There are many ways one might interpret what your question is. If you are asking whether a child of divorced parents has, as a result of the divorce, more or fewer rights in a parent’s house after divorce than before divorce, the answer is generally no, although a court may order in the decree of divorce that a parent may have to provide certain accommodations for his/her child, if the court feels that the parent won’t provide them without being ordered to do so, such as a separate bedroom for the child, help with homework, getting the child to bed at a certain time, getting the child to and from school on time, administering necessary medication, not bad-mouthing the other parent, not engaging in corporal punishment, etc. It’s worth noting that although these orders are for the benefit of the child, they are not necessarily rights of the child to enforce.
I generally don’t recommend books on divorce or particular strategies articulated in these books because, while the advice is often (not always) good, it gets lost in the excessive number of pages it takes to stretch the advice to book length when it can and should be reduced to pamphlet- or even single page-length. one book I’ve heard rave reviews about is a book entitled BIFF: Your Guide to Difficult Coparent Texts, Emails and Social Media Posts(I provided the link if you want to buy it; I have no affiliate arrangement with Amazon). BIFF explains how to communicate effectively with especially rude and otherwise difficult ex-spouses and co-parents.
If you can check the book out of the library and read it as quickly or as closely as you wish, that’s not a bad idea, but you can get the gist of it in two pages. Here is my effort to reduce BIFF to its most helpful essential elements.
BIFF is an acronym for keeping communications with difficult people:
Brief
No more than a paragraph (2-5 brief sentences), if possible (and it’s almost always possible, even if the communication from your ex/co-parent to which you are responding droned on for pages). Make every word count.
Informative
Focus on discussing and providing facts that are relevant to the dispute. Expressing feelings usually does not help communicate briefly or clearly and risks having your ex/co-parent respond in a rambling emotional way as well.
Friendly
This just means being civil and polite, and not overly so. Common courtesy 1) reduces the risk of escalating hostilities; 2) improves the odds of effective communication; and 3) depicts you as a reasonable, mature person, and thus credible, person.
Firm
Close your message in a way that conveys that the conversation is respectfully concluded, that you have addressed everything as necessary, and will not engage in further disputation (further discussion, sure, just not fighting). If you must include a question or make a request in your response, try to phrase it for a “yes or no” response. If you need a response by a specific time, state that clearly and concisely.
To make the most of the BIFF method, BIFF-style communications should also:
Avoid the “The Three A’s” because they don’t help and are thus not needed:
Admonishments
Criticizing and reprimanding tends to take your ex’s/co-parent’s focus off the substance of the problem. Admonishments tend to elicit defensive and recriminations, no matter how innocently and sincerely you may believe you have expressed yourself.
Advice
Offering advice tends to make you look self-righteous and judgmental. Like admonishments, giving advice tends to trigger not just a response (which you are trying to avoid), but a defensive, combative response at that.
Apologies
Even a sincere apology is usually not accepted as by a high-conflict ex/co-parent with grace and class, but gets treated and cited as an admission of fault that your ex/co-parent will belabor and remind you of for months and years to come.
Incorporate EAR:
Empathy
Empathy, not sympathy. “I’ve been where you are myself, and I understand how it feels” and not “I don’t feel as you do, but I can imagine how you feel.” Empathy indicates that you take your ex/co-parent seriously and respect him/her, even when you disagree.
Attention
Stating/showing you are paying attention helps to defuse the tension and to calm your ex/co-parent by showing your ex/co-parent doesn’t have to fight for your attention and can devote that energy toward more productive ends.
Respect
Expressing respect shows your ex/co-parent that both 1) he/she matters and 2) so does the dispute and getting it dealt with.
BIFF communications are good evidence for court.
Adhere to BIFF in all communications to help ensure you don’t communicate in a manner that would upset a judge, if a judge were to read your communications. When you employ BIFF and your hostile ex/co-parent does not, you benefit twice: 1) you help resolve the problem that much sooner and 2) you show yourself to be a mature, responsible, peacemaker.
The bonus of learning BIFF?: Its essential principles apply to communicating with difficult people generally, whether they be your ex or your boss or neighbor, and whether in writing or otherwise.
You’ve picked a good topic of discussion, but your question is poorly phrased.
Your claim that only one parent can properly raise children after a marital breakup is false.
Not every divorced parent is capable of exercising joint physical custody or equal physical custody of children.
But when a child has two loving, fit parents who live within the same neighborhood and school district as their child and who are capable of providing personal care and supervision of the child, the evidence is clear that that child will likely do better in the joint or equal physical custody of both parents than if that same child were reared in the sole or primary care of just one of the child’s two parents.
Do you think it’s acceptable for the non-custodial parent to have to pay more child support because the custodial parent chooses to barely work or not work at all?
Generally, no, it is not acceptable. In the jurisdiction where I practice divorce and family law (Utah): “Every child is presumed to be in need of the support of the child’s mother and father. Every mother and father shall support their children.” (78B-12-105(1). Duty of parents.) A parent is not legally permitted, by being unemployed or underemployed, to avoid his/her financial support obligations to a child and/or burden the other parent with his/her share of financial responsibility. See Utah Code § 78B-12-203 entitled “Determination of gross income — Imputed income.”
Subsection (8) provides that one, income may not be imputed to a parent unless the parent stipulates to the amount imputed, the parent defaults, or, in contested cases, a hearing is held in a judicial or administrative proceeding and findings of fact as to the evidentiary basis for the imputation are made.If income is imputed to a parent, the income shall be based upon employment potential and probable earnings considering, to the extent known:
(i) employment opportunities;
(ii) work history;
(iii) occupation qualifications;
(iv) educational attainment;
(v) literacy;
(vi) age;
(vii) health;
(viii) criminal record;
(ix) other employment barriers and background factors; and
(x) prevailing earnings and job availability for persons of similar backgrounds in the community.
Subsection (8)(c) further provides, “If a parent has no recent work history or a parent’s occupation is unknown, that parent may be imputed an income at the federal minimum wage for a 40-hour work week. To impute a greater or lesser income, the judge in a judicial proceeding or the presiding officer in an administrative proceeding shall enter specific findings of fact as to the evidentiary basis for the imputation.”
Subsection (8)(d) further provides, “Income may not be imputed if any of the following conditions exist and the condition is not of a temporary nature:
(i) the reasonable costs of child care for the parents’ minor children approach or equal the amount of income the custodial parent can earn;
(ii) a parent is physically or mentally unable to earn minimum wage;
(iii) a parent is engaged in career or occupational training to establish basic job skills; or
(iv) unusual emotional or physical needs of a child require the custodial parent’s presence in the home. If you are an underemployed or unemployed parent who believes you can gain the child support system, you are mistaken.
So, in Utah if you you are an underemployed or unemployed parent who believes you can game the child support system, you are mistaken. If you are the other parent who is confronted with an underemployed or unemployed parent who is trying to game the child support system, know that the law is on your side, so long as you can prove that the other parent is underemployed or unemployed and needs to have a reasonable income imputed to him/her for the purpose of determining each parent’s financial child support obligations.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Can a parent with full custody refuse to allow visitation due to unsanitary living conditions?
Good question.
I will answer this question in the context of some applicable law for the jurisdiction where I practice divorce and family law (Utah).
There are many ways to approach this question, but briefly one thing you need to be aware of are the custodial interference laws.
Under the custodial interference laws (76-5-303. Custodial interference), A parent can refuse to comply with a child custody and/or parent time order under certain circumstances:
(a) the action is consented to by the person whose custody or visitation of the child was interfered with; or
(b)
(i) the action is based on a reasonable belief that the action is necessary to protect a child from abuse, including sexual abuse; and
(ii) before engaging in the action, the person reports the person’s intention to engage in the action, and the basis for the belief described in Subsection (6)(b)(i), to the Division of Child and Family Services or law enforcement.
See also 76-5-305. Defenses:
(a) the actor was acting under a reasonable belief that:
(i) the conduct was necessary to protect any person from imminent bodily injury or death; or
(ii) the detention or restraint was authorized by law; or
(b) the alleged victim is younger than 18 years of age or is mentally incompetent, and the actor was acting under a reasonable belief that the custodian, guardian, legal guardian, custodial parent, or person acting in loco parentis to the victim would, if present, have consented to the actor’s conduct.
There is no hard and fast rule you could apply in this situation, of course, but I think it’s reasonable to say that if the living conditions that the other parent’s house were so unsanitary as to pose a serious risk of harm to the child’s life or health, refusing to comply with parent time on that basis might not result in criminal guilt.
Utah Family Law, LC | divorceutah.com | 801-466-9277
If both parents are wonderful, will the court still lean towards full custody to the mother?
[Note: I am a divorce lawyer of 25 years. I am not bitter about “what happened to me in my divorce” as I am not divorced. I have no axe to grind with women or mothers (I love my mother, sisters, wife, and daughters dearly and without reservation). With these facts in mind, I answer your question as follows below.]
Not exactly. But close.
While the courts are finally starting to confront and slowly abolish discrimination against fathers when it comes to making the child custody and parent-time awards, the odds are still ludicrously in the mother’s favor when both parents are fit and loving parents.
No question about it. The exceptions prove the rule.
“All things being equal,” the mother is favored (yes, I know that’s illogical, but the courts find ways to justify or to appear to justify illogical thinking, especially in making child custody and parent-time awards).
It’s grossly unfair to children and to fit, loving fathers alike, but it’s what courts frequently (more often than not) do.
Now clearly there are times when, even though Dad’s a wonderful parent, circumstances (such as the parents living too far apart or having an unorthodox/inflexible work schedule) may render impractical or impracticable the exercise of joint equal physical custody and/or result in joint equal custody arrangements doing the children more harm than good. But far, far too often fit, loving fathers are denied joint equal custody by virtue of plain old sexual discrimination.
What does “favoring the mother” (prejudicing the father) look like nowadays? Here are few of the most common situations:
Rather than awarding joint equal physical custody to both parents, awarding “just a little more time” to Mom than to Dad. Case in point: I worked a case where both Mom and Dad had full-time jobs, but the court awarded Mom more time with the children than with Dad anyway (8 out of every 14 days on a 14-day repeating schedule—the trial court even stated that denying the kids and dad that one day every two weeks would enable dad to have more time to get his work done). This was the case where I reached my breaking point (about three years ago). To his credit, my client agreed to appeal (and pay tens of thousands of dollars for the privilege), and he won, with the appellate court ordering the trial court to award equal child custody and parent time. If you believe that happens in every case like his, you would be mistaken.
Finding that, even in situations where the children are preteens or older, the mother was (past tense) the children’s primary caregiver when they were infants and toddlers, and therefore she always has that “advantage” over the father in the here and now. I have this case where mom had been working full-time for the past four years. The youngest of the couple’s children could take care of himself and did not need a full-time caregiver. Worse, mom worked outside the home full-time, while dad’s full-time job permitted him to work from home. At the temporary orders phase of the case, the court awarded mom primary physical custody of the kids because (and the court made no secret of the basis for its decision) she hadbeen (past tense) the per children’s primary caregiver. Dad Wasn’t even seeking sole or primary custody; he was seeking joint equal physical custody, but he lost. Such an outcome is ridiculous and tragic, but not surprising.
Rejecting Dad’s claims that the mother is so lazy and that Dad not only works full-time each day outside the home, but then spends the rest of his time at home taking care the housekeeping and taking care of the kids as well. Why? Because (in my experience) in the minds of most judges it is unthinkable for a stay-at-home mother to be a lazy and inattentive parent (while at the same time it is easy for judges to believe—just believe—that a father doesn’t pull his weight when it comes to fulfilling child caregiving).
Penalizing the father for being the only full-time employed (in many cases the only employed) parent and awarding sole or primary physical custody of the children to the mother because she doesn’t work outside the home. Never mind (apparently) the fact that if the parties share joint equal custody, that would enable both parents to provide as much personal care to the children as possible and also allow them to work full-time jobs for their children’s financial support. Nope. Now clever courts will “acknowledge” and “praise” Dad for being a responsible and devoted breadwinner, but won’t award joint equal custody, justifying the unequal award of child custody with assertions such as:
Spending equal time in both parents’ Respective residences creates an “unstable” residential circumstance for the children.
The fact that unemployed Mom spends more of the waking hours with the children than does Dad (until the children start school, in which case the amount of time mom spends with the kids during waking hours is negligible compared to the time the children are with Dad while he’s at work) means that dad should spend even less of the children’s waking hours with them when he gets home from work. Otherwise stated, because Dad can’t be with the kids during the eight or nine hours that he is at work each day, that means that he should not spend the hours that he does have available to be with the children when the children could be spending that time or “consistently” in the custody and care of their mother. If you don’t understand this reasoning the first time you read through it, you’re not alone.
Courts will still indulge in blatantly discriminating against fathers:
by citing to the “fact” that women/mothers are “born nurturers”;
by citing to the “fact” that children are more closely bonded with, and thus need more time with, their mothers than with their fathers;
by claiming “it’s not the quantity of time but the quality of time” that children spend with their fathers that matters most, failing to concede that the quality of the time is a function of the quantity of time when it comes to parent-child interactions. How did the term “Disneyland Dad” evolve? Not by assuming the responsibilities and “heavy lifting” parental duties of day to day living. No, but by spoiling the child when they have such disproportionately little time on alternating weekends and one weeknight. It creates a warped sense of the father-child relationship and of reality for the kids in general, leading to the kids becoming self-absorbed, worldly, and feeling entitled around their fathers.
Utah Family Law, LC | divorceutah.com | 801-466-9277
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 | divorceutah.com | 801-466-9277
Why would a father whose attorney had outed his children’s mother as a schizophrenogenic narc monster give her full custody?
“Give?”
If the father had it within his power to prevent custody of the children from being awarded to a schizophrenic monster of a mother (as you describe her), but did not do so, then clearly the father acted (or failed to act) morally and responsibly.
It could be that the father was an even bigger monster than the mother (so self absorbed and/or apathetic that the children’s welfare didn’t concern him).
It is more likely, however, that the father did not “give” the mother custody of the children, but encountered a legal system that was biased and that discriminated against fathers, leading the father to conclude that an award of custody to the mother was a fait accompli. under such circumstances, the father did not so much “give” custody of the children to the mother, but surrendered it to her.
Utah Family Law, LC | divorceutah.com | 801-466-9277
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 | divorceutah.com | 801-466-9277
The way courts in Utah conduct custody evaluations nowadays is indefensible.
There is nothing in UCJA rule 4-903 (the rule governing custody evaluations) that requires a custody evaluation to consist of little more than educated guesses. Yet the custody evaluation process in Utah currently consists of ordering the custody evaluator:
to compare the actually implemented, so-called [1] “temporary” child custody and parent-time schedule against the other parent’s proposed schedule without ever having the other parent’s proposed schedule implemented too (if ever there were an example of an apples to oranges comparison, this is it); and then
make a recommendation as to what custody and parent-time schedule “is in the child’s best interest”.
Otherwise stated, though rule 4-903 does not require that one and only one temporary custody and parent time schedule be imposed upon parents and children throughout the duration of the pendente lite/discovery phase of a pending child custody dispute, that’s how must custody evaluations are not just performed, but required by the court to be performed without exception.
Custody evaluations
needlessly cost thousands of dollars and often exceed $10,000;
are supposed to take approximately four months to complete (and could easily be completed in four months or even less), but are never completed in anything close to that amount of time or less.
Have a probative value that is, for the most part, not merely nil, but of negative probative value because they are more often than not incompetently conducted.
It is hard to imagine:
a worse, less probative way to conduct a custody evaluation than to require that one and only one temporary custody and parent time schedule be imposed throughout the duration of a custody evaluation; and
a better, more probative way to conduct a custody evaluation than to implement and compare and analyze the parents’ respective competing child custody and parent time schedule proposals what ultimate custody and parent time schedule best serves the best interest of the child.
Implementing, during the pendente lite/discovery phase of the case could, in many (likely most) cases eliminate any need for a custody evaluation, but even in cases where a custody evaluation is deemed necessary, the custody evaluator, parents, and child would only benefit from comparing and analyzing the parents’ respective child custody and parent time schedule proposals in real time for the purpose of obtaining actual, verifiable proof as to what ultimate custody and parent time schedule best serves the best interest of the child.
Implementing, testing, comparing, and analyzing the parents’ respective competing custody and parent time plans during the pendente lite/discovery phase of the case would not take any more time than already permitted under the rules of discovery and procedure.
Parents could avoid the expense of time and money entailed by a custody evaluation by using the pendente lite/discovery period to examine and test the parties’ opposing proposed custody and parent-time awards. Why would anyone try to prevent obtaining any such evidence on the subject of child custody and parent-time? The answer is clear enough: the less evidence there is, the better for the party who benefits from the dearth of evidence. Usually, that’s the parent who is made—by judicial fiat issued following a proffer hearing—the custodial parent under the so-called “temporary custody order”.[1] That parent wants to ensure that the other parent has as little custodial and parent time awarded to (let’s call him “him”) him as possible. Given that the so-called “temporary order” so often awards one parent sole or primary physical custody of the parties’ child, that “temporary” custodial parent has everything to lose 1) if a joint physical custody schedule is ever implemented and tested during the custody evaluation and shown to be as good as or better than the statutory minimum; and 2) if a custody evaluator recommends a joint physical custody award.
If neither 1) the parties’ competing proposed child custody and parent- time awards are implemented nor 2) a custody evaluation is conducted during the pendente lite/discovery phase of this case for the purpose of gathering evidence bearing upon the child custody and parent time award, then inertia favors the so-called “temporary” custodial parent.
Yet nothing about testing competing proposed custody schedules and/or performing a custody evaluation prevents either parent from presenting any admissible evidence he/she could and would present in the absence of a custody evaluation. Parents who oppose testing competing proposed child custody and parent-time awards do so for one reason alone: to ensure the court has as little compelling real-world, reliable, probative evidence available to it as possible on the issue of child custody and parent time.[2]
Trying and testing and comparing competing child custody award proposals are the best and least expensive means whereby the parties can gather factually verifiable evidence of the parties’ competing custody and parent time award proposals actually implemented. Leaving the question of what child custody and parent time schedule actually works to the guesswork of a custody evaluator (who, when a conventional child custody evaluation order is issued, is left to “compare” the implementation of sole custody schedule to nothing else, and then on that basis determine whether joint equal custody will work without actually seeing joint equal custody ever implemented for any evidentially adequate period of time) is patently absurd.
Utah Family Law, LC | divorceutah.com | 801-466-9277
I’m preparing to begin pursuing child visitation. However, the child’s mother has moved and never told me where, and has cut off contact with me. How can I find out where she is now, or would getting a lawyer to find her address be better?
Make sure that you conduct the search in a way that is legal and that does not constitute harassment or stalking.
If a Google (and other search engines) search hasn’t uncovered the mother’s address,
then I would move on to one or two of the online services that charge a fee to locate such information. Here’s a list of some:
If that doesn’t work, hire a good private investigator. Note: private investigator quality varies widely. Make sure you don’t waste your money on a lousy P.I.
You asked if hiring a lawyer is a good way to find your child’s mother’s address and other contact information. No. Lawyers generally have no such skills. When lawyers want to find this kind of information they . . . hire private investigators. But it would be wise to consult an attorney when you start this process of seeking a court order for visitation to ensure that you don’t violate any laws in searching for the mother and in seeking a court order of visitation.
Utah Family Law, LC | divorceutah.com | 801-466-9277
I’m not sure it does (and this comes from the father of four children himself). A little paternity leave would do no harm in most cases, but I’m not sure it confers any substantial or significant personal or societal benefits.
Certainly I’m not against a father sharing the burdens and obligations and responsibilities of parenthood with the mother of the newborn child, particularly when the child is a newborn.
But we’ve gone generations without paternity leave and no one ever wrung their hands over it as being a chronic or serious difficulty for families or for society at large. I see no evidence that a “lack” of paternity leave is or ever was a difficulty at all.
With my children, I was not at home with them all day for 6 to 12 weeks after they were born, but I was with them every day, after I got home from work. There was a time when I would get home from my day job, and take care of the baby while my wife went to her job at night. My wife and I created such an arrangement so that our baby would not have to be in daycare. I don’t complain about being “denied” paternity leave, nor does my wife, nor do any of my children. Indeed, I have nothing to complain about.
Fathers clearly do not need as much time off from work after their baby is born as many mothers may. I cannot identify any personal or societal need for paternity leave. Frankly, the concept of paternity leave equal to that of a mother’s maternity leave appears to me to be an effort:
to make it appear that men are no different from women in the workplace;
and
to find an excuse for getting time off.
Some argue that by granting fathers paternity leave it helps to put fathers and mothers in the workplace on a more level playing field when it comes too staying employed and//or being promoted (the idea being that if a man takes off as much time off of work as a woman does when a baby is born, then men who have children are seen as no more of an asset to the employer woman and/or just as much of a “liability” to the employer as women who have children). That’s not true. If paternity leave is designed to prevent men from having an advantage over women in the workplace, all that paternity leave would do is encourage employers to hire people who never have children.
Utah Family Law, LC | divorceutah.com | 801-466-9277