who, before a custody order is issued, is convicted, pleads guilty, or pleads no contest to a felony or attempted felony involving conduct that constitutes any of the following:

(a) child abuse, as described in Sections 76-5-109, 76-5-109.2, 76-5-109.3, and 76-5-114;

(b) child abuse homicide, as described in Section 76-5-208;

(c) child kidnapping, as described in Section 76-5-301.1;

(d) human trafficking of a child, as described in Section 76-5-308.5;

(e) sexual abuse of a minor, as described in Section 76-5-401.1;

(f) rape of a child, as described in Section 76-5-402.1;

(g) object rape of a child, as described in Section 76-5-402.3;

(h) sodomy on a child, as described in Section 76-5-403.1;

(i) sexual abuse of a child, as described in Section 76-5-404.1, or aggravated sexual abuse of a child, as described in Section 76-5-404.3;

(j) sexual exploitation of a minor, as described in Section 76-5b-201;

(k) aggravated sexual exploitation of a minor, as described in Section 76-5b-201.1; or

(l) an offense in another state that, if committed in this state, would constitute an offense described in this Subsection (10).


(a) As used in this Subsection (11), “disqualifying offense” means an offense listed in Subsection (10) that prevents a court from granting custody except as provided in this Subsection (11).

(b) An individual described in Subsection (10) may only be considered for custody of a child if the following criteria are met by clear and convincing evidence:

(i) the individual is a relative, as defined in Section 80-3-102, of the child;

(ii) at least 10 years have elapsed from the day on which the individual is successfully released from prison, jail, parole, or probation related to a disqualifying offense;

(iii) during the 10 years before the day on which the individual files a petition with the court seeking custody the individual has not been convicted, plead guilty, or plead no contest to an offense greater than an infraction or traffic violation that would likely impact the health, safety, or well-being of the child;

(iv) the individual can provide evidence of successful treatment or rehabilitation directly related to the disqualifying offense;

(v) the court determines that the risk related to the disqualifying offense is unlikely to cause harm, as defined in Section 80-1-102, or potential harm to the child currently or at any time in the future when considering all of the following:

(A) the child’s age;

(B) the child’s gender;

(C) the child’s development;

(D) the nature and seriousness of the disqualifying offense;

(E) the preferences of a child 12 years old or older;

(F) any available assessments, including custody evaluations, parenting assessments, psychological or mental health assessments, and bonding assessments; and

(G) any other relevant information;

(vi) the individual can provide evidence of the following:

(A) the relationship with the child is of long duration;

(B) that an emotional bond exists with the child; and

(C) that custody by the individual who has committed the disqualifying offense ensures the best interests of the child are met;


(A) there is no other responsible relative known to the court who has or likely could develop an emotional bond with the child and does not have a disqualifying offense; or

(B) if there is a responsible relative known to the court that does not have a disqualifying offense, Subsection (11)(d) applies; and

(viii) that the continuation of the relationship between the individual with the disqualifying offense and the child could not be sufficiently maintained through any type of visitation if custody were given to the relative with no disqualifying offense described in Subsection (11)(d).

(c) The individual with the disqualifying offense bears the burden of proof regarding why placement with that individual is in the best interest of the child over another responsible relative or equally situated individual who does not have a disqualifying offense.

(d) If, as provided in Subsection (11)(b)(vii)(B), there is a responsible relative known to the court who does not have a disqualifying offense:

(i) preference for custody is given to a relative who does not have a disqualifying offense; and

(ii) before the court may place custody with the individual who has the disqualifying offense over another responsible, willing, and able relative:

(A) an impartial custody evaluation shall be completed; and

(B) a guardian ad litem shall be assigned.

(12) Subsections (10) and (11) apply to a case pending on March 25, 2017, for which a final decision on custody has not been made and to a case filed on or after March 25, 2017.

30-5a-104. Exceptions.

This chapter may not be used to seek, obtain, maintain or continue custody of, or visitation with, a child who has been relinquished for adoption, or adopted pursuant to an order of a court of competent jurisdiction.

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

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Can a child who wants to, testify of his/her desires regarding the child custody award?

Am I, as an 11-year-old, allowed to go to court in a situation where my parents are divorced to see if I can get my dad to have full custody of me even though my mom doesn’t abuse me? 

What actually happens when a child wants to be heard on the subject of his/her desires regarding the child custody award? 

Great questions. I can’t speak for all jurisdictions, but I can tell you 1) what the law is for the state of Utah; and 2) what (in my experience) actually happens when a child wants to be heard on the subject of his/her desires regarding the child custody award. 

The law for the state of Utah. A child can testify as to the child’s preferences regarding the child custody award, if the court allows the child to testify: 

30-3-10(5). Custody of a child — Custody factors. 


(a) A child may not be required by either party to testify unless the trier of fact determines that extenuating circumstances exist that would necessitate the testimony of the child be heard and there is no other reasonable method to present the child’s testimony. 


(i) The court may inquire of the child’s and take into consideration the child’s desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the child’s custody or parent-time otherwise. 

(ii) The desires of a child 14 years of age or older shall be given added weight, but is not the single controlling factor. 


(i) If an interview with a child is conducted by the court pursuant to Subsection (5)(b), the interview shall be conducted by the judge in camera. 

(ii) The prior consent of the parties may be obtained but is not necessary if the court finds that an interview with a child is the only method to ascertain the child’s desires regarding custody. 

So what do the words of § 30-3-10 mean? How does § 30-3-10 work (or how should it work)? Get ready to be upset. 

§ 30-3-10 provides that a child can testify, but only under circumstances that most Utah courts construe so restrictively as to make it all but impossible for a child to testify. How?  

Most Utah courts will say (I know because I am one of the few attorneys who thinks children who are smart enough and emotionally tough enough to testify intelligibly should be heard on the subject of the child custody award) that 1) the “extenuating circumstances that would necessitate the testimony of the child be heard” do not exist (and will, if the court has anything to say about it, essentially never exist under any circumstances); and 2) there is always another “reasonable method” to present the child’s testimony without actually presenting the child’s testimony directly from the child’s mouth to the judge’s ear. Generally, courts in Utah will bend over backward to avoid hearing from the child directly. And the “other reasonable method” means ensuring the questions posed to the child on the subject of child custody are not recorded, that the child’s purported answers are not recorded, that the child’s testimony is filtered through a third party, such as a guardian ad litem and/or a custody evaluator.  

If a court in Utah has ever found “that an interview with a child is the only method to ascertain the child’s desires regarding custody,” I am not aware of such a case. What is so frustrating to me is why would such a law exist? Why isn’t the law just the opposite, i.e., “Unless the evidence shows that the judge interviewing the child will not ascertain or at least help the court to ascertain the child’s desires regarding custody, the court shall interview the child to ascertain the child’s desires regarding custody.” 

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

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What is the argument for hearing a child’s view in a custody decision?

What argument supports taking the views of a child into account when making custody determination?

The argument is this: the judge cannot determine if such evidence is relevant if the judge never actually has such evidence to consider. 

In Utah (where I practice divorce and family law), this was the law as late as 1967 in this part of Utah Code Section 30-3-5: 

When a decree of divorce is made the court may make such orders in relation to the children, property and parties, and the maintenance of the parties and children as may be equitable; provided, that if any of the children have attained the age of ten years and are of sound mind, such children shall have the privilege of selecting the parent to which they will attach themselves. Such subsequent changes or new orders may be made by the court with respect to the disposal of the children or the distribution of property as shall be reasonable and proper. 

You read that correctly. Time was in Utah (and I’m sure in many other states) that children 10 years of age or older got to choose which parent they lived with after divorce (back in a time when it was unthinkable to award joint custody of children to parents). Utah (and I’m sure most other states) no longer give the child the choice regarding the child custody award. That’s a good development, but Utah went too far and now rarely (so rarely it might as well be never) hear their experiences, observations, opinions, and desires regarding custody. 

In Utah, those who have the greatest stake in the child custody award (i.e., the children themselves) have no right to express themselves and be heard on the record on the subject. At best, the court has the option of inquiring with the children, and so if the court does not want to hear from the children, it won’t hear from them. 

[Utah also has provisions for appointing spokespeople for children in the form of guardians ad litem and custody evaluators, but the problem with them is that they are sources of nothing more than court sponsored hearsay, providing accounts allegedly coming from the children, but secondhand, filtered through the biases, agendas, and inattention inherent in every secondhand account. The so-called reasoning of judges who refuse to permit testimony directly from the child’s mouth to the judge’s ear is patently lame. One of the most common and most lame excuses goes something like this: “Allowing the children to testify places them in the middle of their parents’ child custody fight, so for the sake of sparing the children this trauma, I will not hear from the children.” You may have even heard this argument yourself from judges or even from attorneys. The flaw in such an argument arises when it is asserted to justify “hearing” from the children in the form of guardians ad litem and/or custody evaluators. Whenever I point out that questions to children are still going to be the same kinds of questions, regardless of whether they come from a guardian ad litem (who is a lawyer) or from a custody evaluator. It’s not as though the children somehow magically and cheerfully forget the purpose and import of such questions as long as a judge does not pose them.] 

Some judges may worry that children are too young or too manipulable to be trusted to express their experiences and preferences in a way that is probative, in credible a way that will help the court make a sound, informed decision. But such judges can’t know one way or the other if the children are not questioned on the record at all. To assume that all children are inherently bad witnesses is unfair to everyone, but especially to the child. 

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

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I’m 14 and my mom is making me live with my dad. How do I stop this?

I’m 14 and my mom is making me live with my dad and is giving him custody. What can I do to prevent this from happening? 

I’m a divorce and family lawyer, and I see this question arise frequently. 

If you don’t want to live with your father for the wrong reasons, give both your dad and yourself a break, and live with Dad. You know what I mean; if you don’t want to live with Dad because he has reasonable, sensible rules and expectations for your protection and benefit, you’re only hurting yourself if you try to avoid being held to high standards. 

If Mom is too permissive, too hands-off, lets you get away with murder, doesn’t hold you accountable, then living with her is likely going to ruin you. 

What Randy Pausch said has stuck with me ever since I heard it: “Your critics are the ones telling you they still love you and care. Worry when you do something badly and nobody bothers to tell you.” 

If you don’t want to live with your mom because she’s abusive and neglectful, I wouldn’t go tell Dad first. Instead, I would try to find a lawyer who would help me. Be prepared to spend a very long time trying to find such a lawyer. They exist, but they are few and are thus hard to find. 

Why not tell Dad about the abuse and/or neglect first? It’s a little complicated, but I’ll try to make it clear. 

First, with few exceptions, courts are biased against fathers when it comes to deciding which parent with whom a child will live. Fathers who try to get custody are often believed by many courts as motivated only by self-interest, not by the best interest of their child or children. 

Fathers who seek sole or even joint custody of their children are often portrayed as being motivated by anything but honest, virtuous objectives. Instead, they are often accused of/presumed as being motivated by a desire to avoid paying child support or a desire to hurt the mother emotionally by cutting the children off from her. 

It is hard for some judges to believe fathers seek custody to protect the child from an abusive or neglectful mother because it’s hard for the court to believe the mother is abusive or neglectful in the first place. It is hard for some judges to believe that awarding to fit parents the joint equal physical custody of their children is best for the children. Far too many judges perceive the “safe bet” when making the child custody award as being: award custody of the children to Mom. 

And so if your dad were to be the one to break the news to the court that you told Dad mom is abusive and/or neglectful, your dad’s claims would immediately be met with skepticism, if not scorn. Both your mother and the court would likely accuse your dad of lying for self-serving purposes, not for the purpose of protecting you and fostering your welfare. 

So you may ask why you should not simply call child protective services and the police by yourself. Why not make these reports directly to child protective services and the police by yourself? Why get a lawyer to help you with this? These are good questions. 

If you make abuse and/or neglect reports against your mother directly to child protective services and/or to the police, the risk is too great that child protective services and/or the police will 1) believe that Dad put you up to it anyway; and 2) write you off as not credible, regardless of whether they believe your dad put you up to making the abuse and/or neglect reports to them (after all, you’re “just a kid”). 

And so it is my opinion that if you can find an attorney to help you, it is better to get an attorney—someone who knows how child protective services, the police, and the courts function and “dysfunction”—to help you navigate the system successfully by helping you avoid making costly, even irreparable, mistakes in your interactions with the system. 

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

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How can I enforce my power when I have final say in joint custody?

My sons father and I have joint custody but I have final say over his well being health and education. How can I enforce my power? 

If you are asking: “How do I enforce in good faith my final say authority over our son’s well-being, health, and education when the other parent and I do not agree?,” then the answer is (depending upon the jurisdiction’s requirements) typically: 

  • go to mediation to try to resolve the dispute, and if that does not work, then 
  • file a motion with the court seeking an order that compels your ex to comply with your final decision-making authority. 

Don’t take this the wrong way, and I realize that there is more than one way to interpret the meaning of your question, but the fact that you would ask how you can “enforce” your “power” without ever expressing any concern for the welfare or best interest of the child raises questions as your motives for exercising that power. A parent wants to exercise power for the sake of lording it over the other parent is clearly unworthy of that power and should be stripped of it for the sake of the child’s welfare and best interest. 

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

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Do you agree or disagree? Divorce creates chaos in the family.

Divorce generally creates far more chaos in individual families than it alleviates, but sometimes a divorce is the best thing to happen to a family. But that’s like saying sometimes its good to get arrested—rarely is it a good thing. 

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

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I have a debit card in my name. Can my parents take it?

I’m assuming that this question comes from someone who is a minor child (i.e., someone who is under the age of 18 and not a legally recognized adult or legally emancipated). 

This is a tough question that depends on the laws of the jurisdiction where each particular minor child is. You’ll need to check the laws in your particular jurisdiction to be sure (even then, there may be no conclusive consensus). 

Generally speaking: 

  • minor children have individual right to own property separately from their parents. 
    • Some parents think that any property a child acquires by purchase or gift is the property of the parent until the child becomes an adult. Some parents think that they own their minor children’s property until the child becomes an adult. This is not true. 
  • It appears to me that most jurisdictions take the position that unless a particular statute or court order provides otherwise, a parent can control his/her minor child’s property. 
    • While parents generally have a right to control and even spend a minor child’s income, parents do not have the right to use a child’s own property (such as a car that the minor child purchased with his/her own money) without that child’s permission.
  • So a parent cannot sell or destroy or drive a minor child’s own car, if the child does not grant the parent permission to sell or destroy or drive the child’s car. The parent can, however, control the child’s use of the child’s own car (for example, the parent could prohibit the child from driving the child’s own car, even if the car was fully licensed and registered and insured).

Unless there are specific laws in your jurisdiction that address this matter, then it appears to me that the general legal principle is: yes, your parent(s) can take your debit card away from you. If your parent(s) take your debit card away from you, they must ensure that they do not lose it, damage it, allow it to be damaged, or destroy it or allow it to be destroyed. 

So if you make your parents aware of the fact that you have a bank account in your own name (not jointly with your parents) into which you deposit your income, and your parents are aware that you have a debit card that you used to access these funds, your parents can take your debit card away from you, if they so choose. 

Of course, as a practical matter, that doesn’t prevent you from getting another debit card (unless your financial institution requires your parent to approve issuance of a a debit card to a minor) that you keep secret from your parents, but if they find out you’ve done that, be prepared for trouble. 

If your parents opened an account in their names (or in the name of one parent or the other) and they arranged to have a debit card issued to you to access those funds, then the account and the debit card are not yours, they belong to your parent(s). In that situation, they can take away the debit card. 

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


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I’m a child whose parents are divorcing and fighting over custody. What can I do?

I’m 15, about to be 16, and my parents are getting a divorce. My father has full custody, but he doesn’t want to take me to court to present my case that I want to see my mother. What can I do?  

“What can I do?” 

This is the perfect question in your situation, or more accurately, the perfect question to start the conversation. And before I give you the lengthier explanation, the short answer is: not much, unless you’re willing to take a lot of heat in your effort to have an influence over your own custody and parent time award (and even then, you may find your efforts utterly thwarted). 

I cannot speak for all jurisdictions, but I can talk about my experience in the jurisdiction of Utah, where I have some experience with the question of children having their experiences, observations, opinions, and desires both made known to the court and duly considered by the court before the court makes its child custody and parent time rulings.  

If you fear that the court may make a child custody and/or parent time award that is contrary to, if not diametrically opposed to, what is best for you individually and even best for the family collectively (the best interest of the whole family is a consideration courts too often overlook), you have good reason for such fear. 

Generally speaking, Utah courts hate involving children directly in child custody litigation and will go to extraordinary lengths to prevent it.*  

It wasn’t always this way.  

As late as the mid-1960s, the law in Utah was that if a child were over the age of 10 years and found to be of sound mind, the child had not just the right to express the child’s opinion as to the custody award, the child had an absolute right to choose.  

Just slightly less than 60 years later, just the opposite is now the case. Children are not allowed to choose the custody and parent time award, they’re not even allowed to weigh in on the subject on the record, unless the court permits them to do so. And courts rarely, if ever, allow children to testify on the subject of their desires regarding the child custody and parent time awards. How rarely? In 25 years of practice, I’ve been permitted to allow one child to testify on the subject.  

Oftentimes the court may order a “custody evaluator” appointed to speak to the child and then make recommendations to the court as to what the evaluator believes is the best custody award for the child. The court can also appoint, either separately from a custody evaluator or along with the appointment of a custody evaluator, a guardian ad litem ostensibly “for” the child.  

Custody evaluators and/or guardians ad litem are intended to speak with child, learn of the child’s current circumstances and determine what the child needs by way of the custody and parent time awards, and then make recommendations to the court regarding the custody and parent time awards that best serve the “best interest of the child” (whatever that means). 

Child custody evaluators and guardians ad litem are hardly infallible. I find most (not all) to be narrowminded and lax in their professional discipline and competence. Many of them have their own biases and agendas that lead to recommendations being in some cases diametrically opposed to a fair and reasonable custody and parent time award that the child wants or even needs. Many lack the courage to recommend what they honestly believe is best for the child, and instead make recommendations that don’t buck the legal culture’s conventional wisdom. 

I’m not telling you that this is what you should do, but I’ll tell you what I would do if I were a 16-year-old child whose parents were involved in a divorce action and the fight over the child custody award, and I wasn’t afraid to speak up for myself, even if my parent(s) and/or the court was upset about me speaking up for myself and expressing my own experiences, opinions, and desires: 

I would insist, if a guardian ad litem and/or custody evaluator were appointed ostensibly “for” me, that all interviews with me be recorded by sound and visual means (in other words, both audio and video recorded), so that if the evaluator and/or guardian ad litem tried to misrepresent what I was asked and or what I stated in response, there would be an objectively verifiable, indisputable record. 

I would make sure, in the course of the interviews with the guardian ad litem, that I make it clear that I wish to have my testimony heard by the court, from my mouth to the judge’s ear, with nothing interfering. No summary prepared by a third party in lieu of my direct testimony, no “proffer” of what I “would say” if called to testify. 

If I were not absolutely certain that the judge reviewed my own words, whether that be in the form of the recorded interviews, a deposition, in-court testimony on the record, or my own sworn affidavits or verified declarations (and by the way, I would try not to rely on affidavits or declarations because a court could easily claim that I didn’t write the words on the pages and thus dismiss the averments in the affidavits and/or declarations as not credible), I would hire my own attorney to take matters into my own hands and to help me to protect in advance my own interests in the child custody and parent time dispute. 

If my guardian ad litem did not do exactly as I directed my guardian ad litem to do, I would retain my own lawyer of my own choosing (it may be hard to find one who is willing to represent you, but if you are persistent, you will find one—I am such an attorney, and I’ve caught plenty of flak/flack for being such an attorney, but that hasn’t changed my willingness to represent a child in this kind of situation). Then I would have my lawyer notify the court that my guardian ad litem was not acting in my best interest and misrepresenting my interests and my positions and my desires to the court, which is why I have had to resort to retaining my own choice of counsel to do the job that my guardian ad litem has failed and/or refused to do. 

I would then have my attorney file motions and my affidavits (both from me and others who know me well) with the court explaining that because I am the very subject of the child custody and parent time disputes and the eventual child custody and parent time awards, because I am the one who will be most and most seriously affected by the child custody and parent time awards, my opinions and desires on the subject of child custody and parent time, my testimony (more accurately, my direct testimony itself, not adulterated or filtered through intermediaries like guardians ad litem and/or child custody evaluators). I would need to be prepared to have my intellect, lucidity, maturity, and the purity of my motives questioned because of my “audacity” shown by wanting to weigh in on my own child custody and parent time fate.  


*In fairness, there is at least one legitimate basis for this, and that is a concern that having children discuss matters of child custody and parent time and testify on the subject might make the children feel as though they are having to “choose sides” in the child custody and parent time dispute, and that this could emotionally and/or psychologically cause the child serious, if not irreparable, emotional and psychological harm. The problems with this line of thinking ruling the day include: 

  • while it is laudable to desire that a child be protected from harm, it does no good to expose a child to one kind of harm in an effort to protect the child from a different kind of harm. Look at it this way: Which is better? Remaining willfully ignorant of the evidence the child might provide (for fear that inquiring with the child might— might—harm the child), or inquiring with the child to see what useful evidence, if any, that child has to offer? Clearly, if there is sufficient evidence to conclude that of parent or parents will punish or retaliate against the child (and do so in a manner against which the court cannot protect the child) if that child provides his/her honest and complete observations, experiences, and preferences, it may be best for the sake of the child and for the sake of the evidence not to inquire of the child. Otherwise, it strikes me as malfeasance not to inquire directly with the child to gain what could be (and almost surely will be) some of the most material, relevant, compelling evidence on the subject of the child custody and parent time awards. a blanket ban on inquiring with the child, implemented ostensibly for the purpose of “helping” or “protecting” children is a wolf of a copout in sheep’s clothing. 
  • too often court’s give children too little credit for their abilities to express their experiences, observations, desires and preferences without those preferences being based in pure “loyalty” to one parent and pure “rejection” of another parent. Clearly, if the evidence honestly preponderates toward finding that a child has been unduly influenced (through coercion or enticement or both), the child’s opinions have been tainted to the point of being worthless from an evidential standpoint, but not everything a child says is inherently worthless simply because a child said it, yet that is exactly how many courts view and treat a child’s testimony, any child testimony, every child’s testimony, regardless of how honest, old, intelligent, mature, and rational that child may be. 

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

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Is filing for divorce altogether worth it despite the high cost and heavy emotional toll?

There are clearly circumstances that not only justify but may even necessitate a divorce. No one is bound to remain married too someone who threatens one’s life or physical safety with a life or physical safety of one’s children. No one is required to remain married to someone whose spouse causes one severe mental or emotional anguish. When divorce is a matter of life and death, most people consider the cost and heavy emotional toll to be worth paying. 

Many people divorce believing that the cause of their unhappiness or dissatisfaction or even depression is their spouse. Many of these people have an idealistic, unrealistic expectation of what a spouse should be and how a spouse should behave. Many people believe that if their spouses are not perfect, they are not worth living with. People who think like this and get divorce learn, too late unfortunately, that no spouse is perfect and that it is rather hypocritical for imperfect people to expect their spouses to be perfect. People who divorce under these circumstances are the ones who not only regret losing the companionship of a good and decent (though not perfect) person, and often pay a lifelong emotional (and often financial) price for their mistake. 

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

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Can someone go to court to prevent their un-vaccinated ex from taking the kids, even though they share 50-50 custody?

Can he/she go to court? Yes. You can go to court for anything, no matter how serious or how silly your “cause” may be. Whether the court will take your request seriously and grant it is a separate question. 

Would the fact that a parent is not vaccinated against any particular disease (COVID-19 particularly, but certainly not exclusively) constitute good cause for ordering that parent restrained from exercising custody or visitation (also known as parent-time) of his/her own children? 

A few factors come to mind as I analyze this question. First, Is the unvaccinated parent violating the law by not being vaccinated? If the answer to that question is no, does that end the analysis? It could, but it probably doesn’t. Why? Just because one is not legally required to be vaccinated may not mean that the parent is acting responsibly by not being vaccinated. Then the question would be how responsible or irresponsible Is apparent acting if he/she is not vaccinated. For example, if a parent didn’t get a flu shot, and if the parent’s child or children are not abnormally susceptible to serious risk of permanent injury or death due to the flu, I would guess that most courts would not consider a parent who doesn’t get a flu vaccine to be unfit to exercise custody and parent time of his/her children.  

As this analysis applies to the COVID-19 virus, I don’t claim to be a healthcare professional, but it’s my understanding that children in a normal state of health aren’t likely to get deathly or even seriously ill if they contract various diseases, such as chicken pox or the COVID-19 virus. Because contracting such illnesses as a child does not afflict the child with any long-term irreparable harm, it would be hard to argue that a parent who fails or refuses to get a vaccine against such illness or illnesses constitutes an unreasonable danger to the child or even a serious risk of harm to the child.  

And think of it this way: dogs can seriously or even fatally harm children. Does this mean that a parent who has a dog as a pet has recklessly or negligently placed his/her children in harm’s way? What about a parent who likes to go horseback riding with the children? If one falls off a horse, he or she could break an arm or leg, or even suffer a serious spinal cord injury and be paralyzed for life. But does the level of risk dictate that the child never have the opportunity to ride a horse or learn to ride a horse? What about a parent who smokes, but does not do so in an enclosed space with the children present, so that any secondhand smoke concerns are minimal to nonexistent?  

Some may say there is a substantive difference between having a dog as a pet or learning to ride a horse and running the unnecessary risk of contracting COVID-19. But getting vaccinated is not risk-free itself. We know of some people who get vaccinations against different diseases who have a serious or even fatal reaction to the vaccines. Many questions swirl around whether the COVID-19 vaccine is safe. Is a parent who fears that he or she may suffer chronic or fatal harm by getting vaccinated exercising poor judgment such that he/she is considered an unfit a parent unfit to exercise custody or parent time? 

So the question really comes down to whether the government (in this case the judicial branch) can, by invoking the “best interest of the child” standard, infringe upon or deny parental rights if a parent exercises his/her freedom of choice not to be vaccinated. While I am sure that there are some judges who believe they can, I believe the majority of judges in this country (United States of America) believe that such would constitute an abuse of their discretion. 

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

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Pro-fairness and Pro-child

Pro-fairness and Pro-child

Recently, public service YouTube channel I run (UFTLV – Utah Family Law TV – not run by or run to support Utah Family Law, LC) received a comment on this video:

Do you think it’s fair that Brad Pitt got joint custody of his kids?

The comment:

“I’m pretty convinced this channel is a pro fathers [sic] rights movement channel. Its [sic] not surprising at all he got joint custody. Its [sic] an automatic presumption nowadays for mother and father to share joint custody.

My response follows below:

Thank you so much for watching and for commenting. You are mistaken on both counts. 1) This is not a pro-father’s rights channel (nor is it a “pro-mother’s rights” channel). It is a pro-fairness, pro-child, pro-due process, and pro-common sense channel. 2) It is not automatically presumed everywhere that child custody will be awarded to both parents on a joint custody basis.

1) For generations mothers were (and still remain in most jurisdictions) presumed to be “the better parent” simply by virtue of their being mothers/women, without evaluating the parental fitness of each parent to determine whether the children would be best served by a sole or joint child custody award. It was (and still is in many jurisdictions) believed that children need to spend more time in their mothers’ care than in their fathers’ care, even if and when the father is ready, willing, and able to share joint equal custody of the children.

2) While there are more and more states in the U.S. passing laws that presume the parents will be awarded joint legal and joint physical custody of their children, many states have no such presumption and many states still treat fathers as second class parents when it comes to making the child custody award. I myself have been told by a judge just this year that “it’s not the quantity of time the children spend with their father but the quality that matters.” But quality of time parents and children spend together is a factor of quantity. Where both parents are fit parents, the “best parent” is both parents. Children deserve no less than joint equal custody in such situations. Fit parents deserve no less as well.

Utah Family Law, LC | | 801-466-9277

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When flawed thinking is tragic thinking (thank goodness)

I frequently encounter comments made in child custody disputes to the effect that “courts favor the nurturing and detailed attentiveness of mothers over fathers.” 

I am as grateful for such comments as I am disheartened by them. Grateful because they reveal a common and recurring flaw in so many people’s thinking—and identifying the problem is the first step toward solving it. Disheartened because they reveal a common and recurring flaw in so many people’s thinking—which makes correcting it such a daunting task.  

Such comments commit the fallacy of indulging a sexist, stereotypical, and (thus) false presumption that “good mothers are better and more necessary parents than good fathers.” When courts commit this fallacy, then the notion of basing a court’s decisions on evidence and proof in each individual case are illusory. Yet frankly, that is exactly what most judges do in making the child custody award.  

Some judges do this by essentially requiring a good father to “prove” that he is “just as good as and just as qualified a parent as” as an archetypal mother. This is an impossible standard for a father to meet because a) such archetypes necessarily exist only in the imagination, not in the real world; and b) not only can real-world fathers not meet this impossible standard, but neither can real-world mothers, for that matter.  

These judges follow unwritten rules that rig the game (some judges knowingly rig the game, others do so unwittingly due to their deep-seated biases and prejudices):  

1) that to be worthy of joint physical custody of their children fathers who are good parents by every reasonable standard must be the equivalent of mothers; and  

2) good mothers possess crucial and unique qualities fathers cannot possess.  

Thus, merely good fathers can never be worthy of sharing joint equal custody with a good mother. Perversely, for a child to enjoy being reared by both good parents equally, the father must prove either himself superior as a parent to the mother (which, as I have demonstrated above, is virtually impossible) or show the good mother to be found wanting (in one way or another) such that the only way to compensate is “unfortunately” an award of joint equal physical custody to the father.  

Decent, loving, fit parents never have been and never will be perfect, which is why I cannot understand how a court would deny a child the benefits of being reared as much as possible by both of its decent, loving, and fit parents. This is why (to crib from C.S. Lewis) asking which of a child’s fit and loving parents is the “better” or “more necessary” parent is like asking which blade of the scissors is better or more necessary.  

The “best parent” is both good parents. Give the child the benefit of all of the good traits each good parent brings to a child’s upbringing. We cannot expect a child to tailor the fabric of his life successfully with only one blade of the scissors in hand. As a recent billboard so poignantly states, “You don’t have to be perfect to be a perfect parent.” 

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

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Judge says stay away from my paramour. Can judge do that?

Judge says stay away from my paramour. Can judge do that?

I became pregnant by my paramour after my husband and I separated. The court order states we are not to have paramours around our child. Will the judge take custody from me if I have my paramour around due to the situation?

I assume that your question is based upon a situation in which:

  • you and your husband have a child together (we’ll call that child “Child A”).
  • you and your husband are separated.
  • there is a divorce case pending, and the court has ordered that your paramour can not be around Child A (which is not an unusual order for courts to make, by the way).
  • at some point, whether before or after separation, you were impregnated by your paramour.

Now that you are pregnant by your paramour, it appears that both you and your paramour wants to be together to support one another during your pregnancy and be a witness to the miracle of birth as it unfolds. That’s understandable.

But there’s this court order that prohibits you from being with your paramour when you are with Child A. And you appear to want your paramour with you when you are with Child A. And you wonder whether the court would take custody of Child A from you if you violate the court’s order.

Your questions are essentially: is the court’s order fair? And will I lose custody if I disobey the court’s order?

The answers to your question (and for anyone in your situation) are:

Yes, the court’s order is fair. Reasonable minds can differ as to whether it is necessary that you be ordered to bar your paramour from being with you when Child A is also with you, but if a court concludes that having the paramour around might confuse the child as to who the child’s parent is and that exposing a child to adulterous relationships and/or that shacking up is morally and pragmatically unwise is well within a judge’s rational and sound discretion.

Yes, a court could base, in whole or in part, a decision to award custody of Child A to your husband upon the fact that you are disobeying its order barring you from being with your paramour when you are with Child A. Why? Because violating court orders shows that you cannot be trusted, that you place your interests ahead of law and order and/or ahead of what the court deems best for your child. Solution: don’t have your paramour around when you are scheduled to spend time with Child A. Is this hard? Perhaps. Is it worth it to ensure you don’t lose custody or parental rights? Of course.

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

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How exactly does shared custody work? Does the child end up being like that kid from Jacqueline Wilson’s “The Suitcase Kid”?

How exactly does shared custody work? Does the child end up being like that kid from Jacqueline Wilson’s “The Suitcase Kid”?

The child certainly can be like the child (Andrea) from Jacqueline Wilson’s “The Suitcase Kid,” if under a shared parenting arrangement 1) the child divides his/her time living with both the father and mother and 2) each parent wants the child to live only with him/her and tries to persuade the child to do so.

But shared custody (also known as joint custody or—when the child spends equal time with both parents—joint equal or 50/50 custody) does not inexorably condemn the child to have a “Suitcase Kid” experience, as long as the parents place the happiness and mental and emotional health of the child above the parents’ respective self-interest. Treat your child the way you would want to be treated, were you in the child’s shoes!

It’s not popular these days to state what we all know: the best thing a fit parent can do for a child is to rear that child in a family in which that parent is married happily to the child’s other parent. Short of that, the next best thing a fit parent can do for a child is to ensure the child is reared as much as possible by both parents. Children of fit parents love both parents and want to be loved and cared for by both parents as much as possible (duh). Do it for them! They deserve it. It’s the least that divorced or separated parents can do for their children.

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

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

2019 UT App 185


No. 20180451-CA
Filed November 15, 2019

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

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

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

HAGEN, Judge:

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


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

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

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

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

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

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

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


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


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

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

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

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

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

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

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

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

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


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

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


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

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

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What’s the best way to decide who takes the children when a couple splits?

I’ll tell you one thing, it’s not the illusory “standard” (that’s not really a standard in the first place) of the “best interest of the child” that everybody talks about.

The goal of a child custody award should be the best interest of the family, both collectively and individually. Children of divorce and their divorced parents are still part of the family, albeit a broken one. With rare exception, A) divorced parents still love their children and wish to be an actively engaged part of their children’s lives and B) children of divorce want each of their parents to love and care for them as much as possible.

The idea that children of divorce are presumptively better off in the primary or sole custody of one parent to the exclusion of the other is malevolent. It’s anti-child, it’s anti-parent.

Children do not exist in isolation. Children need the love, attention, and care of both of their parents, as long as both parents are decent people. Rarely do spouses divorce over custody of their children. So why it is that parents must be made to divorce their children makes no sense. And why parents—who are not divorcing over the children—must be made adversaries in the legal system on the question of child custody makes no sense either.

Parents do not exist in isolation. With birth control and abortion being so readily available, it can be said with confidence that the overwhelming number of children born to married couples are wanted (or at least more wanted than unwanted) by their parents. If two spouses divorce because they don’t get along with each other, it makes no sense to deny them the care and companionship of their children or to deny their children the care and companionship of their parents any more than absolutely necessary under the circumstances.

What if the law were written with a rebuttable presumption that a parent who seeks an award of sole custody of children in divorce does so for selfish and/or malicious purposes? What if the law were written so that sole custody would be awarded only if a parent seeking sole legal and/or physical custody of children could overcome these presumptions by showing that 1) despite reasonable efforts to formulate and implement a joint custody award, joint custody is simply not feasible without causing the children undue deleterious effects; and 2) sole custody would be better for the children than joint custody?

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

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I have no job, I’m living in my parents’ house, and I’m on methadone. Can I get custody?

What do I do to gain shared custody of my now 13-year-old child? I do not have a current job (due to a medical problem), and I am living in my parents’ house. I’m on a methadone program too.

You would likely:

need to show 1) that you are, despite your circumstances (and they are pretty dire, if you didn’t know that yourself), a parent who is fit to have shared custody of your children; and 2) that shared custody of your children is in their best interest.


need to show 1) that you have remedied your shortcomings by a) holding employment and being self-supporting, b) having your own stable, permanent residence that is clean and safe and has room for the child, c) being either drug-free or demonstrating that your drug addiction is under control and not likely to recur; and 2) that shared custody of your children is in their best interest.

That’s a tall order, and even if you could do all that, the court may not want to modify child custody in the interest of preventing the child from the “ping-pong” effect of having the custody order change as the parents’ circumstances may change.

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

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