Tag: child custody cases

Who Has the Ultimate Decision Making Authority in a Child Custody Case, the Parents, the Lawyers, the Judges, or the Child of a Certain Age?

If the case goes to trial: the judge. However, in Utah, the jurisdiction where I practice (which is the case in most other jurisdictions too), the parents, children, and lawyers all have the opportunity to provide their input in an effort to influence, though not control, the judge’s decision.

If the parents settle the case out of court: the parents. However, the parents’ settlement agreement is subject to the judge’s approval, but judges approve settlement agreements almost all the time, as long as the settlement complies with the laws, isn’t inequitable, and can reasonably be said to subserve the best interest of the children (if the divorcing couple has children).

The lawyers have no control and only as much influence as their clients will permit them to exert and as much as the judge finds persuasive.

The children, like the parents and the lawyers too, have no control over the child custody award and generally have the least amount of influence over the decision. One of the shameful reasons for this is that most courts don’t want to hear from the children. They’ll tell you one reason is to “spare the children being put in the middle of a dispute between their parents,” but that’s not the real (or perhaps it would be more accurate to state it’s not the ‘main”) reason; kids already know they’re in the middle, so the courts can’t spare them. The real reasons are that many courts think kids are often bad witnesses because they are too young and inarticulate to testify intelligently and coherently on the subject of the custody award. And often courts won’t let children testify, which results in courts having as much discretion as possible to make the custody award they desire to make, free of having to take into consideration any pesky testimony of a child.

Some will argue that children “need someone to stand in their shoes and give them a voice” in the child custody dispute. Perhaps, if the child’s an infant who doesn’t yet wear his/her own shoes and can’t talk; otherwise, kids can stand on their own and don’t need someone to speak for them when they have their own voice and are willing to talk. But courts inexplicably (I mean it—inexplicably—believe it’s better to appoint a middleman to provide second-hand, hearsay, summary “recommendations” to the court regarding the child custody award. This middleman is an attorney known as a guardian ad litem or GAL. I really would like to say that GALs add real evidentiary value to a case. They don’t. Milton Friedman said, “One of the great mistakes is to judge policies and programs by their intentions rather than their results” Just as many people believe that seat belt laws save lives (when it’s actually the use of seat belts, not the seat belt law itself, that saves lives), those who believe that a GAL will act in the best interest of a child believe—mistakenly—that a GAL will in fact act in the best interest of a child merely by virtue of that being the intention of appointing a GAL. GALs generally do not fulfill their intended mission. In some cases, they do a child more harm than good. This is why my experience with GALs has generally been a negative one (even when the GAL sides with my client).

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

February 22, 2023Tags: child custody, child custody cases, Utah Divorce Court

Why is it OK for a parent to be given custody without their kids’ consent?

Why is it okay for a parent to be given custody without their kids consent or at least their input? This is a great question. I can’t speak for all lawyers, and the laws and rules governing what the courts must and can consider when making child custody awards differs slightly from jurisdiction to jurisdiction, but in the jurisdiction where I practice divorce and child custody law (Utah), there is a general policy that you can’t find written down anywhere but is nevertheless pervasive, and that is: courts will not talk to children in child custody cases if there is any way they can come up with a plausible excuse.

Do not misunderstand me. Courts can interview children on the subject of child custody and solicit the children’s experiences, observations, opinions, and preferences regarding the child custody award, although a child’s desires are “not the single controlling factor” governing the eventual child custody award (See Utah Code Section 30–3–10(5)(ii)). It’s just that most Utah courts, for reasons they’ve never credibly or logically explained to me, just don’t want to do it. Instead, they contract out the interviewing process to what are known as “custody evaluators” and/or “guardians ad litem”. You may ask, “So what’s the harm in that?”

In Utah, interviews between the children and custody evaluators and/or guardians ad litem are not on the record. Thus, we will never know what the children on what subjects the children were interviewed over or even if the children were interviewed at all. neither will we know what questions were asked, the manner in which they were asked, and the content and tone of the children’s responses, if any. Curiously, we don’t treat any other witness this way, but for some reason courts are more than happy to believe or say they believe that a custody evaluator and/or guardian ad litem would lie about a child interview or bungle a child interview.

when a judge interviews the child, not only do you have direct, unfiltered testimony in response to questions that the judge himself or herself deems most important to the child custody and parent time award analysis, that it takes less time, far less time than having a custody evaluator and/or guardian ad litem appointed to do the job. And it’s free of charge to have the judge interview the children, as opposed to costing thousands of dollars to pay for the services of a guardian ad litem, and even costing in excess of $10,000 to pay for the services of a custody evaluator. the value of what guardians ad litem and custody evaluators provide for the money just isn’t there when compared to no cost for a judge to interview the children directly and on the record. For some reason courts are more than happy to believe or say that they believe that it is just as good or better to have a child interview summarize and filtered through a custody evaluator or guardian ad litem then it would be to have the child speak directly to the judge, answering questions most pertinent and relevant in the judge’s opinion, and on the record. If you can explain how that makes any sense, please drop me a line.

Now clearly, some children would be too young to express a credible opinion or desire regarding child custody, are too young to know what they want, so young that they are easily manipulated, coachable, intimidated, or coerced. in those situations, it may make all the sense in the world to have a mental health professional observe the child to provide the court with some guidance as to

what custody and parent time arrangement serve the best interest of the child. but if a child is older than 10 years of age, there’s no harm in having the judge speak to that child to take the measure of the child, the child’s level of maturity and intelligence, and solicit information from that child’s experience to help guide the court in making the child custody and parent time awards. This is simply inarguable. And yet it remains virtually impossible to get a court to interview children directly and on the record. That doesn’t mean you shouldn’t try. That doesn’t mean you shouldn’t ask the court to interview the children on the record, just don’t be surprised if you get inexplicable resistance to such a sensible idea, both from the court and from opposing counsel.

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

https://www.quora.com/Why-is-it-okay-for-a-parent-to-be-given-custody-without-their-kids-consent/answer/Eric-Johnson-311?prompt_topic_bio=1

May 28, 2021Tags: child custody, child custody award, child custody cases, custody and parent time analysis, custody award, custody evaluators, desires Utah Code Section 30–3–10(5)(ii), directly, experiences, free of charge, guardians ad litem, interview children, judge interview, judge interview children, kids’ consent, kids’ input, less time, no cost, not on the record, not talk to children, observations, on the, opinions, plausible excuse, policy, preferences, thousands of dollars, value

Why Not Have the Judge Interview the Children About Child Custody?

Why Not Have the Judge Interview the Children About Child Custody?

Why Appoint a GAL or Custody Evaluator When the Judge Can Interview the Children?

This post is the first in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.

The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.

I can imagine a case in which ordering a custody evaluation and/or appointment of a guardian ad litem may be warranted, even necessary, but generally guardians ad litem and custody evaluations are an obscene waste of time and money and effort. They don’t just fail to justify their costs; they spectacularly fail to justify their costs. Instead, in the overwhelming majority of child custody disputes, the court can and should interview the children directly. The Utah Code expressly provides for this. Section 30-3-10(5), to be exact. Yet in 24 years of practice I have never had a judge agree to interview a child in a child custody dispute. Not once. And I submit that’s ridiculous. In the posts that follow we will discuss why judges interviewing children is clearly superior to appointing guardians ad litem and/or custody evaluations for the vast majority of child custody dispute cases.

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

January 6, 2021Tags: appoint, child custody cases, child custody dispute, children, costs, custody evaluations, custody evaluator, evidence, fail, faster, GAL, guardian ad litem, guardians ad litem, interview, judge, less expensive, more accurate, more particular, more reliable, necessary, Section 30-3-10(5), spectacularly fail, Utah, warranted

Mental Health Professionals: How to Make Good (and honest) Use of Them in Divorce and Child Custody

Many spouses and parents going through a divorce and child custody case may believe there is value in using mental health professionals. This can be true, if you use mental health professional services correctly. This is a case of the right tool for the job.

Whether they help you and your children by counseling with you outside of the court proceedings or help by providing expert witness analysis and testimony in the court case itself, they can provide valuable help. But first, you need to understand what mental health professionals can and cannot do and what they are willing and unwilling to do for you.

Used properly, mental health professional services can ease the pain of divorce for parents and children alike. Used properly, mental health professional services can clarify and strengthen your case in court. But too often I see litigants using mental health professional in clumsy, ham-fisted, malicious, and counter-productive ways.

This October 16, 2018 article from Family Lawyer Magazine explains this distinction very well, and I commend it to anyone who wonders whether he/she should utilize the services of a mental health professional and how to do so effectively.

Mental-Health Professionals & High-Conflict Divorce: 7 Pitfalls to Avoid
From: Family Lawyer Magazine

Mental-Health Professionals & High-Conflict Divorce: 7 Pitfalls to Avoid

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

February 6, 2019Tags: analysis, child custody cases, counseling, court proceedings expert witness, Family Lawyer Magazine, high-conflict divorce, mental health professionals, testimony