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Tag: case law

Father has 50/50 custody. Now ex is trying to take it away. What to do?

I am a father who has exercised at least 50/50 custody with my ex. Now she’s trying to take me to court for full custody and me getting every other weekend visits. How can I avoid losing 50/50 custody?

First, thank your lucky stars you are a father who currently has 50/50 custody of his children. Far, far too many fit and loving fathers who could easily exercise joint equal physical custody of their children and whose children would do nothing but benefit from the exercise of joint equal custody are needlessly and unjustifiably denied a joint equal child custody award by courts who simply cannot bring themselves to believe, much less conceive of, the idea that children being reared by both parents equally is better than relegating one parent to second class visitor status in his child’s life.

Second, the fact that you have been exercising at least 50–50 custody of your children for the past few years helps to make it much harder for your ex to build a case against you for modifying the child custody award in a manner that deprives both father and children of a 50–50 custody schedule. Again, be grateful this is the case, because if you were trying to win 50–50 custody of your children on the first go around during your divorce or other child custody legal action, the odds are grossly stacked against fit and loving fathers.

Third, if you are afraid that your judge is going to discriminate against you on the basis of sex, you need to understand this principle: “if it isn’t close, there cheating won’t matter.” Otherwise stated, you need to ensure that you win six ways from Sunday. you have to bring overwhelming amounts of evidence and proof into court, so that you leave the judge no option but to rule in your favor. Easier said than done, certainly, but now is not the time to become complacent or substitute hope for effort. Spare no expense to preserve your joint equal physical custody award. A necessary component of a winning case is that you are living a life beyond reproach. Get your house in order. If there is anything remotely amiss in your life, correct course immediately, clearly, and permanently.

Fourth, make sure you understand and that your attorney understands what statutory and case law factors and criteria govern the original child custody award and a petition to modify the original child custody award. It may be that your ex does not have sufficient grounds for a petition to modify child custody to survive a motion to dismiss.

Fifth and finally, do not take on a petition to modify child custody alone, without a vigilant and skilled attorneys assistance. There is an undeniable culture of bias and discrimination and prejudice against fathers when it comes to courts making child custody awards. This doesn’t mean that every judge in every court indulges in sexual discrimination against father, but it’s virtually impossible to tell the difference between an impartial judge and a biased one, and so you need an attorney who will not suffer fools gladly, who will defend the joint equal custody award.

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

https://www.quora.com/As-a-father-I-have-50-50-split-custody-with-my-ex-and-then-some-now-shes-trying-to-take-me-to-court-for-full-custody-every-other-weekend-visits-how-can-I-avoid-loosing-ny-kids/answer/Eric-Johnson-311?prompt_topic_bio=1

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What is the best case law to cite about parental alienation?

What is the best case law to cite during a high conflict custody battle where parental alienation has been occurring?

If you know of any, please let me know. My e-mail address is eric@divorceutah.com.

Courts are, in my experience, very reluctant to acknowledge that parental alienation exists and does heinous damage to children and to parents, no matter how much or how compelling the evidence is that one provides.

I get that establishing parental alienation is hard as a matter of objective, verifiable proof, but courts make all kinds of crucial decisions on less than perfect information. I’m not suggesting that courts should arbitrarily and capriciously decide serious matters, but refusing to recognize parental alienation (not “parental alienation syndrome (PAS), just the acts and effects of one parent that estrange a child from his/her parent as the result of the other parent emotionally and/or psychologically manipulating the child, causing the child to fear or hold the other parent and that parent’s side of the family in contempt) cannot happen and does not frequently (not always, but far from rarely) occur is not just tragic, but needlessly tragic, when a preponderance of evidence is apparent.

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

https://www.quora.com/What-are-the-best-case-laws-to-cite-during-a-high-conflict-custody-battle-where-parental-alienation-has-been-occurring/answer/Eric-Johnson-311?prompt_topic_bio=1

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What do lawyers do if they can’t find case law to support the case at hand?

What do lawyers do if they can’t find case law to support the case at hand?

I think what you’re asking is what lawyers do if they cannot find statutes, rules, case law, or compelling reasoning that support their clients’ positions.

Usually when this occurs it means that the client has a bad case, a legal position that is weak or clearly in the wrong.

Some times (rarely) when this occurs it means that the governing laws, rules, and previous appellate decisions (decisions of the courts of appeals are what case law is) violate a client’s constitutional rights and thus cannot govern the client’s situation and must be disregarded.

Notwithstanding and when all else fails, there is an old adage among some lawyers: “If you have the facts on your side, hammer the facts; if you have the law on your side, hammer the law; if you have neither the facts nor the law, hammer the table.” It’s a humorous saying, but not terribly effective legal advocacy.

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

https://www.quora.com/What-do-lawyers-do-if-they-cant-find-a-previous-case-to-use-for-the-case-at-hand/answer/Eric-Johnson-311

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Can a parent discipline a child by taking the child’s phone away?

Can a parent discipline a child by taking the child’s phone away?

Before researching this question, I thought the answer was obvious. It’s not. As a both a lawyer and a parent myself, I always believed that I had control over my minor children’s property, meaning I could, among other things, withhold use of a phone or a bike as a disciplinary measure. Now I’m not so sure. Here’s what I found. What do you think? (read this whole thing because if you don’t you’ll be fooled):

I found two cases (in Texas and Michigan) in which a parent was arrested and charged with theft of a phone. In the Texas case, a father was charged with theft, but the court found the father not guilty because there was insufficient evidence of theft. The mother of the child claimed the phone was hers, but the court could not determine ownership. In the Michigan case, a mother was charged with theft, but charges were dropped when it was discovered that the phone was not the property of the ex-husband/father, but that the minor daughter’s owned the phone.

From what I can tell from the cursory research I have conducted, I can confidently conclude: 1) courts and prosecutors generally don’t want to deal with these kinds of family disputes (good for them) and 2) these kinds of cases can turn out however the prosecutors and/or courts want, i.e., they can construe the same facts and the same law to reach the desired outcome either way. Otherwise stated, if a conviction for theft is wanted, it can be found “as a matter of law” that taking a child’s phone is theft, and if a conviction for theft is not wanted, it can be found “as a matter of law” (often times referring to the same statutes) that a parent taking the child’s phone away was not theft.

But is there a more definitive legal answer? Here’s what I found on that question:

See 61 A.L.R.2d 1270 (Originally published in 1958):

§ 1. Generally [Cumulative Supplement]

Although a parent, either as natural guardian or otherwise, has no title to the property of his minor child, nor any custody or control over it, and may make a gift inter vivos to such child which, when fully executed, is irrevocable, property furnished by a parent to his child for the purpose of support and maintenance, or education, unless in some definite way given to the child as his own property, or unless the child has been emancipated, from which a gift may be implied, appears to remain the property of the parent, who is entitled to recover for damage thereto or loss thereof.

And see:

5 Summ. Pa. Jur. 2d Family Law § 8:38 (2d ed.) | June 2020 Update

§ 8:38. Parent’s right to control of child’s property

A parent has no authority to sell and convey the interest of a minor child in real or personal property. Parents are also precluded from bargaining away the rights of their minor children.

But then you get cases like Kemp v. Kemp, 485 N.E.2d 663, 665 (Ind.Ct.App.1985):

Court necessarily grants to divorced parent some degree of control over child’s property in process of determining which parent acquires or retains custody of child upon dissolution of marriage.

Inherent in the concept of “child custody” is the right and obligation to care for, control, and maintain the child. It is a matter of common sense, then, that in the process of determining which parent acquires or retains custody of a child, a court necessarily grants to that parent some degree of control over the child’s property.

For example, no one would deny a “divorce” court’s jurisdiction when dissolving a marriage and disposing of marital property to order a husband to surrender to his former wife a motorcycle belonging to their sixteen-year-old child, now in the wife’s custody. An argument that the court in such a hypothetical has thereby “awarded property not owned by the parties” or “distributed assets in excess of the marital estate” misses the mark entirely. In fact, such a court has awarded nothing and distributed nothing. It has simply decided which parent should exercise the guidance and control over the minor’s life and property that inhere in the concept of parental custody.

Before and after the dissolution the motorcycle “belongs” to the child; the court has merely determined which party ultimately possesses what might be termed parental dominion over the property by virtue of having custody of its owner. Thus, even though the mother might subsequently deny her minor child the use of his motorcycle, her right to do so lies in her rights and duties as custodial parent, not in any rights of legal ownership. See McKinnon v. First National Bank of Pensacola (1919) 77 Fla. 777, 82 So. 748 (In McKinnon, the Florida Supreme Court noted that while a father had given money to his children as an absolute gift, he “did not intend for them to acquire extravagant habits by permitting them to use the money as they pleased before they were eighteen years old. This, as their natural guardian, he had the right to do, and if the gifts had been made by a third person he could have controlled his children in its expenditure until they reached an age when he considered it was advisable for them to use it as they saw fit.” 82 So. at 749, 750 (emphasis supplied)).

. . . and like State v. Udell (Court of Appeals of Kansas, July 22, 2005 34 Kan.App.2d 163, 115 P.3d 176):

a parent/child relationship gives rise to a presumption of control of property. Rith, 164 F.3d at 1330. The Rith court noted evidence which would tend to rebut that presumption included the child’s payment of rent, a lock on the bedroom door, or an implicit or explicit agreement the parents never enter a particular area. 164 F.3d at 1331.

. . . and like L. A. M. v. State (Supreme Court of Alaska. March 15, 1976, 547 P.2d 827)

While there is much discussion of parental rights in reported cases, few cases attempt to define those rights making discussion difficult. A careful review of the literature, including case law, treatise and law review, indicates that the following have been listed as ‘parental rights’ protected to varying degrees by the Constitution:

*****

(4) The right to control and manage a minor child’s property.*

*I can’t find any U.S. Supreme Court or other case law supporting this claim.

But then there are cases such as In re Casey (December 4, 2008, Not Reported in Cal.Rptr.3d2008 WL 51229895 Cal. State Bar Ct. Rptr. 1172008 Daily Journal D.A.R. 17,952)

(Emery v. Emery (1955) 45 cal.2d 421, 432 [minor child’s property is his or her own, and not that of child’s parents]; see also Fam.Code, § 7502 [parent has “no control over the property of [a] child”]; In re Tetsubumi Yano’s Estate (1922) 188 Cal. 645, 649 [minority does not incapacitate a person from taking and holding real estate].)

Black’s Law Dictionary ((11th ed. 2019), under the definition of “parental rights”) has this, but then gives no citations to the Constitution or statutes or case law:

parental rights (18c) A parent’s rights to make all decisions concerning his or her child, including the right to determine the child’s care and custody, the right to educate and discipline the child, and the right to control the child’s earnings and property.

Before researching this question, I thought the answer was obvious. It’s not.

See 61 A.L.R.2d 1270 (Originally published in 1958):

§ 1. Generally [Cumulative Supplement]

Although a parent, either as natural guardian or otherwise, has no title to the property of his minor child, nor any custody or control over it, and may make a gift inter vivos to such child which, when fully executed, is irrevocable, property furnished by a parent to his child for the purpose of support and maintenance, or education, unless in some definite way given to the child as his own property, or unless the child has been emancipated, from which a gift may be implied, appears to remain the property of the parent, who is entitled to recover for damage thereto or loss thereof.

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

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What Legal Research Is and Why It’s Important to Your Case

Most clients have no idea how much work takes place behind the scenes at most law firms. More than the copious phone calls, emails and text messages back and forth to opposing counsel/parties. Planning, research, evidence gathering, document drafting, court filings, etc. are vital steps in ensuring that we provide clients with the best legal work possible.

Legal research is crucial because to make or refute a claim, arguments must rest on a solid foundation of compelling authorities that persuade the reader—in most cases, a judge or court commissioner—to issue a decision that benefits the case.

Researching legal arguments includes reviewing the statutes and the decisions of the courts that construe the meaning and application of those statutes.

The legislature passes statutes (in Utah it’s the “Utah Code”). The appellate courts (courts that hear appeals of the trial court decisions when parties claim the trial court judge committed a legal error or errors) interpret the Code and determine whether the trial court got it right or wrong. We refer to these decisions of the appellate courts (Utah Court of Appeals and Utah Supreme Court) as “case law,” which, as the name implies, is based upon real-life cases that have been brought before a court, and how said court decided upon said cases. These court decisions bind not only the people who were involved in the case itself, but set “precedent” for how trial courts will construe the law in the future, until the Code changes or until an appellate court may strike down that decision in the future.

This means that if one year I’m able to make a great argument based upon a decision of the Utah Court of Appeals, but the following year the Utah Supreme Court abrogates (overrules and does away with) that decision, then I cannot cite that case in any future arguments. A large part of legal research involves reviewing the statutes and the case law to ensure they are still current, still binding. As you can imagine there’s a lot of digging to be done, and what I have mentioned thus far is just about legal research; imagine all the other things I must do besides legal research to build a strong case.

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

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