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Tag: family law

I’m a Divorce Lawyer. Too Many People Divorce.

I’m a divorce lawyer. I’m not divorced (God willing, I won’t ever be), I am opposed to divorce generally (while there are times when a divorce is plainly necessary, most of the time divorce makes what one is suffering, what one’s spouse, and what one’s family are suffering worse). The family law legal system is adequately designed but poorly administered (and that includes many of the litigants).

While I acknowledge that many people marry foolishly and recklessly, people divorce far too often.

If your marriage is not placing your physical safety or life in danger, if your spouse is not flouting his/her marital vows, and yet you are still contemplating divorce, ask yourself if it’s your spouse or even merely being married that is your problem (it likely isn’t).

If your spouse or marriage is not your problem, they are likely more help to you than a hindrance, and throwing them away will likely do you (and your spouse) more harm than good.

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

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Fair Treatment in Court by Braxton Mounteer, Legal Assistant.

The family law legal system likes to portray itself as a shining beacon of justice and equity, but I have seen first-hand that it is not. Whether it is opportunistic clients and their lawyers who will throw anything against the wall to see what sticks, or cowboy commissioners and judges who play fast and loose with the rules (and even make up their own), generally you will not get a fair shake (just a fair shake) unless you fight—and fight hard and extensively—for it.

Fight just to keep everyone honest? Really? Yes. Well, yes, in the sense that unless you don’t care about your own good character and subscribe to the “fight fire with fire” way of doing things.

If you have enough money, there is more than one lawyer out there that will take it and do and say basically whatever you want.

What about the commissioners and judges? Aren’t they motivated purely by upholding the law and the rules and dispensing justice impartially? Some are. Not all. It’s unpleasantly surprising to me how many domestic relations commissioners and judges indulge in pride, biases, apathy, and indolence.

If you know you’re innocent, if you know you’re a good person, that is rarely enough to ensure you’re treated fairly. What can you do if and when the deck is stacked against you because the opposing party is willing to lie, cheat, and steal his/her way to victory? You must fight with everything that you have. You must—if you can—produce overwhelming evidence that you are in the right (or the opposing side is in the wrong) if you are to have confidence that you will be treated fairly. That’s hard. That’s financially and emotionally exhausting. But there are no shortcuts.

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

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House Bill 157 (HB0157 (utah.gov)), “Child Custody Factor Amendments”.

This post discusses another proposed family law bill under consideration for the 2024 Utah legislative session, House Bill 157 (HB0157 (utah.gov)), “Child Custody Factor Amendments”.

This bill, if passed, would provides that a parent’s approval or disapproval, in itself, of a child’s gender identity, is not a factor to be considered:

  • in a Division of Child and Family Services determination regarding removal of a child from parental custody; and
  • when determining child custody as part of a divorce or other family law proceeding.

If passed, H.B. 157 would amend:

Utah Code § 30-3-10

and

Utah Code § 80-2a-202

The new provisions specially are:

(For Utah Code § 30-3-10)

127          (10) In considering the past conduct and demonstrated moral standards of each party
128     under Subsection (2)(d) or any other factor a court finds relevant, the court may not:

*****

144          (b) discriminate against a parent based upon the parent’s agreement or disagreement
145     with a minor child of the couple’s:
146          (i) assertion that the child’s gender identity is different from the sex assigned to the
147     child at birth; or
148          (ii) practice of having or expressing a different gender identity than the sex assigned to
149     the child at birth.

(For Utah Code § 80-2a-202)

167          (b) A peace officer or a child welfare caseworker may not take action under Subsection
168     (2)(a) solely on the basis of:

*****
175          (iii) a parent’s agreement or disagreement with a minor child of the couple’s:
176          (A) assertion that the child’s gender identity is different from the sex assigned to the
177     child at birth; or
178          (B) practice of having or expressing a different gender identity than the sex assigned to
179     the child at birth.

“How many legs does a dog have if you call his tail a leg? Four. Saying that a tail is a leg doesn’t make it a leg.” – Abraham Lincoln

While I realize that the intent of the bill is NOT to give credence to, among other things (all bad) junk science and the extremely dangerous notion that one can legally force others to share and engage in one’s own delusions, the result of enacting such legislation would—ironically—have the opposite effect (e.g., the bill incorporates “sex assigned at birth” when biological sex is not “assigned,” but a law like this would legitimate this inanity). The best way to deal with what will be looked back on as one of the most intellectually bankrupt and embarrassing concepts of the 21st century is to give it precisely all the statutory attention it deserves: none. Parental rights are inalienable and God-given, not a thing the government can erode with trendy, woke (there, I said it) legislation.

Here is the propose text of the bill:

30          30-3-10. Custody of a child — Custody factors.
31          (1) If a married couple having one or more minor children are separated, or the married
32     couple’s marriage is declared void or dissolved, the court shall enter, and has continuing
33     jurisdiction to modify, an order of custody and parent-time.
34          (2) In determining any form of custody and parent-time under Subsection (1), the court
35     shall consider the best interest of the child and may consider among other factors the court
36     finds relevant, the following for each parent:
37          (a) evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional
38     abuse, involving the child, the parent, or a household member of the parent;
39          (b) the parent’s demonstrated understanding of, responsiveness to, and ability to meet
40     the developmental needs of the child, including the child’s:
41          (i) physical needs;
42          (ii) emotional needs;
43          (iii) educational needs;
44          (iv) medical needs; and
45          (v) any special needs;
46          (c) the parent’s capacity and willingness to function as a parent, including:
47          (i) parenting skills;
48          (ii) co-parenting skills, including:
49          (A) ability to appropriately communicate with the other parent;
50          (B) ability to encourage the sharing of love and affection; and
51          (C) willingness to allow frequent and continuous contact between the child and the
52     other parent, except that, if the court determines that the parent is acting to protect the child
53     from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into
54     consideration; and
55          (iii) ability to provide personal care rather than surrogate care;
56          (d) in accordance with Subsection (10), the past conduct and demonstrated moral

57     character of the parent;
58          (e) the emotional stability of the parent;
59          (f) the parent’s inability to function as a parent because of drug abuse, excessive
60     drinking, or other causes;
61          (g) whether the parent has intentionally exposed the child to pornography or material
62     harmful to minors, as “material” and “harmful to minors” are defined in Section 76-10-1201;
63          (h) the parent’s reasons for having relinquished custody or parent-time in the past;
64          (i) duration and depth of desire for custody or parent-time;
65          (j) the parent’s religious compatibility with the child;
66          (k) the parent’s financial responsibility;
67          (l) the child’s interaction and relationship with step-parents, extended family members
68     of other individuals who may significantly affect the child’s best interests;
69          (m) who has been the primary caretaker of the child;
70          (n) previous parenting arrangements in which the child has been happy and
71     well-adjusted in the home, school, and community;
72          (o) the relative benefit of keeping siblings together;
73          (p) the stated wishes and concerns of the child, taking into consideration the child’s
74     cognitive ability and emotional maturity;
75          (q) the relative strength of the child’s bond with the parent, meaning the depth, quality,
76     and nature of the relationship between the parent and the child; and
77          (r) any other factor the court finds relevant.
78          (3) There is a rebuttable presumption that joint legal custody, as defined in Section
79     30-3-10.1, is in the best interest of the child, except in cases when there is:
80          (a) evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional
81     abuse involving the child, a parent, or a household member of the parent;
82          (b) special physical or mental needs of a parent or child, making joint legal custody
83     unreasonable;
84          (c) physical distance between the residences of the parents, making joint decision
85     making impractical in certain circumstances; or
86          (d) any other factor the court considers relevant including those listed in this section
87     and Section 30-3-10.2.

88          (4) (a) The person who desires joint legal custody shall file a proposed parenting plan
89     in accordance with Sections 30-3-10.8 and 30-3-10.9.
90          (b) A presumption for joint legal custody may be rebutted by a showing by a
91     preponderance of the evidence that it is not in the best interest of the child.
92          (5) (a) A child may not be required by either party to testify unless the trier of fact
93     determines that extenuating circumstances exist that would necessitate the testimony of the
94     child be heard and there is no other reasonable method to present the child’s testimony.
95          (b) (i) The court may inquire of the child’s and take into consideration the child’s
96     desires regarding future custody or parent-time schedules, but the expressed desires are not
97     controlling and the court may determine the child’s custody or parent-time otherwise.
98          (ii) The desires of a child 14 years old or older shall be given added weight, but is not
99     the single controlling factor.
100          (c) (i) If an interview with a child is conducted by the court pursuant to Subsection
101     (5)(b), the interview shall be conducted by the judge in camera.
102          (ii) The prior consent of the parties may be obtained but is not necessary if the court
103     finds that an interview with a child is the only method to ascertain the child’s desires regarding
104     custody.
105          (6) (a) Except as provided in Subsection (6)(b), a court may not discriminate against a
106     parent due to a disability, as defined in Section 57-21-2, in awarding custody or determining
107     whether a substantial change has occurred for the purpose of modifying an award of custody.
108          (b) The court may not consider the disability of a parent as a factor in awarding custody
109     or modifying an award of custody based on a determination of a substantial change in
110     circumstances, unless the court makes specific findings that:
111          (i) the disability significantly or substantially inhibits the parent’s ability to provide for
112     the physical and emotional needs of the child at issue; and
113          (ii) the parent with a disability lacks sufficient human, monetary, or other resources
114     available to supplement the parent’s ability to provide for the physical and emotional needs of
115     the child at issue.
116          (c) Nothing in this section may be construed to apply to adoption proceedings under
117     Title 78B, Chapter 6, Part 1, Utah Adoption Act.
118          (7) This section does not establish a preference for either parent solely because of the

119     gender of the parent.
120          (8) This section establishes neither a preference nor a presumption for or against joint
121     physical custody or sole physical custody, but allows the court and the family the widest
122     discretion to choose a parenting plan that is in the best interest of the child.
123          (9) When an issue before the court involves custodial responsibility in the event of a
124     deployment of one or both parents who are service members and the service member has not
125     yet been notified of deployment, the court shall resolve the issue based on the standards in
126     Sections 78B-20-306 through 78B-20-309.
127          (10) In considering the past conduct and demonstrated moral standards of each party
128     under Subsection (2)(d) or any other factor a court finds relevant, the court may not:
129          (a) (i) consider or treat a parent’s lawful possession or use of cannabis in a medicinal
130     dosage form, a cannabis product in a medicinal dosage form, or a medical cannabis device, in
131     accordance with Title 4, Chapter 41a, Cannabis Production Establishments and Pharmacies,
132     Title 26B, Chapter 4, Part 2, Cannabinoid Research and Medical Cannabis, or Subsection
133     58-37-3.7(2) or (3) any differently than the court would consider or treat the lawful possession
134     or use of any prescribed controlled substance; or
135          [(b)(ii) discriminate against a parent because of the parent’s status as a:
136          [(i)(A) cannabis production establishment agent, as that term is defined in Section
137     4-41a-102;
138          [(ii)(B) medical cannabis pharmacy agent, as that term is defined in Section
139     26B-4-201;
140          [(iii)(C) medical cannabis courier agent, as that term is defined in Section 26B-4-201;
141     or
142          [(iv)(D) medical cannabis cardholder in accordance with Title 26B, Chapter 4, Part 2,
143     Cannabinoid Research and Medical Cannabis[.]; or
144          (b) discriminate against a parent based upon the parent’s agreement or disagreement
145     with a minor child of the couple’s:
146          (i) assertion that the child’s gender identity is different from the sex assigned to the
147     child at birth; or
148          (ii) practice of having or expressing a different gender identity than the sex assigned to
149     the child at birth.

150          Section 2. Section 80-2a-202 is amended to read:
151          80-2a-202. Removal of a child by a peace officer or child welfare caseworker —
152     Search warrants — Protective custody and temporary care of a child.
153          (1) A peace officer or child welfare caseworker may remove a child or take a child into
154     protective custody, temporary custody, or custody in accordance with this section.
155          (2) (a) Except as provided in Subsection (2)(b), a peace officer or a child welfare
156     caseworker may not enter the home of a child whose case is not under the jurisdiction of the
157     juvenile court, remove a child from the child’s home or school, or take a child into protective
158     custody unless:
159          (i) there exist exigent circumstances sufficient to relieve the peace officer or the child
160     welfare caseworker of the requirement to obtain a search warrant under Subsection (3);
161          (ii) the peace officer or child welfare caseworker obtains a search warrant under
162     Subsection (3);
163          (iii) the peace officer or child welfare caseworker obtains a court order after the child’s
164     parent or guardian is given notice and an opportunity to be heard; or
165          (iv) the peace officer or child welfare caseworker obtains the consent of the child’s
166     parent or guardian.
167          (b) A peace officer or a child welfare caseworker may not take action under Subsection
168     (2)(a) solely on the basis of:
169          (i) educational neglect, truancy, or failure to comply with a court order to attend
170     school; [or]
171          (ii) the possession or use, in accordance with Title 26B, Chapter 4, Part 2, Cannabinoid
172     Research and Medical Cannabis, of cannabis in a medicinal dosage form, a cannabis product in
173     a medicinal dosage form, or a medical cannabis device, as those terms are defined in Section
174     26B-4-201[.]; or
175          (iii) a parent’s agreement or disagreement with a minor child of the couple’s:
176          (A) assertion that the child’s gender identity is different from the sex assigned to the
177     child at birth; or
178          (B) practice of having or expressing a different gender identity than the sex assigned to
179     the child at birth.
180          (3) (a) The juvenile court may issue a warrant authorizing a peace officer or a child

181     welfare caseworker to search for a child and take the child into protective custody if it appears
182     to the juvenile court upon a verified petition, recorded sworn testimony or an affidavit sworn to
183     by a peace officer or another individual, and upon the examination of other witnesses if
184     required by the juvenile court, that there is probable cause to believe that:
185          (i) there is a threat of substantial harm to the child’s health or safety;
186          (ii) it is necessary to take the child into protective custody to avoid the harm described
187     in Subsection (3)(a)(i); and
188          (iii) it is likely that the child will suffer substantial harm if the child’s parent or
189     guardian is given notice and an opportunity to be heard before the child is taken into protective
190     custody.
191          (b) In accordance with Section 77-23-210, a peace officer making the search under
192     Subsection (3)(a) may enter a house or premises by force, if necessary, in order to remove the
193     child.
194          (4) (a) A child welfare caseworker may take action under Subsection (2) accompanied
195     by a peace officer or without a peace officer if a peace officer is not reasonably available.
196          (b) (i) Before taking a child into protective custody, and if possible and consistent with
197     the child’s safety and welfare, a child welfare caseworker shall determine whether there are
198     services available that, if provided to a parent or guardian of the child, would eliminate the
199     need to remove the child from the custody of the child’s parent or guardian.
200          (ii) In determining whether the services described in Subsection (4)(b)(i) are
201     reasonably available, the child welfare caseworker shall consider the child’s health, safety, and
202     welfare as the paramount concern.
203          (iii) If the child welfare caseworker determines the services described in Subsection
204     (4)(b)(i) are reasonably available, the services shall be utilized.
205          (5) (a) If a peace officer or a child welfare caseworker takes a child into protective
206     custody under Subsection (2), the peace officer or child welfare caseworker shall:
207          (i) notify the child’s parent or guardian in accordance with Section 80-2a-203; and
208          (ii) release the child to the care of the child’s parent or guardian or another responsible
209     adult, unless:
210          (A) the child’s immediate welfare requires the child remain in protective custody; or
211          (B) the protection of the community requires the child’s detention in accordance with

212     Chapter 6, Part 2, Custody and Detention.
213          (b) (i) If a peace officer or child welfare caseworker is executing a warrant under
214     Subsection (3), the peace officer or child welfare caseworker shall take the child to:
215          (A) a shelter facility; or
216          (B) if the division makes an emergency placement under Section 80-2a-301, the
217     emergency placement.
218          (ii) If a peace officer or a child welfare caseworker takes a child to a shelter facility
219     under Subsection (5)(b)(i), the peace officer or the child welfare caseworker shall promptly file
220     a written report that includes the child’s information, on a form provided by the division, with
221     the shelter facility.
222          (c) A child removed or taken into protective custody under this section may not be
223     placed or kept in detention pending court proceedings, unless the child may be held in
224     detention under Chapter 6, Part 2, Custody and Detention.
225          (6) (a) The juvenile court shall issue a warrant authorizing a peace officer or a child
226     welfare worker to search for a child who is missing, has been abducted, or has run away, and
227     take the child into physical custody if the juvenile court determines that the child is missing,
228     has been abducted, or has run away from the protective custody, temporary custody, or custody
229     of the division.
230          (b) If the juvenile court issues a warrant under Subsection (6)(a):
231          (i) the division shall notify the child’s parent or guardian who has a right to parent-time
232     with the child in accordance with Subsection 80-2a-203(5)(a);
233          (ii) the court shall order:
234          (A) the law enforcement agency that has jurisdiction over the location from which the
235     child ran away to enter a record of the warrant into the National Crime Information Center
236     database within 24 hours after the time in which the law enforcement agency receives a copy of
237     the warrant; and
238          (B) the division to notify the law enforcement agency described in Subsection
239     (6)(b)(ii)(A) of the order described in Subsection (6)(b)(ii)(A); and
240          (c) the court shall specify the location to which the peace officer or the child welfare
241     caseworker shall transport the child.

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Can anyone recommend a good attorney for father’s rights?

Many fathers and those who care about them ask this question. It’s no wonder why. But beware. “Father’s Rights Attorney” is, for the most part, a scam. Don’t misunderstand me: fathers unquestionably get treated unfairly in child custody disputes. And there are a few attorney’s out there who may legitimately make focuses solely (and expertly) on defending and preserving and advancing father’s rights in child custody disputes, but generally, the “Father’s Rights Attorney” is just a marketing ploy. Have you ever wondered why you don’t see any “Mother’s Rights Attorney” advertising? Because men have more money than women (generally), so the “Father’s Rights Attorneys” play upon the fears of fathers by convincing fathers that “we specialize” and “we care” and “we know what it takes to get fathers JUSTICE!!!!!” Stuff like that to get fathers to open their wallets.

If you are a father and you are concerned that you will not be treated fairly or you are not being treated fairly by a biased judge, you’re likely not looking for a “Father’s Rights Attorney”; what you’re looking for is a skilled, knowledgeable, diligent, honest attorney who will first tell you whether he/she believes you have a fighting chance, and if so, will help you prepare and argue your case, so that you and the children are dealt with fairly when it comes to your involvement in your children’s lives.

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Do you think the child support laws in your state are fair? If no, then describe the changes that you would make.

I can’t speak for all jurisdictions, but in the jurisdiction where I practice divorce and family law (Utah), child support awards are generally, in my opinion, 1) too high, 2) often wrongfully misused by those seeking child support (and by the courts that award child support) as a means of providing financial support for a parent (not just the child(ren)), and 3) not subject to enough (if any) oversight regarding their properly use.

One factor that can cause child support to be awarded unfairly to the child support recipient is this: I’ve attended the meetings of the committee that sets child support guidelines in my state. It was clear in my observations of the committee’s work that some on the committee don’t see child supporters as financial support exclusively for children, but for the parent receiving the child support payments also. I’ve seen courts award sole or primary child custody to a parent not because that was in the best interest of the child, but because the court wanted to ensure that the parent awarded custody got the extra child support money that comes with a sole or primary custody award. In my view, that is unfair. There are many times when a judge will award child support (and the associated child custody) not strictly for the purpose of providing some financial support for the children but for the custodial parent as well. When they do, it is manifestly inequitable and unjust (to child and parent alike), and a violation of the public trust, but it still happens. Not in every child support case, but it happens.

One factor that can cause child support to be spent unfairly by the child support recipient is: no accountability on the part of the child support funds recipient for the expenditure of the child support funds. Once the parent who was awarded child support receives the funds, he/she can spend them however he/she wants. If the child support recipient (also known as the child support obligee) does not actually spend the child support on the financial needs of the children, he/she gets away with it.

In my jurisdiction (Utah), while the law provides for accountability as to how child support funds are spent, that law is literally never applied (Play 26 years of practice I have never seen it ordered). There is no accountability for how child support funds are paid. That is not opinion, that is fact. About the only way to get accountability for use of child support funds is if the child support recipient so grossly and obviously misspends them that it cannot be denied, in which case the court may make some changes to the child support award as a result.

In fairness, while it may be a little easier to devise a means for a fairer calculation of needed child support than it is to devise a workable, reliable means of holding child support obligees accountable, both tasks are extremely difficult. Everyone has a different opinion of what is a “fair calculation,” and where there’s a will to misappropriate the child support funds with which one is entrusted without being detected, there’s a way (multiple ways, in fact, the number of which is limited only by the imagination).

In my jurisdiction, there are different kinds of child support. Three different kinds, to be exact (sometimes four, under certain circumstances). What most people consider child support is known as base monthly child support in Utah. That is the amount that is paid directly to the custodial parent. But child support also includes sharing equally the cost of the child’s health, medical, dental, and hospital insurance premiums, and half of all uninsured medical, health, dental, and hospitalization expenses. Child support also includes the responsibility that the parents share equally the cost of all work-related childcare expenses. And in joint physical custody cases, often the court will order that the parties share equally the costs of certain expenses for the child in addition to base monthly child support to cover things like mandatory school expenses and cost of reasonable extracurricular expenses.

A parent has his/her own living expenses. While it is true that in some cases a parent may incur housing expenses greater than what they would be were there no need for extra room to house the child or children, child support is not needed for “extra” housing expenses if the size of the parent’s residence would have been the same regardless of the child custody award.

The problem with thinking that “half of all living expenses are the child’s”) is that rarely are half of all living expenses are, in fact, the child’s. For example, if a parent would have been residing in the same sized residence with or without the child present, then the “child’s portion” of rent is $0. Even if the residence is a 2-bedroom house/apartment, the second bedroom is not equivalent to half the cost of the residence. Children don’t eat as much food until they are older (and even so, they are not eating on the custodial parent’s dime every day because they eat some time meals the noncustodial parent). I cannot speak for all jurisdictions, but in Utah child support is usually more than what the child (the child, not the custodial parent, the child) needs to be sufficiently financially supported).

All common expenses clearly do not divide perfectly equally between the parent and child. A parent whose residence would have been the same size regardless of whether he/she shared it with a child would have $0 in child housing expenses, $0 in certain utilities expenses (i.e., heating, garbage removal, cable TV, internet), for example. So, the idea that child support must take into account that a child’s “shelter” expenses are equal to half the parent’s rent or mortgage payment is false on its face. If a court wants to indulge such a fiction for the sake of making it easier to calculate child support, that’s a different matter. A child’s transportation needs are not necessarily equal to half or 25% of those of the parent either.

In Utah, work-related daycare is an expense shared equally between the parents and is separate from the base monthly child support amount. To be clear: a noncustodial parent pays base monthly child support in addition to sharing half the costs of work-related child care expenses.

While it is true that a child’s food consumption changes as the child ages, that’s built in to the child support calculations, so that it averages out—child support is more than necessary to feed a 5-year-old and less than necessary to feed a 17-year-old, but the average child support amount accounts for both scenarios as the child ages. I have never, in 26 years of practice in Utah, personally witnessed a case (nor have I heard of any other case in which) child support was ordered increased for a teenaged child on the basis of “additional food and clothing expenses of a teenager”. Child support calculations are the same for all children, regardless of age.

The “poor hapless custodial parent” story is tired and not credible. Of course, there are many deadbeat noncustodial parents to pay less than full court-ordered child support and many deadbeats who pay none. But that is not the discussion here. The idea that child support that is awarded is somehow insufficient to meet a child’s needs (needs) is bunk. All the arguments that “child support is too low” are bunk too. Consider this: in Utah, both parents have a child support obligation (that includes the custodial parent). That means that that the custodial parent has an obligation to spend his/her own money on the child’s support in addition to the money he/she receives in child support from the noncustodial parent. So, if we have John and Jane Doe as parents, they have two minor children, John’s gross monthly income is $6,500 and Jane’s gross monthly income is $2,400, and John is the noncustodial parent, then John’s monthly child support obligation is $1,111. That’s $555.50 per child, per month, that John pays. Jane’s child support obligation is less, but still $411 per month (see the Utah child support worksheet below, calculated on a sole custody basis in this hypothetical scenario). That’s an additional $205.50 per child per month. Don’t tell me that $761 per month isn’t enough to provide for a child’s needs monthly. Remember: base monthly child support does not include both parents sharing the costs of child health insurance equally, uninsured child health care equally, and work-related daycare equally. That’s all in addition to the base monthly child support amount. In other words, the custodial parent doesn’t have to spend out of that $761 per month for child health insurance, uninsured out of pocket health care, and daycare (the parents bear those expenses separately on an equal shares basis). $761 is likely more than what the parents would have spent on the child’s support had the parents resided together with the children under the same roof.

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

https://www.quora.com/Do-you-think-the-child-support-laws-in-your-state-are-fair-If-no-then-describe-the-changes-that-you-would-make/answer/Eric-Johnson-311

 

 

Don’t tell me that $761 per month isn’t enough to provide for a child’s needs monthly. Remember: base monthly child support does not include both parents sharing the costs of child health insurance equally, uninsured child health care equally, and work-related daycare equally. That’s all in addition to the base monthly child support amount. In other words, the custodial parent doesn’t have to spend out of that $761 per month for child health insurance, uninsured out of pocket health care, and daycare (the parents bear those expenses separately on an equal shares basis). $761 is likely more than what the parents would have spent on the child’s support had the parents resided together with the children under the same roof.

Don’t tell me that $761 per month isn’t enough to provide for a child’s needs monthly. Remember: base monthly child support does not include both parents sharing the costs of child health insurance equally, uninsured child health care equally, and work-related daycare equally. That’s all in addition to the base monthly child support amount. In other words, the custodial parent doesn’t have to spend out of that $761 per month for child health insurance, uninsured out of pocket health care, and daycare (the parents bear those expenses separately on an equal shares basis). $761 is likely more than what the parents would have spent on the child’s support had the parents resided together with the children under the same roof.

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Dirty Tricks to Watch Out for in Divorce

I often encounter sneaky spouses who after separation and/or after a divorce action has been filed, start sending text messages and emails to the other spouse making false claims like:

  • “Where did you take my _____” or
  • “Why did you take my _____” or
  • “Bring back my _____ that you took/stole” or
  • “Why did you give away or sell or destroy my _____.”

The items of property mentioned are either safely in the lying spouse’s possession or don’t exist at all. So why make such false claims?

To obtain ill-gotten judgments for money against the innocent spouse for “taking, hiding, destroying, selling, or giving these items away. When spouses who engage in such shenanigans succeed, it’s usually because the innocent spouse takes a “I won’t legitimize your bogus claims with a response.” But that’s exactly the trap into which the lying spouse wants you to fall. Because when you don’t respond, your spouse can then claim “See, my spouse doesn’t deny it!” ‘Think this doesn’t happen? ‘Think it doesn’t work? Think again. Don’t let this happen to you. If your spouse start making such false claims to or against you, respond immediately and unequivocally AND IN WRITING (e-mail is best for this, but text message is OK too—make sure you keep the written record that shows the date and time you sent it to your spouse):

  • “I did not take your _____. It’s in the garage right where you left it.”
  • “There is nothing to bring back because I did not take your _____. It’s in the garage right where you left it.”
  • “I did not give away or sell or destroy your _____ because you don’t own any such thing and never have.”
  • “I did not give away or sell or destroy your _____ because you gave that away to the thrift store two years ago. ”

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

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What Good Parents Need to Know About Child Custody Disputes with an Evil Parent

You hear and read on attorney websites stuff like, “Navigating child custody arrangements during divorce can be challenging.” That’s not the half of it. Child custody disputes with an evil parent are nastier and harder (and orders of magnitude more expensive) than most parents expect or can even imagine. I’m not exaggerating. I am really not exaggerating. Really, I am not exaggerating. Here are some crucial tips to consider for a smoother process.

  • If there is no valid child custody order issued by a court, the police cannot help you “enforce” your “child custody rights”. This is because you have no right to control what the other parent does with the children when it comes to exercising custody. The other parent can deny your requests to spend time with the children. He/she can even deny your requests to call the children on the phone or chat with them over video.

 

o   Even if there is a court order that clearly identifies the child custody and parent-time orders, it’s only as good as the will of the courts and the police to enforce it. Many police departments will either outright refuse to assist you in enforcing the order or will act as if “I can’t understand what the order means, so I can’t help you.”

  • Defend your reputation, your good name, and your parental fitness with everything you have.

o   Courts are afraid of making a mistake when they issue child custody and parent-time orders. Evil parents exploit this fear by accusing innocent, loving parents of terrible traits and acts, so that the court will “protect” the children from them by awarding custody to the other parent and/or restricting parent-time. Mere accusations—if they’re scary enough and skillfully spun—can be enough to force a court’s hand.

o   What kinds of accusations? Abuse! Abuse! Abuse! Physical abuse, sexual abuse, emotional abuse, and substance abuse are the most “successful”.

o   If you are accused wrongfully, defend yourself with everything you have. Point out the dearth of support for the allegations. If you can, get overwhelming amounts of proof in your favor. Live as perfect life as you possibly can. Be as perfect a parent as you can. Sure, it’s unfair unrealistic, but don’t expect the court to be sympathetic with you (especially if you’re a father). Don’t give the court any way to take the path of least resistance, to act “out of an abundance of caution,” or to indulge “better safe than sorry” thinking.

  • Document everything pertaining to the child custody and parent-time awards. Gather as much proof as you possibly can in support of your parental fitness, of your efforts to be there for your children, to spend time with them, to take care of them (feed them, bathe and clothe them, help with homework, play with them, exemplify good morals and values, etc.), so that the court cannot deny your requests without looking biased, ignorant, and/or incompetent.

o   Know what factors the court must consider when making the child custody and parent-time awards, then ensure you satisfy every single one of them beautifully (and if you cannot satisfy them all, explain why, and why that should not disqualify you from being awarded as much custody and parent-time as is in the best interest of the children

  • Here are the factors considered in Utah:
  • In a nutshell: the child’s needs and the parent’s ability to meet them
  • In total:

Utah Code § 30-3-10

–          evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the parent, or a household member of the parent;

–          the parent’s demonstrated understanding of, responsiveness to, and ability to meet the developmental needs of the child, including the child’s:

–          physical needs;

–          emotional needs;

–          educational needs;

–          medical needs; and

–          any special needs;

–          the parent’s capacity and willingness to function as a parent, including:

–          parenting skills;

–          co-parenting skills, including:

(A) ability to appropriately communicate with the other parent;

(B) ability to encourage the sharing of love and affection; and

(C) willingness to allow frequent and continuous contact between the child and the other parent, except that, if the court determines that the parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration; and

–          ability to provide personal care rather than surrogate care;

–          in accordance with Subsection (10), the past conduct and demonstrated moral character of the parent;

–          the emotional stability of the parent;

–          the parent’s inability to function as a parent because of drug abuse, excessive drinking, or other causes;

–          whether the parent has intentionally exposed the child to pornography or material harmful to minors, as “material” and “harmful to minors” are defined in Section 76-10-1201;

–          the parent’s reasons for having relinquished custody or parent-time in the past;

–          duration and depth of desire for custody or parent-time;

–          the parent’s religious compatibility with the child;

–          the parent’s financial responsibility;

–          the child’s interaction and relationship with step-parents, extended family members of other individuals who may significantly affect the child’s best interests;

–          who has been the primary caretaker of the child;

–          previous parenting arrangements in which the child has been happy and well-adjusted in the home, school, and community;

–          the relative benefit of keeping siblings together;

–          the stated wishes and concerns of the child, taking into consideration the child’s cognitive ability and emotional maturity;

–          the relative strength of the child’s bond with the parent, meaning the depth, quality, and nature of the relationship between the parent and the child; and

–          any other factor the court finds relevant.

Utah Code § 30-3-10.2 (when seeking a joint custody award, and “joint custody” does not necessarily mean “equal time”; in Utah means that a parent exercises no less than 111 overnights with the children annually)

–          whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal custody or joint physical custody or both;

–          the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;

–          co-parenting skills, including:

–          ability to appropriately communicate with the other parent;

–          ability to encourage the sharing of love and affection; and

–          willingness to allow frequent and continuous contact between the child and the other parent, except that, if the court determines that the parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration; and

–          whether both parents participated in raising the child before the divorce;

–          the geographical proximity of the homes of the parents;

–          the preference of the child if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to joint legal custody or joint physical custody or both;

–          the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents;

–          the past and present ability of the parents to cooperate with each other and make decisions jointly; and

–          any other factor the court finds relevant.

 

Utah Code Section 30-3-34 (this is for determining parent-time, but the factors are equally relevant to the child custody award)

–          whether parent-time would endanger the child’s physical health or mental health, or significantly impair the child’s emotional development;

–          evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, a parent, or a household member of the parent;

–          the distance between the residency of the child and the noncustodial parent;

–          a credible allegation of child abuse has been made;

–          the lack of demonstrated parenting skills without safeguards to ensure the child’s well-being during parent-time;

–          the financial inability of the noncustodial parent to provide adequate food and shelter for the child during periods of parent-time;

–          the preference of the child if the court determines the child is of sufficient maturity;

–          the incarceration of the noncustodial parent in a county jail, secure youth corrections facility, or an adult corrections facility;

–          shared interests between the child and the noncustodial parent;

–          the involvement or lack of involvement of the noncustodial parent in the school, community, religious, or other related activities of the child;

–          the availability of the noncustodial parent to care for the child when the custodial parent is unavailable to do so because of work or other circumstances;

–          a substantial and chronic pattern of missing, canceling, or denying regularly scheduled parent-time;

–          the minimal duration of and lack of significant bonding in the parents’ relationship before the conception of the child;

–          the parent-time schedule of siblings;

–          the lack of reasonable alternatives to the needs of a nursing child; and

–          any other criteria the court determines relevant to the best interests of the child.

Utah Code Section 30-3-35.2 (when seeking an award of equal physical custody)

–          A court may order the equal parent-time schedule described in this section if the court determines that:

–          the equal parent-time schedule is in the child’s best interest;

–          each parent has been actively involved in the child’s life; and

–          each parent can effectively facilitate the equal parent-time schedule.

–          To determine whether each parent has been actively involved in the child’s life, the court shall consider:

–          each parent’s demonstrated responsibility in caring for the child;

–          each parent’s involvement in child care;

–          each parent’s presence or volunteer efforts in the child’s school and at extracurricular activities;

–          each parent’s assistance with the child’s homework;

–          each parent’s involvement in preparation of meals, bath time, and bedtime for the child;

–          each parent’s bond with the child; and

–          any other factor the court considers relevant.

–          To determine whether each parent can effectively facilitate the equal parent-time schedule, the court shall consider:

–          the geographic distance between the residence of each parent and the distance between each residence and the child’s school;

–          each parent’s ability to assist with the child’s after school care;

–          the health of the child and each parent, consistent with Subsection 30-3-10(6);

–          the flexibility of each parent’s employment or other schedule;

–          each parent’s ability to provide appropriate playtime with the child;

–          each parent’s history and ability to implement a flexible schedule for the child;

–          physical facilities of each parent’s residence; and

–          any other factor the court considers relevant.

o   Be a class act at all times in your dealings with the other parent, no matter how much mud is slung and no matter how uncooperative antagonistic the other parent is. All the goodwill you’ve built up over a lifetime can be discounted and dismissed in an instant with just one angry outburst (no matter how much the other parent had it coming)

o   You do not build yourself up as a parent by tearing or trying to tear the other parent down. Be as honestly complimentary of the other parent as you can. No, don’t deny serious defects and faults, but unless the other parent is truly a monster, don’t try to paint the other parent as one—it’s not only evil, but it can backfire.

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

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Divorce and Social Media By Braxton Mounteer

Most people fundamentally misunderstand what the Internet and social media are. Many believe that social media is a web of interconnections where you can send and receive updates about your life or the lives of people you are involved in with those who are connected to you. This is completely true, but not truly complete. Social media is like what happens when groups of people chat around campfires in the dark in close proximity to each other. The sound travels. Every other group can hear what you and your friends are discussing around your campfire. So can the things hiding in the woods.

Another thing that people misunderstand is that what is posted on social media is a nearly permanent record. Every post you make might as well be etched into stone. There will almost always be a record of it somewhere, whether you delete it from your personal account.

What does this have to do with divorce? Your social media activity isn’t a tiny echo chamber of your inner circle or your personal diary. You aren’t screaming into the void. If you air your dirty laundry on social media, there will likely be a permanent record of it, and—for anyone who tries hard enough—for prying eyes and ears to access.

What you do and say online can be used against you. And it likely will be used against you.

You would be best served by keeping your online “mouth” shut. Keep your social media “business as usual,” post the updates about your children’s milestones and major life achievements that you normally would. Post the funny meme. But don’t bash your spouse online. Don’t pour your heart out about your personal vices and demons online. Don’t discuss your divorce or subjects that can affect your divorce online. Some things are better left unsaid.

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What do I do when my ex uses doctor’s appointments in our child support issue on court when we have 50/50 decision making, but I have the final say to any decision made? Will it be used against me?

If I understand your question correctly, you’re wondering if the court will fault for your ex-spouse’s claims that you are failing to act responsibly when it comes to making and keeping doctor appointments for the child, and perhaps also criticizing your judgment when it comes to matters of the child’s health care.

Many judges are suckers generally for claims of child abuse and neglect. What do I mean? None of them want to be blamed for failing to notice and failing to protect. And so when faced with allegations of child abuse or neglect or parental misconduct toward a child, many of them are on the side of caution, claiming that they are simply looking out for the best interest of the child, when in far too many cases they’re simply looking out for their own best interests (that’s usually what erring on the side of caution does and means in family law—abusing a parent’s reputation and parental rights, so that a court doesn’t have to risk making “the wrong choice” when deciding on allegations of child abuse and neglect).

If instead, your ex is accusing you of misconduct by scheduling doctor appointments for your children without conferring and agreeing with the co-parent before the doctor appointments are scheduled and attended, then if your question is whether your ex will prevail, then if the law and/or court order requires you and your ex/co-parent to confer with each other before you can exercise your “final say” authority to schedule the appointments over your ex’s/co-parent’s objection, then you are likely in the wrong and likely to be found to be in the wrong.

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

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Should mutual friends choose sides in a divorce?

There’s more to consider than just the mutual friendship.

Such as whether someone is seriously in the wrong. You wouldn’t (or shouldn’t) fail to report a friend for committing murder. Hard as it would be to do the right thing, doing the wrong thing is much worse. Likewise, sitting on the fence in a divorce case involving mutual friends would be wrong if you are a witness to one of the two spouses abusing the other spouse or the couple’s children, or wasting the family funds on drugs or a paramour, for example.

But if you are not a witness to any wrongdoing by either spouse that is relevant to the divorce action, and if there is nothing in either spouse’s conduct that gives you cause to terminate your friendship or to dislike either one of them, it’s likely the wisest course of action to inform your mutual friends that the divorce action does not change your friendship with either of them, that you wish to remain friends with both of them, and that you would appreciate it if neither of them would try to have you give testimony for or against either of them.

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

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Artificial Fraudulence

Seth Godin stated it well when he wrote, “The ease with which someone can invent and spread lies [with advancing technology] is going to take most of us by surprise. It’s going to require an entirely new posture for understanding the world around us.”

This is especially true in family law.

We will soon reach the point (some are there already) in family law where a spouse or parent can create fake email, text, and audio and visual “records” of spousal and child abuse, substance abuse, infidelity, assets and debt, property damage, diminution and dissipation of assets, scientific data, etc. that is all but indistinguishable from the genuine article. The level and volume of fakery will be impossible for all but the wealthiest of litigants to discern (and even then, if a duped judge is too proud or to biased to acknowledge and remedy the fraud, all the proof in the world won’t protect the innocent). When truth is practicably impossible to verify in the legal process, truth becomes meaningless to the process.

I don’t know how best to address this problem (it may already be too late). Unless the profession takes immediate and wise action, the liars will make such a mockery of the legal process so fast and so pervasively that trust in the system will be irreparably destroyed (and with good reason). We may reach a point where society at large gives up on the notion of justice being a function of truth (reality).

One concern I have is members of the profession (both opposing counsel and judges) acting “offended” for outraged or “concerned” if somebody claims that deepfakes and other similar tactics are being engaged. I’m concerned that someone who may in the utmost sincerity raise legitimate concerns about the authenticity and veracity of certain evidence being ridiculed as paranoid, a vexatious litigator, unprofessional, etc. Not out of a genuine belief, but in the hopes that shaming or even persecuting the whistleblower will result in the claims being retracted so that the hard work of getting to the truth can be avoided and or so that the desired outcome is not impeded by the facts. When that happens, then who will judge the judges, and by what standard?

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

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Should I file for a no-fault divorce or for an uncontested divorce? 

My spouse and I have no children together and own no property together. Should I file for a no-fault divorce or for an uncontested divorce? 

It’s not a question of choosing between “no-fault divorce” and “uncontested divorce”. These two terms are not opposites. 

No-fault divorce means that you don’t have to accuse your spouse of committing some kind of marital fault before you can seek a divorce from your spouse. The reason no-fault divorce is called no-fault divorce is because prior to the creation of no-fault divorce laws, you could not get divorced unless you are able to prove your spouse committed some kind of marital fault during the marriage. And what does “marital fault” mean? Marital fault includes things like adultery, desertion and abandonment, physical abuse, extreme mental and emotional cruelty, habitual drunkenness or impairment from the abuse of other substances, conviction of a serious crime or incarceration, failure to provide one spouse with the necessities of life, and insanity. 

Back in the late 60s, various governments in the United States realized that there are many miserable marriages that could and should end in divorce but that did not qualify under any of the fault bases for divorce. That is what led to the creation of no-fault divorce, by which one can obtain a divorce simply by asserting that there are irreconcilable differences between spouses that render the marriage irretrievably broken prevent the marriage from continuing. 

An uncontested divorce is a divorce in which all of the issues in in the divorce action, including child custody and visitation (parent time), division of marital assets and responsibility for marital debts, etc. are resolved by the agreement of the parties through settlement as opposed to litigating those issues and having the matter decided by a judge after a trial. 

So if you and your spouse both agree that you don’t want to stay married and believe that you can agree to resolve all of the issues in your divorce without needing to fight with each other and litigate at trial, you can drop a settlement agreement and base your divorce upon the terms of your settlement agreement, without having to go to trial and have the judge determine the outcome. 

No-fault divorces can be uncontested divorces. That stated, not all no-fault divorces are uncontested, as one can file for divorce on a no-fault basis, but may still find himself or herself arguing with his or her spouse over various issues that will end up decided by a judge, if the parties cannot settle those issues by agreement between themselves. 

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

https://www.quora.com/Me-and-my-husband-we-have-no-kids-together-nor-a-property-that-we-own-so-I-was-wonder-if-I-should-filing-no-fault-divorce-or-uncontested-divorce-We-been-separating-for-2-year-and-haven-t-contact-each-other-since/answer/Eric-Johnson-311  

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Is 50/50 custody likely when the parents live in the same neighborhood?

What is the likelihood of reverting to 50/50 custody when the parents live in the same neighborhood? Mom still cares for the child over 80%

Your question states in part, “What is the likelihood of reverting to 50-50 custody.” Your use of the word “reverting” implies that at one time in the past you and the other parent exercised joint equal (50/50) custody of the child. It appears that at some point one or both of you moved away from each other such that 50/50 custody could not be practicably exercised anymore, at which point sole or primary custody of the child was awarded to the mother. 

It appears that either the mother has moved into your neighborhood or you have moved into the mother’s neighborhood, such that 50/50 custody can now be practicably exercised again.  

Unless you have an unusual case in which the court does not allow the parents to determine what the custody and parent time schedules are, you and the mother could agreed to resume a 50/50 custody and parent time schedule, if you wanted. If you want to do that, it would be wise to write up a new agreement indicating that you and the mother agree to exercise 50/50 custody and parent time and have that agreement made the new order of the court. 

If the mother refuses to agree to resume a 50/50 custody and parent time schedule, the question then becomes whether the court would grant your petition to revert back to a 50/50 schedule and resume that schedule for you and the child. 

I cannot speak for all jurisdictions and the laws that apply in each of them, but I can tell you that in the state of Utah, where I practice divorce and family law, simply moving closer to the other parent, so that joint equal (50/50) custody could be practicably unsuccessfully exercised, is usually not enough of a reason to modify the child custody and parent time order: 

Huish v. Munro, 191 P.3d 1242 (2008 UT App 283): 

To demonstrate a substantial change of circumstances . . . the asserted change must, therefore, have some material relationship to and substantial effect on parenting ability or the functioning of the presently existing custodial relationship. 

Thorpe v. Jensen, 817 P.2d 387, 391 (Utah Ct.App. 1991): 

[The] need for caution was emphasized in Kramer v. Kramer, 738 P.2d 624 (Utah 1987), where the court noted that “a central premise of our recent child custody cases is the view that stable custody arrangements are of critical importance to the child’s proper development.” Id. at 626 (citations omitted). The “change of circumstances” threshold announced in Hogge and Becker is elevated to discourage frequent petitions for modification of custody decrees. The Hogge test was designed to “protect the custodial parent from harassment by repeated litigation and [to] protect the child from ‘ping-pong’ custody awards.” Hogge v. Hogge, 649 P.2d at 53-54. This policy is soundly premised. 

But there is this (from the case of Miller v. Miller, 480 P.3d 341 (2020 UT App 171): 

[I]f a court determines a petition as a whole clearly does not allege a change in circumstances that has any relation to the parenting skills or custodial relationship or the circumstances on which the custodial arrangement was based, it may dismiss the petition for failure to state a claim. See O’Hearon v. Hansen, 2017 UT App 214, ¶ 10, 409 P.3d 85; cf. Becker v. Becker, 694 P.2d 608, 610 (Utah 1984) (stating that, to meet the materiality requirement, the change in circumstances must “have some material relationship to and substantial effect on parenting ability or the functioning of the presently existing custodial relationship” or “appear on their face to be the kind of circumstances on which an earlier custody decision was based”). 

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

https://www.quora.com/What-is-the-likelihood-of-reverting-50-50-custody-when-the-parents-live-in-the-same-neighborhood-Mom-still-cares-for-the-child-over-80/answer/Eric-Johnson-311  

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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 | divorceutah.com | 801-466-9277  

https://www.quora.com/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/answer/Eric-Johnson-311  

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Can a child who wants to, testify of his/her desires regarding the child custody award?

Am I, as an 11-year-old, allowed to go to court in a situation where my parents are divorced to see if I can get my dad to have full custody of me even though my mom doesn’t abuse me? 

What actually happens when a child wants to be heard on the subject of his/her desires regarding the child custody award? 

Great questions. I can’t speak for all jurisdictions, but I can tell you 1) what the law is for the state of Utah; and 2) what (in my experience) actually happens when a child wants to be heard on the subject of his/her desires regarding the child custody award. 

The law for the state of Utah. A child can testify as to the child’s preferences regarding the child custody award, if the court allows the child to testify: 

30-3-10(5). Custody of a child — Custody factors. 

(5)  

(a) A child may not be required by either party to testify unless the trier of fact determines that extenuating circumstances exist that would necessitate the testimony of the child be heard and there is no other reasonable method to present the child’s testimony. 

(b)  

(i) The court may inquire of the child’s and take into consideration the child’s desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the child’s custody or parent-time otherwise. 

(ii) The desires of a child 14 years of age or older shall be given added weight, but is not the single controlling factor. 

(c)  

(i) If an interview with a child is conducted by the court pursuant to Subsection (5)(b), the interview shall be conducted by the judge in camera. 

(ii) The prior consent of the parties may be obtained but is not necessary if the court finds that an interview with a child is the only method to ascertain the child’s desires regarding custody. 

So what do the words of § 30-3-10 mean? How does § 30-3-10 work (or how should it work)? Get ready to be upset. 

§ 30-3-10 provides that a child can testify, but only under circumstances that most Utah courts construe so restrictively as to make it all but impossible for a child to testify. How?  

Most Utah courts will say (I know because I am one of the few attorneys who thinks children who are smart enough and emotionally tough enough to testify intelligibly should be heard on the subject of the child custody award) that 1) the “extenuating circumstances that would necessitate the testimony of the child be heard” do not exist (and will, if the court has anything to say about it, essentially never exist under any circumstances); and 2) there is always another “reasonable method” to present the child’s testimony without actually presenting the child’s testimony directly from the child’s mouth to the judge’s ear. Generally, courts in Utah will bend over backward to avoid hearing from the child directly. And the “other reasonable method” means ensuring the questions posed to the child on the subject of child custody are not recorded, that the child’s purported answers are not recorded, that the child’s testimony is filtered through a third party, such as a guardian ad litem and/or a custody evaluator.  

If a court in Utah has ever found “that an interview with a child is the only method to ascertain the child’s desires regarding custody,” I am not aware of such a case. What is so frustrating to me is why would such a law exist? Why isn’t the law just the opposite, i.e., “Unless the evidence shows that the judge interviewing the child will not ascertain or at least help the court to ascertain the child’s desires regarding custody, the court shall interview the child to ascertain the child’s desires regarding custody.” 

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

https://www.quora.com/Am-I-as-an-11-year-old-allowed-to-go-to-court-in-a-situation-where-my-parents-are-divorced-to-see-if-I-can-get-my-dad-to-have-full-custody-of-me-even-though-my-mom-doesn-t-abuse-me/answer/Eric-Johnson-311?prompt_topic_bio=1

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What can I do if my ex won’t stop taking me to court?!

My ex has been taking me to court for over 4 years to get my joint custody taken away. Her father worked for the courts for 25 years so she hasn’t had to get a lawyer and it’s obviously harassment but they still allow it. What can I do? 

This question comes up a lot (in slightly different forms, but the core question, i.e., “At what point will the courts say ‘enough’ to my ex’s incessant litigating (typically over child custody and/or parent-time)?” remains the same). 

Because I am a divorce and family lawyer in the state of Utah, I will answer your question in the context of the law and rules governing the state of Utah. 

There are many approaches that one can take in response to an ex-spouse or coparent who litigates incessantly and for no good reason. One thing that I didn’t know about as an attorney until late in my career was a motion to have your ex-spouse found to be and then treated as a vexatious litigant under Rule 83 of the Utah Rules of Civil Procedure. Here is an excerpt from that rule: 

Rule 83.  

Utah Rules of Civil Procedure Rule 83. Vexatious litigants. 

(a) Definitions. 

(1) The court may find a person to be a “vexatious litigant” if the person, with or without legal representation, including an attorney acting pro se, does any of the following: 

(A) In the immediately preceding seven years, the person has filed at least five claims for relief, other than small claims actions, that have been finally determined against the person, and the person does not have within that time at least two claims, other than small claims actions, that have been finally determined in that person’s favor. 

(B) After a claim for relief or an issue of fact or law in the claim has been finally determined, the person two or more additional times re-litigates or attempts to re-litigate the claim, the issue of fact or law, or the validity of the determination against the same party in whose favor the claim or issue was determined. 

(C) In any action, the person three or more times does any one or any combination of the following: 

(i) files unmeritorious pleadings or other papers, 

(ii) files pleadings or other papers that contain redundant, immaterial, impertinent or scandalous matter, 

(iii) conducts unnecessary discovery or discovery that is not proportional to what is at stake in the litigation, or 

(iv) engages in tactics that are frivolous or solely for the purpose of harassment or delay. 

(D) The person purports to represent or to use the procedures of a court other than a court of the United States, a court created by the Constitution of the United States or by Congress under the authority of the Constitution of the United States, a tribal court recognized by the United States, a court created by a state or territory of the United States, or a court created by a foreign nation recognized by the United States. 

***** 

(b) Vexatious litigant orders. The court may, on its own motion or on the motion of any party, enter an order requiring a vexatious litigant to: 

(1) furnish security to assure payment of the moving party’s reasonable expenses, costs and, if authorized, attorney fees incurred in a pending action; 

(2) obtain legal counsel before proceeding in a pending action; 

(3) obtain legal counsel before filing any future claim for relief; 

(4) abide by a prefiling order requiring the vexatious litigant to obtain leave of the court before filing any paper, pleading, or motion in a pending action; 

(5) abide by a prefiling order requiring the vexatious litigant to obtain leave of the court before filing any future claim for relief in any court; or 

(6) take any other action reasonably necessary to curb the vexatious litigant’s abusive conduct. 

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

https://www.quora.com/What-can-I-do-if-my-ex-is-taking-me-to-court-for-over-4-years-to-get-my-joint-custody-taken-away-Her-father-worked-for-the-courts-for-25-years-so-she-hasnt-had-to-get-a-lawyer-and-it-s-obviously-harassment-but-they/answer/Eric-Johnson-311

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Why are so many attorneys seemingly against legal separation?

Why are so many attorneys seemingly against legal separation? I truly feel in my circumstance its best for me/us. Is it because they wont make as much money? We have already started the divorce process. Can it be switched? 

I can’t speak for all divorce attorneys, and I am not an attorney licensed to practice law in Illinois (I practice divorce and family law in Utah), but I can tell you why I personally don’t like going the temporary separation route. 

Too many people divorce needlessly. Too many people divorce only to discover that their spouses and marriages weren’t their problem and/or that divorce wasn’t the solution. I support desires and efforts to save marriage. While legal separation may sound to some like a good way to “get some space” to contemplate whether one should stay married or should divorce, I’ve found that: 

legal separation tends to damage a marriage far more than fostering its survival; and  

by the time one wants a legal separation, he or she really wants a divorce and is only postponing divorce out of fear or laziness or for the sake of appeasing the other spouse or “letter him/her down easy”.  

While I am sure there are people out there whose legal separation proved that “absence makes the hear grow fonder” and helped them “wake up” and realize that their marriage is worth saving, I know no such people. 

If I recall correctly, I’ve seen one legal separation end with the couple later reconciling. In every other legal separation situation, the couple has eventually divorced. So you can see where this is going: why go to the additional trouble, expense, and emotional ordeal of obtaining a legal separation order if you’re going to end up divorcing anyway and having to go through more of the same kind of effort, wait, expense, and pain again? 

I understand the desire to give the marriage every last reasonable opportunity to survive. I understand the desire to take every reasonable effort to save it. But at the same time, I don’t see the point in pouring time, effort, care, and money into what is for most a hopeless cause. **That stated,** I would much rather “waste” time, effort, care, and money on taking every reasonable effort to save my marriage if it meant having the peace of mind that I gave saving my marriage everything I could in an effort to save it before deciding that it was not worth saving or that I alone could not save it and concluding that divorce was the only remaining option. 

Are there divorce lawyers who discourage legal separation because they make (or believe they make) less money working on a legal separation instead of a divorce? I’m sure there are. But not all of us are out to take the client for all he or she is worth (you’d be wise to ensure you don’t hire a greedy lawyer, but there are some among us who are decent, caring, trustworthy professionals worth seeking out). In my experience, if one wants to do all he or she can to save his or her marriage, then working to improve yourself as a spouse, making changes in your family environment, and giving your best efforts to some good marriage counseling are certainly worthwhile. Legal separation rarely, if ever, helps improve a marriage. It tends to weaken and destroy a marriage.  

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

https://www.quora.com/Divorce-in-IL-Why-are-attorneys-against-legal-separation-I-truly-feel-in-my-circumstance-its-best-for-me-us-Is-it-because-they-wont-make-as-much-money-We-have-already-started-the-divorce-process-Can-it-be-switched/answer/Eric-Johnson-311 

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Are financial interrogatories relevant in my contempt case? 

Are financial interrogatories relevant in my contempt case against my sister for violating my visitation order? 

While I’m sure something seeming like an argument could be made for their relevance, it’s hard to imagine such an argument or to imagine that such an argument would hold any water. 

A fact is relevant if it: (a) has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. 

Unless your sister can show that your income, financial obligations, and business and/or personal expenses are somehow more or less likely to prove the allegations that you violated a visitation order, inquiries into your facts pertaining to your finances are clearly not relevant.  

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

https://www.quora.com/Are-financial-interrogatories-relevant-in-my-contempt-case-against-my-sister-for-violating-my-visitation-order/answer/Eric-Johnson-311

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Is child marriage legal in the United States?

Of a sort, and depending upon the particular state, yes.  

In some places children (minor children, those who are by law deemed incapable of consenting to marry) can marry with their parents’ permission, under certain conditions.  

For example, in Utah (where I practice divorce and family law), the Utah Code provides: 

30-1-9. Marriage by minors — Consent of parent or guardian — Juvenile court authorization. 

30-1-9.1. Parental consent to prohibited marriage of minor — Penalty. 

It used to be that minor girls as young as 14 could marry in many U.S. states (including Utah), with parental permission. That is no longer true in Utah; the minimum age is now 16. 

According to this webpage, Marriage Age by State 2022, the state with the lowest minimum marriage age with parental consent in the U.S.A. is Massachusetts, which allows a child of 12 years of age to marry. New Hampshire comes in second at 13 years of age, and Hawaii and Missouri are tied at 15 years of age. Every other state sets the minimum at 16 years of age. 

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

https://www.quora.com/Why-is-child-marriage-still-legal-in-the-U-S/answer/Eric-Johnson-311  

 

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