Tag: Children in Divorce

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

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

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

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

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

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

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

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

Utah Family Law, LC | | 801-466-9277

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What Do We Do When Equal (50/50) Physical Custody Is Awarded but One Parent Isn’t Bearing the Responsibilities Equal Custody Requires of That Parent?

Recently a reader commented on my answer to this question: Is there a primary parent in joint custody in Utah which is also known as “equal” or “50/50” custody?

They were good comments that reflect the frustrations of many parents in equal custody situations. To summarize them:

  • Equal physical custody should not be awarded unless each parent exercises equal parental responsibility
    • Or at the very least, if one equal custodial parent does more of the work of caring for the children during his/her time when the children are in his/her care, award that parent some (or more) child support for his/her trouble.
  • Equal custody should not be awarded or exercised if an equal custodial parent who is ordered to pay child support does not pay it.

It is absolutely and indisputably correct that for a parent to merit an award to him or her of equal physical child custody that parent must bear parental responsibility equally as well.

The question, then, is: what is equal parental responsibility?

While bearing parental responsibility equally could mean that the parents perform each and every parental task equally and in equal amounts (“if I take the child to the doctor this time, you have to take the child to the doctor the next time”), it does not necessarily require it. Pulling equal weight doesn’t mean pulling the same particular weight at the same particular time. If one parent is happier helping with homework than with athletics or club activities, then it may not be a bad idea for that parent to help with most of the homework and for the other parent to take care of getting the kids to and from soccer practices and games. You get the idea.

You mentioned that your ex-husband can pay but chooses not to pay the $40 he is court-ordered to pay each month for homeschooling costs. That’s inexcusable, if you were awarded sole custody, that wouldn’t magically cause Dad to pay you $40 every month either. So not paying money isn’t a reason not to award equal custody. THAT STATED, I know that some parents who were awarded equal custody want all the benefits of equal custody without meeting any of the associated responsibilities. The only way to keep some (some, not all) of these types honest is to hit them in the pocketbook.

We all know that if spending time with the children were conditioned on paying child support in full and on time (when able, of course), we’d see a lot more child support being paid. Not always, but a lot more. We also all know that if receiving child support were conditioned on ensuring that you showed up for every custody and parent-time exchange on time (when able, of course), we’d see a lot more child support being paid as well.

Unfortunately*, Utah’s law is “If a parent fails to comply with a provision of the parenting plan [i.e., the physical custody and parent-time awards] or a child support order, the other parent’s obligations under the parenting plan or the child support order are not affected.” (Utah Code § 30–3–10.9(9)) and “A parent may not withhold parent-time or child support due to the other parent’s failure to comply with a court-ordered parent-time schedule.” (Utah Code § 30–3–33(9))

You also referred to the situation in which Dad never attends health care appointments. This is a hard question to analyze, but here’s my reasoning:

  • If Dad can take the kids to these appointments without placing his job in jeopardy, he should. That way, neither parent is burdened too much with appointments and each parent stays apprised of their children’s health and health care.
  • But if Dad works a 9 to 5 job, and if the appointments take place during the 9 to 5 work day and you’re a stay-at-home parent who homeschools the kids, doesn’t it make more sense for you to take the kids to these appointments? Why make Dad do it just to make him do it? Why make Dad do it when you can do it easier and without placing Dad’s job in jeopardy?
  • On the other hand, if Dad could bear the health care appointments burdens with you equally, but refuses to do so, resulting in you spending all the time and making all the effort required to take care of this important custodial responsibility, that may justify awarding you sole physical custody of the children.

Utah Family Law, LC | | 801-466-9277

*Again, and in fairness (and while I don’t have any data to support this), I’d bet that conditioning custody and parent-time on paying child support and conditioning the payment of child support on the child support recipient complying with custody and parent-time exchanges causes more problems than it solves. Maybe it doesn’t. If there is no data, I think it’s worth experimenting with to find out.

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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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Have there been any studies of the impact of divorce on children distinguishing between those whose parents divorced after they left home and before?

That’s a good question. One that I’ve wondered about myself, but I don’t know of any such studies. That doesn’t mean they don’t exist, it’s just that I don’t know whether they do.

(48) Eric Johnson’s answer to Have there been any studies of the impact of divorce on children distinguishing between those whose parents divorced after they left home and before? – Quora

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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The Problem with Private Guardians ad Litem. Part 1 of 3

Utah Code § 78A-2-705 provides that, “The court may appoint an attorney as a private attorney guardian ad litem to represent the best interests of the minor in any district court action when: child abuse, child sexual abuse, or neglect is alleged in any proceeding, and the court has made a finding that an adult party is not indigent as determined under Section 78B-22-202; or the custody of, or parent-time with, a child is at issue.

What is a guardian ad litem? According to Black’s Law Dictionary, a guardian ad litem is a lawyer, appointed by the court to appear in a lawsuit on behalf of an incompetent adult or on behalf of a minor child party. At first blush, the concept of a guardian ad litem sounds pretty good, right? Unfortunately, the way private guardians ad litem (known as PGALs, for short) are utilized in Utah’s courts in child custody disputes is simply wrongheaded and contrary to the fundamental principles of fact finding, due process of law, and justice itself.

Given that children have the greatest stake in the custody and parent-time awards, I cannot see how any competent jurist could justify barring a sufficiently (sufficiently, not excessively) competent, intelligent, mature, and credible minor child witness (especially, but not exclusively, a child who wants to testify) from testifying on those subjects.

PGALs are not appointed for the purpose of ensuring a child never testifies on/for the record in his/her own words, yet that is what many GALs/PGALs believe (and they act accordingly). I’ve encountered PGALs and judges who object to children who want to testify–not because the children are incompetent or incredible or in serious danger if they testify, but “as a matter of general principle” (whatever that means).

PGALs are not witnesses (expert or otherwise). PGALs cannot testify, but most PGALs I know believe they can testify, nonetheless. Most PGALs I know believe that they are an exception to the hearsay rule. Most PGALs I know believe that one of the purposes of their appointment is ensuring a child’s own, unfiltered, un-summarized, direct, on the record testimony is never heard. This is wrong. PGALs claim that one of their roles is to prevent the child from getting involved in the case. This is wrong too.

Every witness (child or otherwise) is inherently involved to some degree or another in the case in which the witness testifies. Most witnesses (even party witnesses) are reluctant witnesses. It has been my experience that, as a lazy, disingenuous way to prevent any child of any age from testifying for the record, those who oppose child testimony define “harm’s a child” as synonymous with “child is reluctant” or “child might be reluctant” or “the child’s testimony could upset a parent and the parent might retaliate against the child” or “simply having to contemplate the subjects raised in the course of testifying is asking too much of any child.” These lazy, disingenuous people equate any and all testifying from the mouth of the child on the record with inherently causing the child harm.

I could easily identify a dozen Utah attorneys who, with a straight face, will unqualifiedly agree with the statement, “Any child who testifies directly on the record on the subject of the custody or parent-time awards that will apply to him/her is unduly harmed by his/her testifying.” It’s a fatuously overbroad contention and they know (or should know) it, but it’s not about coming up with sincere, good-faith opposition to child testimony, it’s about contriving what is labeled an excuse (plausible or otherwise) to prevent child testimony.

Another “reason” for banning on/for the record child testimony that a child’s preferences and desires do not control the custody and parent-time awards. That’s embarrassingly disingenuous. I am aware of no one ever arguing, “Once the child has testified for the record, the court is inexorably bound to award custody and parent-time as the child wants,” yet I have seen many memoranda that argue against child testimony on the “grounds” that a child should not testify because “the [child’s] expressed desires [regarding future custody or parent-time schedules] are not controlling.” (see Utah Code Section 30-3-10(5)(b)(i)).

It is not my purpose, in seeking the testimony of children on subjects relevant to the custody and parent-time awards, to harm those children. By the same token, unless child testimony is honestly found to be unduly harmful to a child, then a child should not be prevented from testifying simply because someone can think of any kind of harm–no matter how slight–that testifying might cause the child.

Utah Family Law, LC | | 801-466-9277

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Why Do Americans Believe That Divorce Is Damaging to Children Compared to Remaining in a “Bad” Marriage?

Your question is not a good one because it’s based upon a false premise. Not all Americans believe that it’s better for all children for their parents to remain in a bad marriage. A better question would be:

Is it better for children of parents in a bad marriage for these parents to stay married or to divorce?

While this is a better question, it’s still not very good because so many factors vary so much. Not all children, parents, or marriages are the same. What one parent may consider a “bad” marriage the other parent may consider not just “not bad” but a good marriage. And the effects of divorce vary widely as well. Some children benefit from their parents divorcing, most do not. For some, divorce is vastly superior to remaining in a particularly dysfunctional, miserable marriage. Others regret divorce, discovering that the marriage was not the problem, that the marriage could have and should have been salvaged, and/or that the divorce caused more problems than the marriage did.

It is an undeniable fact that marriage is generally better for the overwhelming majority of normal people than staying single or divorcing. I believe most people believe this as well.

Life’s greatest joys are found in or stem from a sound marriage and family. Life’s greatest joys come from being cared for as a child by loving parents and by caring for and loving one’s own spouse and children. The best thing that one can do for a child’s long-term well-being as an adult is rearing that child in a loving, responsible nuclear family. With rare exception, those who say that they don’t want marriage and children are lying. Even people who shun marriage and families because they grew up in a dysfunctional family or in no family aren’t evidence that marriage and family are bad. Even children of dysfunctional families or single-parent families or no families at all will, when being honest with themselves and others, concede that they yearn for a loving marriage and family of their own. It’s in our nature to want to be a child of a sound marriage and family and to raise children of our own in a sound marriage and family.

Successful marriage is work, but when undertaken with the right motives and understanding, a labor of love in both good times and bad. Denying oneself the blessings of marriage and family out of fear that the potential marriage and family demands sacrifice and might fail is self-defeating. Nothing ventured, nothing gained. No one likes to fail, but what is worse than a failed attempt is no attempt at all.

Obviously, chronic serious dysfunction is not an attribute or purpose of a sound, successful marriage. Those dysfunctions must be addressed and overcome (or at least be successfully treated on an ongoing basis) or the marriage should end. Neither is a good marriage without some betrayals, unmet expectations or hopes, conflict, and other disappointments. But no reasonable person could argue that children are better off with unmarried parents if those parents could marry and stay married in a wholesome family environment. The data proving such are overwhelming.

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

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Can an adult child be sued for helping one parent divorce the other?

Taking your question literally: 

Can? Yes. 

You can file a lawsuit for any “reason” or no reason at all. Crazy and/or malicious people file crazy/malicious/frivolous/unintelligible lawsuits all the time. 

Just because you can file a lawsuit does not mean, however, that you will prevail in court on your claim(s) made in your lawsuit. 

So is it possible to find some plausible legal basis for a cause of action by one adult child against a sibling who helps one of their parents divorce the other? I’m sure it is. 

Is it likely to succeed? No. 

But could it? Possibly, depending upon the legal solidity of the bases for the claim(s), the skill with which the pleadings are drafted and the legal arguments are made, how persuasively you or your attorney argue the matter, and how receptive your judge and/or jury are to your arguments. 

Utah Family Law, LC | | 801-466-9277 

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How should the child support payment system in the U.S. be changed?

How should the child support payment system in the U.S. be changed to make it more fair? 

What is unfair about child support for the child support payor (also known as the child support obligor): 

  • tying child support to the number of overnights the child spends in the custody of a parent entices many parents to seek being awarded as many overnights as possible, thereby ensuring that the one receiving child support receives as much as possible or ensuring that the one who pays child support pays as little as possible. Even when the child would benefit from being in the joint (or even joint equal) physical custody of the parents, many parents try to seek sole or primary physical custody awards simply to gain the child support calculation process. 
  • child support recipients (also known as the child support payees or obligees) who use child support money for the their own personal expenses and not for the child’s actual support.  
  • lack of accountability on the part of the child support recipient for how the child support monies are spent, to ensure that the monies are being spent on the financial support of the child, as opposed to the personal expenses of the child support recipient. 
  • child support calculation formulae that are not commensurate with the child’s actual financial needs, i.e., orders that someone has to pay more money each month (in some cases substantially more money) than is necessary to meet the child needs. 
  • child support awards that “kill the goose that lays the golden eggs” by requiring such a high amount of child support be paid that the child support payor cannot meet his/her own basic monthly costs of living. 

Utah Family Law, LC | | 801-466-9277 

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What will happen if the child refuses to go with the custodial parent?

What will happen if the court ruled in favor of a mother to have the custody of her child but the child refuses to go with her and she prefers to stay with the father?

This situation (and this question) comes up a lot. I will answer the question as it applies in my experience to the jurisdiction where I practice divorce and family law (Utah). 

SHORT ANSWER: The general rule of thumb is that if the child is a teenager and has the guts and the will to defy the court’s custody orders, then that child is going to live with the parent with whom he or she wants to live because the court is essentially powerless to force the child to comply with the child custody order, i.e., the court finds it more trouble than it is worth to enforce a child custody order against a defiant teen. 

LONGER ANSWER: Technically, the child has no choice in the matter, once the court has issued its child custody ruling and resulting orders. In other words, just because somebody doesn’t want to follow court orders doesn’t mean that he or she is free to disregard them or to act as a law unto himself or herself. This proves to be true of court orders pertaining to adults. Child custody orders, and the children affected by them, however, are in reality a different matter. 

In the law we have two terms that help to describe the situation: de jure and de facto. De jure means that which is which applies as a matter of law. For example, as a matter of law, your child is ordered to spend most of his/her time in the custody of mother, with the father spending time the child on alternating weekends and a few odd holidays. De facto means that which is or that which applies as a matter of fact (in reality, and not as the court may artificially require). So while as a matter of law your child is required to live with mother, if in reality (as a matter of “fact”—this is where the “facto” in “de facto” comes from) the child refuses to live with mother and stays at the father’s house, that is the de facto child custody situation. 

When A) the de jure and de facto situations conflict in a child custody situation, and B) the child is old enough, strong enough, and willful enough to continue to the court’s custody orders, the court often (not always, but usually) feels that they are practicably powerless to force children to live with a parent with whom they do not wish to live. 

Normally, when an adult will not comply with the court’s order, One of the tools a court can use to enforce compliance is its contempt powers. Those powers include finding and jailing the noncompliant person. But with children, that power is, for all intents and purposes, nonexistent. Children usually have no money with which to pay a fine, and Utah does not allow courts to jail minors for mere contempt of court. 

Some courts try to get creative and impose sanctions on a noncompliant child by essentially ordering them “grounded”, but again, if the child chooses not to comply, there is little the court can do or feels is wise to do to the child. I’ve seen a court try to get a child to comply by ordering her barred from participating in her beloved dance classes and driver education courses (so that she can’t get her driver license unless she lives with the court ordered custodial parent) as long as the child refused to live with the court-ordered custodial parent. In that case, however, the child outlasted the court, i.e., she kept living with the noncustodial parent and stopped attending dance and driver’s ed. classes. Then the court found itself in the awkward position of preventing the child from getting exercise and driving to and from her job and other worthwhile, even necessary activities, so the court relented (both in the best interest of the child and to save face). This is a lesson that most courts learn when they try to use the coercive powers of the court against children to enforce child custody orders. 

Courts don’t want to dedicate their own resources and law enforcement resources to 1) literally dragging a child out of one parent’s home and literally stuffing the child into some other home; and 2) doing so repeatedly when the child refuses to stay put. It’s a waste of law enforcement resources and the fear is the child will eventually run away (and act out in other self-destructive and dangerous ways), if not allowed to live with the parent of his/her choosing. 

And courts don’t want to punish a parent for the misconduct of a child. Some courts have tried to punish noncustodial parent by holding them responsible for their children’s noncompliance with the court orders, but that doesn’t work when the noncustodial parent truly isn’t at fault. Courts realize that a noncustodial parent cannot simply, for example, 1) push the child out the door, lock it behind the child, and wish the child well in subzero degree weather; or 2) manhandle the child into the custodial parent’s car, then be charged with child abuse. And punishing the noncustodial parent often only serves to lead the child to be more determined to defy court orders. 

As you can imagine, a child’s “power” to choose where he/she lives usually does not arise until the child is old enough and strong enough and willful enough to exercise some degree of autonomy over which parent with whom he/she lives. That doesn’t usually happen until children reach approximately the age of 12 or 14, although some children may start younger. Children under that age are typically unable or too afraid to exert their own preferences and wills. 

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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If two unwed people have a child and split up, is it treated like a divorce?

If two people have a child out of wedlock, and they split up, is it treated like a divorce? 

I will answer this question for the jurisdiction of Utah. 

The child custody dispute (if there is one between the parents) is usually subject to the same laws and court rules that apply to the child custody award in a divorce action. That means that the court considers in a non-divorce child custody dispute the same factors for awarding child custody and child support as would apply in a divorce case in which child custody is an issue. 

But because the couple was not married, the court will not treat the couple as married, which means that the court will not divide between the two unmarried people property and responsibility for debt (because the court cannot do so in a paternity (now known as a “parentage”) case or in a child custody dispute case. For the same reasons, the court cannot award alimony or spousal support to someone who is not a spouse. 

If an unmarried couple acquired property or incurred debt jointly and they cannot or will not agree how to divide that property or responsibility for debt between them after the couple splits up, they would have to address those issues through legal processes other than a divorce action because only married people can divorce. 

Finally, there are a few states that recognize a couple as married even if they did not participate in a formal, legally recognized marriage ceremony (known as a “solemnized” marriage). Such is known as a common law marriage or as a valid, but unsolemnized marriage. In such jurisdictions, a man or woman can sue the other person he/she has lived with and had children with can file a lawsuit for a “divorce” and can obtain a decree of divorce and have the parties’ and their children subject to that jurisdiction’s divorce laws if, and only if, he/she can convince the court that the parties’ relationship should be recognized as a common law or legally valid unsolemnized marriage (See30-1-4.5. Validity of marriage not solemnized). 

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

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If you have 50/50 custody, how much vacation time from kids is approriate?

If you’re separated and have 50/50 custody, how much vacation time away from your kid is appropriate?

Too many variables to consider to give you an intelligent answer. 

How old is the child? How “clingy” is the child? How long is the child accustomed to being away from you already? What, if any, people and assistance do you have in place to care for the child while you are in vacation, if your ex is not willing to provide care and supervision for the child in your absence? At what point is X number of days away from the child having an unnecessarily adverse effect on the child? 

Once you have these questions answered, you will know how much vacation time away from the child is appropriate for you. 

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

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If a married couple divorces and neither one wants their child, what happens?

Great question. I have discussed this question with others. Their first reaction to the question is along the lines of “Oh, that’s terrible!,” but then we discuss the fact that there are those rare and exceptional families we’ve either known of or heard of in which the parents are good folks, but their children are, despite the parents’ best efforts, impossible to get along with (yet the kids aren’t bad enough to be arrested and locked away).  

I’ve never encountered such a situation as a divorce lawyer, but I wouldn’t be the least bit surprised if I do some day (there is an old joke about a couple who didn’t get a divorce because neither wanted custody of the kids). 

What I have encountered on occasion is a family in which some of the children hate (or at least don’t get along with) one of their parents, and love (or at least tolerate) the other parent, resulting in a split custody award; resulting in Connor and Madison living with Mom, while Jordan and Chloe live with Dad.  

Now back to your divorce scenario where neither Mom nor Dad can stand their kids and neither Mom nor Dad want custody of their kids. What makes your scenario so odd is that we don’t have a process for dealing with it. When parents are bad and the kids are innocent, we have a mechanism by which the state can take the kids from the bad parents and place the children in foster care. If the children are delinquent, we can take them out of Mom’s and Dad’s home and place them in juvenile detention.  

But if 1) the kids aren’t criminals or mentally ill to the point that Mom and Dad simply cannot or should care for them; and 2) Mom and Dad are both fit parents (i.e., law-abiding, non-violent, non-neglectful, able to take care of the children and to provide them with the necessities of life), then Mom and/or Dad would almost certainly be forced to continue to honor their obligation as parents at least to provide the children food, shelter, clothing, and education.  

Usually the court has to deal with parents who are fighting to get sole or joint custody of the kids, not to foist custody on the other parent. So some judges wouldn’t know what to do when each parent comes into court fighting tooth and nail to ensure that he/she doesn’t get “stuck” with custody of the children.  

Such a situation would give rise to a new twist on an old child custody litigation scam. Rather than each parent falsely (and ludicrously) accusing the other of being abusive and neglectful in an effort to “win” custody, each parent would be falsely accusing himself/herself, so that he/she is declared unworthy of being awarded child custody. I won’t lie; given the volume of false allegations parents selfishly make against each other without considering what that does to the kids, flipping the child custody fight script would be as hilarious as it is tragic.  

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

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Why is disciplining a child a sign of parental alienation in the long-term?

This is an example of a logical fallacy; specifically, begging the question. It assumes the conclusion in the premise 

It is not a given that disciplining a child is a sign of parental alienation in the long-term. 

Disciplining a child (whether physically or otherwise) does not inexorably cause parental alienation. My parents disciplined me, both with spankings and by grounding me or taking away privileges. This made me unhappy, but did not alienate me from either of my parents. 

It is possible for a parent to engage in excessive and/or inappropriate child discipline that will have the effect of alienating the child from that parent or (eve more tragically) from the innocent parent, but it is not a given that mere discipline of a child causes parental alienation. 

Utah Family Law, LC | | 801-466-9277 

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In Utah is there a minimum age at which minor children can be left at home or allowed to walk to school by themselves?

No. There is no minimum age at which child can be left unsupervised in Utah. Child and Family Services uses the following definition to evaluate each situation:

Non-Supervision – The child is subjected to accidental harm or an unreasonable risk of accidental harm due to failure to supervise the child’s activities at a level consistent with the child’s age and maturity. Included below is a link to the Utah department of child and family services’ frequently asked questions page for more information.

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

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