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Tag: environment

Do GALs or custody evaluators do a better job of interviewing children than judges do?

This post is the tenth in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.

The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.

But do GALs or custody evaluators do a better job of interviewing children than judges do?

When the “judges interviewing children harms children” argument is finally abandoned by those who acknowledge it’s a silly and patently invalid argument, the next argument to which some cleaning in their efforts to prevent judges from talking to children directly is this one: GAL’s and/or custody evaluators develop a much deeper understanding of the child circumstances, needs, and desires than would a judge interviewing a child. But a guardian ad litem does not spend that much time learning about a child, his parents, or his environment, and does not establish an especially trusting or otherwise meaningful relationship with the child either. I’ve talked with GALs and custody evaluators and with people who had them appointed to speak to them as children; the guardian and/or custody evaluator may have spoken to them for an hour or so. No more than the amount of time a judge could and should spend speaking to a child as well. To assert that guardians ad litem and/or custody evaluators do a better job of interviewing children than a judge can because GALs inherently care more or put more effort or time into it is demonstrably false.

First, if there are any private guardians ad litem out there who spend more than an hour or so talking to their child clients before going before the court and making recommendations based upon the interview with the child, I don’t know who they are. I have never had a guardian ad litem do that in the cases I’ve handled. And if any of you claim that you generally spend or need to spend more than an hour or so interviewing the child, please provide some independently verifiable proof.

I have never witnessed a private guardian ad litem meet or speak with the children multiple times. Even if they did, how would we ever know? None of their conversation(s) is/are made part of the court’s record.

How could a GAL speak with the parents (unless the parents are proceeding pro se) without violating the rule against communicating with a represented party? On the extraordinarily rare occasion that the guardian ad litem has sought permission to speak with my client, the conversation has been brief and not in depth. And in a way that doesn’t come as a surprise. The guardian ad litem doesn’t speak for the parents. The parents can do that for themselves. Come to think of it, except where child is too young to communicate effectively, children don’t need a guardian ad litem or a custody evaluator to speak for them either. They have their own voice and should be permitted to voice their experiences, observations, feelings, concerns, opinions, needs, and desires by themselves, in their own words, unfiltered and unadulterated. But what do I know?

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

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Are bedbugs a basis for modifying child custody or parent-time?

If one parent has bedbugs and the children will not sleep at the parents home, does the other parent have to make a motion for full custody? Can the parent without bedbugs be sanctioned for failure to coparent?

I am glad you asked this question because in reading it and thinking about it I finally conceived of a way to express in words the problem that most non-lawyers encounter when asked this type of question.

Your question, and many questions like it, is grounded in a belief that the court will see your case and the issues raised in your case purely from your perspective. You cannot take such a thing for granted. It’s an easy trap to fall into (frankly, we all do), and a trap that causes a lot of people tremendous disillusionment and frustration with the legal system. While I am no raving fan of the modern legal system, it would be unfair to fault the legal system when it confronts issues over which reasonable minds can differ.

Here’s the key:

1) When analyzing a potential legal issue and your likelihood of success on an argument over that issue, don’t assume the court sees the issue as you do; indeed, don’t even presume that the court sees an issue at all.

2) Try seeing the issue as best you can A) from as many different reasonable perspectives as possible and then ask yourself whether your perspective is the most readily understandable and acceptable; and B) from the perspective your judge would most likely see the issue, or claim to see the issue, in the real world.

3) Argue only those issues A) that you believe you have a better than even chance of prevailing upon or B) that you can argue in good faith on the basis of principle, win or lose (meaning: you won’t act shocked or surprised or outraged if you lose an argument over a close issue over which you know reasonable minds can differ, nor will you smugly claim, with the benefit of hindsight, “Oh, our success was never in doubt.”)

OK, let’s conduct this analysis using your bedbugs scenario:

Even if a parent knows, from having witnessed it first-hand, that there are bedbugs at his or her ex-spouse’s house, that does not mean that the court must believe it. If a parent knows that the children refuse to go to the other parent’s house or refuse to sleep there (regardless of the reason), that does not mean that the court will believe it. Why? Because the court does not know what you know. This is why, when you seek relief and orders from courts are required to meet their burdens of proof, so that the court has sufficient factual and legal basis to grant the relief you seek.

And so questions like yours need to be analyzed on at least two levels: 1) Will the court believe your allegations?, and 2) If so, will the court take the actions you wanted to take?

Using your questions as a model:

Bedbugs and the modification of custody or parent-time

  • If a parent were only to come into court with just a bare, unverifiable claim that there are bedbugs in the other parent’s home, in my mind that would not rise to the level of proof by a preponderance of the evidence, and so if I were the judge, I could not conclude as a matter of fact that the allegation is true. And where an argument/request for sole custody rests on the other parent having bedbugs in his/her house, if I were the judge I would have to rule against that argument/request.
  • If a parent were to come into court with verification of his/her claim that there are bedbugs in the other parent’s home, that fact alone would not determine that the children must be in the sole custody of the other parent. First, the question the court would have to ask and resolve is something to the effect of:
    • “Is the presence of bedbugs in the parent’s home a sufficiently compelling reason to deny that parent custody or parent time on that basis alone?”
    • “Are bedbugs a threat to the health or life of the children?” Or just a nuisance?
    • “If bedbugs are not a threat to the health or life of the children, can I, as the judge, conclude that having the children exposed to the mere nuisance of potential bedbug bites is still somehow a sufficiently compelling reason to reduce or eliminate the amount of time the children spend with parent whose home is infested with bedbugs?”
  • If the court were to conclude that the answer to that question is “no,” then the presence of bedbugs alone in the parent’s house would not be enough to win a motion or petition for sole custody.
    • If the court were to conclude that the answer to that question is “yes” (and it’s not a given that the answer will be “yes”[1]”), then the court could, on that basis alone, modify custody or parent time, IF the court could rationally explain why the mere presence of bedbugs is reason enough to reduce or eliminate the amount of time the children spend in the custody or care of the parent with bedbugs at his/her house.
      • But “yes” might also lead to an additional question or additional questions, such as: Can the parent with bedbugs at his/her house mitigate the problem so that there’s no need to modify custody or parent time? Is the parent with bedbugs at his/her house willing to take necessary and immediate measures to solve the problem? What if, until the bedbug problem is eliminated, we simply require the parent who has bedbugs at his/her house to exercise custody or parent time at a location other than the parent’s house?” So even if the court finds that bedbugs could be reason to modify custody or parent time that does not mean that the court necessarily must modify custody or parent time in response to the presence of bedbugs.

Will a Parent Be Sanctioned if the Kids Refuse to Spend Time at the Parent’s Home Where There are Bedbugs present?

  • I will analyze this question by starting with the presumption that the court has determined that there are bedbugs present in the other parent’s home.
  • The court might then ask, “Is the presence of bedbugs in that parent’s home justification for modifying the custody or parent time orders?” This could lead to:
    • “Are bedbugs a threat to the health or life of the children?” Or just a nuisance?
    • “If bedbugs are not a threat to the health or life of the children, can I, as the judge, conclude that having the children exposed to the mere nuisance of potential bedbug bites is still somehow a sufficiently compelling legal reason for the other parent to refuse to comply with the court’s custody and visitation orders as to the other parent?”
      • If the answer to the previous question is “no”, then the other parent likely will be sanctioned, BUT even then, it’s possible that the court good rule along the lines of something like this: “I do not find that the children’s exposure to bedbugs at this parent’s house constituted a justification for noncompliance with the custody and parent time orders, but I also find that the noncompliant parent was not noncompliant for malicious, self-serving, or bad faith purposes, but truly believed that the bedbugs posed a bigger problem in his/her mind than in the mind of the court. So I’m not going to sanction this parent in this instance because I don’t believe sanctions are appropriate. And I don’t believe sanctions are appropriate because I don’t believe sanctions are needed to motivate this parent to comply with court orders now that I have explained my analysis of the situation. As long as this parent understands that he/she cannot act as a law unto himself/herself, I’m willing to give the noncompliant parent the benefit of the doubt in this instance.”
      • If the answer to the previous question is “yes”, then the other parent cannot be sanctioned.

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

https://www.quora.com/If-one-parent-has-bedbugs-and-the-children-will-not-sleep-at-the-parents-home-does-the-other-parent-have-to-make-a-motion-for-full-custody-Can-the-parent-without-bedbugs-be-sanctioned-for-failure-to-coparent/answer/Eric-Johnson-311

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