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Tag: concerns

Does a spouse have the right to see a DUI report?

First, if you are referring to a police report of a DUI citation and/or arrest, in most jurisdictions such records are public record, and thus available not only to your spouse, but to any other member of the public.

Second, if the question of whether you were cited and/or convicted of DUI arises in a divorce or child custody case because your spouse and/or the court has determined that alcohol or other substance abuse concerns are relevant to the child custody award or alimony award or other issues, then even if your DUI report were not already public record, it would likely be discoverable in the course of litigating the case and preparing for trial, so that both your spouse and the court would have that information available to them when arguing over which parent should receive child custody and/or how much time each parent should spend with the parties’ children, whether alimony should be tempered by your substance and/or spousal abuse history, etc.

Bottom line: records of a citation for, arrest for, conviction of, and or incarceration resulting from DUI are almost certainly discoverable in most divorce and child custody cases.

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

https://www.quora.com/Does-a-spouse-have-the-right-to-see-a-DUI-report/answer/Eric-Johnson-311?prompt_topic_bio=1

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Does a spouse have the right to see a DUI report?

Does a spouse have the right to see a DUI report?

First, if you are referring to a police report of a DUI citation and/or arrest, in most jurisdictions such records are public record, and thus available not only to your spouse, but to any other member of the public.

Second, if the question of whether you were cited and/or convicted of DUI arises in a divorce or child custody case because your spouse and/or the court has determined that alcohol or other substance abuse concerns are relevant to the child custody award or alimony award or other issues, then even if your DUI report were not already public record, it would likely be discoverable in the course of litigating the case and preparing for trial, so that both your spouse and the court would have that information available to them when arguing over which parent should receive child custody and/or how much time each parent should spend with the parties’ children, whether alimony should be tempered by your substance and/or spousal abuse history, etc.

Bottom line: records of a citation for, arrest for, conviction of, and or incarceration resulting from DUI are almost certainly discoverable in most divorce and child custody cases.

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

https://www.quora.com/Does-a-spouse-have-the-right-to-see-a-DUI-report/answer/Eric-Johnson-311?prompt_topic_bio=1

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GAL recommendations are nowhere close to being the best way

GAL recommendations are nowhere close to being the best way to determining the child’s best interest.

This post is the thirteenth 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.

If a guardian ad litem claims to tell the court what a child said, that violates the rule against hearsay and violates the privilege against disclosure of attorney client communications.

When I point out to the court a guardian ad litem’s attempts to proffer hearsay statements, I am either ignored or told that there is a special exception for guardians ad litem (which is not true). When I try to invoke Utah rule of evidence 806 to cross examine a child on the hearsay statements (to determine whether what the child is alleged to have said is actually what the child said), I’m either giving an emperor’s new clothes kind of denial or just ignored. Now you understand that if the judge would question the child directly, there would be little to no need to cross-examine the child in the first place (if the judge questioned the children well, for example). Likewise, if a judge would question a child directly there would rarely, if ever, be a need to appoint a guardian ad litem or custody evaluator for the child’s benefit either. I do not understand why we have guardians ad litem or custody evaluators serve the purpose of “giving the child a voice” when the child has his or her own voice and is perfectly capable of using it, especially in articulating and attempting to advance the child’s own best interest by speaking directly with the court as to the child’s experiences, observations, ceilings, concerns, opinions and desires, without the child’s words being parsed or filtered or misconstrued by second and third hand intermediaries.

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

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If everyone agrees that the judge needs to know what the child is experiencing, observing, and feeling, why won’t the judge interview the child?

If everyone agrees that the judge needs to know what the child is experiencing, observing, and feeling, why won’t the judge interview the child?

 

This post is the seventh 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 respectfully submit that claiming a child will know or “feel” a painful or harmful difference between an interview conducted by a judge as opposed to an interview by a GAL and/or custody evaluator is patently without merit. There is no independently verifiable proof for the claim that a judge interviewing a child on the subject of child custody issues inherently harms a child or exposes a child to a risk of harm. And when you think about, the very idea that a judge talking to a child will cause the child some kind of unwarranted harm—if indeed any real harm at all—is silly on its face.

 

If everyone agrees that the judge needs to know what the child is experiencing, observing, and feeling, what concerns the child, and what the child’s opinions and desires are, the idea that the best way to do this is through an interview by anyone but the judge is as absurd as it is counterproductive. Worse, to suggest that a guardian ad litem (who got literally a few hours of training in a hotel ballroom seminar and YouTube) or mental health professional thousands of dollars and take weeks or months to provide a milquetoast report and recommendations is indefensible.

 

You may ask why custody evaluators analyses and recommendations are usually so vague and timid. It’s a fair and crucial question. It’s out of fear of being reported to DOPL or sued for malpractice by the parent against whom the evaluator may make adverse recommendations. Knowing this, it is impossible to justify why so many judges and lawyers are so resistant to a judge conducting the interview of the child directly and on the record.

 

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

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My parents filed an order of protection against me. Is there any way I can fight this at age 17 knowing that I’ve done no wrong?

My parents filed an order of protection against me. Is there any way I can fight this at age 17 knowing that I’ve done no wrong?

Your experience may be different, but welcome to what may be an experience that causes you to lose faith in the legal system. You are significantly at your parents’ and the system’s mercy.

The likely first strike against you: given your age, you can be treated much like an adult when it comes to penalties yet denied the freedom to present your case as you wish because of your status as a minor child.

The second strike against you: courts generally do not like hearing from children in almost any law suit and go out of there way to curtail their participation. Now in fairness, in may instances this is intended to protect children and in many instances it does have that effect. In other instances, however, it serves to do nothing but muzzle a child, denying him/her the full capacity to defend himself/herself or express his/her concerns, fears, and desires. The testimony and/or arguments of children, merely on the basis of their being children, are often dismissed as not competent or credible witnesses.

The third strike is that you’re a wild, scary 17-year-old child, boiling with hormones and irresponsibility, which makes it very easy 1) not to be taken seriously; and 2) to be on the receiving end of prejudice, especially when your parents accuse you of being a danger to them.

Bottom line: to say, “Trying to go it alone as a child in court is difficult” is a ridiculously glaring understatement. The unquestionably best thing you can do for yourself is to get a skilled lawyer of your choice, if you can, to defend you within the legal system and to protect you from the vagaries of the legal system. Nothing else will 1) do you and your case more good and 2) better improve your odds of being treated fairly.

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

https://www.quora.com/My-parents-filed-an-order-of-protection-against-me-Is-there-any-way-I-can-fight-this-at-age-17-knowing-that-I-ve-done-no-wrong/answer/Eric-Johnson-311

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What should you know as a woman about divorcing?

What should you know as a woman about divorcing?

Consider the source of this answer, as it comes from a married (not divorced), male divorce lawyer. To many reading this, both men and women, it may come across at first blush as being insensitive toward, even biased against, women. I assure you it is not. I have no axe to grind with women. I love my late mother. I love my dear wife, I love my sweet daughters, and my great sisters. What I am about to share with you is the way I honestly see things, no sugar-coating.

This is what I have noticed that many women often are not aware of going into divorce:

  • So much of what women think are important issues in divorce are, as a matter of law, not important. What do I mean?
    • Women are generally more emotional than men. In divorce this translates into most divorcing women believing that emotional issues are far more relevant in divorce cases than they really are. I will give you an example from a meeting I had this very week with a wife contemplating divorce.
    • She was upset about the fact that her husband was violating the parties’ religious teachings despite her displeasure and objections. The husband was not doing anything illegal, just not following his religions “rules and regulations.” Clearly, this was a source of worry for this wife because she was afraid of the bad influence he was having on their children. That is a fair concern. Here she was trying to teach their children to abide by their religious beliefs and precepts consistently, and there’s dad thumbing his nose at them.
    • I get it. It would make me sad and angry too if I were in her shoes. But she thought this would make her a sympathetic figure in a divorce action. She thought it would mean the court would reward her more in terms of assets and support and child custody (and please don’t get me wrong here; she was clearly not being greedy, she just felt that she deserves to be compensated and rewarded for being a faithful spouse who upheld her end of the marriage bargain when the husband did not— I understand why she felt this way, but that’s not how divorce law works in this situation). I told her that was highly unlikely because what the father was doing would likely be seen as having little to no adverse effect on his overall parental fitness.
    • Side note: parental fitness is not synonymous with parental perfection. In fact, as long as a parent is minimally fit, that parent has a good chance of being awarded joint custody of the kids, if that parent wants it. Although I will not say gone are the days when “the best parent” was awarded child custody, those days are going and will soon be gone. Thank God. For too long good (not perfect, but good) fathers were relegated to marginalized, second class parent status in the belief that they were not as important to a child’s emotional and physical well-being and development as is a mother. It breaks countless children’s hearts, it breaks countless fathers’ hearts, needlessly.
    • This wife was also upset because the husband had essentially emotionally abandoned the marriage 10 years ago. She believed this would also be relevant in a divorce proceeding and would lead to favorable outcomes for her. It is not and will not. I completely understand how hurt she was, and how wrong it is of her husband to behave as he was, but as a matter of law, that would not entitle the wife to anything special. Extreme emotional cruelty can result in higher alimony awards, but just being an absentee spouse, whether physically or emotionally, does not. The primary purpose of a divorce is to divide the marital assets equitably (and that is presumed to mean equally unless it can be shown that extenuating circumstances warrant an even division of assets) and responsibility for marital debts
  • The more women we get on the bench as judges, the less accurate my observations stated above become, but these observations will never become totally inaccurate unless divorce law radically changes, and I don’t anticipate that it will.
  • Many women become financially dependent on their husbands. This is nothing to be ashamed of or embarrassed about, especially when a married couple decides that the husband will be the primary breadwinner so that the wife can bear children and take care of them at home. Indeed, this is one of the noblest things a woman can do, I will not patronize or look down my nose at mothers and homemakers. Children who come from homes and families where they had a parent (mother or father) to take care of them full-time when they were minors have an almost incalculably tremendous advantage throughout the rest of their lives because of their mothers’ care and sacrifices in this regard.
    • That stated, some women believe that because they have become financially dependent upon their husbands during the marriage, they believe that divorce will have no adverse effect on their standard of living.
    • Many (not all, but many) women in this situation have a hard time seeing how divorce will—unless the couple is extremely affluent—likely leave them financially poorer and with a lower standard of living (it is a blind spot many wives have in the divorce process), but it will.
    • Many women believe that if their husbands financially supported them totally or almost totally during the marriage that their ex-husbands will continue to support them at this same level after divorce, and for life. Not likely; this is rarely the case and is becoming rarer all the time as women continue to reach parity with men in the workforce. States with laws on the books that allow for the award of lifetime alimony are becoming fewer. Women who are financially dependent upon their husbands, even those who have been financially dependent upon their husbands for a very long time, need to be aware that it is highly likely that they may not be awarded alimony, that if they are awarded alimony and won’t be very much, and/or that it won’t last for very long. Today’s women need to be prepared to obtain employment to supply their full or partial financial support after divorce.
  • Many women believe that they own their children. I am sorry to be so blunt, but I am amazed that in this day and age so many women still treat children in divorce as “my” children as opposed to “our” children.
    • Consequently, women who hold these beliefs (and in my experience, most women—most, not all—do) are shocked and outraged when they are told by their attorneys and/or by the courts that it is not a foregone conclusion that mothers will be awarded the sole or primary physical custody of the couple’s children. some women simply cannot believe it and cannot accept it; they are convinced they are being lied to and that there is a conspiracy to deprive them of that to which they are “entitled”.
    • the odds of the mothers receiving a solar primary physical custody are still better, far better, than those for fathers, BUT the odds of the court awarding child custody on a joint custody basis are far better forefathers than they have ever been, and they are only continuing to get better forefathers. Gone are the days when mothers can presume the child custody award to result in Dad spending a few hours each week with the kids and every other weekend from Friday to Sunday night. Accept it. There is no pushing that toothpaste back in the tube.
    • Joint physical custody does not necessarily mean joint equal custody, but it can, and it increasingly is meaning that very thing.
  • Some women (some, not most, but a surprisingly, disturbingly large number nonetheless) believe that falsely accusing their husbands of domestic violence is fair game in divorce. Such women believe that the ends justify the means, that if they fear they won’t get “what’s due me (i.e., the assets and money and child custody awards they ‘deserve’)” unless they falsely accuse their husbands of domestic violence, they are entitled to do so. It is only fair.
    • With the trend away from sole custody awarded to mothers in favor of joint custody awarded to both parents, we are also seeing a trend toward treating women’s claims of domestic violence in divorce actions more skeptically. Frankly, it is well past time for this to happen. Ask any experienced divorce and family lawyer – man or woman – and he/she will tell you that false allegations of domestic violence against husbands have run rampant for decades. Do not misunderstand me; there are clearly abusive husbands out there, but not nearly as many as what so many lying divorcing wives claim. For whatever reason, the legal profession and the legal system is finally admitting it.
    • This means that it is no longer a foregone conclusion that false allegations of domestic violence are a winning move in divorce actions when it comes to obtaining higher alimony awards or soul physical child custody awards (with the attendant child support awards).

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

https://www.quora.com/What-should-you-know-as-a-lady-about-divorcing/answer/Eric-Johnson-311?prompt_topic_bio=1

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Is it normal for your attorney to ignore your calls or answer your questions?

Is it normal for attorneys of a law firm who have taken on your case to never return your calls regarding any questions, concerns, or updates that you have regarding your case?

For many lawyers and law firms, yes, shamefully yes!

And often it depends upon what kind of lawyer or law firm. It is highly likely that if 1) you do not choose carefully who your divorce or child custody lawyer is and 2) fail to pay your lawyer well to have your lawyer do the job well, you will end up hiring a bad one. “Bad” meaning, among other things, an attorney that does not take or timely return your calls and who avoids providing you with answers to questions, reassurance in response to concerns, and with periodic updates as to the status and progress of your case.

If your lawyer is nonresponsive, meaning that your lawyer does not timely return your phone calls and emails and text messages, and your lawyer does not take the time to answer your questions and assuage your concerns to the extent that the attorney reasonably can, that is almost certain proof that your lawyer is incompetent and a clear indication that you need to get a better lawyer, and fast.

Now it is unfair of you to expect your lawyer to take your call every time you call the office. Attorneys are often on the phone throughout the day and are often already on the phone when a client calls, which prevents them from being able to take that call. So be understanding in that regard. But if your lawyer does not return your call, or at least have a member of his or her staff return your call (in the event that your attorney is away from the office for a period of a day or two on business) within 24 business hours, odds are you have a lousy lawyer who is not going to get any better.

If you have an attorney that responds to your questions with “you just have to trust that I know what I’m doing,” or “that’s the way the law works and I don’t expect you to understand,” odds are you have a lousy lawyer. If you have a lawyer that does not keep you apprised of developments in the case, even if the only thing to give you notice of is that nothing is happened lately and/or nothing is expected to happen anytime soon, odds are you have a lousy lawyer.

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

https://www.quora.com/Is-it-normal-for-attorneys-of-a-law-firm-who-have-taken-on-your-case-to-never-return-your-calls-regarding-any-questions-concerns-or-updates-that-you-have-regarding-your-case/answer/Eric-Johnson-311

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