Tag: fairness

What Assumptions Can You Make About Someone Who Has Been Divorced Twice?

You can assume whatever you want about anyone or anything, but that does not mean your assumptions are accurate.

And there is this from Merriam-Webster: “Although presume and assume both mean “to take something as true,” “presume” implies more confidence or evidence backed reasoning. An “assumption” suggests there is little evidence supporting your guess.

People make assumptions all the time, often (but not always) to their detriment and the detriment of the people of whom they make assumptions. You know what they say about people who assume.

That stated, assumptions based upon sufficient evidence are not only reasonable but often warranted or even wholly justified. If you see someone turning red and then blue and appearing to be unable to breathe while making the sign of choking, you can assume he/she is choking. But it’s still an assumption. You didn’t see the would-be choking victim actually swallow anything, after all.

So, what can you safely assume about someone of whom you know nothing other than the fact that he/she has been divorced twice? In fairness to one contemplating making an assumption and to the person twice divorced:

  • It’s fair to wonder why someone has been divorced twice and whether the divorcee may not be “marriage material”—especially if you are contemplating marrying the twice-divorced person.

o   It’s fair to assume (assuming—see what I did there?—you want your marriage to last) that if you intend to marry the twice-divorced person, your marriage will have a lower chance of success than a marriage to someone who has never been divorced. Statistics indicate that in the U.S., just under 50% percent of first-time marriages end in divorce, while 65-67% of second marriages, and about 74% of third marriages end in divorce.

  • It’s unfair to assume that the divorce was the twice-divorced person’s fault either or both times. It’s fair to “wonder if”, but not to “assume that”.
  • It’s also fair to fair to “wonder if”, but not to “assume that”:

o   the twice-divorced person was the cause of one or both of the divorces and whether the divorcee has poor judgment in selecting spouses.

o   the twice-divorced person is either a sucker or someone who marries suckers.

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Law from a legal assistant’s point of view, week 17: Fairness

By Quinton Lister, legal assistant

Before I started working as a legal assistant I was a philosophy major at BYU. During that time I read a portion of John Rawls treatise on justice. Mr. Rawls sought to equate justice with fairness. I would try and summarize what he meant by that, but unfortunately, I am far enough removed from my studies in philosophy that I could not give an accurate representation of what Rawls was saying in his writings. The reason that I bring it up now is that I have recently been contemplating what it means for an outcome to be fair. 

One issue I have seen since I started my current job is that many clients and potential clients have an idea of what they think is fair, but they do not see that their view does not align with what is fair according to the law. They have a specific expectation in mind about what should happen in their case, but when that expectation is not met, it means that what they did receive from the court is, in their view, not fair. Not getting what one wants is not an objective standard by which one can deem a particular effect as unfair. We all experience disappointment in life. In that sense, the fact that all of us experience some type of “unfairness” in our lives is, frankly, fair. I am not sure what constitutes fairness, I am not sure anyone does. But I know that it cannot just be getting what one wants. 

Utah Family Law, LC | | 801-466-9277 

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Are mothers being treated “worse” by the legal system these days, with more and more states leaning toward awarding joint custody to fathers more and more?

No, mothers are not being treated “worse” by the legal system these days, with more and more states leaning toward awarding joint custody to fathers more.

Mothers do not have an inherent or presumptive right to be awarded the sole or even the primary custody of their children. This idea is known (was known) as the “tender years doctrine,” which has been determined to be sexually discriminatory in most jurisdictions in the U.S.A. (perhaps all jurisdictions, I don’t know for certain).

It is undeniable that fathers today are generally being treated more fairly in the child custody award analysis, and that trend appears to continue, but as a general matter fathers are still presumed to be second class parents and discriminated against accordingly.

To be sure, there are children whose best interests are ignored in favor of the court indulging personal and cultural biases. And this mistreatment sometimes includes (but is not limited to) when the child custody award is made. I cannot deny that there are mothers and fathers who are mistreated by the legal system, but it is my experience and opinion that–with the exception of a current large but slowly decreasing number of jurisdictions–for every mother who are cheated by the system, there are dozens of fathers who suffer the same unfair fate.

Some people believe that their lawyers “know” that their clients “obviously” want sole custody of their children when a child custody battle arises. Not true. Tell your lawyer what kind of custody arrangements you want and why. Your lawyer, if he/she is a good lawyer, will evaluate the strengths and weaknesses of your position and tell you whether he/she believes you can get what you want or whether you’re setting your sights too high or even too low.

Some people believe that if both parents have no history of spousal or child abuse that the court will “automatically” award the parents 50/50 legal and physical custody of their children. Not true. Not even usually true.

Some people believe that unless you or the other parent wants to fight over child custody, that the court will award the parents joint equal legal and physical custody of their children. That is not true of all jurisdictions. In my estimation, most jurisdictions do not presume that joint equal legal and/or physical custody is best for children, and even in those jurisdictions that do have such a presumption, if one of the parents objects to such a presumptive custody award, the court will hold hearings and/or a trial to determine whether the presumption has been rebutted.

At the time I write this, I’ve been practicing divorce and family law for 24 years, and it’s simply a fact that while it is getting easier for men to get a fair shake in the child custody fight, in most jurisdictions it is easier for a mother to win primary physical custody of the children than it is for a father to win primary physical custody of the children or even joint equal physical custody of the children.

In my experience as a divorce and family lawyer in Utah, most courts never even give a father seeking merely joint equal physical custody so much as a losing chance to prove he can exercise joint equal custody in the children’s best interest. Such courts just presume that for whatever reason(s)—real or imagined—the father can’t hack it, and then they make their child custody awards accordingly.

Some courts subconsciously discriminate, not even realizing what they are doing, just taking for granted that “children belong with their mother” and “children don’t need more than a few weekends and holidays and a few hours each week with their dads” and/or “dads don’t really want their kids to be reared equally by both parents”. Courts that deliberately discriminate will selectively cite to the facts and/or fabricate facts to support their foregone custody award conclusions. I’ve witnessed these scenarios personally time and again as a lawyer. And I represent both men and women. I don’t have a personal stake in my observations. I’d like nothing more than to say, “The system doesn’t discriminate against fathers anymore,” but at this point in my career, I cannot honestly say so.

Utah Family Law, LC | | 801-466-9277

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Pro-fairness and Pro-child

Pro-fairness and Pro-child

Recently, public service YouTube channel I run (UFTLV – Utah Family Law TV – not run by or run to support Utah Family Law, LC) received a comment on this video:

Do you think it’s fair that Brad Pitt got joint custody of his kids?

The comment:

“I’m pretty convinced this channel is a pro fathers [sic] rights movement channel. Its [sic] not surprising at all he got joint custody. Its [sic] an automatic presumption nowadays for mother and father to share joint custody.

My response follows below:

Thank you so much for watching and for commenting. You are mistaken on both counts. 1) This is not a pro-father’s rights channel (nor is it a “pro-mother’s rights” channel). It is a pro-fairness, pro-child, pro-due process, and pro-common sense channel. 2) It is not automatically presumed everywhere that child custody will be awarded to both parents on a joint custody basis.

1) For generations mothers were (and still remain in most jurisdictions) presumed to be “the better parent” simply by virtue of their being mothers/women, without evaluating the parental fitness of each parent to determine whether the children would be best served by a sole or joint child custody award. It was (and still is in many jurisdictions) believed that children need to spend more time in their mothers’ care than in their fathers’ care, even if and when the father is ready, willing, and able to share joint equal custody of the children.

2) While there are more and more states in the U.S. passing laws that presume the parents will be awarded joint legal and joint physical custody of their children, many states have no such presumption and many states still treat fathers as second class parents when it comes to making the child custody award. I myself have been told by a judge just this year that “it’s not the quantity of time the children spend with their father but the quality that matters.” But quality of time parents and children spend together is a factor of quantity. Where both parents are fit parents, the “best parent” is both parents. Children deserve no less than joint equal custody in such situations. Fit parents deserve no less as well.

Utah Family Law, LC | | 801-466-9277

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

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

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

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

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

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

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

Utah Family Law, LC | | 801-466-9277

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Should I be nice to my spouse during a divorce?

That depends on what you mean by “nice”.

Do you mean “with kindness”? Not necessarily kindness, but certainly decency. You are morally obligated to treat your spouse with decency, but you don’t have to go out of your way to make the spouse you are divorcing happy. You don’t have to capitulate to your spouse’s unfair or unreasonable demands.

Do you mean “with honesty and fairness”? If so, then yes: you are morally obligated to be honest and fair with everyone, but again aren’t obligated to capitulate to your spouse’s unfair or unreasonable demands, nor are you in any way obligated to tolerate being treated unfairly by your spouse.

Do you mean “forgiving”? If so, then yes: you are morally obligated to forgive your spouse for the wrong’s he/she did you, but forgiveness does not mean “acceptance”. Forgiving the people who have deceived or betrayed me in the past does not require me to trust them in the future. I forgive them so that I don’t dwell on the hurt done to me, so that I don’t let the injury continue to harm me, so that the one who did me wrong is shown the mercy needed to give him/her the best opportunity to change for the better without eternal regret or shame hampering the repentance process.

Fighting fire with fire will only intensify the pain and misery. Being the better man (or woman, as the case may be), living up to your virtuous values and standards of conduct is the only way to move on with peace and happiness (and you can get back there). Easier said than done, yes, but the only way.

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

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