Tag: custodial parent

Can Child Support (Whether Prospectively or Retrospectively) Be Waived by the Child Support Payee?

The easiest of these two questions to answer is the second one, i.e., “Can child support be waiver retrospectively by the child support payee? The answer is yes, if the parties comply with

Utah Code § 78B-12-109. Waiver and estoppel

(1) Waiver and estoppel shall apply only to the custodial parent when there is no order already established by a tribunal if the custodial parent freely and voluntarily waives support specifically and in writing.

(2) Waiver and estoppel may not be applied against any third party or public entity that may provide support for the child.

(3) A noncustodial parent, or alleged biological father in a paternity action, may not rely on statements made by the custodial parent of the child concerning child support unless the statements are reduced to writing and signed by both parties.

See Cahoon v. Evans (2011, 257 P.3d 454, 682 Utah Adv. Rep. 58, 2011 UT App 148) at headnotes 3 and 4 and West’s Child Support Key Number 452:

[3] Statute, providing that waiver and estoppel shall apply only to the custodial parent when there is no child support order already established by a tribunal, expressly limits application of waiver and estoppel to those situations where there is no prior child support order.

[4] Mother was not precluded by waiver or estoppel from seeking reimbursement for unpaid child support, given that child support order had previously been entered and statute expressly limited application of waiver and estoppel to those situations where there was no prior child support order.

Utah Family Law, LC | | 801-466-9277

Tags: , , , , , , , ,

Who do you pick between a present father and an absentee mother?

Who do you pick, your father who has been there your whole life or your mother who was never there until now and wants custody of you? 

Assuming that 1) custody of you must be awarded to one parent or the other; and 2) your father didn’t obtain/exercise custody over you by withholding shared custody from your mother (because your mother was an absentee parent by choice), the answer is obvious: your father. 

Why? At the very least, he’s proven to be the consistent, dependable parent. 

As much as you may ache for your mother’s love, her track record shows that odds are she’s a bad bet as a custodial parent. Odds are she’ll break your heart again, if you let her. 

But this does not appear to be a zero-sum kind of problem. Why not have the court award custody to your father and then award your mother visitation with you on as liberal a basis as is safe and beneficial for you? 

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

Tags: , , , , , , , ,

Can being a noncustodial parent improve the child-parent relationship?

Can being a noncustodial parent improve the child’s relationship with the noncustodial parent?

Recently, a reader on Quora, where I comment regularly, commented on a post of mine with this: 

Anecdotally: When my parents separated I felt I saw my father more because when they lived together simply being in the house was considered fathering. This is something I’ve heard from many fellow adult children of divorce. Suddenly Dad was actually doing something with us and having full conversations. 

I responded with this:  

Thank you for reading and for commenting. I don’t know you, your father, or your collective circumstances, but assuming generally that a father was neither abusive or neglectful (most fathers who become “noncustodial” parents in divorce are in this category), but the children were nevertheless deprived of being in the equal care and custody of their father and mother and Dad was deprived of equal custody of the children, how often do you think that a divorce awarding “sole” or “primary” custody of the children to one parent results in the children’s relationship with the other parent improving? To what degree did any aspect of the children’s lives improve? Right. Not often, not much. Indeed, just the opposite is the case.  

While there are some abusive, neglectful, and/or indifferent fathers out there, they are few and far between compared the vast majority of fathers. When fit, loving fathers (not perfect fathers, mind you) are cut off from their children by court order for even a few days, it is heartbreaking to father and children alike.   

Few parents had children without wanting to be there for them as much as possible and for them to be with that parent as much as possible. Although parental rights are not earned from the state or conditioned upon the state’s approval, that’s essentially how custody policy and law have come to function.  

Marginalizing a fit parent in a child’s eyes by reducing that parent to visitor, second-class, “backup” status necessarily marginalizes the child. “You don’t get the equal (i.e., the maximum) love and care of both parents, boy.” By depriving him/her of equal custody of his/her children with the other parent is to deprive the children of each parent exercising equal responsibility for the children, and to deprive the children of what is in their best interest. 

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

Tags: , , , , , , , ,

Do you think it’s fair for a non-custodial parent to pay more child support?

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 | | 801-466-9277  

Tags: , , , , , , , ,

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 

Tags: , , , , , , , ,

What is being a single parent without joint custody like in your country?

If a loving, able parent (i.e., a fit parent who lives in close enough proximity to the child(ren)’s other parent such that joint legal and physical custody does not work a genuine hardship on the children) would like nothing more than to be as involved in the rearing of his/her children as the other parent is denied that opportunity, then being a single parent who has not been awarded joint equal custody of his/her child(ren) is inexcusably, unjustifiably sad. Period. This is an absolutely true statement that is not subject to any qualification.

Clearly, if one of the parents abuses and/or neglect the child, if that parent does not care for that child in the temporal or emotional sense, then that is a parent who is clearly not worthy of a joint equal physical custody award, and that is a child who doesn’t deserve to be in the care and custody of such a parent half the time, perhaps none of the time.

But it is tragically absurd to deny a child the benefits of—nay, the right to—being reared equally by two equally fit and loving parents.

If you are a fit and loving parent who wants to be as much a parent to your children as you want the other parent to be, and if you believe the court endorses your position, odds are you are incorrect, if you and your children reside in the United States of America (and I’m sure this is true for most jurisdictions as well, although I have no experience in other jurisdictions and base my opinion upon the reading I do about other jurisdictions on the subject of child custody awards).

While it is true that joint equal custody is being awarded more than ever, it is still extraordinarily difficult for parents to get in most states. If anyone tells you otherwise, take his or her comments with a grain of salt. Don’t let your hopes for joint equal custody lull you into a sense of complacency.

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

Tags: , , , ,

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 | | 801-466-9277

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

2019 UT App 204 – In re H.F. incorrect analysis terminating parental rights


J.F., Appellant,
E.F., Appellee.

No. 20180348-CA
Filed December 12, 2019

Third District Juvenile Court, Salt Lake Department
The Honorable Julie V. Lund
No. 1100472

Scott L. Wiggins and Lisa Lokken, Attorneys for Appellant
Joshua P. Eldredge, Attorney for Appellee
Martha Pierce, Guardian ad Litem



¶1           J.F. (Mother) appeals from the juvenile court’s termination of her parental rights to H.F. (Child). We reverse and remand for further proceedings.


¶2           Child was born in December 2012. Soon after Child’s birth, Mother discovered that her husband, E.F. (Father), had been using drugs. Suffering from postpartum depression, Mother also began using drugs with Father as a means of self-medicating.

¶3           In March 2014, the Division of Child and Family Services (DCFS) removed Child from Mother and Father’s home as a result of their drug use. Upon removal, DCFS placed Child with Mother’s parents (Grandparents). During this time, Grandparents facilitated visitation between Child and Father, as well as Father’s extended family.

¶4           Soon after Child was removed from the parents’ home, Mother began a relationship with “a really bad guy.” She left Utah with him, and they began committing crimes together. Eventually, the pair were arrested, convicted of multiple crimes, and incarcerated.

¶5           Conversely, Father began participating in drug treatment in June 2014. After completing treatment, he became involved in various peer support groups to help others with drug addiction and even obtained a full-time job as a peer recovery coach for a nonprofit addiction-recovery agency. In March 2015, Father filed for divorce from Mother and was granted a default divorce awarding him full legal and physical custody of Child. In May 2015, upon the State’s motion, the juvenile court terminated its jurisdiction and DCFS involvement. After Father regained custody of Child, Grandparents continued to provide regular daycare for Child.

¶6           In July 2016, Father moved the juvenile court to terminate Mother’s parental rights. Father was engaged to be married, and his fiancée (Fiancée) wanted to adopt Child, but they had not yet set a wedding date and were not yet living together.[1] Grandparents “had a heated conversation with” Father about his termination petition, and subsequently, he put Child in full-time daycare and did not permit Grandparents to see Child as often.

¶7           At Mother’s termination trial in December 2017, her former criminal attorney expressed his belief that Mother’s criminal actions had been “very much influenced by” her co­defendant but that she “was a model defendant”; continually showed concern for her family and a desire to take care of her children;[2] had come to understand, through participation in counseling, her responsibilities and the detrimental effects of her co-dependent relationship with her co-defendant; and ultimately told the truth about the criminal incidents even though her co­defendant was damaged by her admissions. Mother was still incarcerated at the time of the termination trial but was due to be released in April 2019. She had been participating in a voluntary drug-treatment program. She testified that prior to Child’s removal, she was his “sole care provider.” She testified that she has a bond with Child, that she has had regular telephone and video calls with him since losing custody and sends him letters, that Child had expressed his desire to be reunited with Mother, and that she wants to have “visitation as much as possible” and to “be in [Child’s] life as much as [she] can.” She testified that she regrets her past decisions and their effect on her children, but she also could not rule out the possibility of a relationship with her co-defendant when he is released from prison in eight or nine years.

¶8        Father testified that he was willing to support a continuing relationship between Child and Mother following termination of her rights so long as it was “safe” for Child. Although Father did not discourage Child’s contact with Mother, he did not directly facilitate Mother and Child’s contact; rather, this contact took place when Child visited Grandparents. Both Father and Fiancée testified that Child has a very good relationship with Fiancée, that she treats him like her own child, and that Child sees her as his mom. Father testified that he believed Child’s relationship with Mother’s family was “beneficial.” He claimed that Child’s relationship with Mother’s family would not change if Mother’s rights were terminated. He admitted that he “could make a better effort in . . . communicating to set” up time between Child and Mother’s extended family but explained that he had felt a need to set “boundaries” because the termination petition had “put a strain” on his relationship with Mother’s family.

¶9        Grandparents expressed fear that termination would “have a very negative impact on [their] relationship with [Child]” and that Father “would move on” and “find a way to take [Child] away from” Grandparents. Mother’s brother, who also had a close relationship with Father, expressed his belief that Father had become uninterested in Mother’s side of the family and that Father would not let Mother’s family see Child anymore if Mother’s rights were terminated. Another of Mother’s brothers likewise testified that the family’s contact with Child had been less frequent during the preceding year and that he believed Father would cut off contact between Child and Mother’s family if the court terminated Mother’s rights.

¶10 Following trial, the juvenile court found two grounds for termination: (1) that Mother was an unfit parent because she was unable to care for Child as a result of her incarceration and (2) that she had neglected child through her habitual and excessive use of controlled substances. See Utah Code Ann. § 78A-6-507(1)(b), (c) (LexisNexis 2018); id. § 78A-6-508(2)(c), (e) (Supp. 2019). The court further found that termination was in Child’s best interest.

¶11 In reaching its conclusion regarding Child’s best interest, the juvenile court limited its analysis to three factors—Child’s “bond with his caregivers,” his “need for permanence and stability,” and “the potential risk of harm if returned to [Mother’s] care.” The court found that there was not an intact parental relationship between Mother and Child because she had not acted as his caregiver for an extended period of time. It observed that although Child recognizes that Mother is his mom, he has developed a mother–child bond with Fiancée as well. The court also found that Fiancée intended “to adopt [Child] should he be legally free.” The court concluded that “[t]hese facts support the need for permanence and stability and that [Child] does have a bond with his caregivers.” The court further found that there was “a potential risk of harm to” Child from Mother because she could not rule out the possibility of a future relationship with her co-defendant, who had been described as a “really bad guy.” Finally, the court found that termination of Mother’s rights was “strictly necessary for [Child] to achieve permanency and stability.” Based on these findings, the court determined that it was in Child’s best interest that Mother’s parental rights be terminated. Mother now appeals.


¶12 Mother argues that the juvenile court exceeded its discretion in terminating her parental rights. “The ultimate decision about whether to terminate a parent’s rights presents a mixed question of law and fact.” In re B.T.B., 2018 UT App 157, ¶ 8, 436 P.3d 206 (quotation simplified), cert. granted, 440 P.3d 692 (Utah 2019). We review the court’s factual findings for clear error and its legal conclusions for correctness, “affording the court some discretion in applying the law to the facts.” Id. (quotation simplified). Nevertheless, “the proper interpretation and application of a statute is a question of law which we review for correctness.” In re A.M., 2009 UT App 118, ¶ 6, 208 P.3d 1058 (quotation simplified).


¶13 In assessing whether termination of parental rights is appropriate, a court must employ a “two-part test.” In re B.T.B., 2018 UT App 157, ¶ 13, 436 P.3d 206, cert. granted, 440 P.3d 692 (Utah 2019). “First, a trial court must find that one or more of the statutory grounds for termination are present,” and second, “a trial court must find that termination of the parent’s rights is in the best interests of the child.” Id. (quotation simplified). Mother does not contest the juvenile court’s determination that grounds existed to support termination, but she maintains that termination was not in Child’s best interest and that the court did not adequately consider all factors relevant to that determination.

¶14 “The ‘best interest’ test is broad, and is intended as a holistic examination of all the relevant circumstances that might affect a child’s situation.” Id. ¶ 47; see also In re G.J.C, 2016 UT App 147, ¶ 24, 379 P.3d 58 (“Determining a child’s best interest in termination of parental rights proceedings is a subjective assessment based on the totality of the circumstances.”). Utah courts have identified numerous factors that may be relevant to this determination. For example, a court may consider “the physical, mental, or emotional condition and needs of the child”; “the effort the parent has made to adjust their circumstances, conduct, or conditions to make restoring the parent–child relationship in the child’s best interest”; “the child’s bond with caregivers”; the child’s “need for permanency and stability”; and “the potential risk of harm if returned to the parents’ care.” See In re G.J.C., 2016 UT App 147, ¶ 24 (quotation simplified). It may consider the parent’s “demeanor,” “attitude toward his or her child,” and “attitude in fulfilling parental obligations,” see In re T.E., 2011 UT 51, ¶ 44, 266 P.3d 739, and it may weigh the benefits of the child continuing a relationship with an unfit parent even where reunification is not an option, examine the child’s prospects for adoption, and even consider the child’s preferences in some circumstances, In re D.R.A., 2011 UT App 397, ¶¶ 19, 21, 266 P.3d 844; see also In re B.T.B., 2018 UT App 157, ¶ 56. Moreover, as part of the best interest analysis, Utah law requires courts to “analyze whether termination of a child’s parent’s rights is ‘strictly necessary,’” that is, the court must “explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights.” In re B.T.B., 2018 UT App 157, ¶¶ 50, 55; see also Utah Code Ann. § 78A-6-507(1) (LexisNexis 2018) (“Subject to the protections and requirements of Section 78A-6-503, and if the court finds strictly necessary, the court may terminate all parental rights with respect to a parent if the court finds any one of the following [statutory factors] . . . .” (emphasis added)).

¶15 In conducting its best interest analysis, the juvenile court did not take the holistic approach that has been prescribed by this court. Rather than examining the totality of all circumstances affecting Child’s best interest, the court erroneously interpreted In re G.J.C., 2016 UT App 147, 379 P.3d 58, as articulating a best interest test composed of only three specific factors: (1) “bond with caregivers,” (2) “need for permanence and stability,” and (3) “the potential risk of harm if returned to the parent’s care.” See id. ¶ 24. Further, the court’s finding that termination was “strictly necessary” was conclusory and did not include an examination of feasible alternatives to termination, as required by In re B.T.B., 2018 UT App 157, 436 P.3d 206.[3]

¶16 The court’s reliance on only the three specific factors gleaned from In re G.J.C. unduly narrowed the “broad,” “holistic” best interest test, see In re B.T.B., 2018 UT App 157, ¶ 47, and its order did not accurately represent the direction given by this court in In re G.J.C.[4] The three factors identified in In re G.J.C. were not given as a definitive list of factors; rather the court stated that those three factors were “proper” factors to consider “in the context of a best-interest determination.” 2016 UT App 147, ¶ 24. Indeed, the court explicitly instructed that a best interest determination must be “based on the totality of the circumstances.” Id. This court reaffirmed and elaborated on this “holistic” approach in In re B.T.B., when it instructed “courts to examine all of the relevant facts and circumstances surrounding the child’s situation” and, in particular, “to explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights,” in order to satisfy the legislature’s requirement that termination be limited to circumstances where it is “strictly necessary.” 2018 UT App 157, ¶¶ 47, 54–55.

¶17 Because of the court’s narrow focus on only three factors pertaining to the best interest analysis, its findings do not reveal whether the court considered a number of additional factors relevant to determining if termination of Mother’s rights was in Child’s best interest, including the fact that Child’s prospects for adoption by Fiancée were speculative, Child’s bond with Mother and any benefits of him continuing a relationship with Mother, and the effect of termination on Child’s relationship with his extended family, including his half-sister.[5] Further, while the court’s analysis emphasized Child’s need for stability, it is unclear how terminating Mother’s parental rights would achieve that goal. Child was not in DCFS custody or a short-term placement with a foster family with an unsettled future. Rather, Father had permanent sole legal and physical custody of Child. Child would continue to be raised primarily by Father and Fiancée, regardless of whether Mother’s parental rights were terminated. And while termination would free Child for adoption by Fiancée, Fiancée was not in an immediate position to adopt Child, and it was not certain that she would ever be in such a position, as she and Father were not actually married. Even the danger anticipated by the juvenile court if Mother eventually resumed her relationship with her co-defendant was mostly speculative, as the co-defendant would not be released from prison for many years. See In re D.R.A., 2011 UT App 397, ¶ 21 (determining that the State had failed to establish that termination was in a child’s best interest in part because “the benefits of severing” the parent–child relationship were “too speculative”). Finally, the court’s determination that termination was strictly necessary was not supported by an appropriate exploration of feasible alternatives to termination. See In re B.T.B., 2018 UT App 157, ¶ 55. Therefore, the juvenile court’s findings do not support its determination that termination was in Child’s best interest.


¶18 Because the juvenile court did not employ the correct holistic analysis in assessing whether termination of Mother’s parental rights was in Child’s best interest and its findings do not support such a determination, we vacate the court’s order terminating Mother’s parental rights and remand for further proceedings consistent with this opinion.[6]

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


[1] Utah law requires a prospective adoptive stepparent to be married to the child’s custodial parent and to have lived with the custodial parent and the stepchild for at least one year prior to entry of the final decree of adoption. Utah Code Ann. § 78B-6¬ 117(2)(a) (LexisNexis Supp. 2019); id. § 78B-6-136.5(2)(a) (2018). Thus, as of the termination trial, Fiancée was at least one year away from being able to adopt Child.

[2] Mother has another child who was not included in the termination proceedings.

[3] Father argues that the juvenile court was not required to engage in the “strictly necessary” analysis prescribed by In re B.T.B. because that case was decided after the court issued its oral ruling in this case. However, Father makes no effort to explain why we should not apply this analysis. The “strictly necessary” language has been part of the statute since 2012, Act of March 7, 2012, ch. 281, § 6, 2012 Utah Laws 1331, 1334; In re B.T.B. merely interpreted that statutory language. And upon interpreting the language, the In re B.T.B. court sent that case back to the trial court for reconsideration: “Because we clarify and partially reformulate the test for termination of parental rights, we remand this case to the juvenile court for reconsideration in light of this opinion.” 2018 UT App 157, ¶ 2, 436 P.3d 206, cert. granted, 440 P.3d 692 (Utah 2019). Father also fails to acknowledge that the juvenile court’s final written order was actually signed one month after In re B.T.B. was issued. We therefore reject Father’s assertion that the court’s failure to engage in a more thorough “strictly necessary” analysis should be ignored on appeal.

[4] In re G.J.C. has limited utility in any event because it employed the now-disavowed principle that “where grounds for termination are established, the conclusion that termination will be in a child’s best interest follows almost automatically.” 2016 UT App 147, ¶ 25, 379 P.3d 58 (quotation simplified); see also In re B.T.B., 2018 UT App 157, ¶¶ 22–44 (disavowing the “almost automatically” line of cases).

[5] Our analysis should not be construed as prohibiting courts from focusing on those factors that it finds to be most probative in a particular case; not every factor will be relevant in every case, and even where evidence of a particular factor is present, a court may reasonably discount the factor and decline to discuss it in detail in its findings. The court’s ruling in this case is problematic not because it focused on limited relevant factors but because it misconstrued the best interest test as being limited to those factors and because it did not examine the feasibility of less-drastic alternatives to termination.

[6] Our decision should not be read as dictating any particular result on remand. Indeed, any number of circumstances may have changed since trial, and the court should take such changes into account in reconsidering its decision. On remand, the court should expand its analysis of best interest to consider the totality of the circumstances, examine the feasibility of alternatives to termination, supplement its findings, and assess whether termination is in Child’s best interest in light of any such supplemental findings.

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

Why can a child refuse to live with a parent as court ordered?

Why is it OK to allow a 14-year-old child to deny one parent access to him/her without any reason, but it is kidnapping if the child were to refuse to live with either parent and instead live with an adult that is not his/her parent?

Because your question contains a flawed premise.

It is not legal for a 14-year-old child to refuse to comply with a child custody or child visitation (also known as parent-time) order. The reason a 14-year-old child can to refuse to comply with a child custody or parent-time order and get away with it so often is because many courts don’t have the guts or a practicable way to force a child to comply.

The law does not give a minor child his/her autonomy. Minor children who are otherwise not legally emancipated are subject to the control of their parents. So if an unemancipated 14-year-old child wants to live with Person X, if a parent opposes that, and if Person X refuses either to return the child to the parent or to eject the child from Person X’s home, that constitutes kidnapping.

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

Tags: , , , , , , , , , , , , , ,

2019 UT App 104 – Ross v. Ross – § 30-3-37 relocation

2019 UT App 104 – Ross v. Ross


Opinion No. 20170916-CA
Filed June 13, 2019
Third District Court, Salt Lake Department
The Honorable Su Chon No. 154901171
Bastiaan K. Coebergh, Attorney for Appellant
Kyle Adams, Attorney for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in whichJUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred.

HARRIS, Judge:

¶1        When they divorced, Jesseca Rae Ross (Mother) and Timothy Ronald Ross (Father) agreed to an arrangement under which they equally shared physical custody of their two minor children (the Children). After a time, Mother expressed a desire to relocate from Salt Lake County to Uintah County, and she wanted to take the Children with her. To effectuate this change, she filed a notice of relocation with the district court pursuant to Utah Code section 30-3-37, but did not file a separate petition to modify the joint custody provisions of the divorce decree. Father protested that no change in custody could be ordered in Mother’s favor in the absence of a petition to modify, but the district court disagreed. After holding a hearing, the court allowed Mother to relocate with the Children, and changed custody to make Mother the primary physical custodian. Father now appeals from that decision, asserting that the district court improperly ordered a change in custody without requiring Mother to file a petition to modify. We agree with Father’s argument, and therefore reverse the court’s order and remand the case for further proceedings consistent with this opinion.


¶2        After seven years of marriage, Mother and Father divorced, and stipulated to a decree that provided for joint legal custody and equally-shared physical custody of the Children. Less than a year after the decree was entered, Mother filed a notice of relocation, setting forth her intent, “due to her impending marriage,” to relocate to Lapoint, a small farming community in Uintah County, Utah. The notice also stated Mother’s intent to take the Children with her, and her belief that such a move was in the best interest of the Children, since she “provided the majority [of] care” for them. Mother did not separately file a petition to modify asking the court to change the custody provisions of the decree.

¶3        Father objected to Mother’s notice to relocate, arguing that the relocation would require the Children to leave their current school district, where they were “well adjusted and happy,” that he and Mother had equal custody of the Children according to the stipulated decree, and that the move would interfere with his access to, and parent-time with, the Children.

¶4 A hearing was held before a domestic relations commissioner, who heard argument from both sides and apparently considered the matter a close call. He lamented the fact that no petition to modify had been filed, stating that although he did not want to “put the parties through a . . . more expensive elaborate process than necessary,” he viewed this case as one “that just begs for having someone file a petition to modify to address this relocation,” and stated that he was not “comfortable that [he knew] the right answer” in the absence of the more formal process a petition to modify would provide. He also noted that the filing of a petition might have caused the parties and the court to “consider whether some kind of custody evaluation or mediation-based custody evaluation . . . might be useful in . . . coming up with the best solution.” At the conclusion of the hearing, and in the absence of a petition to modify or a custody evaluation, the commissioner recommended that Mother not be permitted to relocate the Children out of Salt Lake County on a permanent basis, but that the Children could go to Lapoint with Mother for the summer, during which time Father would have parent-time for one weekend each month.

¶5        Mother objected to the commissioner’s recommendation, and asked the district court to issue an order allowing the Children to relocate with her permanently. Father opposed that request, and the court held a two-day evidentiary hearing on the matter. At the close of Mother’s evidence, Father moved for a directed verdict, specifically raising the issue flagged by the commissioner, namely, that Mother had not filed a petition to modify and therefore was not entitled to a change in custody. The court denied the motion for a directed verdict, and at the conclusion of the hearing took the matter under advisement.

¶6        A few weeks later, the district court issued a written decision on Mother’s objection. Therein, the court noted that, “[o]rdinarily, a petition to modify is required to change the custody arrangements” at issue, and acknowledged that granting Mother’s relocation would alter the current physical custody arrangement. However, the court explained that the arrangement would change “regardless” because the commissioner’s recommendation effectively awarded custody to Father, and determined “that no petition to modify is required with a notice of relocation.” The court then proceeded to apply a “best interest” analysis with regard to the relocation, and concluded that relocation would be in the best interest of the Children. Accordingly, the court overruled the commissioner’s recommendation, allowed Mother to relocate to Lapoint with the Children, and ordered a change of custody making Mother the primary physical custodian and awarded Father parent-time pursuant to the relocation statute.

¶7        Thereafter, Father filed a motion for a new trial and a motion to amend findings based on allegedly newly discovered evidence, insufficiency of the evidence, and the verdict being contrary to law. The court denied Father’s motions, finding that the allegedly new evidence was available before the evidentiary hearing, that the evidence presented at trial had been sufficient, and that its ruling complied with the requirements of the relevant statutes.


¶8        Father now appeals both the district court’s original order allowing the relocation and changing custody, as well as the court’s subsequent order denying his motions for a new trial and to amend findings. Father asks us to consider three issues, but because of our resolution of the first, we need not consider the other two.[1] Father’s first argument raises the issue of the propriety of ordering a change in custody in favor of a relocating parent in the absence of a petition to modify. That question involves the interpretation of various statutes and one procedural rule. “The applicability of a particular rule or statute is a question of law reviewed for correctness.” Gullickson v. Gullickson, 2013 UT App 83, ¶ 16, 301 P.3d 1011. “A [district] court’s interpretation of a statute is a question of law that we review for correctness.” Donnelly v. Donnelly, 2013 UT App 84, ¶ 11, 301 P.3d 6 (quotation simplified). And a “district court’s interpretations of rules of procedure are questions of law reviewed for correctness.” Simler v. Chilel, 2016 UT 23, ¶ 9, 379 P.3d 1195 (quotation simplified).


¶9        In this case, we must consider whether, under applicable statutes and rules, a district court may order a change in custody in favor of a relocating parent in the absence of a petition to modify. Father asserts that a district court is not authorized to take such action and, after examination of the relevant provisions, we agree.

¶10      Our procedures for interpreting statutes and rules are the same: “[W]e do so according to our general rules of statutory construction.” Arbogast Family Trust v. River Crossings, LLC, 2010 UT 40, ¶ 18, 238 P.3d 1035. We interpret the relevant provisions according to their plain language, “seek[ing] to give effect to the intent of the body” that enacted the statute or promulgated the rule, Burns v. Boyden, 2006 UT 14, ¶ 19, 133 P.3d 370, and we read the language “in light of its linguistic, structural, and statutory context,” Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 9, 248 P.3d 465.

¶11 Here, we start our analysis with two provisions that generally require the filing of a petition to modify before allowing changes to divorce decrees. First, rule 106(a) of the Utah Rules of Civil Procedure states generally that, “[e]xcept as provided in Utah Code Section 30-3-37, proceedings to modify a divorce decree or other final domestic relations order shall be commenced by filing a petition to modify.” Second, Utah Code section 30-3-10.4(1) states specifically that, “[o]n the petition of one or both of the parents, . . . the court may, after a hearing, modify or terminate an order that established joint legal or physical custody” if certain conditions are met. Utah Code Ann. § 30-3-10.4(1) (LexisNexis Supp. 2018). Thus, rule 106 establishes a general rule—subject to an important exception, discussed below—that any changes to divorce decrees must be brought about by the filing of a petition to modify, and section 10.4 makes clear that this rule applies specifically in the context of modifying decrees that provide for joint custody.

¶12 Mother points out, however, that the exception set forth in rule 106 expressly references the relocation statute, and allows a district court to alter custody orders in the relocation context even in the absence of a petition to modify.[2] See Utah R. Civ. P. 106(a) (stating that, “[e]xcept as provided in” the relocation statute, modifications require a petition). We acknowledge Mother’s point that rule 106 refers to the relocation statute and allows exceptions to the petition requirement in relocation cases, at least to the extent that the relocation statute permits modification. But we do not read rule 106 as providing a blanket exception for all modifications that might be sought in the relocation context.

¶13 The language “[e]xcept as provided” signals a limited exception to the petition requirement. See id. To be sure, the drafters of the rules could have stated that petitions to modify are required “except in cases in which relocation is sought.” Such language would have made clear that, in relocation cases, a court could modify divorce decrees in any manner, even without a petition to modify. But the drafters did not use such language; instead, they included a simple reference to the relocation statute, signaling an intent to incorporate into rule 106 whatever exceptions that statute allows. Indeed, at oral argument, Mother’s counsel acknowledged that, even in the relocation context, a party seeking to modify alimony or child support would need to file a petition to modify, since the relocation statute makes no mention of alimony or child support. Thus, a court may not simply ignore rule 106’s petition requirement any time section 30-3-37 is invoked; rather, a court may modify a decree without a petition only in instances in which section 30-3­37 allows such modification.

¶14      And section 30-3-37 contemplates modification of divorce decrees in only three particular instances: (a) it allows modification of parent-time arrangements in cases where a custodial parent is allowed to relocate with a child, see Utah Code Ann. § 30-3-37(5)–(11) (LexisNexis Supp. 2018); (b) it allows assessment of transportation costs, see id. § 30-3-37(12); and (c) it allows modification of custody—but only in favor of the non-relocating party—in cases in which the court decides not to allow the children to relocate with the relocating party, see id. § 30-3-37(4). Only subsection (4) addresses a change of custody (as opposed to parent-time),[3] providing:

In a hearing to review the notice of relocation, the court shall, in determining if the relocation of a custodial parent is in the best interest of the child, consider any other factors that the court considers relevant to the determination. If the court determines that relocation is not in the best interest of the child, and the custodial parent relocates, the court may order a change of custody.

Id. (emphasis added).

¶15      The relocation statute thus authorizes a change of custody only if two events occur: (1) the court “determines that relocation is not in the best interest of the child,” thus denying the relocating parent’s request for the children to relocate; and (2) the custodial parent decides to relocate—alone—in spite of the court’s ruling. Id.; see also Pingree v. Pingree, 2015 UT App 302, ¶¶ 12–13, 365 P.3d 713 (noting that, “if a court determines that relocation is not in a child’s best interest, it then has authority to order a change in custody if a custodial parent chooses to relocate,” and that “a conditional change of custody ordered under section 30-3-37(4) is triggered only if . . . a custodial parent elects to relocate despite a court’s finding that relocation would not be in the child’s best interest”). Only then is the court authorized to order a change of custody under section 30-3-37. The relocation statute does not contemplate changes in custody (as opposed to parent-time) outside that context, and therefore if a change in custody is sought in a different context, rule 106 (as well as, in some cases, section 30-3-10.4) requires the filing of a petition to modify.

¶16      Thus, we read rule 106 and the relocation statute together to require that a petition to modify be filed in all cases in which a grant of the relocation request will necessitate a change in custody in favor of the relocating party. In a situation in which a parent enjoys “sole” (as opposed to “joint”) physical custody, and wishes to relocate with a child, no change in custody will be required in the event the relocation request is granted. That parent will have sole physical custody prior to the request, and (if granted) that parent will have sole physical custody after the relocation. In that situation, the court need only consider appropriate modifications to the parties’ parent-time schedule.[4]

¶17      The situation is different, however, where the parent who seeks to relocate does not already have sole physical custody, but wishes to attain sole physical custody upon relocation.[5]


Because “relocation” is defined as “moving 150 miles or more from the residence of the other parent,” see Utah Code Ann. § 30­3-37(1), joint physical custody is very difficult to practicably maintain in the wake of one parent’s relocation. These practical realities mean that a parent who relocates with a child will usually need to be awarded sole (as opposed to joint) physical custody. And if that parent does not already enjoy sole physical custody, that parent will need to seek a modification of the existing custody arrangement in order to facilitate well-ordered relocation, because rule 106 requires the filing of a petition for any modification, and the relocation statute does not provide an exception in that particular situation.

¶18 In this case, Mother did not have sole physical custody prior to seeking relocation. As noted above, the parties shared physical custody equally. Moreover, Mother did not claim that her situation presented one of the presumably rare situations in which a joint custody arrangement could be continued even after she moved more than 150 miles away from Father; that is, the success of Mother’s relocation request—at least insofar as she would be able to take the Children with her—depended upon Mother being awarded sole physical custody. In this situation, the relocation statute does not contemplate a change in custody without a petition to modify, and therefore rule 106’s petition requirement applies with full force.[6]


¶19 Mother needed to file a petition to modify in order to effectuate the change of custody in her favor that was, as a practical matter, essential to her relocation request. The relocation statute does not contemplate such a change of custody, and therefore the exception to rule 106’s petition requirement does not cover this situation. Because Mother did not file a petition to modify, the district court erred in ordering a change of custody in favor of Mother without one. Accordingly, we vacate the district court’s custody order and remand this case for further proceedings consistent with this opinion.

¶20      On remand, one of the parents (or both) will need to file a petition to modify to address the custody situation. It will be up to the district court, on remand, to determine whether the Children will remain in Lapoint pending adjudication of the petition(s) to modify. In making that determination, and in ruling upon the merits of the petition(s) to modify, the court should consider the present circumstances of the parties and the Children and not simply re-litigate the issues as they were at the time of the now-vacated custody order, bearing in mind its duties to “ensure that a child’s best interests will be met before transferring custody” and “to provide stability to children by protecting them from ‘ping-pong’ custody awards.” Chaparro v. Torero, 2018 UT App 181, ¶¶ 39–40, 436 P.3d 339 (quotation simplified).

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

[1] Father’s other two arguments are: (1) that the district court’s relocation decision, on its merits, was against the clear weight of the evidence presented and/or supported by insufficient evidence; and (2) that the court ignored newly discovered relevant evidence when it denied his motion for a new trial. In light of our determination that a change in custody in Mother’s favor was not permitted in the absence of a petition to modify, and our resolution vacating the district court’s custody order and remanding for further proceedings, we need not reach the merits of Father’s additional arguments.

[2] Section 10.4 contains no such exception, and it could be argued that section 10.4 eclipses rule 106’s relocation exception in instances where a relocating party seeks to alter a joint custody order. We do not address this argument further, however, because Father does not expressly make it, and because—as we explain herein—even if section 10.4 is somehow construed (like rule 106) to contain such exceptions as are permitted by the relocation statute, those exceptions do not benefit Mother here.

[3] Custody and parent-time are conceptually distinct. See Jones v. Jones, 2016 UT App 94, ¶ 10, 374 P.3d 45 (stating that, “while altering custody orders generally requires a showing of substantial change in circumstances material to the modification of custody, a lesser showing may be required when the change sought is not a change of custody,” and holding that “there was no error in the district court’s failure to require a substantial or material change of circumstances” when modifying parent-time (quotation simplified)); see also Erickson v. Erickson, 2018 UT App 184, ¶ 16, 437 P.3d 370 (“A material change of circumstances with respect to parent-time is thus a different inquiry from whether there was a material change with respect to custody.” (quotation simplified)).

[4] Although the relocation statute does not expressly cover a situation in which a noncustodial parent seeks leave to relocate, see Utah Code Ann. § 30-3-37(4) (speaking only in terms of “determining if the relocation of a custodial parent is in the best interest of the child” (emphasis added)), for obvious reasons no change in custody would be required if a noncustodial parent relocates and does not seek a change in custody status associated with that relocation. Whether a petition to modify would be required in this context—given that the relocation statute does not specifically speak to this situation, and that rule 106’s exception is limited to situations covered by the relocation statute—to address requested changes to the parent-time arrangement is a question we leave for another day.

[5] According to statutory definition, “joint physical custody” occurs when a “child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support.” See Utah Code Ann. § 30-3-10.1(3)(a). Thus, any parent who enjoys less than 70% of overnights has something short of sole physical custody, and would almost certainly need to seek a change in the custody arrangement in order to relocate with a child.

[6] By contrast, the relocation statute (and rule 106’s exceptional reference to it) would have allowed the district court to order a change of custody in favor of Father, even without a petition to modify, in the event that it had denied Mother’s relocation request and Mother had decided to relocate anyway. See Utah Code Ann. § 30-3-37(4); Utah R. Civ. P. 106(a).

Tags: , , , , , , , , , , , , , , , ,

If a single mother makes more annually than the father, would she have to pay child support even if she has custody?

In Utah, almost certainly not.

I cannot think of a scenario in which a parent (mother or father) has sole physical custody of the children and would have to pay any child support to the noncustodial parent. In that scenario it doesn’t matter if he/she earns more than the other parent; he/she will have no child support obligation to the noncustodial parent. It is possible, however (though not likely), that if the custodial parent earns more than enough to support the children on his/her own the court could order that the noncustodial has little to no child support obligation.

It gets more interesting if the parents are awarded joint physical custody. In Utah “joint physical custody” means that a parent who has the children no less than 110 overnights with the children is a joint physical custodian. Custody does not have to 50/50 for there to be joint custody awarded.

So I ran some calculations where the parent who has the child in his/her custody more nights than the other joint custodial parent grosses $10,000 per month and the other parent makes minimum wage (i.e., grosses $1,257 per month). This little hypothetical proves that, depending upon the division of overnights, a parent who makes more money than the other parent AND who has the children in his/her custody more than the other parent can, under Utah’s statutory child support guidelines, wind up being ordered to pay child support to the other parent.

Tags: , , , ,
Click to listen highlighted text!