As any attorney can do with any client, a PGAL clearly has the right to argue on a child client’s behalf, and the Utah Code makes clear that a PGAL can express a child client’s “intentions and desires” (See Utah Code Section 78A-2-705(13)(d)). Here is how I analyze the argument that PGALs state what they allege to be a child client’s intentions and/or desires:
If an attorney makes an argument pertaining to what the court’s child custody or parent-time orders should be, that argument must be based upon evidence duly admitted into the court record, or there is no evidence supporting the argument. An argument unsupported by the evidence in the record is basis for objection. An argument based upon speculation is basis for objection.
A recommendation made by a PGAL is an argument. The elements of a recommendation and an argument are the same. Without a basis of duly admitted evidence in the court record for support, a PGAL’s recommendation is without support.
Implicit in an argument are underlying facts cited to support the argument. A PGAL cannot argue that “this is the child’s desire” without citing evidence of the child’s desire. A PGAL who claims to know a child client’s intentions and desires to the court is, by definition, testifying, not arguing. To argue that we can discern a child’s intentions and/or desires from the evidence in the record still requires evidence in the record to which to cite in support of the argument. An argument cannot be a substitute for evidence. An argument is not an argument without evidentiary support.
If a PGAL bases his arguments to any degree upon his child client’s communication of the child’s intentions and desires (whether to the PGAL or to someone else), the child client must have first communicated his/her intentions and desires. If a PGAL then reports to the court those attorney-client communications on the subject of the client’s intentions, that is still either 1) hearsay or inferential hearsay or 2) the witness’s proffered testimony that entitles a party to cross-examine the witness at the very least.
If a PGAL claims to have discerned a client’s intentions and desires without having received express communication from the client as the client’s intentions and desires (such as, for example, not conversing or corresponding in writing, but instead monitoring the child’s communications with other people or observing the child’s behavior), then the PGAL would be acting as a witness.
If a PGAL is the attorney for a party to the case, then the PGAL does not get to testify for the client. And if the PGAL proffers a client’s testimony, then that testimony is subject to cross-examination.
A PGAL cannot “argue what my client wants” without there being some evidence that what the PGAL asserted “the client wants” is, in fact, what the clients want. With parties that’s fairly easy because they will have filed a pleading stating what they want. If there is any question as to whether the pleadings are not those of the party, then the party can either indicate that spontaneously or be asked to verify or deny it. With child clients of PGAL there are rarely, if ever, pleadings filed with the court(as the term is properly defined, i.e., a formal statement of a cause of action, not as the term is carelessly thrown around to mean documents filed with the court) by the children through their counsel. Even if the PGAL had somehow filed pleadings in the action AND the court recognized the children as parties to the action, their PGAL attorney cannot testify for them.
Advocacy of a PGAL client’s desires requires evidence of the child client’s desires. Evidence of the child client’s desires requires a record that the child expressed/articulated those desires; otherwise, we would find ourselves in a situation where the PGAL could literally fabricate “argument” on the basis of nonexistent evidence and get away with it clean. That is clearly not how the law and the rules of evidence apply.
I had lunch today with a former legal assistant of mine who is now a law student in Arizona. Over the summer he shadowed judges in Maricopa County during their family court rotations.
He told me that in Arizona the courts permit children over the age of 10 years to testify in child custody proceedings.
Are the Arizona courts administered by fools and sadists?
Or could it be that the Utah district courts’ near-universal aversion to any and all forms of on the record child testimony in child custody proceedings is a case of misplaced priorities?
Could it be that the way Utah courts use appointments of guardians ad litem and/or custody evaluators for the ostensible purpose of “speaking for” competent witness minor children
is a sophomoric euphemism for good old fashioned hearsay?
ironically results in silencing the most percipient witnesses (regarding issues in which they have the greatest stake)?
Could it be that GAL “reports” and “recommendations” that are based upon purported interviews with the minor child (when there is no objectively verifiable record of whether the interviews even took place, to say nothing of what was and was not asked and answered in the course of the alleged interview) are not fact or expert witness testimony (see State ex rel. A.D., ¶¶ 6 and 7, 6 P.3d 1137, 2000 UT App 216) and thus inherently not evidence?
Could it be that custody evaluator “expert testimony” and “recommendations” based upon purported interviews with the minor child (when there is no objectively verifiable record of whether the interviews even took place, to say nothing of what was and was not asked and answered in the course of the alleged interview) inherently can’t qualify as expert testimony (URE Rule 702 (Rules of Evidence))?
Special masters, parent coordinators, and the infantilization of parents
Special masters and parent coordinators (and co-parenting therapists, co-parent coaches/consultants, and their ilk) were invented for the purpose of unburdening courts from some of the conflict associated with domestic relations litigation. They fail to fulfill their purpose. They do not provide value for the money they charge. The parent(s) end up wasting money on a special master, parent coordinator, etc. while the disputes either persist or get worse (and sometimes it’s the involvement of the special master and parent coordinators who are to blame, either in full or in part). Besides, for most litigants a special master, parent coordinator, etc. is an expense they cannot (or should not) financially bear.
The idea that divorced parents need more than the laws currently on the books, the (lawful) orders in their divorce and child custody decrees, and the sensible use of law enforcement officers when warranted is to infantilize divorced and separated parents.
In the overwhelming majority of cases, anyone trying to sell you on a special master, parent coordinators, co-parenting therapist, co-parent coach, consultants, blah, blah, blah is either someone who offers such “services” and who is trying to sell them to you or a is a court trying to take the dispute out its lap and place it in someone else’s.
Growing up I read in books, heard people talk about, and saw in movies where children went to court when their parents were getting divorced, and they got to tell the court what parent or parents they wanted to live with. I have yet to see that happen in the Utah Court System.
In my seven weeks of being a legal assistant to this point, I have been to a proceedings where custody and parent-time were involved. When I began this job, I assumed that we would hear from the children in the court; however that is not the case.
To put it bluntly in my own words, Utah courts believe that children should not be subject to the ugliness of their parent’s divorce proceedings. From what I’ve seen, they are not allowed in the court room, prevented from participating in or even watching or listening to court proceedings involving them, and the parents are strongly advised, sometimes even ordered, not to discuss matters of the case with their children.
I feel like divorce cases impact the children more than anyone else in the divorce process, yet they are the people who are shut out of meaningful contribution the cases and proceedings the most.
More often than not the courts or at least one of the attorneys want to appoint a guardian ad litem for the child.
What is a guardian ad litem? According to the Utah Office of Guardian ad Litem webpage on the Utah Courts website, “In court cases where a family is in crisis, and where children are being mistreated or are not receiving proper care, there is no one with more at stake than the child. A Guardian ad Litem ensures that the child’s rights are protected, the child’s voice is heard, and the child’s best interests are advanced.” So a guardian ad litem (GAL for short) is supposed to be an attorney who represents the child and protects the child’s interests. How does a GAL do that? From what I can tell, poorly.
Basically, the children talk to the GAL and then the GAL talks to the court, but does not tell the court what the children said. Instead, the GAL makes recommendations to the court as to what the court should do for the children and does so ostensibly on the basis of what the children said, even though no one has any idea what the children said, if they said anything at all. It’s a state-sponsored bad game of telephone. I’m no lawyer. I’m not even that familiar with the legal system yet, but it doesn’t take a seasoned pro to see that the GAL system isn’t effective. How could it be, the way it’s set up like that?
You might be thinking, “Oh, okay, so GALS might be helpful for younger kids who can’t express themselves very well in a court-like setting, and there may be some merit to that argument, but courts will appoint a GAL for children who are 14 years old and up. Come on, these kids can speak for themselves.
My take away from this is – let the children speak. They already know their parents are going through a divorce. Appointing a GAL to “speak for them” doesn’t shield the kids from anything but competent, attentive, and fair treatment by the courts. Kids in these situations should not be kept in the dark. They are the ones who are affected most by the court’s decision. their observations, experiences, feelings, opinions, and desires matter. They shouldn’t be silenced or muzzled.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Is appointing a guardian ad litem a positive tool to help with custody cases?
[I will respond to your question based upon my experience with guardians ad litem in Utah, where I practice divorce and family law. Each jurisdiction will have a different system governing the appointment, use, and powers of a guardian ad litem, so understand that in reading my response.]
In my professional opinion, rarely.
It is not worth the risk, in my experience. There is too much of a chance of the GAL being more of a detriment than benefit to anyone. What do I mean?
Nobody and no thing is perfect, but as long as you meet certain minimal, essential standards, you’ll stay out of jail and stay employed. As long as institutions meet certain minimal, essential standards will do and continue to do more good than harm.
But there are many things that sound good in concept, yet just clearly don’t work well in practice. The guardian ad litem (GAL) is such a thing.
So why do GAL programs still exist? Why are GAL’s appointed so frequently still? Two big reasons stand out in my mind:
1) In my experience, courts like appointing GAL’s to relieve themselves of some of the fact-finding burdens. That’s not an inherently bad idea, if a GAL could be counted on to bear those fact-finding burdens competently. But they usually don’t.
and
2) The idea of a child having his/her own attorney to “stand in the child’s shoes” and “give the child a voice” sounds noble, perhaps even crucial. And I am sure that if one looked hard enough, one could find a GAL who accomplishes such objectives. In my experience, however, GAL’s are too afraid and/or apathetic to do their jobs well and are incentivized (or dis-incentivized, as the case may be) by the legal system to do minimal, mediocre work yielding equivocal results that keep the GAL out of hot water. And that’s the best I can say about GALs. Worse, most GAL’s are among the least competent attorneys and are often motivated by self interest to recommend what they subjectively want done, as opposed to where the evidence points. In my experience, the GALs don’t perform with due diligence or provide insightful, impartial analysis. Instead, they base their ostensible findings and recommendations upon personal biases, agendas, and lazy (but safe-sounding) assumptions. I find many (not all, but many) GALs to be extremely petty and judgmental. Be or do something irrelevant, but that the GAL disapproves of (like holding certain political, religious, or other views contrary to those of the GAL), and don’t be surprised if the GAL’s recommendations aren’t in your favor, regardless of the actual factual and legal merits of your case.
———
When a proposal is made to appoint a GAL, I oppose it. There are far better, far more reliable, less time-consuming, and less expensive ways to obtain accurate, useful information that a GAL is intended to produce, but rarely, if ever, does produce. There is no need to appoint a third party to “give the child a voice,” when the child can speak for himself/herself. If the child is too young to talk or to testify competently, there is little that a GAL could provide of any substantive value anyway.
Utah Family Law, LC | divorceutah.com | 801-466-9277
I’ve never seen a GAL or custody evaluator add value equal to the fees they charge
This post is the fourteenth in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.
The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.
I’ve never seen a guardian ad litem or custody evaluator add value to the child custody analysis that is equal to what the GAL and/or custody evaluator charged in fees, and here is why:
First and most glaring of all, there is no way to know if the guardian ad litem has done anything (let alone done anything well or poorly) because the guardian ad litem does not have to make a record and is not subject to discovery. The guardian ad litem could literally do nothing and lie through his or her teeth to the court and there is be no way discover and expose it except by dumb luck. Custody evaluators, as opposed to guardians ad litem, can be subject to some discovery, but rarely is a custody evaluator willing to part with his or her file contents in response to a discovery request. It is often very difficult to get a custody evaluator to comply with the discovery request, if a discovery request is made.
Back to the problems of guardians ad litem specifically. Because the guardian ad litem is not required to furnish the court with any proof in support of any alleged facts that underlie the GAL’s assertions and recommendations, the guardian ad litem’s assertions, analysis, and recommendations literally have the same evidentiary value as any other person’s bald claims.
If there are devoted guardians ad litem out there becoming intimately and accurately acquainted with their child clients’ circumstances and feelings AND providing verifiably accurate and credible factual information to the court, as well as sound analysis based upon and citing to such evidence, I have yet to witness that personally. If anyone viewing this has had a different experience that can be documented and verified, I plead with you to share it with me. I must warn you: even if you were to produce such of guardian ad litem, I would ask whether what the guardian ad litem charged for such a thing justify the expense when the child could have been interviewed directly by the judge instead.
Third, even if we were to grant that a guardian ad litem somehow furnished accurate evidence and analysis—without the basis of that evidence and analysis being subject to discovery and verification and without having to make a record of what the children are asked and what they say in response—the amount and quality of such evidence and analysis still does not justify the time and money consumed by the appointment of a guardian ad litem compared to the much lower cost, much shorter consumption of time, and greater accuracy of a judge’s on the record interview of the child.
GAL recommendations are nowhere close to being the best way to determining the child’s best interest.
This post is the thirteenth in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.
The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.
If a guardian ad litem claims to tell the court what a child said, that violates the rule against hearsay and violates the privilege against disclosure of attorney client communications.
When I point out to the court a guardian ad litem’s attempts to proffer hearsay statements, I am either ignored or told that there is a special exception for guardians ad litem (which is not true). When I try to invoke Utah rule of evidence 806 to cross examine a child on the hearsay statements (to determine whether what the child is alleged to have said is actually what the child said), I’m either giving an emperor’s new clothes kind of denial or just ignored. Now you understand that if the judge would question the child directly, there would be little to no need to cross-examine the child in the first place (if the judge questioned the children well, for example). Likewise, if a judge would question a child directly there would rarely, if ever, be a need to appoint a guardian ad litem or custody evaluator for the child’s benefit either. I do not understand why we have guardians ad litem or custody evaluators serve the purpose of “giving the child a voice” when the child has his or her own voice and is perfectly capable of using it, especially in articulating and attempting to advance the child’s own best interest by speaking directly with the court as to the child’s experiences, observations, ceilings, concerns, opinions and desires, without the child’s words being parsed or filtered or misconstrued by second and third hand intermediaries.
How useful are a GAL’s or custody evaluator’s recommendations?
This post is the twelfth in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.
The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.
Then there’s the nature and quality of the guardian ad litem’s and/or custody evaluator’s recommendations. They are never, never detailed or presented in a manner that subjects them to independent objective verification. The guardian ad litem makes a recommendation to the court the guardians recommendations are cursory and vague. Things like, “I’ve spoken to my client and he is scared of his father.” While a custody evaluator’s recommendations may include more background information and supporting detail, as I stated previously, the problem with custody evaluator recommendations is that I’ve had more than one custody evaluator confided to me that they are afraid to give their frank assessments and opinions because they fear being reported to their licensing boards and/or being sued if they happen to make recommendations adverse to a parent. So, custody evaluators also end up giving vague, equivocal, and less than completely forthright analyses and recommendations.
Why Not Have the Judge Interview the Children About Child Custody?
Why Appoint a GAL or Custody Evaluator When the Judge Can Interview the Children?
This post is the first in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.
The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.
I can imagine a case in which ordering a custody evaluation and/or appointment of a guardian ad litem may be warranted, even necessary, but generally guardians ad litem and custody evaluations are an obscene waste of time and money and effort. They don’t just fail to justify their costs; they spectacularly fail to justify their costs. Instead, in the overwhelming majority of child custody disputes, the court can and should interview the children directly. The Utah Code expressly provides for this. Section 30-3-10(5), to be exact. Yet in 24 years of practice I have never had a judge agree to interview a child in a child custody dispute. Not once. And I submit that’s ridiculous. In the posts that follow we will discuss why judges interviewing children is clearly superior to appointing guardians ad litem and/or custody evaluations for the vast majority of child custody dispute cases.
There is nothing a GAL could learn how to do that a judge cannot also learn how to do equally well.
This post is the ninth in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.
The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.
There is nothing a guardian ad litem could learn how to do and then do that a judge cannot also learn how to do equally well and do equally well.
Some people try to make a (false) distinction between the effect of a judge questioning a child and the effect of a guardian ad litem questioning a child.
Up until a certain age, we all know that children have no idea what the difference between a judge and a lawyer is; therefore, if they’re not aware of any difference between the judge questioning them and a GAL questioning them, the effects of the questioning cannot be any more traumatic when the judge conducts the interview then when a guardian ad litem conducts the interview.
But let’s assume that we’re dealing with the interview of a child who is 14 or 15 years old or older. At that age, one might expect a child to know the difference between a judge and a lawyer. The child might even realize that the judge is the one who ultimately makes the child custody and parent-time decisions. So what?
If a guardian ad litem sat down with a child and told the 14+ years old child, “Hi, I’m Eric, and I’ve been asked to help you, your parents, and the court find out what you want and need and what’s best for you and your family when it comes to where you and your siblings live after your parents get divorced. I’d like to talk about that with you now for the next hour or so,” how would the effect on the child be any different if a judge sat down with that same child and said essentially the same thing? The answer is it clearly would not be any different merely because the one asking the questions is a judge instead of a GAL.
There is nothing about judges talking to children that is inherently harmful, just as there is nothing about guardians ad litem talking to children that inherently has a beneficial or benign effect on the child.
Claims that judges questioning children does children harm require us to presume that would be because of their status as judges, because all judges are insensitive and incompetent questioners, or both. Obviously, neither premise is true. For it were shown to be true that a judge is insensitive and/or incompetent, then the problem wouldn’t be whether the judge interviews the children, but whether the judge can be trusted to act in the best interest of the children in the first place.
If everyone agrees that the judge needs to know what the child is experiencing, observing, and feeling, why won’t the judge interview the child?
This post is the seventh in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.
The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.
I respectfully submit that claiming a child will know or “feel” a painful or harmful difference between an interview conducted by a judge as opposed to an interview by a GAL and/or custody evaluator is patently without merit. There is no independently verifiable proof for the claim that a judge interviewing a child on the subject of child custody issues inherently harms a child or exposes a child to a risk of harm. And when you think about, the very idea that a judge talking to a child will cause the child some kind of unwarranted harm—if indeed any real harm at all—is silly on its face.
If everyone agrees that the judge needs to know what the child is experiencing, observing, and feeling, what concerns the child, and what the child’s opinions and desires are, the idea that the best way to do this is through an interview by anyone but the judge is as absurd as it is counterproductive. Worse, to suggest that a guardian ad litem (who got literally a few hours of training in a hotel ballroom seminar and YouTube) or mental health professional thousands of dollars and take weeks or months to provide a milquetoast report and recommendations is indefensible.
You may ask why custody evaluators analyses and recommendations are usually so vague and timid. It’s a fair and crucial question. It’s out of fear of being reported to DOPL or sued for malpractice by the parent against whom the evaluator may make adverse recommendations. Knowing this, it is impossible to justify why so many judges and lawyers are so resistant to a judge conducting the interview of the child directly and on the record.
Which Is Better: spending thousands on GAL/custody evaluator or $0 on a judge interview?
How could it be better to spend thousands on a GAL or custody evaluator when the judge can interview children free of charge?
This post is the sixth in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.
The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.
How could it be better to spend thousands on a GAL or custody evaluator when the judge can interview children free of charge? In 24 years of law practice, I have never had a judge agree to interview children in lieu of having a private guardian ad litem appointed and/or having a custody evaluator appointed. I submit that it’s not because my arguments lack merit. Indeed, I have yet to encounter a valid, let alone a compelling, argument for why it is better to spend thousands, even tens of thousands, on guardians ad litem and or custody evaluators when the judge can interview children directly, free of charge (as opposed to obtaining so-called “evidence” via court-sponsored hearsay in the form of second, and often third hand information of interviews with the children that allegedly took place but were never made part of the court’s record). There are two main excuses one will hear for why judges should not interview children: 1) judges interviewing children is inherently traumatic for children and/or “puts them in the middle of their parents’ disputes” and thus unjustifiably traumatizes them too; and 2) judges are not qualified to interview children where guardians ad litem and or custody evaluators, and only guardians had lied them and/or custody evaluators, are qualified to do so. Neither justification holds water, as I have explained and will continue to explain in these videos. If anyone would like to hold a debate on this subject, it would be of benefit to everyone involved in child custody disputes, from the child to the parents to the parent’s respective lawyers to the judge.
This post is the eighth in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.
The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.
To conclude that judges interviewing children harms them rests on the false premise that judges are insensitive and/or incompetent. There is obviously no inherent difference between having a judge interview a child and having a guardian ad litem interview a child. Lawyers and judges know that there is nothing about a guardian ad litem that is any better or worse than a judge when it comes to ability to question children. Judges are former lawyers, after all.
To conclude that judges who interview children inherently harm, or inherently expose children to undue risks of harm must necessarily rest on the premise that judges who interview children are insensitive and/or incompetent. For all my criticisms of the legal system, I would be lying if I claimed that all or most or even a statistically significant number of judges are too insensitive and too incompetent to question children about child custody issues without harming them any more than an interview conducted by a guardian ad litem or custody evaluator would harm children.
If a judge were to claim that his or her ability to question children is worse than a guardian ad litem’s ability to question children because the judge lacked GAL training, then the problem would clearly not lie in the judge’s status as a judge but in a lack of training.
GAL training is a matter of hours, not years or even months. So, the training and skills gap between a trained GAL and an untrained judge could be closed quickly and easily by the judge getting that same GAL training. It wouldn’t even cost the judge any money because the Utah State Office of Guardian ad Litem has offered to provide judges with GAL training free of charge.
Does having the judge interview the children traumatize the children?
This post is the second in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.
The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.
Does having the judge interview the children traumatize the children? You may have heard the argument along the lines of, “Having a judge interview children is tantamount to child abuse.” If you haven’t heard it yet, all you have to do to make that happen is propose that the judge interview your children. The same people who claim judges interviewing kids harms kids will, with a straight face, claim that having a child interviewed by a guardian ad litem or custody evaluator is in some way functionally and/or effectively different from and better than being interviewed by a judge. Really?
I submit to you that virtually no child knows or cares about the difference between a judge or a guardian ad litem or psychologist interviewing a child. And while I will be among the first to admit that a mental health professional like an LCSW or psychologist may generally be a bit more skilled than the average judge at interviewing children about child custody issues, I submit that the difference is not so great as to justify spending $3,000 to $10,000 or more on a custody evaluation with an LCSW or psychologist, especially when the custody evaluation interview, like the interviews with the GAL, are not on the record, which means there’s no way of knowing how well the interviews were conducted or what said or not said by the child, if in fact the interviews ever took place at all.
Contrastingly, an interview conducted by the judge, as authorized by the Utah legislature/Utah Code § 30-3-10(5), is free of charge to the parents, takes far less time than an interview with a custody evaluator, would take about as much time as an interview would with a GAL, is directly from the child witness’s mouth to the judge’s ear (that way there are no hearsay or other second hand information concerns), and is on the record to ensure that there is no question as to how well the interview was conducted, what the child was and was not asked, and what the child did and did not say in response.
What are common Latin legal terms used in divorce and family law? While the use of Latin terms and phrases in the family law is decreasing, there are still many that are not only used but used routinely. Knowing their meaning and the context in which they are used will help you better understand the legal process. These terms are based primarily upon definitions from Black’s Law Dictionary.
BONA FIDE. This means made or done in good faith; without fraud or deceit. Sincere; genuine.
DE JURE. This means “as a matter of law”. Existing by right or according to law. This is as opposed to “de facto.” DE FACTO means actually existing in fact, having effect even though not formally or legally recognized. Illegitimate but in effect, such as “a de facto custody arrangement.”
DE NOVO HEARING OR HEARING DE NOVO. “De novo” means “new” or “again”. A hearing de novo is a reviewing court’s decision of a matter anew, giving no deference to a lower court’s findings or decision. A new hearing of a matter, conducted as if the original hearing had not taken place.
ET AL. This means “and others”. Most frequently will see the use of “et al.” On the first page of a complaint or petition filed with the court when there are multiple plaintiffs or multiple defendants. Rather than listing every single one of them, sometimes an attorney or a party will name the first few parties and then write “et al.” to indicate that there are more parties than are identified specifically on the page.
EX PARTE, Ex parte motions and hearings and orders arise when a party seeks relief from a court without providing notice to or permitting argument from the opposing party. Ex parte proceedings are extraordinary and generally discouraged but for exceptional situations, emergencies, situations where the need for judicial intervention is deemed to outweigh the need for conventional due process and notice.
GUARDIAN AD LITEM. An independent party, usually a lawyer, appointed in family law disputes to represent parties that cannot represent themselves, such as minors.
IN CAMERA. This is Latin for “in the judge’s chambers.” A judge’s chambers means the judge’s office, not the judge’s courtroom. Judges will occasionally hold informal discussions or reviews in their office. Often times these in camera activities take place off the record, but not necessarily.
IN FORMA PAUPERIS. This is a policy courts have that permits a court to waive certain costs and filing fees for a poor litigant (“pauperis” relates the word “pauper” which means “a poor person”).
IN RE. In re, spelled “i-n- space re” means “in the matter of.” You will often see this used in juvenile court cases, such as “In re B.T.B.” where the use of initials is for the protection of the child’s identity from public knowledge.
MOTION IN LIMINE. A pretrial request that certain inadmissible evidence not be referred to or offered at trial. Typically, a party makes this motion when it believes that mere mention of the evidence during trial would be highly prejudicial and could not be remedied by an instruction to disregard. Obviously, a motion in limine is not all that useful when the case is being tried to the judge and not to a jury.
PENDENTE LITE. Pendente lite. While the litigation is pending, Also known as simply “temporary orders.” Court orders pendente lite are temporary until the final judgement is rendered. Commonly used in divorce proceedings for determining where the children live, how often they spend time with each parent, who pays marital debts and obligations while the case is pending and before the final decree of divorce is entered by the judge.
PRIMA FACIE. This means sufficient to establish a fact or raise a presumption unless disproved or rebutted; based on what seems to be true on first examination, even though it may later be proved to be untrue. Many legal claims require the party making the claim to make a prima facie showing or risk having the claim dismissed.
PRO BONO or PRO BONO PUBLICO. This literally means for the public good. When attorneys provide services pro bono, that means they do so at no cost or for a reduced fee. Pro bono services are usually reserved for the indigent people or for charitable causes.
PRO SE. This means “for oneself; on one’s own behalf; without a lawyer.” When a party proceeds in a law suit pro se that means that he or she is doing so without being represented by a lawyer in the case.
RES JUDICATA. This means “a matter judged.” A matter that has been finally adjudicated, meaning no further appeals or legal actions by the involved parties is now possible.
STARE DECISIS. This means “to stand by things decided.” Stare decisis is the obligation of a judge to stand by a precedent. A precedent is a decision by an appellate court that is binding upon lower courts. Lower courts are trial courts. Precedents are law that did not come about by a legislature creating a statute. Precedents are caselaw. Caselaw arises from an appellate court. Appellate courts are courts that hear appeals from trial court decisions, such as the Utah Court of Appeals or the Utah Supreme Court. These decisions of these appellate case that establishes a principle or rule that is binding upon the trial courts in the future in cases involving similar issues or facts. The use of precedent provides predictability, stability, fairness, and efficiency in the law.
SUA SPONTE. This means “of one’s own accord; voluntarily”. When a court acts sua sponte, that means the court took an action in a case without a request from either party, and instead acted on its own.
SUBPOENA. The literal meaning of subpoena means “under penalty.” A subpoena is a writ issued by a court or under the authority of the court that compels the person to whom it is addressed to provide testimony, evidence, or some to take some other action, and provides penalty for failure to do so. One can be subpoenaed to testify in court or at a deposition. If one is served with what is known as a subpoena duces tecum, that means he or she has been compelled to bring with him or her physical evidence, typically documents or records to be questioned about them.
WRIT OF ASSISTANCE. A writ of assistance is a court’s order directing that another order of the court previously issued be enforced. Family law, when a party is refusing to comply with the court’s orders, particularly with regard to the exercise of child custody or parent time and visitation, the aggrieved party can request that the court issue a writ of assistance to help that party enforce the court’s orders.
Utah Family Law, LC | divorceutah.com | 801-466-9277
I recently participated in a hearing before a domestic relations commissioner in which the commissioner refused to interview a child and ordered a guardian ad litem (GAL) appointed, even though 1) the commissioner had the exact same child interview training as what a GAL had and 2) Utah Code § 30-3-10(5)(b)(i) expressly authorizes the judge or commissioner to interview the child. In other words, there was nothing that made the commissioner any less qualified to interview the child than a GAL, but the commissioner refused to interview the child and instead appointed someone else to interview the child and ordered the parties to pay for it. This is the norm in Utah with the overwhelming majority of judges and commissioners assigned to child custody cases in divorce and parentage cases.
So why appoint a GAL? Why not have the court interview the child instead of a GAL? Why incur the costs of having to pay for the appointment of a GAL when the court questioning the child:
is free of charge;
on the record (guardian ad litem interviews are not on the record and not subject to discovery);
does not violate the attorney-client communications privilege;
results in direct testimony from child to court, without any intermediary to taint or misreport or misconstrue what questions the child asked and how the child answered them (as opposed to an interview of which there is no record made of the questions asked—and unasked—and the answers given—or not given—followed by recommendations made on the basis of no independently verifiable position; and
suffers from no “court-sponsored hearsay” problem because the child is questioned directly by and responds directly to the judge or commissioner on the record.
There are even more good reasons for judges and commissioners to interview children directly. Now of course there will be certain cases in which a child is too young or too fragile to justify having a judge or commissioner interview a child, but I have yet to have anyone explain the logic behind the almost wholesale opposition of courts to directly interviewing children. I cannot find any sense in thinking: “I know that I’m authorized by statute to question the child (and that I either have or can quickly get the same interview training a GAL receives), but I won’t question the child and instead I will have someone else do it, charge the parties to do it, ensure that the questioning (if it takes place at all) is not on the record, have the appointed questioner make recommendations without there being any way to verify whether there is a factual foundation for the recommendations, and I’ll justify all of this by claiming this is in the best interest of the child by claiming (without evidence because there can be no evidence) that somehow a GAL questioning a child does no harm but a judge or commissioner (who the child would not be able to distinguish from a GAL) questioning a child is somehow almost sure to cause a child harm.”
If anyone reading this honestly asserts that appointing a GAL is better than having the child questioned by the court on the record, please explain how, in any substantive way, appointing a GAL is better than having the child questioned by the court on the record.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Case files for child custody cases are classified as private and not accessible to the public, so unless the child is questioned in a public court proceeding (which happens so rarely one could honestly state that, statistically speaking, it never happens), we will never know (we can never know) what the child was asked or what the child said in response. Those judges who are willing to question children—as they are authorized by the Utah Code to do—almost never question children in public court proceedings but instead question them in chambers, although the questioning is conducted on the record and not covertly.
The law gives judges the opportunity to avoid hearing directly from a child by instead appointing an attorney for the children known as a “guardian ad litem” and thus avoid ever actually hearing any testimony from the child’s own mouth by having the GAL claim to have spoken to the child, albeit not on the record (and thus there is no objectively verifiable way to confirm this), to have elicited from the child his/her experiences, observations, feelings, opinions, and desires (again, without there being any objectively verifiable way to confirm this) and then, based upon literally nothing that is objectively verifiable, make recommendations to the judge as to how the judge should rule on the issue of the child custody award.
*The ostensible reasons that most judges give for refusing to question children or allow children to be questioned by an attorney or attorneys are that they:
A) fear that if parents find out what the child says, then the child may feel guilty for expressing a preference or preferences for one parent over another on particular subjects of parental abilities and fitness;
B) fear that once parents discover what the child had to say the child may be punished or retaliated against if what the child said upsets or offends one or both parents; and/or
C) conclude, without first questioning the child, that children in general are incompetent witnesses and that their testimony would be of little help to resolving child custody questions.
Here is why I assert that such reasons are not rational:
1) First, parents are going to find out what a child thinks, feels, and wants with regard to child custody irrespective of whether the judge questions the child in court proceedings. Parents are going to learn of this (whether directly from the child or from his/her siblings, extended family members, friends, neighbors, teachers, counselors, coaches, ministers, etc.) before the child custody case is filed, during the pendency of the child custody case in court, at trial, and after the trial. It’s unavoidable. It’s inevitable. I submit that i) the belief that not questioning a child about his/her opinions and preferences regarding child custody will prevent the child’s parents from discovering those opinions and preferences, and ii) the believe that the only time and place in which the child will express such things is when questioned by the judge, is rather naive; it’s impossible to prevent parents from learning this information from and about the children.
Second, the value that many judges place on preventing children from feeling guilty or uncomfortable is misplaced. For two reasons. One, children who are going to feel guilty and uncomfortable about their child custody preferences, who are going to feel as though they are betraying a parent by expressing a preference for one over the other. are going to feel that way regardless of whether they express those preferences to the judge or a custody evaluator or a guardian ad litem (GAL). Two, getting to the truth about how children feel and why—when it comes to their child custody preferences—is far more important than sparing them from feeling guilty (especially when we already know they’re going to feel guilty regardless of whether they testify). Otherwise stated, preventing child testimony does no good: it protects the children from nothing, while denying the judge the clearest, purest sources of information about the children’s experiences, observations, feelings, opinions, and preferences as they relate to the child custody award.
2) If the judge believes that children will not be punished for expressing a preference for one parent over another, so long as those preferences are not expressed to the judge, again, that’s not rational either. It is impossible for a judge to prevent parents from learning a child’s feelings, opinions, and preferences regarding child custody. Thus it is impossible for a judge to prevent a parent who gets upset by those feelings, opinions and preferences from learning about them and from punishing and retaliating against his/her child once he/she learns of them. A judge can’t even mitigate the amount and severity of the retaliation and punishment because the judge is powerless to prevent the child’s feelings, opinions, and preferences from being discovered. And so once again, we find the court depriving itself of one of the clearest and purest sources of information and guidance on the subject of thee child custody award based upon a fear and a belief that has no rational basis. Closing one’s ears and eyes to what a child can say on the subject displays, frankly, a shocking disregard for the best interest of the child.
3) Concluding, without first questioning the child, that children in general are incompetent witnesses and that their testimony would be of little help to resolving child custody questions. See self-fulfilling prophecy. While it is certainly true that some children may be, for various reasons (such as being too young to talk, too young to have a consistent and reliable understanding of right and wrong and truth and falsity, placed in circumstances that call the veracity or credibility of the child’s testimony into question from the outset, etc.), one sure way to guarantee that we never determine how informative, probative, and reliable a child’s testimony may be and what weight to give such testimony is to dispense with allowing the child to testify in the first place.
Utah Family Law, LC | divorceutah.com | 801-466-9277
This opinion is subject to revision before final publication in the Pacific Reporter
In re G.J.P. – 2020 UT 4 – IN THE SUPREME COURT OF THE STATE OF UTAH
OFFICE OF PUBLIC GUARDIAN, Petitioner,
v.
The HONORABLE JUDGE JULIE LUND, Third Judicial District Juvenile Court, Respondent.
No. 20190733
Heard November 15, 2019
Filed February 5, 2020
On Petition for Extraordinary Relief
Third District, Salt Lake
The Honorable Judge Julie Lund
No. 1153247
Attorneys:
Sean D. Reyes, Att’y Gen., Stanford E. Purser, Deputy Solic. Gen., Amy Jackson Leach, Asst. Att’y Gen., Salt Lake City, for petitioner
Brent M. Johnson, Salt Lake City, for respondent Thomas A. Luchs, Cottonwood Heights, for Mother, J.R.
Martha Pierce, Salt Lake City, Guardian ad Litem for G.J.P.
JUSTICE PEARCE authored the opinion of the Court, in which CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS, and JUSTICE PETERSEN joined.
JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 The juvenile court appointed the Office of Public Guardian (OPG) as guardian ad litem for a mother (Mother) in a parental rights termination proceeding. OPG did not consent to the appointment and does not believe it is the appropriate entity to represent Mother. OPG filed this petition for extraordinary relief contending that the juvenile court lacks authority to appoint a guardian ad litem for an adult. OPG also contends that, even if the juvenile court has that ability, the court exceeded its discretion by appointing OPG. We grant the petition and afford OPG the relief it seeks. Although the juvenile court possesses the authority to appoint a guardian ad litem for an adult, the juvenile court strayed beyond the bounds of its discretion by appointing OPG in this matter.
BACKGROUND
¶2 In August of 2017, Mother was admitted to the University of Utah Hospital inpatient psychiatric unit. While hospitalized, she gave birth to G.J.P. G.J.P. experienced problems breathing and eating and was placed in the neonatal intensive care unit. G.J.P. remained hospitalized for several months. After treatment at the University of Utah Hospital, Mother was committed to the Utah State Hospital.
¶3 Soon after the birth of G.J.P., and with Mother still in the psychiatric unit, the Division of Child and Family Services (DCFS) began to inquire what it needed to do to ensure G.J.P.’s well-being. DCFS met with Mother and G.J.P.’s alleged father, both of whom acknowledged, according to DCFS, that they were unable to care for the child. DCFS also attempted to help Mother identify appropriate family to care for G.J.P., but these efforts, along with DCFS’s independent search for family members, did not identify anyone who could raise G.J.P.
¶4 DCFS moved for temporary custody of G.J.P., and the court granted prehearing custody to DCFS. DCFS also filed a stipulated motion to appoint a guardian for Mother. The motion noted Mother’s diagnosis and civil commitment and informed the court that Mother’s counsel did not believe that Mother understood what was happening in the termination proceedings. During hearings on DCFS’s motion, the juvenile court questioned whether it had jurisdiction to appoint a guardian for Mother.
¶5 Meanwhile, the parties tried, without success, to contact Mother’s sister who may have previously served as Mother’s guardian. Eventually the juvenile court granted custody to DCFS, and DCFS placed G.J.P. with foster parents.
¶6 The juvenile court also concluded that it needed to determine if it could order reunification services or if Mother’s illness rendered her incapable of taking part in those efforts. Accordingly, the court ordered Mother to participate in two psychological evaluations. Following the evaluations, Mother’s counsel again moved to appoint a guardian for Mother, noting that her illness “renders [Mother] mentally incompetent to assist in her own defense and communicate meaningfully with counsel.” The State did not object. The court found Mother incompetent, granted the motion, and appointed “a public guardian for [Mother].”
¶7 A month and a half later, the juvenile court issued an order explaining the multiple avenues it had explored to find someone to serve as Mother’s guardian. The court reported that the Utah Office of Guardian Ad Litem could not represent Mother because its representation of G.J.P. created a conflict. The court also recited that it could find no relative or friend willing or able to serve. And the court noted that it was unaware of any other mechanism it could employ to identify and appoint an attorney to act as guardian ad litem for Mother. But the juvenile court noted that, under its reading of the Utah Code, OPG could petition or agree to represent Mother and directed that a representative of OPG appear at the next hearing “so that the powers of its office may be further discussed.”
¶8 In response to the juvenile court’s directive, OPG argued that it was not a proper entity to represent Mother because OPG’s statutorily defined role is narrow and does not generally include advising or representing individuals in litigation.[1] OPG also argued that the juvenile court was not authorized to find a parent “sufficiently incompetent to appoint a guardian for purposes of assistance in litigation.” OPG therefore “declin[ed] to file a petition on behalf of [Mother].”
¶9 Mother’s counsel replied and claimed that OPG was not being asked to advise or represent Mother but to serve as guardian ad litem and “make decisions on her behalf which are in her best interest.”
¶10 The juvenile court held a hearing where OPG reiterated its concerns. Despite those concerns, the juvenile court ordered OPG to “represent” Mother.
¶11 OPG moved to set aside the juvenile court’s order, arguing again that the juvenile court lacked jurisdiction to appoint a guardian for an adult. The court denied the motion reasoning “[t]here is no person available to serve as a guardian for her” and “[t]he Office of the Public Guardian can provide a person to serve as a guardian for [Mother].”
¶12 OPG filed an interlocutory appeal of the order of appointment, and the termination proceeding was stayed. The court of appeals certified the appeal to this court. Upon its arrival at this court, we dismissed the petition because a non-party may not file an interlocutory appeal, but we did so with leave to refile as a petition for extraordinary relief. OPG then petitioned for relief. The court of appeals certified the petition to this court.
STANDARD OF REVIEW
¶13 A person may petition for extraordinary relief on any of the specified grounds under rule 65B of the Utah Rules of Civil Procedure only when “no other plain, speedy and adequate remedy is available.” UTAH R. CIV. P. 65B(a). “This court has broad discretion to grant or deny extraordinary relief.” Gilbert v. Maughan, 2016 UT 31, ¶ 14, 379 P.3d 1263. In deciding whether to grant a petition we may consider the “egregiousness of the alleged error, the significance of the legal issue presented by the petition, the severity of the consequences occasioned by the alleged error,” or any other relevant consideration. State v. Barrett, 2005 UT 88, ¶ 24, 127 P.3d 682.
¶14 Whether the juvenile court has authority to appoint a guardian ad litem presents a question of law. We review questions of law for correctness. See State v. Moreno, 2009 UT 15, ¶ 7, 203 P.3d 1000. And we review the juvenile court’s decision to appoint a specific guardian ad litem for an abuse of discretion. See Hanson v. La Flamme, 761 F. App’x 685, 689 (9th Cir. 2019) (applying an abuse of discretion standard to review trial court’s decision of who would serve as guardian ad litem); Gardner by Gardner v. Parson, 874 F.2d 131, 139 (3d Cir. 1989) (same).
ANALYSIS
¶15 Before we address the questions OPG presents, we need to highlight an issue that raises serious concerns meriting further exploration. No one has directly challenged whether the appointment of a guardian ad litem in these circumstances violates Mother’s due process rights.[2] But the guardian ad litem representing G.J.P. raised important questions about this issue.
¶16 Citing federal case law, the guardian ad litem argued that Mother would be entitled to a hearing if the purpose of the guardian was to override Mother’s legal decisions. We understand the concern. The juvenile court’s order was somewhat vague on the proposed role the guardian ad litem would play, and that left room for G.J.P.’s guardian ad litem to legitimately worry that the court had authorized the proposed guardian ad litem to make Mother’s decisions for her. In addition, Mother’s counsel made repeated references in briefing and oral arguments to the proposed guardian ad litem making decisions for Mother. See supra ¶ 9. Although these concerns lurked amidst the arguments—as did a concern that not appointing someone to assist Mother would also violate her due process rights—OPG’s petition does not ask us to address these due process questions.
¶17 We can see the substantial and important questions that may be implicated by the juvenile court’s decision to appoint a guardian ad litem, but they are difficult to address in the abstract. The calculus could change if the juvenile court envisioned a guardian ad litem who would “sit next to [M]other and answer her questions,” as OPG asserts the juvenile court explained at one point, instead of a guardian ad litem expected to, as Mother’s counsel asserted, make Mother’s decisions for her. The power of a guardian ad litem, depending on how the role is defined, may have significant effects on an incompetent person’s rights and the due process that should be afforded before a court infringes those rights.
¶18 Courts have recognized that “[t]here is something fundamental in the matter of a litigant being able to use his personal judgment and intelligence in connection with a lawsuit affecting him, and in not having a guardian’s judgment and intelligence substituted relative to the litigation affecting the alleged incompetent.” Graham v. Graham, 240 P.2d 564, 566 (Wash. 1952). Indeed, the Fifth Circuit has held that declaring someone incompetent and appointing a guardian ad litem implicates a “protected liberty interest” and the due process requirements of the Fifth Amendment. Thomas v. Humfield, 916 F.2d 1032, 1033 (5th Cir. 1990) (citing Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971)). “The appointment of a guardian ad litem deprives the litigant of the right to control the litigation and subjects him to possible stigmatization.” Id. at 1034 (italics in original). Furthermore, “[t]he interposition of a guardian ad litem could very well substitute his judgment, inclinations and intelligence for an alleged incompetent’s,” and “the retention of legal counsel or the employment of a different attorney could be determined solely by the guardian ad litem . . . .” Graham, 240 P.2d at 566.
¶19 We also note that Utah Rule of Civil Procedure 17(b) instructs that a “guardian ad litem may be appointed in any case when it is deemed by the court in which the action or proceeding is prosecuted expedient to represent the minor, insane or incompetent person in the action or proceeding . . . .” Our rules authorize courts to appoint a guardian ad litem but provide no guidance as to the role that the guardian ad litem can or will play in the litigation.
¶20 Moreover, rule 17(b) delineates no safeguards a court should employ before appointing a guardian ad litem for an allegedly insane or incompetent person. Because these issues are not before us in this petition, we are not in a position to opine on the due process to which Mother may be entitled should the juvenile court seek to appoint a different guardian ad litem on remand.[3]
¶21 Additionally, before we reach the merits of OPG’s contentions, because of some confusion in the juvenile court’s order and some cross-talk in the briefing, we believe it helpful to clarify what we talk about when we talk about a guardian. Specifically, it is helpful to distinguish between a “guardian” and a “guardian ad litem.”
¶22 A general guardian for an incapacitated individual[4] has broad power over the person and her rights and affairs. Unless otherwise limited by the court, a general guardian “has the same powers, rights, and duties respecting the ward that a parent has respecting the parent’s unemancipated minor child.” UTAH CODE § 75-5-312(2). This generally includes having custody of the ward, establishing the ward’s place of abode, even if outside of the state, receiving the ward’s money and property for the ward’s support, and consenting to any professional care. Id. § 75-5-312(3). Statutory processes govern this action. See, e.g., id. ch. 75-5 & 75-5b. For example, when someone petitions the court for a finding that an adult is incapacitated and in need of a guardian, the court must hold a hearing, and the allegedly incapacitated person has a right to be present, have counsel, present evidence, cross-examine witnesses, and have a trial by jury. Id. § 75-5-303. In statute, there are also guidelines for who can serve as a guardian, id. § 75-5-311, requirements for notice, id. § 75-5-309, actions for emergency appointment, id. § 75-5-310, and other detailed procedures. See id. §§ 75-5-301 to -317.
¶23 In contrast, the role a guardian ad litem may play is much less defined. According to those who purport to know such things, Ad litem is Latin for “to suit.” Ad litem, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining ad litem as “for the purposes of the suit”); Ad Litem, MERRIAM-WEBSTER DICTIONARY ONLINE, www.merriam-webster.com/dictionary/ad%20litem (defining ad litem as “for the lawsuit or action”); Guardian ad litem, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining guardian ad litem as “[a] guardian, usu[ally] a lawyer, appointed by the court to appear in a lawsuit on behalf of an incompetent or minor party” (emphasis added)). In other words, a guardian ad litem is appointed for a specific matter before the court.
¶24 Utah’s statutes governing the appointment of a “guardian” do not, by their express terms, apply to the appointment of a guardian ad litem.[5] And Utah Rule of Civil Procedure 17(b) allows a guardian ad litem to be appointed even when there is already a general guardian over the person. However, beyond this understanding, the role of guardian ad litem for an incompetent adult is largely unspecified in Utah law.
¶25 The role of a guardian ad litem for a minor is principally defined in statute. See UTAH CODE § 78A-2-701 to -705. Whereas, the role a guardian ad litem for an incapacitated adult is addressed only in stray references throughout the code. Utah Code section 75-3 203(4), for example, provides that a guardian ad litem is prohibited from nominating someone to serve as a personal representative under the Probate Code. And section 75-1-403 provides that a court can appoint a guardian ad litem to represent the interest of, and approve an agreement on behalf of, an incapacitated person in estate proceedings. See id. § 75-1-403(4).
¶26 OPG contends that the juvenile court did not specify in its order whether it was appointing OPG as a general guardian or a guardian ad litem. True enough. But it is reasonable to conclude, from the context and statements the court made, that it appointed OPG as a guardian ad litem to assist Mother in this case. The juvenile court found “there is no procedure available to the Court to act as Guardian ad Litem,” and “there is no other person willing or able to act as Guardian ad Litem.” Moreover, the juvenile court noted that OPG may “agree to represent [Mother] in this action.” (Emphasis added). Thus, we are confident that the juvenile court envisioned appointing OPG to represent Mother in the termination case only. And our analysis proceeds from the conclusion that we are examining the appointment of a guardian ad litem and not a general guardian.
OPG Can Seek Extraordinary Relief Because It Lacks a Plain, Speedy, and Adequate Remedy to Address Its Appointment
¶27 Under rule 65B of the Utah Rules of Civil Procedure, “where no other plain, speedy and adequate remedy is available,” id. 65B(a), a person may petition for relief from a court’s wrongful use of judicial authority, id. 65B(d). The person petitioning on this ground for relief must be a “person aggrieved or whose interests are threatened by any of the acts” specified. Id. 65B(d)(1). Rule 65B(d) contemplates that a person may seek a petition “where an inferior court . . . has exceeded its jurisdiction or abused its discretion.” Id. 65B(d)(2)(A).
¶28 OPG asserts both. OPG claims that the juvenile court exceeded its jurisdiction by appointing any guardian ad litem for an adult and that it went beyond the bounds of its discretion by appointing OPG specifically. OPG has no plain, speedy, and adequate remedy because it is not a party to the action below. Indeed, OPG attempted to appeal its appointment, but this court dismissed that appeal because OPG was not a party to the action. Supra ¶ 12; see Brigham Young Univ. v. Tremco Consultants, Inc., 2005 UT 19, ¶ 46 & n.7, 110 P.3d 678 (noting that nonparties may not appeal lower court orders and that extraordinary writ would be the proper vehicle to challenge such order), overruled on other grounds by Madsen v. JPMorgan Chase Bank, N.A., 2012 UT 51, ¶ 5, 296 P.3d 671. Additionally, this petition could not first be brought to the district court because the juvenile court “is of equal status with the district courts of the state.” See UTAH CODE § 78A-6-102(3). Thus, a petition for an extraordinary relief constitutes the proper vehicle for OPG to advance its arguments.
The Juvenile Court has Inherent Authority to Appoint a Guardian Ad Litem
¶29 OPG first asserts that because juvenile courts are courts of limited jurisdiction created by statute, they do not have authority to appoint a guardian ad litem for a parent in a matter before the court. We disagree.
¶30 All courts have a responsibility to ensure the fair and just proceeding of matters before them. This includes the requirement that the court protect the rights of incompetent parties that come before it. 53 AM. JUR. 2d Mentally Impaired Persons § 174 (2019). Court proceedings can exercise the ultimate power of the government to interfere with rights and freedoms inherent in the individuals that enter the courtroom doors. If a person is not “competent, understandingly and intelligently, to comprehend the significance of legal proceedings,” Graham v. Graham, 240 P.2d 564, 565 (Wash. 1952), her most fundamental rights could be gravely affected.
¶31 Courts are tasked with adjudicating vital disputes, like considering whether a parent should be stripped of the right to raise her child, and are duly obligated to ensure the parties affected are competent to be involved in the process. Indeed, we have codified this important principle in our Rules of Civil Procedure. Rule 17(b) states that “an insane or incompetent person who is a party must appear either by a general guardian or by a guardian ad litem appointed in the particular case by the court in which the action is pending.”
¶32 OPG nevertheless asserts that a juvenile court, exercising its duly granted jurisdiction to hear a case, cannot protect an incompetent party by appointing her a guardian ad litem. This ignores the long-standing principle, recognized by our sister states and federal courts, that the authority to appoint a guardian ad litem is inherent in the court’s exercise of its proper subject matter jurisdiction.
¶33 For example, in Graham, a mother petitioned the Washington Supreme Court to prohibit the trial court from appointing a guardian ad litem for her in a child visitation dispute. 240 P.2d at 565. Much like the present case, the trial court in Graham had called a psychiatrist to testify about the mother’s mental health in regards to the underlying matter but, after that testimony, “felt compelled to protect the interests of [the mother] by appointing a guardian ad litem for her.” Id. The mother’s counsel objected. Id. The Washington Supreme Court had to decide, it noted, whether the trial court acted “within and not in excess of” its jurisdiction. Id. That court then reasoned that “the principle is well established” for courts to appoint guardian ad litem when needed, “[i]rrespective of specific statutory authorization.” Id. Such a party may not “comprehend the significance of legal proceedings and the effect [and] relationship of such proceedings in terms of [his or her] best interests.” Id. Thus, the power to appoint a guardian ad litem is “part of and incidental to” the court’s jurisdiction over the underlying case. Id.
¶34 In Guardianship of H.L., the Vermont Supreme Court concluded that “the appointment of a guardian ad litem is a power inherent in courts in dealing with those appearing before them who are under disability.” 460 A.2d 478, 479 (Vt. 1983). The court reasoned that the trial court had to be able to fulfill its duty to see that the interests of an incompetent person were fully protected, especially when fundamental rights were involved. Id. Similar to the case here, that case involved the right of a parent to the custody of her child. Id. That court noted these rights as basic rights and held that when the incompetent’s counsel raised the issue to the court, it was “incumbent upon the court to insure that [mother’s] interests were protected,” and that the court therefore erred in not investigating further or appointing a guardian ad litem. Id. at 480.
¶35 In the same fashion, the Colorado Supreme Court held that a juvenile court had power to appoint a guardian ad litem for an adult even in a wider scope of cases than relevant statutes contemplated. See People in Interest of M.M., 726 P.2d 1108, 1118–20 (Colo. 1986). That court held that it was “well established” and “proper” for a court to appoint a guardian ad litem for an incompetent party. Id. at 1118. The court further reasoned that this principle was well supported by the court’s rule of procedure requiring the protection of incompetent persons and appointment of guardian ad litem in some circumstances. Id. at 1119.
¶36 These courts are not outliers. The principle is well established across the country. See, e.g., Zaro v. Strauss, 167 F.2d 218, 220 (5th Cir. 1948) (“Even in the absence of an inquisition of insanity or of a commitment, where a person is incompetent courts generally have inherent power to protect the interests of the incompetent by appointing a guardian ad litem to represent the incompetent in proceedings.”); Estate of Leonard, ex rel., Palmer v. Swift, 656 N.W.2d 132, 139 (Iowa 2003) (“In addition to [the rules of civil procedure], the court has the inherent power to do whatever is essential to the performance of its constitutional functions, . . . including the appointment of a guardian ad litem.” (citation omitted)); In re Interest of A.M.K., 420 N.W.2d 718, 719 (Neb. 1988) (reviewing a parental rights termination proceeding from juvenile division and holding that “[e]very court has inherent power to appoint a guardian ad litem to represent an incapacitated person in that court”); Buckingham v. Alden, 53 N.E.2d 101, 104 (Mass. 1944) (“[T]he authority to appoint a guardian ad litem or next friend is not limited to the foregoing statutory provisions. Such power is inherent in the court and its exercise at times becomes necessary for the proper functioning of the court.”); Schultz v. Oldenburg, 277 N.W. 918, 922 (Minn. 1938) (“[T]his power of the district courts to [appoint a guardian ad litem] is not taken away by the statutes authorizing the probate courts to appoint general guardians for insane persons.” (citation omitted)); Wilson v. Ball, 523 S.E.2d 804, 806 (S.C. Ct. App. 1999) (“[T]he authority for a circuit court to appoint a guardian ad litem is inherent in the court itself . . . .”); In re Serafin, 649 N.E.2d 972, 976 (Ill. App. Ct. 1995) (“The circuit court is charged with a duty to protect the interests of its ward and has, by statute and otherwise, those powers necessary to appoint a guardian ad litem to represent the interests of the respondent during the court’s exercise of its jurisdiction.” (italics in original)); Berman v. Grossman, 260 N.Y.S.2d 736, 738 (N.Y. App. Div. 1965) (“The power to appoint a guardian ad litem to appear for and represent the incompetent in the proceeding, absent prohibitory legislation, is among the court’s inherent powers in the matter of supervision over the person and property of the incompetent.”); 53 AM. JUR. 2d Mentally Impaired Persons § 174 (“A court has the inherent power to appoint a guardian ad litem to represent an incompetent person in that court.”).
¶37 After reviewing this case law, we similarly agree that a court, even a statutorily-created juvenile court, may appoint a guardian ad litem for an incompetent adult in a matter properly before the court. This power is inherent in the court’s jurisdiction independent of a specific statutory grant of authority.
¶38 OPG raises several arguments attempting to keep us from this conclusion. First, OPG argues that the juvenile court does not have inherent power because it is a legislatively created court of limited jurisdiction. For this proposition, OPG cites to Western Water, LLC v. Olds, 2008 UT 18, 184 P.3d 578, and its discussion of State ex rel. B.B., 2004 UT 39, 94 P.3d 252.
¶39 In Western Water, we allowed a district court to award costs even when it lacked subject matter jurisdiction over the underlying matter because, we said, the district court has inherent power over its processes, including attorneys. See 2008 UT 18, ¶ 42. In contrast, in State ex rel. B.B. we did not allow a juvenile court to award costs because it did not have jurisdiction over the underlying matter. See 2004 UT 39, ¶ 20. We distinguished State ex rel. B.B. because juvenile courts, unlike district courts, are courts of limited jurisdiction. W. Water, 2008 UT 18, ¶¶ 46–47. OPG points to the intersection of these holdings and argues that juvenile courts are limited to those powers enshrined in statute.
¶40 OPG’s argument misses the mark. The jurisdiction at issue in State ex rel. B.B. was the juvenile court’s subject matter jurisdiction. We reasoned that the juvenile court could not award costs because it did not have subject matter jurisdiction over the underlying dispute. State ex rel. B.B., 2004 UT 39, ¶ 19; see also W. Water, 2008 UT 18, ¶ 46. In other words, the juvenile court did not have “inherent” power to do something in aid of a case over which it lacked subject matter jurisdiction. In contrast, here there is no question that the juvenile court has subject matter jurisdiction over a parental rights termination proceeding. See UTAH CODE § 78A-6-103(1). And, as described above, we join the throng of other states that have concluded that a court has inherent power to appoint a guardian ad litem to aid the progress of a case within its subject matter jurisdiction.
¶41 Second, OPG notes that the Juvenile Court Act specifically spells out that juvenile courts have “exclusive original jurisdiction in proceedings concerning . . . appointment of a guardian of the person or other guardian of a minor who comes within the court’s jurisdiction . . . .” Id. § 78A-6-103(1)(d). OPG asserts that a ruling that juvenile courts have inherent authority to appoint a guardian ad litem would render this statute superfluous. We disagree. This statute simply excepts other courts from having original jurisdiction to name guardians for minors who are under the juvenile court’s proper jurisdiction. There is no indication in the statute that the Legislature intended this statement of the juvenile court’s original jurisdiction to strip the juvenile court of its inherent authority to appoint a guardian ad litem for an incompetent adult in a matter properly before it.
¶42 Third, OPG points to the Utah Probate Code, which outlines the procedures for appointing a guardian, and asserts that those provisions deny the juvenile court the jurisdiction to appoint a guardian for an adult. Specifically, OPG asserts that the Probate Code provides the sole basis for appointing a guardian for an incapacitated adult.
¶43 OPG argues that Utah Code section 75-5b-202 states that a “court of this state has jurisdiction to appoint a guardian” if certain requirements are met, and that the phrase “court of this state” does not encompass juvenile courts. OPG correctly asserts that the Probate Code defines “court” as those courts “having jurisdiction in matters relating to the affairs of decedents.” Id. § 75-1-201(8). Because the juvenile court does not have jurisdiction over the affairs of decedents, it is not, reasons OPG, a court within the meaning of the Probate Code. Thus, OPG argues that because section 75-5b-201 states that these statutes are the exclusive jurisdictional basis for appointing a guardian, the juvenile court could not have jurisdiction to appoint OPG in this case.
¶44 This argument fails however, because when the Probate Code speaks of guardians, it refers to general guardians and not guardians ad litem; as noted, the definitions that apply to the Probate Code define “guardian” but specifically exclude a “guardian ad litem” from that definition. See id. § 75-1-201(20). OPG nevertheless contends that this definition of guardian applies only generally throughout the Probate Code and that there is another, more specific definition of guardian in the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA). Id. §§ 75-5b-101, et seq. There, guardian is defined as “a person appointed by the court to make decisions regarding the person of an adult, including a person appointed under Title 75, Chapter 5, Part 3, Guardians of Incapacitated Persons.” Id. § 75-5b-102(4) (emphasis added). Because this definition does not contain the carve out for guardians ad litem found in the general definition, OPG believes that UAGPPJA’s requirements for appointing an adult guardian, including vesting the district court with exclusive jurisdiction for that appointment, applies to guardians ad litem for an adult as well. See id. § 75-5b-201.
¶45 Although OPG is correct that UAGPPJA’s definition of guardian does not contain the general definition’s exclusion of guardians ad litem, we are not convinced that this evinces a legislative intent that UAGPPJA govern the appointment of guardians ad litem for an adult. This is because UAGPPJA applies to a guardian appointed “to make decisions regarding the person of an adult.” Id. § 75-5b-102(4). This hearkens back to the term of art “guardian of the person,” which is sometimes employed to describe a guardian “responsible for caring for someone who is incapable of caring for himself or herself because of infancy, incapacity, or disability.” Guardian of the person, BLACK’S LAW DICTIONARY (11th ed. 2019); accord Home Town Fin. Corp. v. Frank, 368 P.2d 72, 75 (Utah 1962) (referring to “guardian of his person” as one who “look[s] after his personal affairs”). It also echoes language that we use to talk about a general guardian who has “general care and control of the ward’s person and estate.” General guardian, BLACK’S LAW DICTIONARY (11th ed. 2019).
¶46 Moreover, UAGPPJA is based upon the uniform act. The commentary to the act states that the uniform legislation “would not ordinarily apply to a guardian ad litem.” NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS, UNIFORM ADULT GUARDIANSHIP AND PROTECTIVE PROCEEDINGS JURISDICTION ACT 8 (2007). Our Legislature adopted the uniform act’s definition. Because of this, we have little trouble concluding that the Legislature did not intend UAGPPJA to divest juvenile courts of their inherent ability to appoint a guardian ad litem.
¶47 Finally, OPG argues that Utah Rule of Civil Procedure 17(b), which requires an incompetent person to appear by guardian or guardian ad litem, cannot increase a juvenile court’s jurisdiction or run contrary to statute. We agree that this court could not, by rule, give the juvenile court subject matter jurisdiction over a category of disputes from which the Legislature had deliberately excluded it by statute. But, as discussed above, the appointment of a guardian ad litem is inherent in the court’s jurisdiction to manage the cases over which it has proper subject matter jurisdiction and so does not increase the court’s authority.
III. The Juvenile Court Exceeded its Discretion by Appointing the Office of Public Guardian As Guardian Ad Litem
¶48 OPG next asserts that even if we conclude, as we have, that the juvenile court does have the authority to appoint a guardian ad litem for an adult, it was wrong to appoint OPG. OPG argues that it is an entity created in statute whose “powers and duties” are defined solely by statute, see UTAH CODE § 62A-14-103, and that the juvenile court’s order contravenes these statutes.
¶49 The statute directs OPG to “serve as a guardian, conservator, or both for a ward upon appointment by a court when no other person is able and willing to do so and the office petitioned for or agreed in advance to the appointment.” Id. § 62A-14 105(1)(a)(ii). “Guardian” here is defined by reference to the guardianship statutes that specifically exclude guardian ad litem. See id. § 62A-14-102(4). Thus, OPG argues, it would be expressly outside its enabling statutes to serve as a guardian ad litem.
¶50 The Legislature also decreed that OPG must have “petitioned for or agreed in advance to the appointment” before a court can draft it into service. Id. § 62A-14-105(1)(a)(ii). That did not occur here. OPG reiterates that the juvenile court “cannot compel OPG to do more than what it is authorized to do by statute.”
¶51 We take OPG’s point. The Legislature appears to have created OPG for a very specific purpose. And the Legislature empowered OPG to be the sole arbiter of when it will serve. Against this statutory backdrop, the juvenile court exceeded the bounds of its discretion in appointing OPG without its consent.
¶52 This does not mean, however, that the juvenile court has depleted its options. There appears to be nothing in statute that speaks to the qualifications to serve as a guardian ad litem for an adult. Certainly, the parties have not pointed us to anything that would limit who can serve. Our rules appear to be similarly bereft of requirements. Thus, the pool of people who could potentially be appointed as guardian ad litem in a case such as this is vast.
¶53 We can understand why the juvenile court looked to OPG when efforts to locate a family member or friend failed.[6] But it strayed outside the boundaries of its discretion when it appointed OPG without its consent.
CONCLUSION
¶54 The juvenile court has inherent authority to appoint a guardian ad litem for an incompetent party appearing before it in a matter over which it has subject matter jurisdiction. However, because it is contrary to OPG’s statutorily granted role, the juvenile court exceeded its discretion by ordering OPG to serve as guardian ad litem. We grant the petition and remand for further proceedings.
Utah Family Law, LC | divorceutah.com | 801-466-9277
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[1] The Office of Public Guardian is a statutorily created entity. See UTAH CODE §§ 62A-14-101 to -111. Section 105, entitled, “Powers and duties of the office,” allows OPG to, among other things, “serve as a guardian, conservator, or both for a ward upon appointment by a court when no other person is able and willing to do so and the office petitioned for or agreed in advance to the appointment.” Id. § 62A-14-105(1)(a)(ii). OPG generally only serves in the last instant when no one else can. Section 75-5-311(3) creates a prioritized list of who can serve as guardian—the Legislature places OPG as the very last option right after “any competent person or suitable institution.” Id. § 75-5-311(3)(i). Even then, the Legislature has invested OPG with the ability to decide when it will serve as a guardian. Section 62A-14-110 instructs that a court cannot appoint OPG without its consent. Id. § 62A-14-110(1) (“The office may not be appointed as the guardian or conservator of a person unless the office petitioned for or agreed in advance to the appointment.”).
[2] Similarly, the question of whether the juvenile court correctly determined whether Mother needs a guardian ad litem is not before this court.
[3] In addition to flagging the issue for remand, we ask our standing committees on the rules of civil and juvenile procedure to examine the issue and suggest ways to address the question.
[4] “Incapacity” is defined in Utah statute. UTAH CODE § 75-1 201(22). The statutes governing the court appointment of a guardian for an adult require a finding of incapacity. Id. § 75-5-303. The juvenile court in this case stated that it found Mother to be “an incompetent person,” and not an incapacitated person within the meaning of section 201.
[5] The Probate Code provides that “‘[g]uardian’ means a person who has qualified as a guardian of a minor or incapacitated person pursuant to testamentary or court appointment, or by written instrument . . . , but excludes one who is merely a guardian ad litem.” UTAH CODE § 75-1-201(20).
[6] The juvenile court correctly noted that we have devised no formal process for the court to appoint an attorney to serve as guardian ad litem for an adult when more traditional candidates— like a family member or friend—cannot be found. But this lack of procedure does not warrant drawing OPG into the matter contrary to its statutory mandate.
And while we understand that the juvenile court may have perceived that it had exhausted its efforts to find someone to help Mother, we note the long tradition in our state of attorneys stepping up to serve in difficult situations when requested.
Rule 6.1 of the Utah Rules of Professional Conduct urges attorneys to participate in activities that serve the legal system and profession. Many attorneys have kept faith with that rule by agreeing to serve as pro bono counsel in Post-Conviction Remedies Act cases. Many of us have, at some point in our careers, received a call from a judge who, having seen potential merit in a Post-Conviction Remedies Act petition, is searching for a volunteer to represent the petitioner. We appreciate the many attorneys who have responded to those calls. Cases like this appear to be another way that attorneys could fulfill rule 6.1’s mandate.
Because a guardian ad litem does not have to be an attorney, there may be other groups, such as social work clinics and mental health advocacy groups, who may be willing to help identify individuals willing to serve in difficult situations.
We appreciate that this is far from a perfect solution, and that we should not systemically rely on vague procedures and the good will of our bar and community to ensure that our system treats people fairly. As our rules committees examine ways we might improve our rules with respect to the appointment of guardians ad litem for adults, we ask that they consider how the courts can better identify and appoint suitable guardians ad litem for incompetent adults.
ADAM LEGRANDE PEEPLES, Appellee,
v.
ANNALEISE T. PEEPLES, Appellant.
Opinion
No. 20180713-CA
Filed December 19, 2019
Third District Court, Salt Lake Department
The Honorable Andrew H. Stone
No. 044901980
Brian Boggess, Attorney for Appellant
Adam L. Peeples, Appellee Pro Se
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES GREGORY K. ORME and KATE APPLEBY concurred.
HARRIS, Judge:
¶1 Annaleise T. Peeples (Mother) asked the district court to modify her divorce decree to give her sole custody of her two teenage daughters, but the district court refused, determining that Mother had failed to demonstrate any substantial change in the circumstances underlying the original decree. Mother now appeals the district court’s order dismissing her petition to modify, and we affirm.
BACKGROUND
¶2 In 2004, after about three-and-a-half years of marriage, Adam Legrande Peeples (Father) filed for divorce from Mother, citing irreconcilable differences. Around the same time, Father also sought and obtained a protective order against Mother, asserting that Mother had been physically abusive to him; that protective order awarded temporary custody of the parties’ two young daughters to Father. The parties were each represented by counsel in both the divorce and the protective order proceedings, and because of the allegations of physical abuse, the court also appointed a guardian ad litem to represent the best interests of the two children. Early in the divorce case, all parties and counsel appeared before a domestic relations commissioner to discuss the parties’ motions for temporary orders. Following that hearing, the commissioner entered a temporary order, later countersigned by the assigned trial judge, awarding temporary custody of the children to Father, as the protective order did, with Mother receiving parent-time.
¶3 As the divorce proceedings progressed, the district court appointed a custody evaluator to make a recommendation to the court. While the custody evaluation was ongoing, the court entered a stipulated bifurcated decree of divorce in 2005, severing the parties’ marital union but reserving all other issues, including custody and parent-time, for further proceedings. In 2007, Mother filed her first motion for a change in custody, alleging that the temporary order giving custody to Father was unworkable because Mother lived in northern Utah County and Father lived in Salt Lake County, and because Father had “moved three times in three years and has not demonstrated stability.” Father objected, and after briefing and oral argument, the commissioner denied Mother’s motion.
¶4 In October 2007, soon after the commissioner denied Mother’s motion for a change in temporary custody, the parties and counsel participated in a settlement conference with the custody evaluator, at which the evaluator orally shared with the parties his recommendation: that primary physical custody remain with Father. At a hearing in December 2007, the guardian ad litem informed the court that he agreed with the custody evaluator’s recommendation. At that same hearing, the district court set a date for a bench trial to resolve all remaining issues.
¶5 Following the commissioner’s ruling on Mother’s motion and the court’s decision to set a trial date, as well as the revelation of the recommendations made by the custody evaluator and the guardian ad litem, the parties and their counsel entered into negotiations, and were able to resolve the remaining issues by stipulation. On April 28, 2008, after more than four years of divorce litigation, the court entered a stipulated amended decree of divorce, awarding the parties “joint legal custody” of the children, but awarding Father “primary physical custody.” Mother was to have “liberal parenting time” amounting to five out of every fourteen overnights during the school year, with the schedule to be “reversed” during the summertime.
¶6 Perhaps not surprisingly, given the nature and tone of the four years of pre-decree litigation, entry of the final divorce decree did not end the divisiveness and discord between these parties. About a year-and-a-half after the amended decree was entered, Mother filed a petition to modify, seeking amendments to the parent-time provisions of the decree. Mother alleged that circumstances had changed substantially since the entry of the decree because Father had enrolled the children in year-round school, rendering certain of the decree’s provisions unworkable, and because Father had violated the decree in numerous particulars. Father responded by filing a cross-petition to modify, seeking sole legal and physical custody. After further proceedings, the district court declined to modify the original divorce decree, and denied the parties’ dueling petitions.
¶7 A few years later, in 2013, Mother filed the instant petition to modify, this time seeking sole physical custody of the children. Mother asserted that circumstances had changed in three specific ways. First, she contended that Father had been “unable to provide a stable home environment” and find “stable employment.” Second, she contended that Father had “denied [her] physical visitation” to which she was entitled pursuant to the decree. Third, she contended that Father had “become violent with other people” and that “the children [had] been emotionally abused.”
¶8 Soon after the filing of Mother’s 2013 petition to modify, the parties agreed to have another custody evaluation done. After some procedural wrangling about the identity of the evaluator, the court finally appointed one, and the new evaluator interviewed the parties and the children in the fall of 2015. In January 2016, the evaluator shared her recommendation with the parties’ attorneys: that Mother be awarded sole physical custody, with Father to receive “standard minimum parent time.” Soon thereafter, the court appointed a different guardian ad litem (GAL) to represent the best interests of the children during the proceedings on the petition to modify.
¶9 From there, it took over a year to get to trial on the petition to modify; trial eventually took place over two days in December 2017. Just a few days before trial was to begin, the GAL issued a report containing his recommendations. Unlike the custody evaluator, the GAL recommended that the custody arrangement remain unchanged, with Father retaining primary physical custody. He explained that, while he understood the evaluator’s “rationale for recommending a change in custody at the time [the] evaluation was performed, over two years [had] passed” since the evaluator conducted her interviews, and he expressed his view that the information on which the evaluator based her conclusions was outdated.
¶10 At trial, Mother (as the petitioner on the petition to modify) presented her case first, and called three witnesses over the first day-and-a-half of trial: herself, Father, and the custody evaluator. At the conclusion of Mother’s case-in-chief, Father made an oral motion to dismiss the petition to modify, arguing that Mother failed to “meet her burden to prove that a significant change in circumstances has taken place.” After hearing argument from both sides, as well as from the GAL, the court granted Father’s motion. The court explained that Father’s relative instability had been constant since before the decree was entered, and therefore was not a change in circumstances; that any violations by Father of the terms of the decree could be resolved in contempt proceedings, and—especially in a case in which “[t]he parties have been in constant conflict since their separation and likely before”—that those violations did not rise to the level of unworkability that would constitute a change in circumstances; and found that there had not been any violence or emotional abuse. The court noted that the parties had been fighting over custody for some thirteen years, and that the fighting had been fairly constant. The court stated that, in such a “high-conflict” case, “if anything, the need to show a change in circumstances [is] even stronger,” and “the need for a permanent decree . . . that people can rely on . . . is that much greater.” A few weeks later, the court entered a written order, drafted by Father’s counsel, dismissing Mother’s petition to modify; that order contained a provision stating that, “[i]n a high conflict divorce such as this one, the need for finality is even greater and therefore the burden to show a material and significant change in circumstances should be higher than normal.”
ISSUE AND STANDARDS OF REVIEW
¶11 Mother now appeals from the district court’s order dismissing her petition to modify. When reviewing such a decision, we review the district court’s underlying findings of fact, if any, for clear error, see Vaughan v. Romander, 2015 UT App 244, ¶ 7, 360 P.3d 761, and we review for abuse of discretion its ultimate determination regarding the presence or absence of a substantial change in circumstances, see Doyle v. Doyle, 2009 UT App 306, ¶ 7, 221 P.3d 888, aff’d, 2011 UT 42, 258 P.3d 553. The district court’s choice of legal standard, however, presents an issue of law that we review for correctness. See id. ¶ 6.
ANALYSIS
¶12 Mother challenges the district court’s dismissal of her petition to modify on two general grounds. First, she contends that the district court employed an incorrect (and overly strict) legal standard in determining whether circumstances had changed sufficiently to justify reopening the governing custody order. Specifically, she asserts that the court did not properly take into account the fact that the decree at issue was stipulated rather than adjudicated, and she takes issue with the statement in the court’s written order that, in “high conflict” cases, the burden of demonstrating a change in circumstances is “higher than normal.” Second, Mother contends that the district court abused its discretion in determining, on the facts of this case, that no substantial and material change in circumstances existed. We address each of these contentions in turn.
A
¶13 Under Utah law, petitions to modify custody orders are governed by a two-part test:
A court order modifying . . . an existing joint legal custody or joint physical custody order shall contain written findings that: (i) a material and substantial change of circumstance has occurred; and (ii) a modification . . . would be an improvement for and in the best interest of the child.
Utah Code Ann. § 30-3-10.4(2)(b) (LexisNexis Supp. 2019). Because “[t]he required finding of a material and substantial change of circumstances is statutory, . . . [n]either this court nor the supreme court has purported to—or could—alter that requirement.” Zavala v. Zavala, 2016 UT App 6, ¶ 16, 366 P.3d 422; see also Doyle v. Doyle, 2011 UT 42, ¶ 38, 258 P.3d 553 (“Even an overwhelming case for the best interest of the child could not compensate for a lack of proof of a change in circumstances.”). Thus, “only if a substantial change of circumstances is found should the [district] court consider whether a change of custody is appropriate given the child’s best interests.” Wright v. Wright, 941 P.2d 646, 651 (Utah Ct. App. 1997) (quotation simplified).
¶14 This statutory requirement that a substantial change in circumstances be present before a court may modify a custody order serves two important ends. “First, the emotional, intellectual, and moral development of a child depends upon a reasonable degree of stability.” Elmer v. Elmer, 776 P.2d 599, 602 (Utah 1989). We have previously noted the “deleterious effects of ‘ping-pong’ custody awards” that subject children to ever-changing custody arrangements. See Taylor v. Elison, 2011 UT App 272, ¶ 13, 263 P.3d 448 (quotation simplified). Second, the requirement “is based in the principles of res judicata,” as “courts typically favor the one-time adjudication of a matter to prevent the undue burdening of the courts and the harassing of parties by repetitive actions.” Id. (quotation simplified); see also Zavala, 2016 UT App 6, ¶ 16 (stating that the statutory change-incircumstances requirement is “a legislative expression of the principle of res judicata”).
¶15 The change-in-circumstances requirement is itself comprised of two parts. In order to satisfy it, “the party seeking modification must demonstrate (1) that since the time of the previous decree, there have been changes in the circumstances upon which the previous award was based; and (2) that those changes are sufficiently substantial and material to justify reopening the question of custody.” Hogge v. Hogge, 649 P.2d 51, 54 (Utah 1982). In this context, however, our case law has drawn something of a distinction between adjudicated custody decrees and stipulated custody decrees, recognizing that “an unadjudicated custody decree” is not necessarily “based on an objective, impartial determination of the best interests of the child,” and therefore the res judicata policies “underlying the changed-circumstances rule [are] at a particularly low ebb.” See Taylor, 2011 UT App 272, ¶ 14 (quotation simplified). In Zavala, we clarified that the change-in-circumstances requirement still applies even in cases involving stipulated (as opposed to adjudicated) custody orders, although we acknowledged that, in some cases, “a lesser showing” of changed circumstances may “support modifying a stipulated award than would be required to modify an adjudicated award.” See 2016 UT App 6, ¶ 17.
¶16 In this case, the court did not specifically discuss the distinction our case law has drawn between stipulated and adjudicated decrees, or the extent to which this decree should be considered stipulated or adjudicated. The court simply applied the change-in-circumstances requirement and found it not met on the facts of this case. In one recent case, we found no error under similar circumstances. See Erickson v. Erickson, 2018 UT App 184, ¶ 21, 437 P.3d 370 (declining to reverse a district court’s determination that no substantial and material change in circumstances had been shown, despite the fact that the district court did not specifically consider “the fact that the underlying custody award was based on a stipulated agreement”).
¶17 But more to the point, we think it unhelpful to view the adjudicated/stipulated dichotomy as entirely binary; instead, in assessing how much “lesser” a showing might be required to satisfy the change-in-circumstances requirement, see Zavala, 2016 UT App 6, ¶ 17, courts should examine the origin of the order in question and analyze the extent to which the order—even if stipulated—reflects the result of robustly contested litigation aimed at ascertaining the best interest of the child.
¶18 We discern no error here, even though the district court did not expressly discuss the origin of the custody decree at issue, because the decree—although entered as a result of a negotiated settlement—was more akin to an adjudicated decree than a non-adjudicated decree. Here, the decree was finalized in April 2008, after more than four years of litigation between the parties, during which both parties were represented by counsel the entire time. The parties had fully litigated not only motions for protective orders, which involved custody determinations made by a court, but also motions for temporary orders before the court commissioner and the district court wherein temporary custody determinations were made. Moreover, the court had appointed a guardian ad litem to represent the children, and in addition a full evaluation had been performed by a neutral court-appointed custody evaluator. The parties did not reach their negotiated settlement in this case until after they had received input from not only the custody evaluator and the guardian ad litem, but also from the commissioner and the court during the temporary orders process. By the time the settlement was reached, four years of litigation had passed and a trial date had been set. In the end, the decree encapsulated, for the most part, the recommendations made by the guardian ad litem and the custody evaluator, and memorialized an arrangement very similar to the one previously ordered by the court on a temporary basis.
¶19 We certainly recognize the potential for injustice with certain types of stipulated custody orders; indeed, this is part of the reason why courts, when considering petitions to modify, retain the flexibility to be less deferential to stipulated custody orders. See Taylor, 2011 UT App 272, ¶ 14 (stating that unadjudicated custody decrees “may in fact be at odds with the best interests of the child” (quotation simplified)). Depending on the situation, our confidence that a stipulated custody decree—at least one that is submitted to the court before receipt of input from judicial officers during the temporary orders process or from custody evaluators or guardians ad litem—will actually be in keeping with the best interest of the child may be comparatively low, especially where neither side is represented by counsel (or, potentially more concerning, when only one side is represented by counsel). Inequalities in negotiating power or financial resources can sometimes result in one parent agreeing to conditions by stipulation that may not be in the long-term best interest of the child.
¶20 But such concerns are not present in a case like this one, where the parties reached a negotiated agreement after fully and robustly participating in the litigation process, with lawyers, for more than four years. The terms of the negotiated custody decree in this case—entered on the eve of a scheduled trial—did not substantially deviate from the terms of the temporary custody order imposed by the court, and were heavily influenced by the recommendations of both the custody evaluator and the guardian ad litem. In this case, therefore, we have relatively high confidence that the custody order was in line with the best interests of the children. Accordingly, we discern no error in the district court’s decision to apply the change-in-circumstances requirement without watering it down to account for the fact that the custody order in question was, technically speaking, stipulated.
¶21 We are more concerned, however, with the district court’s statement in its written order that, in “high conflict” cases, “the burden to show a material and significant change in circumstances should be higher than normal.” The district court offered no citation to any authority supporting this principle in our case law, and we are aware of none. We take this opportunity to clarify that there is no separate standard that courts are to apply in high-conflict cases when considering whether a substantial change of circumstances is present in the context of a petition to modify. Nevertheless, we are not persuaded that the district court’s statement made a material difference to its analysis in this case. In context, especially after reviewing the court’s oral ruling, we view the court’s statement as simply acknowledging that, in high-conflict divorce cases, parties are perhaps more willing to seek modification more often, and that the danger of “ping-pong” custody awards in those cases is therefore proportionately higher.
¶22 In the end, we are convinced, after a review of the full record, that the district court applied the proper two-step analysis to determine whether a substantial and material change in circumstances occurred here. First, the court analyzed whether, “since the time of the previous decree, there have been changes in the circumstances upon which the previous award was based.” See Hogge, 649 P.2d at 54. Second, the court analyzed whether “those changes are sufficiently substantial and material to justify reopening the question of custody.” See id. Because we conclude that the court applied the proper test, we now proceed to analyze whether the court abused its discretion in its application of that test.
B
¶23 In her petition to modify, Mother pointed to three things that she believed led to a substantial and material change in circumstances. First, she contended that Father had been “unable to provide a stable home environment” and find “stable employment.” Second, she contended that Father had “denied [her] physical visitation” to which she was entitled pursuant to the decree. Third, she contended that Father had “become violent with other people” and that “the children have been emotionally abused.” After hearing evidence for a day-and-a-half, the district court concluded that these things did not constitute a substantial and material change in circumstances, finding either that they were occurring, at most, infrequently, or that they had been occurring throughout the litigation and therefore could not constitute a change in circumstances. We conclude that the court did not abuse its discretion in making that determination.
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¶24 Mother’s first contention was that Father had “been unable to provide a stable home environment” for the children because he had “been evicted from several residences” resulting in the children having to change schools a number of times. In addition, Mother contended that Father had not “had stable employment for the last eight years.” The district court acknowledged that Mother had presented evidence that Father’s “income was questionable and [his] lifestyle was a little bit itinerant.” But the court noted in its oral ruling that this had been the case both “before and after the decree,” and that nothing had changed in this regard. In its written ruling, the court made a finding that it had “not received evidence that there has been a significant and material change in [Father’s] ability to provide the children with a stable home.”
¶25 It is unclear from Mother’s brief whether she even intends to challenge the district court’s factual findings, stating that her “appeal is primarily legal.” But in any event Mother has not carried her burden—if indeed she intended to shoulder that burden—of demonstrating that the court’s factual finding was clearly erroneous. As noted above, Mother alleged as early as 2007—in her pre-decree motion to alter the terms of the court’s temporary custody order—that Father had “moved three times in three years and has not demonstrated stability.” Despite Father’s itinerant nature, the first custody evaluator recommended that primary physical custody be awarded to Father, and the stipulated decree followed that recommendation. Presumably, all of that was taken into account during the litigation that preceded entry of the decree. Moreover, in her own petition to modify filed in 2013, Mother alleged that Father’s employment instability had been an issue “for the last eight years,” dating back to 2005, three years before entry of the decree. Issues that were present prior to the decree, and continue to be present in much the same way thereafter, do not represent a change in circumstances sufficient to justify the reopening of a custody decree. See Utah Code Ann. § 30-3 10.4(2)(b)(i) (LexisNexis Supp. 2019) (requiring a “change of circumstance” before reopening a custody decree); see also Becker v. Becker, 694 P.2d 608, 610 (Utah 1984) (stating that the rationale behind the change-in-circumstances requirement “is that custody placements, once made, should be as stable as possible unless the factual basis for them has completely changed”). In the end, Mother has not shown that the district court’s finding—that Father’s employment instability and itinerant nature had been present the whole time and therefore did not constitute a substantial change in circumstances—was clearly erroneous.
2
¶26 Mother’s next contention was that Father failed on numerous occasions to facilitate parent-time as required under the divorce decree. The district court found that, while Father may have committed occasional violations of the terms of the decree, “[t]he court has not received evidence that any denial of physical visitation on the part of [Father] was systemic, deliberate, or pathogenic enough to satisfy the requirements of the law in reopening” the decree.
¶27 Ordinarily, when one parent commits a violation of the terms of a divorce decree, the other parent’s remedy lies in contempt. See Utah Code Ann. §§ 78B-6-301(5), -310 (LexisNexis 2018) (categorizing “disobedience of any lawful judgment [or] order” as “contempt[] of the authority of the court,” and authorizing courts to sanction violators); see also, e.g., Clarke v. Clarke, 2012 UT App 328, ¶¶ 24–31, 292 P.3d 76 (resolving one parent’s request for contempt sanctions against the other for asserted violations of a custody order). In most cases, violations of a custody order by one party will not constitute the type of substantial and material change in circumstances that will justify reexamining the propriety of the order. But if the violations are so numerous and pervasive that it becomes evident that the custody arrangement is “not functioning,” then a change in circumstances may have occurred. See Moody v. Moody, 715 P.2d 507, 509 (Utah 1985) (“[T]he nonfunctioning of a joint custody arrangement is clearly a substantial change in circumstances which justifies reopening the custody issue.”); see also Huish v. Munro, 2008 UT App 283, ¶ 13, 191 P.3d 1242 (same).
¶28 In this case, the district court, after hearing Mother’s evidence, made a factual finding that the evidence of Father’s potentially contemptuous behavior was not so overwhelming as to render the decree unworkable. The court noted that the parties had been “in constant conflict since their separation and likely before,” and that they were “still at war” thirteen years after their separation. The court found that, while Father may have violated the decree with regard to parent-time on a few occasions, Father’s violations were not “systemic, deliberate, or pathogenic enough to satisfy the requirements of the law in reopening” the decree.
¶29 As noted above, it is unclear if Mother even intends to challenge the district court’s factual findings, but in any event she has not demonstrated clear error here. The district court’s finding that the decree had not been rendered unworkable as the result of Father’s violations was supported by, among other evidence, the recommendation of the court-appointed GAL, who expressed the view that the custody arrangement was working well enough and should remain unchanged, and that “the children have maintained throughout these proceedings that they are happy with the current arrangement.” Mother has not demonstrated that the district court’s determination about the decree’s workability was clearly erroneous.
3
¶30 Mother’s final contention was that Father had “become violent with other people and the children have been emotionally abused.” After hearing the evidence, the district court found insufficient evidence that Father had been violent or that he had emotionally abused anyone. In her brief, Mother makes no serious effort to challenge this factual finding, and therefore we are unable to find any error therein.
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¶31 Given that Mother has not mounted a successful challenge to any of the district court’s factual findings, all that remains is for us to examine whether, given these findings, the court abused its discretion in determining that no material and substantial change in circumstances had occurred. See Doyle v. Doyle, 2009 UT App 306, ¶ 7, 221 P.3d 888, aff’d, 2011 UT 42, 258 P.3d 553. And on this record, we have no trouble concluding that the court did not abuse its discretion in making that determination. Many of the issues identified by Mother in her petition—such as Father’s unstable employment and frequent change of residence—had been present from the outset of this case, and were present before the decree was entered; such ever-present conditions cannot constitute a change in circumstances sufficient to reopen a custody decree. Any issues Father had with complying with the terms of the decree were apparently not egregious or pervasive enough to render the custody arrangement unworkable. And the district court, after listening to a day-and-a-half of evidence, did not hear any evidence that Father had acted violently or abusively toward anyone.
¶32 Under these circumstances, the district court did not abuse its discretion in concluding that Mother had not carried her burden of demonstrating a change in circumstances that was substantial and material enough to justify reexamining the parties’ longstanding custody arrangement. Because Mother did not satisfy the first part of the statutory test for obtaining a modification of a divorce decree, the district court did not err by dismissing her petition.
CONCLUSION
¶33 For all of the foregoing reasons, we affirm the district court’s dismissal of Mother’s petition to modify.
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