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Tag: independently verifiable proof

Child refuses to leave noncustodial parent’s house. What happens now?

I am the noncustodial parent. Our child came to my house for parent-time and now refuses to leave because he wants to live with me. What happens now?

I will answer this question in the context of my experience as a lawyer in the jurisdiction where I practice divorce and family law, which is Utah.

This is a weird area of Utah law because you’ll hear the legislature and the courts tell you that children don’t get to choose where they live, and then when children do that very thing (i.e., refuse to live where the court orders them to live), the courts find themselves essentially powerless to change anything. At least that’s my experience over the 24 years I’ve been in practice.

Now before some of you start licking your lips and scheming, thinking, “I’m the noncustodial parent, but I can change that by simply telling our child to choose to refuse to return to the custodial parent’s house,” you need to be aware of the realities.

If you’re the noncustodial parent and your child or children are under the age of 14 or so, and they claim that they don’t want to live with the custodial parent, there’s a very good chance that the court is going to believe that you are a puppet master who coached the children or otherwise induced or coerced them into claiming they want to live with you. That may not be true, but you’re going to be met with that kind of skeptical presumption. So if you are the noncustodial parent with young children who you assert claim they don’t want to live with the custodial parent, you have an uphill battle ahead of you. If you are the noncustodial parent and a father, you have an almost impossibly uphill battle ahead of you.

If, however, your children are 14 years or older, and you are the noncustodial parent with whom your children say they want to live, it will be harder for your ex and/or the court to presume that the children are lying and/or don’t have good reasons for wanting to live with you. Again, if you are the father making this claim, your claim will be met with more skepticism than if you were the noncustodial mother making such a claim. Why is this? Because there is a pernicious belief in the legal system that fathers are generally worse parents than our mothers, that fathers don’t want custody of their children, and that the only reason fathers would seek custody of their children is to avoid paying child support. As a result of these beliefs, fathers who seek custody of their children are met with not just skepticism, but often derisive skepticism. Forewarned is forearmed.

So, if you are a noncustodial parent who is good and decent, and your child honestly and sincerely comes to you saying, “mom/dad, I can’t stand living with the custodial parent anymore, and I want to live with you,” how do you proceed?

First, if the child refusing to live with the custodial parent because the child just wants to spend more time with you and/or less time with the custodial parent, and the custodial parent is not neglecting or abusing the child in any way, then you as the noncustodial parent have both a legal and moral obligation to talk the child into going back to the custodial parent’s home, or if persuasion doesn’t work, imposing limitations and restrictions and punishments upon the child so that the child won’t get the impression that he or she is in charge. At the same time, the custodial parent needs to acknowledge the child’s desires to spend more time with the noncustodial parent as being a legitimate concern that needs to be addressed and resolved, and that usually means the custodial parent agreeing to give the child and the noncustodial parent more time together. If the custodial parent refuses to do the right thing, you may ask whether it’s wise to petition the court for a modification of the child custody award, so that you and the child get more time together. Unfortunately, odds are that if you file a petition to modify child custody and the only basis for your petition is the child’s desire to spend more time with you, you will probably lose. While it is technically and conceivably possible to win such a petition, usually the courts in Utah require more than just the child’s desire as the basis for a modification. And what form does this “more” take? Typically, you would have to show that the custodial parent is neglecting and/or abusing the child to get a modification of the child custody award.

Second, if the child is refusing to reside with the custodial parent because the custodial parent is truly neglectful and/or abusive, and if you have independently verifiable proof of this, you have the option of petitioning the court to modify the child custody award, changing the custodial parent from your ex to you. While that petition is pending, your child may refuse to return to the custodial parent’s home, and for reasons at least you and the child know to be valid. Whether the court allows your child to stay with you depends upon how your court views the situation and what is best for the child.

If you find yourself in this kind of situation, whether you are the custodial parent or the noncustodial parent, this is one of those situations where you need to seek good legal advice immediately, to help ensure that neither you nor the child is victimized.

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

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What’s the benefit of having no record of the child’s interview?

What’s the benefit of having no record of the child’s interview?

This post is the eleventh 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.

Even if private guardians ad litem work diligently and find a lot of useful information, there is no way to know that because they are not required to furnish any proof to verify the quality of their work and opinions. And so, when guardians ad litem say that they don’t tell us much, if anything, about what the child said, and refuse to provide of the evidence upon which they base their recommendations, but instead merely make a recommendation as to what is in the child’s best interest, the evidentiary basis for those recommendations, the factual basis in the record, is literally non-existent. What verifiable proof of anything pertaining to a child’s best interest when it comes to custody and parent time does a GAL bring to the table? Literally nothing.

Why should we take the unsubstantiated word of the GAL over the word of the child directly stated to the judge in an on the record interview with the judge? I do not see how a GAL can represent a child when there is no way to tell whether the GAL has done good/adequate/preponderance of evidence work or any work at all. The GAL’s work and the child’s interview(s) are not made on the record, so we have no idea what was asked of the child or what the child said in response. The GAL is not subject to discovery, so any ostensible evidence upon which the GAL claims to have based her analysis and recommendations will not exist as a matter of court record. The court literally takes on faith what the GAL recommends, if the court decides to believe anything the GAL says. I ask you: why I go through any of this rigmarole when the judge can interview the children directly, without any second or third hand intermediaries, far more quickly, accurately, particularly, and inexpensively than a GAL or custody evaluator?

I have never witnessed a private guardian ad litem meet or speak with the children for multiple times or for significant periods of time (nor am I aware of the need for this). Even if they did so, how would we ever know? None of their conversation(s) is/are made part of the court’s record. And even if a guardian ad litem and/or custody evaluator were to spend hours speaking with the child, attending the child’s activities, becoming intimately acquainted with the child circumstances, feelings and needs, neither the parents nor the court will ever know this because A) neither the guardian ad litem nor the custody evaluator is required to record interviews with the children, will never really know what they were asked or what they said in response and B) the judge will never speak with the child to verify whether what the guardian ad litem and/or custody evaluator reports is true. I do not know why anybody believes this is an acceptable way to engage in fact-finding, especially in court proceedings. No one has yet convincingly explained why to me, and I’ve asked around a lot.

I’ve heard guardians ad litem claim to have spoken to collateral sources, but how would we know if they ever did or what they asked or what they were told? No record is made of any of their alleged actions, no discovery can be conducted into who these alleged collateral contacts were or what they actually said to the guardian ad litem. In most cases, the guardian ad litem doesn’t even identify specially who he or she spoke with, and even if these collateral sources were specifically identified, we have no record of the conversation between the GAL and the collateral sources. And by the time you learn who the collateral sources are, the guardian ad litem is already made his or her report to the court, so you can’t cross-examine any of the alleged collateral sources the Guardian ad litem claims to have interviewed.

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

 

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

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

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

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

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

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

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

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

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

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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?

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.

 

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

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