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Tag: courts

Some hard truths about divorce litigation in Utah.

To those of you who ask, “How did I lose that argument in my divorce case? The judge couldn’t say why he/she believed my witness(es) over my spouse’s witness(es)!”:

A district court “may make findings, credibility determinations, or other assessments without detailing its justification for finding particular evidence more credible or persuasive than other evidence supporting a different outcome.” Shuman v. Shuman, 2017 UT App 192, ¶ 6, 406 P.3d 258 (quotation simplified), cert. denied, 412 P.3d 1257 (Utah 2018).

To those of you who ask, “How could the court dismiss the opinions of my expert witness?”:

“Courts are not bound to accept the testimony of an expert and are free to judge the expert testimony as to its credibility and its persuasive influence in light of all of the other evidence in the case.” Barrani v. Barrani, 2014 UT App 204, ¶ 4, 334 P.3d 994 (quotation simplified).

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

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Do Family Courts Ever Verify the Information a Parent Offers in a Divorce Proceeding, Things Like Income, Housing, Bills, Savings, or Is It Dependent on the Other Parent to Object if the Information Is Fantasy Rather Than Reality Based?

Great question.

Your question helped to clarify something I have started to notice more and more among many people who are not divorce and family law attorneys or experienced in litigation: most don’t understand what the legal system does and does not do and how well or poorly it works to get to the truth. Let’s clear up some of those misconceptions and misunderstandings now.

It is not the job of the court to prove or disprove a party’s case. That is why U.S. courts are an “adversarial system”. That doesn’t mean that the court wants people to fight. An “adversarial system” in the context of divorce proceedings means that the parties each present (argue) their claims before a judge who then attempts to determine what is true and make its rulings on that basis. The expectation in an adversarial system is that the truth will be revealed as opposing sides scrutinize and challenge each other’s claims. The adversarial system “is in contrast to the inquisitorial system used in some civil law systems where a judge investigates the case.”

So, if you want the court to ensure it accurately understands what your or your spouse’s income, expenses, debts, and assets are, it is your responsibility to prove these things. It is not the duty of the court/judge to investigate these matters itself. You gather the evidence and make your arguments to the court. The court decides whether your evidence is sufficiently convincing to rule in your favor.

When it works well, the adversarial system usually gets to the truth and, based upon the knowledge of the truth, the court rules justly. When the adversarial system works poorly it does so by failing to get to the truth and/or consider the facts, and, based upon sloppy analysis and/or bias, the court rules unjustly.

Never expect the court to do your job for you. Never expect the court to treat you fairly (don’t misunderstand me here: I am not saying you should expect the court to be unfair, it means that you should do everything to make the truth so clear that even the most inattentive and inept judge can’t miss it, cannot deny it).

https://en.wikipedia.org/wiki/Adversarial_system

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

https://www.quora.com/Do-family-courts-ever-verify-the-information-a-parent-offers-in-a-divorce-proceeding-things-like-income-housing-bills-savings-or-is-it-dependent-on-the-other-parent-to-object-if-the-information-is-fantasy-rather

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Child refuses to leave noncustodial parent’s house. What happens now?

I am the noncustodial parent. Our child came to my house for parent-time and now refuses to leave because he wants to live with me. What happens now?

I will answer this question in the context of my experience as a lawyer in the jurisdiction where I practice divorce and family law, which is Utah.

This is a weird area of Utah law because you’ll hear the legislature and the courts tell you that children don’t get to choose where they live, and then when children do that very thing (i.e., refuse to live where the court orders them to live), the courts find themselves essentially powerless to change anything. At least that’s my experience over the 24 years I’ve been in practice.

Now before some of you start licking your lips and scheming, thinking, “I’m the noncustodial parent, but I can change that by simply telling our child to choose to refuse to return to the custodial parent’s house,” you need to be aware of the realities.

If you’re the noncustodial parent and your child or children are under the age of 14 or so, and they claim that they don’t want to live with the custodial parent, there’s a very good chance that the court is going to believe that you are a puppet master who coached the children or otherwise induced or coerced them into claiming they want to live with you. That may not be true, but you’re going to be met with that kind of skeptical presumption. So if you are the noncustodial parent with young children who you assert claim they don’t want to live with the custodial parent, you have an uphill battle ahead of you. If you are the noncustodial parent and a father, you have an almost impossibly uphill battle ahead of you.

If, however, your children are 14 years or older, and you are the noncustodial parent with whom your children say they want to live, it will be harder for your ex and/or the court to presume that the children are lying and/or don’t have good reasons for wanting to live with you. Again, if you are the father making this claim, your claim will be met with more skepticism than if you were the noncustodial mother making such a claim. Why is this? Because there is a pernicious belief in the legal system that fathers are generally worse parents than our mothers, that fathers don’t want custody of their children, and that the only reason fathers would seek custody of their children is to avoid paying child support. As a result of these beliefs, fathers who seek custody of their children are met with not just skepticism, but often derisive skepticism. Forewarned is forearmed.

So, if you are a noncustodial parent who is good and decent, and your child honestly and sincerely comes to you saying, “mom/dad, I can’t stand living with the custodial parent anymore, and I want to live with you,” how do you proceed?

First, if the child refusing to live with the custodial parent because the child just wants to spend more time with you and/or less time with the custodial parent, and the custodial parent is not neglecting or abusing the child in any way, then you as the noncustodial parent have both a legal and moral obligation to talk the child into going back to the custodial parent’s home, or if persuasion doesn’t work, imposing limitations and restrictions and punishments upon the child so that the child won’t get the impression that he or she is in charge. At the same time, the custodial parent needs to acknowledge the child’s desires to spend more time with the noncustodial parent as being a legitimate concern that needs to be addressed and resolved, and that usually means the custodial parent agreeing to give the child and the noncustodial parent more time together. If the custodial parent refuses to do the right thing, you may ask whether it’s wise to petition the court for a modification of the child custody award, so that you and the child get more time together. Unfortunately, odds are that if you file a petition to modify child custody and the only basis for your petition is the child’s desire to spend more time with you, you will probably lose. While it is technically and conceivably possible to win such a petition, usually the courts in Utah require more than just the child’s desire as the basis for a modification. And what form does this “more” take? Typically, you would have to show that the custodial parent is neglecting and/or abusing the child to get a modification of the child custody award.

Second, if the child is refusing to reside with the custodial parent because the custodial parent is truly neglectful and/or abusive, and if you have independently verifiable proof of this, you have the option of petitioning the court to modify the child custody award, changing the custodial parent from your ex to you. While that petition is pending, your child may refuse to return to the custodial parent’s home, and for reasons at least you and the child know to be valid. Whether the court allows your child to stay with you depends upon how your court views the situation and what is best for the child.

If you find yourself in this kind of situation, whether you are the custodial parent or the noncustodial parent, this is one of those situations where you need to seek good legal advice immediately, to help ensure that neither you nor the child is victimized.

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

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Why is it difficult for a father to get child custody?

Why is it difficult for a father to get child custody?

Because there is a pernicious and false belief in far too many of the courts (not, notably, in society at large) that generally:

  1. mothers are better parents than fathers;

and thus

  1. children need the care of their mothers more than the care of their fathers;

and thus

  1. children should spend most of their time in the care of their mothers but have “a relationship” with their fathers by seeing them every other weekend, once a week, and on alternating holidays.

All other “reasons” for presuming that sole or primary custody of a child or children should be awarded to the mother derive from these three false premises, which premises/presumptions are extraordinarily difficult for a father to overcome, even if all he seeks is an award of joint equal child custody.

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

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Are there laws that protect one parent from being a victim of the other parent’s continuous reporting, through the other parent’s attorney, about violations of a restraining order that are all lies?

Are there laws that protect one parent from being a victim of the other parent’s continuous reporting, through the other parent’s attorney, about violations of a restraining order that are all lies?

Are there laws that protect one parent from being a victim of the other parent’s continuous reporting, through the other parent’s attorney, about violations of a restraining order that are all lies?

Practically speaking (and in my experience), yes and no.

I’ll start with the “no” part of my answer because it’s short. I say “no” because although there are rules against frivolous, bad-faith litigation (such as litigation based on lies), these rules are shamefully under-enforced. So even if you can make a clear case for an opposing party engaging in frivolous, bad-faith litigation, in my experience courts rarely punish such behavior. It’s one of the main reasons people lose faith in the legal system when they find themselves subject to the system.

The best way to protect yourself from having a court believe the opposing party’s lies is to prove them false by objective, independently verifiable evidence that cannot be denied. So, document your words and deeds six ways from Sunday. If it’s not a close call, the opposing side’s efforts to cheat won’t make any difference.

And here’s my “yes” part of the answer: Most jurisdictions, including the jurisdiction in which I practice law (Utah), have a rule or rules that is intended to prevent frivolous litigation. One such rule in Utah is the Utah Rules of Civil Procedure rule 11 (which is almost identical to the Federal Rules of Civil Procedure rule 11). Utah’s rule 11 provides:

(b) Representations to court. By presenting a pleading, written motion, or other paper to the court (whether by signing, filing, submitting, or advocating), an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,

(b)(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(b)(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(b)(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(b)(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

(c) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that paragraph (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated paragraph (b) or are responsible for the violation.

There are also laws against making frivolous and bad-faith claims. Utah’s law is:

78B-5-825. Attorney fees — Award where action or defense in bad faith — Exceptions.

(1) In civil actions, the court shall award reasonable attorney fees to a prevailing party if the court determines that the action or defense to the action was without merit and not brought or asserted in good faith, except under Subsection (2).

(2) The court, in its discretion, may award no fees or limited fees against a party under Subsection (1), but only if the court:

(a) finds the party has filed an affidavit of impecuniosity in the action before the court; or

(b) the court enters in the record the reason for not awarding fees under the provisions of Subsection (1).

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

https://www.quora.com/Are-there-laws-that-protect-one-parent-from-being-a-victim-of-the-other-parents-continuous-reporting-through-the-other-parents-attorney-about-violations-of-a-restraining-order-that-are-all-lies/answer/Eric-Johnson-311

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

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

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

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

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

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

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

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What to do before a divorce, if you’re not in the wrong

What advice would you give someone before a divorce, if it’s known it may happen and you’re not in the wrong?

This is a very important question that too few people ask.

Does this sound familiar?:

  • Your spouse is making false allegations against you. No evidence to support them, yet the police and the courts and child protective services are swallowing it all.
  • You keep asking when justice will be done, when you will be vindicated.
  • You keep wondering when things would get back to “normal”.
  • In the back of your mind you are certain that one day things will indeed get back to normal
  • Odds are they won’t. Especially while your kids are minors.
  • But surely things can’t stay this crazy and out of whack forever, right?
  • Wrong.
  • Things will likely get better but will likely never “go back to normal.”
  • We don’t blame you for thinking we’re exaggerating. The idea that innocence counts for next to nothing is unthinkable. Too terrible to believe. As is the idea that people can slander you with impunity while the police and the courts stand by and either let it happen or even it help it happen. Believe it. It’s true.
  • No really, it’s true.
  • The words of this real divorced spouse and parent sum things up concisely and accurately: I kept wondering when things would get back to normal. I soon realized through brutal experience that it never will, as long as I have kids with my ex that are minors. Or if I am ever around my alone (meaning no other witness could confirm her false claims are exactly that, false). I can’t ever go back to life as it was before divorce. My rose colored glasses are broken forever, The days of not worrying about someone making things up to punish me in divorce or criminal court or DCFS are no more. The “child-like faith” I once had in our legal system is lost for all time, never to return.
  • You can deny it all you want, but it will do you and your kids no good and only lead to more harm and being victimized more, if you bury your head in the sand or in the clouds. That will only add repeated and more severe injury to what started out as insult.
  • We know what you are hoping for, and you’re not there yet. You likely won’t be for much longer time than you think is realistic or fair.
  • Will the day soon come when you can stop worrying about protecting yourself from false allegations or complaints from your ex? No.
  • In fact, that day may never come.
  • We know people for whom it’s been years, in some cases more than a decade, and still, to this day the ex cannot be trusted to be decent.
  • You have to cautious and careful in the event that the snake that bit you once (or dozens of times) before might try to bite you again.
  • We know it’s exhausting and actually driving you near insane (we really do).
  • But you must stay vigilant.
  • You must stay classy. And stay frosty. You must. It’s either stay frosty, stay classy, or be crushed. Crushed emotionally, financially, etc.
  • An ounce of prevention truly is worth several hundred or several thousand pounds of cure.
  • We understand you’re not happy about this.
  • Still, knowing is half the battle. Forewarned is forearmed.
  • Staying blissfully ignorant won’t do you any good and can do you permanent damage.
  • Divorce and false claims of child and spousal and substance abuse, etc. are more prevalent than you think because nobody wants to believe it will happen to them. And those who are victimized are often too embarrassed and depressed to talk openly and honestly about it. Can you blame them?
  • That’s it. No easy solutions. No cheap assurances. But ignore this information, warnings, and protective measures at your peril.

Hang in there. Heed this crucial advice: “If you’re going through hell, keep going.” – Winston Churchill

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

https://www.quora.com/What-advice-would-you-give-someone-before-a-divorce-if-it-s-known-it-may-happen-and-you-re-not-in-the-wrong/answer/Eric-Johnson-311

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Why does it seem like courts are against fathers when it comes to custody?

Why does it seem like courts are against fathers when it comes to custody?

Because while the courts are becoming less and less biased against fathers as time goes by, they are still generally biased against fathers when it comes to awarding child custody. And we know why. It’s no mystery.

Believe it or not, the courts were biased in favor of men in child custody cases before the pendulum swung the other way. Back then, when men had more education, more job skills, more brute force strength to perform the manual labor jobs, more property and more rights than women, the idea of giving custody to a mother would have been to condemn a child to a likely life of poverty and destitution. You can see how it made sense at the time: society made it all but impossible for the average mother to support a family on her own, and so fathers were more frequently awarded custody of the children.

The reason courts became biased against fathers in the first place is due to the pervasive belief that women are better parents than men, especially to infants and very young children. This is known as the “tender years doctrine”. It has been rejected—correctly—by most state courts as a form a sexual discrimination. But even after that most courts kept applying the principle in an “underground” way—switching from the “tender years doctrine” to the “primary caregiver” presumption—thus still awarding custody to mothers and/or refusing to award joint custody by still presuming women are better parents than men, just not outright stating it in their rulings and court orders.

It is both prejudicial and erroneous to assume in every case that the mother is “the better” of the two parents (to presume that both parents are not equally fit to exercise custody is erroneous and prejudicial on its face) nor does it require courts to treat child custody as requiring a parent (let’s call him “the father”) to “divorce” his children in the course of his divorce from his spouse. Where the “best parent” for a child is both parents, assuming that joint custody isn’t an option is antithetical to acting in the best interest of the child.

Not all divorced parents will be able to exercise joint physical custody of their children. Not all divorced parents are fit to exercise custody of their children. If a parent is neglectful or abusive, that parent is clearly not fit to exercise custody of his or her children. But with approximately half of marriages ending in divorce, we all know that it’s simply not the case (it can’t be) that one of every two divorcing parents is unfit to exercise custody of children.

Indeed, where divorced parents are both loving and decent people, and live close enough to each other to make the exercise of joint physical custody feasible, there is simply no justification for relegating one parent to the role of “noncustodial” parent who exercises “visitation” of his/her own children. There is simply no justification for denying children the benefits of the love, caring, example, and overall rearing of both parents. It’s literally no different than expecting a tailor to do as good as job with one half of the scissors as with both halves.

If Mom and Dad are both fit parents and live within a short distance of each other, the best thing for the children is a joint legal and joint physical custody award, so that the children have the benefit of both parents being as involved in caring for and loving their children as much as possible. This is self-evident (eeven if it weren’t, the social science data support are overwhelming).

Joint custody doesn’t imply that a mother is an unfit parent, but in today’s culture there are many mothers who fear that very perception, if joint custody is awarded. I understand.

In a culture where 1) it is erroneously presumed that all divorced parents cannot or should not continue to exercise joint custody of their children; 2) that one parent must be awarded the primary or sole custody of children; and 3) that women are presumptively the better of the two parents, then a joint custody award could lead some people to believe that “mom just wasn’t good enough to get sole custody”. These culturally erroneous presumptions thus must be rejected, for the benefit of mothers, fathers, and children alike.

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

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Can I protect marital assets from my spouse by “temporarily gifting” them?

Can I protect marital assets from my spouse by “temporarily gifting” assets to somebody else until after the divorce is final?

Can you? Like is it doable? Sure, you can do it. And many divorcing people do this very thing successfully (meaning they get away with it).

But is it legal? No.

Translated, your question really means: “Can I hide or hog marital assets from my spouse by falsely claiming to have “gifted” the assets to someone without ever intending to give the assets away but in fact intending to get them back after falsely claiming to have gifted them away?”

As you might imagine, this has been tried before. Courts and legislatures have noticed this kind of thing is tried all the time, which is why it’s illegal.

There’s even a term for it: fraudulent transfer. A fraudulent transfer in divorce occurs when one spouse someone knowingly transfers ownership of marital property in an attempt to deprive the other spouse of his/her portion of the ownership or value of the marital property.

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

https://www.quora.com/Can-I-protect-marital-assets-from-my-spouse-by-temporarily-gifting-assets-to-somebody-else-until-after-the-divorce-is-final/answer/Eric-Johnson-311

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Why do courts seem to rule against husbands so unfavorably regarding custody and alimony?

Sometimes a husband/father is legitimately ruled against in a child custody case because he is unfit to exercise custody. Sometimes that unfitness may be his own fault (he’s abusive and/or neglectful), other times the unfitness may be due to circumstances beyond his control (disabled or has a job and/or job schedule that is incompatible with exercising custody).

But where there is no parental unfitness, why do so many fathers lose on the issue of custody? Simple:

Sexism.

The idea (in some courts) that women are presumptively better parents than are men. The idea (in other courts) that no matter how well a man can prove himself to be a fit parent the conventional wisdom accepts the woman as an even better parent. The idea (in still other courts) that a mother’s contributions to a child’s upbringing are more important than a father’s.

Sometimes it’s institutionalized sexism. The “it’s been this way for so long, so it’s going to stay this way” way of thinking.

It is often subconscious sexism.

It is often sexism that is not malicious but born out of a sincerely held—though erroneous—belief (much like some people who are racist because they believe other races are inferior and not because of any kind of hatred for other races).

But it’s sexism just the same. Plain and simple.

Fortunately, sexist custody awards are quietly and relatively quickly (given how slowly the wheels of justice generally turn) becoming a thing of the past.

It’s getting harder and harder to rule against fit men on the issue of custody. Getting harder to justify the silly “reasons” that have been given for denying men sole or joint custody. Getting harder to write off men as generally uncaring, uninterested, and incapable as parents. Getting harder to justify the silly “reasons” that have been given for denying men sole or joint custody. Sadly (but more factually accurately), it’s getting harder to justify presuming all women generally to be “natural born” parental wonders.

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

https://www.quora.com/Why-do-the-court-systems-seem-to-rule-against-husbands-so-unfavorably-in-regards-to-parental-rights-and-spousal-support/answer/Eric-Johnson-311

Have we reached the point where mothers are not immediately deemed the best candidates for child custody?

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Have you ever dealt with parental alienation?

Yes, but from the perspective of being the divorce lawyer for the alienated parent.

Let me tell you, unless the alienating parent is so ham-handed in his or her efforts that the alienation is manifestly undeniable, proving parental alienation is extraordinarily difficult. Why?

Because no parental alienate her worth his or her salt is going to come right out and say “I want our kids to hate and avoid the other parent.” Alienating parents know that if they want to get away with it, they need to convince their judge that the other parent is a monster. This is surprisingly easy to do.

And here is why: if I stand up in a restaurant where you were having dinner and shout out “Help! My grandma is choking!,” the good and decent people in the restaurant would come running to see what they could do to help. They would not sit there skeptically and ask themselves, “Is this claim true? I don’t see anyone choking. I wonder if this whole thing is a hoax.” No, they would come running to see if they could help because that’s what decent people do.

And this is why, unfortunately, it is so easy for a parental alienator to manipulate a judge, if he or she is a decent person (and most judges are).

It is contrary to the nature of decent people to believe people lie about harm to others. So judges do what most of us would do when there are allegations of parental unfitness and/or child abuse. They start with the question “What can I do to help?” instead of the question they should be asking, which is: “Where does the actual verifiable evidence, if any, point?”

Another error judges commit far too often is assuming:

  • that a divorcing parent would never falsely accuse the other parent of abuse unless it were true; and
  • a child would never falsely accuse a parent of abuse unless it were true.

Any judge who believes this is patently incompetent. The depths to which divorcing parents are capable of stooping in the child custody fight are infinite.

“What can I do to help?” is the worst question to ask in response to allegations of child abuse or neglect because the question ignorantly presumes that there is a problem or problems for which help is needed. That’s when confirmation bias creeps in, i.e., “There must be a problem because I’m trying to help,” followed by “better safe than sorry” justifications. Judges are seduced by the appeal of a child custody award designed not to protect the children not from any proven harm or risk of harm, but from the very possibility of them suffering harm.

The problem with an abundance of caution approach is that it totally disregards the court’s obligation to determine guilt. It dispenses with considering the parent’s innocence and decency in favor of imposing measures that would prevent this decent and innocent parent from doing his or her child any harm. Cutting a parent off from a child to prevent possible harm also prevents the parent from conferring any possible benefit on that same child.

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

https://www.quora.com/Have-you-ever-dealt-with-parental-alienation/answer/Eric-Johnson-311

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