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Tag: dispute

Blanket Prohibitions on Child Testimony in Custody and Parent-Time Disputes Are Irrational and Irresponsible.

Thomas Sowell said (in a discussion of politics and governance), “There are no solutions. There are only tradeoffs, and whatever you do to deal with one of man’s flaws it creates another problem, but you try to get the best solution you can get.”

So often in human experience the response to an problem comes down to compromise. We must be careful not to overstate the principle, of course. We need to be moral. We need to be honest and fair. Compromise comes up not in compromising our values for the sake of expediency, but when reasonable minds can differ. When people are too rigid in their positions, quite often everyone loses. Nothing gets done. One of the things that annoys me about the lack of understanding this principle in family law is when attorneys, courts, or advocates with certain agendas take rigid positions that depends upon ignoring the reasonable arguments of the other side for their rigid positions to have supposed unassailable merit.

Take my efforts to allow child testimony in child custody and parent time dispute cases.

There are those who believe that involving the children in the litigation process by asking them questions and seeking their input through testimony about what they’ve experienced, how they feel about it, and what they may desire by way of custody and parent time schedules can do nothing but harm the children. Those against child testimony in any form offer several arguments:

  • Testifying causes children to feel as though their loyalties are hopelessly split between the two parents they love. Children may feel as though they must break the heart of one parent in pleasing the other parent.
  • It causes children to fear reprisals and retaliation by parents who may be angered or upset by children’s testimony.
  • It exposes children to matters they are unprepared and unqualified to deal with, to issues better left to adults to resolve.
  • Children are generally incompetent and/or incredible witnesses.

There are some fair points there. But when people focus on these points to the exclusion of all other fair and reasonable points to the contrary, they don’t do their cause any favors. Ignoring rational counterarguments or rejecting them out of hand rouses skepticism as to just how strong and how broadly applicable the argument really is. An argument that denies any defects is usually proof that defects exist. Acknowledging the flaws and weaknesses in one’s position helps to reveal the extent of its strengths and applicability.

Granted:

  • Some (not all) children cannot testify without it doing them serious psychological and or emotional damage.
  • Compelling some (not all) children to testify might expose them to heinous reprisals from a wicked parent (although muzzling a child to “protect” him/her from a retaliatory parent only rewards—and thus encourages—bad behavior on the part of parents). Otherwise stated, sometimes the harm the child might suffer for his/her testimony outweigh the benefits of the child’s testimony to the court.
  • Not all children are competent and/or credible witnesses due to their age leaving them too young to understand the difference between right and wrong, truth and falsity. They could be mentally disabled or mentally ill to the point that they cannot perceive reality accurately. Or they could simply be too immature to know what’s good for them.

But we must also acknowledge that:

  • some children have no cause to fear retaliation from either parent, and so they don’t fear either parent.

–          some children are not only willing to share their experiences, observations, feelings, opinions, and desires—if called upon to do so, but want to do so. They wish to have a voice in the child custody and parent time analysis and decisions. Children who are sufficiently intelligent and mature to make intelligent and mature contributions to the evidence should be heard. The court needs to consider that evidence in making the child custody and parent-time awards.

  • competent, credible child witnesses are often the best, sometimes the only, witnesses to certain facts that bear crucially upon the child custody and parent-time award decisions.
  • children are, after all, the greatest stakeholders in such decisions. They have the most to gain or lose by the quality of the decision.

Thus, to ignore (or even refuse) such evidence from a willing, competent, credible child witness is, in my opinion, malfeasance on the part of a judge deciding child custody and parent-time matters.

It is easy to “prevent” what harm child testimony may cause some children by prohibiting all child testimony, but at what cost? Such extreme measures deprive some children (and the courts deciding their custody and parent-time fates) of the benefits their testimony could yield. Blanket prohibitions on child testimony in all cases are no better than mandating children testify in all cases. The matter of whether a child testifies ought to be decided on a case by case basis, and competent, credible child witnesses should testify if called to testify, unless there is clear and convincing evidence that the testimony’s probative value is substantially outweighed by a clearly and particularly articulable danger (not a mere, generalized claim of risk—every venture necessarily includes some risk) of irreparable harm to the child, were the child to testify.

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

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Should I always stand up to my spouse in every dispute?

No.

Here is why:

  • No one should defend a position one knows to be wrong;
  • Even if, arguendo, your spouse were always in the right in every dispute:
    • One may occasionally find it better not defend one’s position when the detriments of doing so outweigh the benefits;
    • Some battles are not worth fighting

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

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Marijuana and Child Custody Still Don’t Mix in Utah, You Fools! Ignore This at Your Peril!

No matter what you’re told, marijuana use is STILL ILLEGAL in this state. Illegal use of street drugs, including but not limited to marijuana, can and surely will be used against you in a child custody dispute.

And you can’t magically make current (i.e., illegal) use of marijuana legal once medical marijuana use becomes legal in July of 2019. If you use of marijuana now, IT’S ILLEGAL NOW.

If you are a parent and you’re going through a child custody battle, DON’T SMOKE OR OTHERWISE CONSUME WEED!

It does not matter if you ate a marijuana cookie in Colorado or sucked on a marijuana lollipop in Las Vegas. If you have marijuana in your system in Utah, you’re breaking the law.

It does not matter:

  • if you claim that you need weed to ease the pain of cancer or any other physical affliction;
  • if you claim that you need weed to manage your mental illness; or
  • if you claim you that can’t afford prescription medication.

It does not matter what excuses you try to get the court to swallow; illegal use of street drugs, including but not limited to marijuana, can and surely will be used against you in a child custody dispute.

Don’t believe me? Disagree with me? IT DOESN’T MATTER!

MARIJUANA IS ILLEGAL IN UTAH, STILL.

Recreational use of marijuana will still be illegal even after the medical marijuana use exceptions become law.

The solution?

DON’T USE WEED ILLEGALLY! Duh! Don’t let weed come between you and your children. I can’t believe how much I have to fight over this with parents who use weed. It’s not, not nuanced, not up for debate. Use weed and you will be hurt in child custody matters, period.

(And to those naive souls among you who believe that once you have that medical marijuana card you’ll be in the clear, remember you heard it here first (you have been warned): it’s going to take a while before most judges and commissioners in this state will believe that smoking dope, legally or not, doesn’t make you a lousy parent. If you think that having that medical marijuana card means marijuana can’t become an issue in your child custody battle, THINK AGAIN. Be careful with marijuana and child custody).

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

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