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Tag: legal custody

Obstacles Fathers Face in Trying to Get Joint Custody of Their Children

I have been asked by a reader to answer two questions.

The first: whether I believe courts generally apply a double standard in the treatment of mothers and fathers when courts make their child custody and parent-time (visitation) orders. The answer is “yes”. Not just “yes,” but “unquestionably, yes.”

The second: What do fathers need to do to meet and overcome that double standard? This is not a polar or closed question, so it requires a prescriptive response.

Before I answer the second question in detail, we need to understand—really and fully understand—why courts generally apply a double standard in the treatment of mothers and fathers when courts make their child custody and parent-time orders. Several volumes could easily be dedicated to the reasons why, so understand what I provide here is not merely concise but rather terse and not exhaustive (though no less true). In no particular order, here are the reasons I’ve encountered:

  • Few will admit it, but most people—both men and women—harbor the belief that women are better parents than men generally.[1]Many judges (both men and women) literally find it impossible to conceive that a father can be as effective a parent as a mother. Consequently, many courts substitute scrutiny and analysis of each particular parent in each particular case for playing the odds by awarding sole primary custody of the children to the mothers.
  • For jurisdictions that base child custody and parent time decisions upon which parent is the “primary caregiver,” courts inexcusably apply a needlessly biased definition of “primary caregiver.” For example, in Utah, “primary caregiver” has been defined as:

We believe that the choice in competing child custody claims should instead be based on function-related factors. Prominent among these, though not exclusive, is the identity of the primary caretaker during the marriage. Other factors should include the identity of the parent with greater flexibility to provide personal care for the child and the identity of the parent with whom the child has spent most of his or her time pending custody determination if that period has been lengthy. Another important factor should be the stability of the environment provided by each parent.

(Pusey v. Pusey, 728 P.2d 117 (August 18, 1986 Supreme Court of Utah))

The Pusey standard is over 37 years old as of the date this post is written, but is still followed in Utah. The standard is outmoded and do for a change. I believe that change is coming soon and that when that day comes, sexual discrimination against father in the child custody and parent time awards will suffer a fatal or near-fatal blow, but that day is not here yet. Even so, the seeds of Pusey’s destruction are found in the decision itself:

“[T]he provisions of article IV, section 1 of the Utah Constitution and of the fourteenth amendment of the United States Constitution would preclude us from relying on gender as a determining factor.”

The primary caregiver standard is (as many of you have already surmised), in many respects, just another disguise for bias in favor of mothers and against fathers.

I would like to say that I do not understand why courts in Utah continue to overlook the obvious fact that most of these so-called primary caregiver parents’ status depends upon the other parent being the sole or primary breadwinner. Otherwise stated, the reason mom can stay home with the kids is because dad is the one working to put that roof over their heads and providing all of the other necessities of life without the mother having to work outside the home herself. And so the courts have these kinds of fathers on the heads, ostensibly thank them for their sacrifices and for being upstanding, responsible men, then turn around and hand over sole or primary custody of the children to the mother nonetheless.

o   The problem with this thinking is that divorce fundamentally changes family dynamics. The primary caregiver analysis often fails to acknowledge that the physical primary caregiver status will rarely remain static post-divorce.

She (or he, in rare instances) who was the primary caregiver when the family all resided under the same roof will rarely remain able to be a stay-at-home parent post-divorce. That stay-at-home parent may find herself having to work outside the home to provide financially both for herself and for the children.

Likewise, fathers who used to come home to their children every day but who now realize they will be lucky if they get to see their kids every other day, will often make sacrifices so that they can spend as much time caring for their kids as possible when they are not at work. Courts, however, largely act as though this fact of life isn’t real. Or they may ostensibly acknowledge the fact in their custody and parent time decisions, custody and parent time awards themselves– mom still ends up with sole or primary custody, and dad ends up with every other weekend, alternating holidays, and a few weeks in the summer.

In Utah, the law is:

“Determining which factors the court must address in a given case, and to what degree, presents a tricky task,” and that “courts are not required to render a global accounting of all evidence presented or to discuss all aspects of a case that might support a contrary ruling.” See Twitchell, 2022 UT App 49, ¶ 21, 509 P.3d 806

But “where significant evidence concerning a particular factor is presented to the district court,” especially where that factor is a critically important one, “findings that omit all discussion of that evidence” and of that factor “must be deemed inadequate.” Id.

(Twitchell v. Twitchell, 2022 UT App 49, ¶ 21, 509 P.3d 806)

But it doesn’t take a genius to find that courts can, if they so desire, overlook pretty much whatever evidence they want (to get to the ruling they want) by simply deeming/dismissing/discounting such evidence as “insignificant”.

So what can (or even must) fathers do to ensure that they (and their children’s relationships with them) are simply treated fairly and impartially in the child custody and parent-time awards? An exhaustive list of pointers could run into the hundreds, but here are the most important, in my estimation (again, in no particular order):

  1. Approach your case like a black man would back in the 1960s who was a defendant in a criminal case: to win, he had to prove his innocence, and he had do it with 10 times more evidence than a white defendant needed. Fathers need to prove their parental fitness. Rarely will a court presume fitness of a father (they presume a mother’s fitness all the time). Generally, fathers must have far more and far better evidence of their fitness compared to what the courts require of mothers. Otherwise stated, you need so much evidence, and so much high-quality evidence, that even the most biased/cynical judge cannot deny you without looking inept or corrupt.
  2. Prove that you satisfy every custody factor the court must consider. In Utah, those factors are found here:

Utah Code § 30-3-10.  Custody of a child—Custody factors.

Utah Code § 30-3-10.2.  Joint custody order—Factors for court determination—Public assistance.

30-3-32.  Parent-time—Definitions—Considerations for parent-time — Relocation.

Utah Code § 30-3-34.  Parent-time — Best interests — Rebuttable presumption.

Utah Code § 30-3-35.1.  Optional schedule for parent-time for a child five to 18 years old.

30-3-35.2.  Equal parent-time schedule.

  1. Document everything you possibly can to prove you are a fit parent who can and should exercise at least equal custody of your children (do not seek sole custody or primary custody out of spite—that is wrong).
  2. Do everything you reasonably, possibly can to show you are a fit parent in every way.
  3. If you and your wife are separated, make sure you live as close to your wife as you can, so that the children are in the same neighborhood near their same friends and familiar favorite places, same school district where the children attend school, and can attend the same church they have been historically attending, so that the court doesn’t say, “Dad, you live too far away to make awarding you equal custody good for the children.” Do you see why?
  4. If you live too far away from your kids, they will end up presenting spending any time with you, resent the travel back and forth between their parents’ homes, they won’t have any friends in your neighborhood, they will be too far away from school and extracurricular and church activities, and you risk them telling you that spending time with you is more trouble than it’s worth.
  5. Get your hands on all the latest rigorous research showing that children, whether boys or girls, fare better in an equal custody arrangement. You may even need to retain the services of an expert witness to testify to these things. If you simply dump scholarly articles on the court, they will likely not be admissible without an expert witness to verify that they are legitimate and valid.
  6.       Live a life beyond reproach, and document it in painstaking detail.
  7. You want to do everything to prove this beyond any reasonable doubt: “Your Honor, if what I have set up by way of where I live and what my work schedule is and how much time I can spend providing personal care and attention for the children doesn’t qualify me in every meaningful way to exercise equal physical custody of our children, then there is no other realistic situation that can.”
  8. Ensure that the court makes findings that you meet every factor (ensure that the court makes findings on every factor and points to the evidence supporting each and every finding).
  9. Don’t merely prove you are a good parent. To the extent you can, also DISPROVE all the claims that you are not a good parent.
  10. Be careful about admitting your wife is a good and fit parent if she’s claiming you are a bad and unfit parent.
  11. No, I’m not advising you to lie about your wife’s parental fitness, I’m warning you that I’ve seen courts make findings like this far too often: “Dad admits that Mom is a good parent, but Mom claims Dad is a bad parent, and so Mom wins the parental fitness argument.” It’s disgusting, but it happens.
  12. Don’t believe that “falling on your sword for your kids” will benefit you, or the kids for that matter. When you do that, you run the unnecessary risk of the court pulling a “no good deed goes unpunished” move like, “Dad said he’s willing to agree to less than equal custody to settle the case and put an end to the fighting; so be it.” That may have worked with Solomon, but it rarely works in court.
  13. Show that depriving a child of any care and love and companionship and tutelage that a parent is able and willing to give that child is inherently contrary to the best interest of the child. Show that “the best parent” is BOTH parents. Show that children have a right to loved and reared by both of their parents as much as possible.
  14. Blow the “primary caregiver” argument as meaning “woman” or even “the stay-at-home parent” to smithereens. It’s a pernicious lie. Read my other blog post for more on this and other bogus arguments against fathers and joint legal and physical custody of children: All Men Are Created Equal: A Proof for the Presumption of Joint Physical Custody – Divorce Utah

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


[1] I am nothing, if not frank. It is probably true that if you took a random sampling of parents and analyzed which of the two, among the mother and the father, is the more competent and attentive parent, a higher percentage of those parents would be mothers instead of fathers. But that doesn’t mean that every mother is presumptively a better parent than every father in a child custody dispute. It’s when courts indulge in such a presumption that they indulge in sexual discrimination, indulge in analytical laziness, and thus can (and often do) commit error.

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What happens in court if I file for divorce but my husband has an active case on me for child support? Will I get the child?

Whether you “get the child” (meaning whether you will be awarded physical custody of the child) has little to no relevance to the fact that your spouse is seeking child support from you.

My guess is, based upon the way you phrased your question, that 1) you and your husband are separated and were separated before you filed, or before you have contemplated filing, for divorce; 2) the children have been, on an informal basis (i.e., no court order) your spouse has been exercising sole or primary custody of the children for a while since the separation occurred; and 3) your spouse has applied for an administrative order or court order for child support without having filed for a divorce. Under such circumstances, what would weaken your case for awarding custody to you would be the fact that the children have been in the sole or primary custody of your spouse during separation (and thus, the argument would go, that is the way it should stay, if and when a court issues a decree of divorce), not that he/she has sought child support from you.

If the children have been in the sole or primary custody of your spouse since separation and this is not due to your spouse having concealed the children from you, having absconded with the children, or having otherwise not obtained and exercised this de facto sole/primary custody wrongfully, then it’s not the fact that your spouse is seeking child support from you that hurts your case for custody. What hurts your case for custody being awarded to you is the fact that your spouse stepped up to take care of the kids and you did not.

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

Eric Johnson’s answer to What happens in court if I file for divorce but my husband has an active case on me for child support? Will I get the child? – Quora

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Kingston v. Kingston – 2022 UT 43 – Parental Rights, Due Process Rights

2022 UT 43

IN THE SUPREME COURT OF THE STATE OF UTAH

RYAN CLYDE KINGSTON,
Appellant,

v.

JESSICA BENNY KINGSTON,
Appellee.

No. 20200350

Heard April 11, 2022
Filed __

On Appeal of Final Decree of Divorce

Third District, Salt Lake

The Honorable Andrew H. Stone

No. 144904226

Attorneys:

Steve S. Christensen, Clinton R. Brimhall, Salt Lake City, for appellant

Benjamin K. Lusty, Lisa Watts Baskin, Jaryl L. Rencher, Salt Lake City, for appellee

CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
JUDGE MORTENSEN and JUDGE TENNEY joined.

ASSOCIATE CHIEF JUSTICE PEARCE filed a dissenting opinion, in which
JUSTICE PETERSEN joined.

Having recused himself, JUSTICE LEE did not participate herein;
COURT OF APPEALS JUDGE RYAN D. TENNEY sat.

Due to his retirement, JUSTICE HIMONAS did not participate herein;
COURT OF APPEALS JUDGE DAVID N. MORTENSEN sat.

JUSTICE HAGEN and JUSTICE POHLMAN became members of the Court
after oral argument in this matter and accordingly did not participate.

CHIEF JUSTICE DURRANT, opinion of the Court

Introduction

¶1 Ryan and Jessica Kingston[1] divorced in 2016, following eight years of marriage and the birth of four children. At the time of their marriage, Ryan and Jessica were both members of the Order, also known as the Kingston Group, a polygamous religious community. Ryan remains a member of the Order today, but Jessica left the Order before the divorce.

¶2 During the divorce proceedings, the teachings and practices of the Order became a key issue as both Ryan and Jessica sought custody of their four children. Jessica argued that some of the Order’s teachings and practices, such as polygamy, were contrary to their children’s best interests. The district court found that the children faced potential harm from exposure to the Order-specifically noting the group’s practices of grooming children for early marriage and demonizing those, including Jessica, who have left the religion.

¶3 Based on Jessica and Ryan’s inability to agree on decisions regarding the children, concerns about Ryan’s behavior (including his membership in the Order), and a finding that Jessica had been the children’s primary caretaker, the district court granted sole legal custody to Jessica. The court ordered that physical custody be shared by both parents. Addressing its concerns about Ryan’s religious beliefs, the court also ordered in the divorce decree that “[t]he children should not be encouraged to adopt the teachings of any religion or be baptized into any religion without the consent of the legal guardian.”

¶4 Ryan does not challenge the district court’s award of sole legal custody to Jessica or its prohibition against him baptizing the children without her consent. But he argues the court’s prohibition against him encouraging the children “to adopt the teachings of any religion” without Jessica’s consent violates his fundamental right “to encourage them in the practice of religion”[2] protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. He also argues that the court’s prohibition violates his free speech, free exercise, and parental rights simultaneously under a hybrid rights theory. Alternatively, Ryan argues that even if the prohibition does not violate his constitutional rights, the district court abused its discretion because the prohibition “is not support[ed] by findings that show a rational basis for the ultimate decision.” We conclude that Ryan’s hybrid rights argument is inadequately briefed, so our analysis focuses on his argument that the prohibition interferes with his fundamental right as a parent. Ryan contends that any interference with this fundamental right must be narrowly tailored to achieve a compelling state interest and that the district court’s prohibition was overly broad.

¶5 Jessica counters that Ryan has no fundamental right to assert because he does not have legal custody of the children, and that even if Ryan’s fundamental right is implicated, the prohibition was narrowly tailored to address the State’s compelling interests in (1) “awarding legal custody based upon the best interests of the children”; (2) “resolving parenting disagreements”; and (3) “shielding the minor children from exposure to psychological harm resulting from teachings found to be harmful to them.”

¶6 We agree with Ryan that he has a fundamental right to encourage his children in the practice of religion. And the court’s award of sole legal custody to Jessica does not eliminate this fundamental right. Rather, the award of legal custody to Jessica limits Ryan’s parental right only to the extent necessary to provide Jessica with the authority to make major decisions for the children.

¶7 We also hold that the district court’s prohibition against Ryan “encourag[ing] [the children] to adopt the teachings of any religion” is not narrowly tailored to address the potential harms identified by the court. So we remand to the district court to craft a more narrowly tailored remedy. Because we determine that the prohibition violates Ryan’s fundamental right-and are remanding on this basis-we do not reach his alternative argument that the district court abused its discretion by failing to make adequate findings to support its prohibition.

Background

¶8 Ryan and Jessica grew up in a polygamist religious community known as the Order. They were married in 2008 and subsequently had four children together. At the time of their marriage, Ryan was twenty-one years old and Jessica was only sixteen. Jessica gave birth to their first child just six months after turning eighteen.

¶9 On July 29, 2014, Ryan and Jessica separated, and at that time, Jessica sought and was granted a temporary protective order from Ryan. The following month, Ryan filed a petition for conciliation, but Ryan and Jessica were unable to work out their differences.

¶10 Ryan filed for divorce in July 2015. The divorce trial began in September 2016. The district court bifurcated the proceedings, granting the divorce on September 27, 2016, but “reserving the remainder of the certified issues for further trial.”

¶11 After the divorce was granted, but before the resolution of the rest of the divorce proceedings, Ryan began to practice polygamy, entering into two new marriages. One of Ryan’s new wives was a teenager who “had only weeks before testified at trial that she herself had no intentions of marrying Ryan.” The other was Jessica’s half-sister. Leading up to the second part of the divorce trial in July 2019, Ryan and Jessica engaged in discovery, debated several motions that are not relevant to this appeal, completed two full custody evaluations, and unsuccessfully attempted to mediate their outstanding differences.

¶12 In July 2019, an eight-day trial took place, with the district court hearing testimony from dozens of witnesses, including multiple custody evaluators. After the trial, the court granted Jessica sole legal custody, determining a sole legal custodian was necessary because Ryan and Jessica were unable to agree on major decisions. The court decided to award Jessica sole legal custody because it found that she had been the primary caretaker of the children and that “Ryan’s religious practices . . . represent a direct threat of harm to the children.”

¶13 The court made both general and specific findings that Ryan’s religious beliefs could be harmful to the children, stating that “[t]he Order’s religious teachings jeopardize the health or safety of the children, and will cause harm to the children’s welfare.” Specifically, the court raised two concerns: (1) that the Order promotes the grooming of young girls to be child brides; and (2) that “[t]he Order’s teachings alienate the children from their mother” because “the Order community as a whole engages in ostracizing outsiders and demonizing people who have chosen to leave the group; actually referring to them as ‘the Devil’ or ‘of the Devil.'” And these concerns were exacerbated because “Ryan prioritizes plural marriages and adhering to his religious practices” over the best interests of the children.

¶14 The court was particularly concerned that “the parties have three young girls who[m] Ryan wishes to raise in a culture that grooms them to be child brides.” The court noted that Ryan had married Jessica, when she was only sixteen, and a second wife, who was only eighteen at the time of marriage. The court determined that “the potential for the ‘grooming’ of girls and young women in the Order represents a potential for significant social burdens, and the parties’ daughters should be reasonably protected from the potential harms related to grooming.”

¶15 Turning to its concern that the children may be alienated from Jessica by the Order’s teachings, the court noted that “[a]ny attempts to teach the children to denounce Jessica would be abusive.” The court found “that the Order community as a whole engages in ostracizing outsiders” and that exposure to these teachings “would be tantamount to abuse.”

¶16 The court also found that Ryan’s decision to marry Jessica’s half-sister and an eighteen-year-old while the divorce was pending, coupled with his desire that the children attend Order-run schools and extracurricular activities, was “indicative of his inability to prioritize the well-being of his children.” The court found that Ryan’s two marriages exposed the children to “[t]he inherent confusion that comes with such intermingled familial relationships” and were not in the children’s best interests. Looking at educational choices, the court found that Ryan had prioritized the Order over the children’s best interests by insisting they attend Ensign Academy, a school run by the Order, despite the school lacking “qualified or licensed educators.” This finding was supported by evidence demonstrating that the curriculum at Ensign Academy emphasizes “obedience to the ‘Order'” and “compliance to Kingston authority figures,” while also “encourag[ing] the children to reject outsiders”-including by teaching them “a ‘Memory Gem’ that taught, ‘If the Order doesn’t have it, we don’t need it.'”

¶17 Despite these concerns, the court granted Ryan and Jessica shared physical custody of the children, recognizing that “[b]oth parents have shown an ability to address the physical, psychological, and emotional needs of the children, though the evidence strongly favors Jessica on this point.” The court noted that although major decisions were a source of conflict, “day-to-day decisions regarding the children appear to be different,” as Ryan and Jessica had been able to “coordinat[e] travel and pick-ups[] and jointly supervis[e] and facilitat[e] their children’s homework and activities … with relatively little conflict.” The court also found that “[e]ach parent has demonstrated responsibility in caring for the children” and that “the children are happy, healthy, and thriving.” Based on these findings, the court granted shared physical custody-with Jessica as the custodial parent-requiring that Ryan get at least the minimum amount of time with the children set out in Utah Code section 30-3­35.1.

¶18 As part of the parenting plan, the court ordered that “the children shall not be encouraged to adopt the teachings of any religion or be baptized into any religion without the consent of the legal guardian.” Ryan filed a motion for the district court to amend its findings of fact, conclusions of law, and judgment, but the district court made only one minor revision, which did not address the prohibition against religious encouragement.

¶19 Ryan appealed, arguing the prohibition against religious encouragement violates his constitutional rights under the First and Fourteenth Amendments and that, even if it does not violate his constitutional rights, it is an abuse of the district court’s discretion. Specifically, he contends the order violates his fundamental right as a parent protected by the Due Process Clause and his free speech, free exercise, and parental rights simultaneously under a hybrid rights theory. The case was certified to us by the court of appeals. We have jurisdiction under Utah Code section 78A-3-102(3)(b).

Standard of Review

¶20 We review custody determinations deferentially, and so long as the district court’s “discretion is exercised within the confines of the legal standards we have set, and the facts and reasons for the decision are set forth fully in appropriate findings and conclusions, we will not disturb the resulting award.”[3] But to the extent Ryan’s appeal is based on an alleged violation of his constitutional rights, we review the district court’s decisions on constitutional issues for correctness.[4]

Analysis

¶21 Ryan argues that the district court violated his constitutional rights and abused its discretion by prohibiting him from “encourag[ing] [the children] to adopt the teachings of any religion … without the consent of the legal guardian.” He presents two overarching arguments: (1) the prohibition violates Ryan’s constitutional rights “under both a substantive due process theory and under a hybrid free speech/free exercise/parental rights theory”; and (2) in the alternative, even if the district court’s order is constitutionally sound, the district court’s “findings do not logically, rationally, or reasonably justify the prohibition.”

¶22 Looking at Ryan’s constitutional arguments, we start by noting that Ryan’s hybrid rights argument is inadequately briefed.[5] So our constitutional analysis is limited to Ryan’s argument that the district court’s prohibition interferes with his fundamental right as a parent “to encourage [his children] in the practice of religion.” And because we resolve the case based on Ryan’s fundamental parental right, we do not reach his alternative argument that even if the prohibition is constitutional, the district court’s findings do not adequately support it. Ryan’s fundamental right argument is two­fold. He argues that (1) the district court’s prohibition must satisfy strict scrutiny because it interferes with a fundamental right; and (2) the prohibition is not narrowly tailored to address the compelling interests identified by the court.

¶23 Jessica counters that (1) because Ryan does not have legal custody of the children, he has no fundamental right at issue; and (2) even if strict scrutiny applies, the prohibition is narrowly tailored to fit a compelling state interest.

¶24 We agree with Ryan that parents have a fundamental right to encourage their children in the practice of religion under the Due Process Clause of the Fourteenth Amendment. We further determine that the award of sole legal custody to Jessica does not rob Ryan of this right but curtails it only to the extent necessary to give Jessica the authority to make major decisions for the children. And we conclude that strict scrutiny applies because the district court’s prohibition interferes with Ryan’s fundamental right and goes beyond allocating custody and decision-making authority.

¶25 Next, applying strict scrutiny, we hold that although the district court’s prohibition is aimed at serving a compelling governmental interest, it is not narrowly tailored to address that interest. So because the prohibition violates Ryan’s constitutional right, we remand to the district court to amend the divorce decree in accordance with this opinion.

I. The District Court’s Prohibition Interferes with Ryan’s Fundamental Right to Encourage His Children in the Practice of Religion

¶26 Ryan argues that the district court’s order preventing him from encouraging his children to adopt the teachings of any religion without Jessica’s consent violates his fundamental right to participate in his children’s religious upbringing. He contends that a string of United States Supreme Court cases, starting with Meyer v. Nebraska,[6] recognizes a liberty interest protected by the Due Process Clause of the Fourteenth Amendment for parents to give their children “religious training and to encourage them in the practice of religious belief.”[7]

¶27 Jessica counters that because she has been awarded sole legal custody, “Ryan does not have a fundamental liberty interest in providing religious instruction to the children contrary to [her] wishes.” She contends that “a key distinction between a custodial and a noncustodial parent must be made to determine whether a fundamental liberty interest is indicated.”

¶28 To review the district court’s limitation on Ryan’s parental rights, “we must identify and apply a standard of scrutiny.”[8] And to identify the correct level of scrutiny, we must determine if a fundamental right is at issue. “If the right infringed or foreclosed is a right we have deemed ‘fundamental,'” we adhere to “our strict scrutiny standard.”[9] If the right identified is not fundamental, then the state interference is subject to only deferential, rational basis review.[10]

¶29 “Under the approach established by the Supreme Court, the nature of parental rights is defined based on (1) the status of the individual invoking the right and (2) the parental conduct to be protected.”[11] Looking to Supreme Court caselaw, we hold that parents have a fundamental right to encourage their children in the practice of religion. And while an award of legal custody to one parent in a divorce limits the other parent’s ability to make major decisions for the children, it does not eliminate this fundamental right. So any state interference with parents’ right to encourage their children in the practice of religion, including the district court’s prohibition here, is subject to strict scrutiny.

A. The United States Supreme Court Has Recognized Parents’ Fundamental Right to Encourage Their Children in the Practice of Religion

¶30 The Due Process Clause of the Fourteenth Amendment to the United States Constitution declares that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” The Supreme Court “ha[s] long recognized that the Amendment’s Due Process Clause, like its Fifth Amendment counterpart, ‘guarantees more than fair process.'”[12] “The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests.”[13] And “the interest of parents in the care, custody, and control of their children … is perhaps the oldest of the fundamental liberty interests recognized by th[e] Court.”[14]

¶31 In Meyer v. Nebraska, the Supreme Court held that the Due Process Clause refers to liberty beyond “mere[] freedom from bodily restraint,” to include individual rights such as “the right of the individual to … bring up children.”[15] Two years later, the Court again recognized this right in Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary as “the liberty of parents and guardians to direct the upbringing and education of children under their control.”[16]

¶32 The Court continued to develop its jurisprudence around the rights of parents under the Fourteenth Amendment in two cases addressing parents’ right to take part in their children’s religious upbringing: Prince v. Massachusetts[17] and Wisconsin v. Yoder.[18]

¶33 In Prince, Ms. Prince, the aunt and legal custodian of a nine-year-old child, argued that Massachusetts’s child labor laws unconstitutionally interfered with her “rightful exercise of her religious convictions.”[19] She was found to have violated Massachusetts’s child labor laws when she took her niece with her to preach and distribute Jehovah’s Witness religious materials in the evening.[20] Massachusetts’s law prohibited children from selling magazines in the evening and specifically prevented adults from providing magazines to children for this purpose.[21] Guardians were also prohibited from knowingly allowing their children to violate child labor laws.[22]

¶34 Ms. Prince argued that the child labor statutes were unconstitutional as applied to her because they violated both her First Amendment right to freedom of religion and her right under the Due Process Clause of the Fourteenth Amendment to teach her child “the tenets and the practices of [her] faith.”[23] The Prince Court recognized the significance of these two rights coming together, commenting that “[t]he parent’s conflict with the state over control of the child and his training is serious enough when only secular matters are concerned. It becomes the more so when an element of religious conviction enters.”[24]

¶35 The Prince Court proceeded to balance the State’s interest in protecting child welfare through child labor laws against Ms. Prince’s “sacred private interests.”[25] The Court recognized the right of “parents to give [their children] religious training and to encourage them in the practice of religious belief,” noting that “[i]t is cardinal with us that the custody, care[,] and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”[26] But the Court held that “neither rights of religion nor rights of parenthood are beyond limitation,”[27] determining that the child labor laws were necessary to address “the crippling effects of child employment.”[28]

¶36 In Wisconsin v. Yoder, the Court revisited the right of parents to direct their children’s religious upbringing.[29] In that case, a group of Amish parents questioned the constitutionality of a Wisconsin law requiring children to remain in school through the age of sixteen.[30] The Amish parents believed sending their children to school beyond the eighth grade violated their religious tenets, such as independence from the outside world, living cooperatively rather than competitively, and education based on doing rather than formal learning.[31] They believed that complying with the compulsory attendance law and sending their children to high school would ” endanger their own salvation and that of their children.”[32]

¶37 Like in Prince, the Court looked at the intersection of free exercise rights protected by the First Amendment and the fundamental rights of parents protected by the Due Process Clause of the Fourteenth Amendment. The Court recognized that the compulsory education law interfered with the Amish parents’ rights “specifically protected by the Free Exercise Clause of the First Amendment” and also the fundamental right “of parents with respect to the religious upbringing of their children.”[33]

¶38 The Court concluded, “Even more markedly than in Prince, therefore, this case involves the fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children.”[34] And when balancing the State’s interests versus those of the Amish parents, the Court applied a heightened level of scrutiny, stating that “when the interests of parenthood are combined with a free exercise claim of the nature revealed by this record, more than merely a ‘reasonable relation to some purpose within the competency of the State’ is required to sustain the validity of the State’s requirement under the First Amendment.”[35]

¶39 The Court struck down Wisconsin’s compulsory attendance requirement as applied to the Amish parents, holding that the State failed to show with sufficient “particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish.”[36]

¶40 Although the Yoder Court partially relied on the Free Exercise Clause, it also referred throughout the decision to parents’ fundamental right to encourage their children in the practice of religion. The Court referred to the holding in Pierce as “stand[ing] as a charter of the rights of parents to direct the religious upbringing of their children.”[37] Years later, in Employment Division v. Smith, the Court distinguished Yoder from other free exercise cases on the basis that the holding rested partially on “the rights of parents to direct the religious upbringing of their children.”[38]

¶41 Looking at the chain of cases from Meyer to Yoder, the Supreme Court has recognized that parents have a fundamental right to encourage their children in the practice of religion.

B. Parents’ Fundamental Right to Encourage Their Children in the Practice of Religion Is Not Dependent upon Legal Custody

¶42 Jessica does not directly attack the existence of parents’ fundamental right to encourage their children in the practice of religion; rather, she argues that it does not extend to Ryan, because she is the sole legal custodian of their children. She contends that under the two-part test used in In re Adoption of K.T.B.[39]-looking at both an individual’s status and the conduct protected in analyzing parental rights-the fundamental right established by the Supreme Court is limited to those with the status of parent with legal custody.

¶43 Ryan counters that “[t]he correct approach … is to view Ryan and other parents who did not win joint or sole legal custody of their children during their divorce as having lost only as much of their parental rights as was necessary to fulfill the government’s compelling purpose.” He argues that the compelling purpose served by an award of sole legal custody is “to allocate indivisible parental rights, such as deciding which school the child is enrolled at or into what religion the child is formally inducted.” According to Ryan, the district court’s award of sole legal custody to Jessica limits his parental rights only with regard to these decisions.

¶44 We find Ryan’s argument to be more persuasive. Both Prince v. Massachusetts and Wisconsin v. Yoder describe the fundamental right to “encourage [their children] in the practice of religious belief” as belonging to those with the status of “parent.”[40] Jessica is asking us to change “[t]he level of generality” at which the right identified in Prince and Yoder is framed, but “[t]he level of generality at which an asserted right is framed may properly be considered an unresolved issue only where a party argues that the Due Process Clause protects someone whose (1) status or (2) conduct had not previously received constitutional protection.”[41]

¶45 In In re Adoption of K.T.B., we examined this standard by looking at two cases where the Supreme Court addressed the level of generality of a right when an individual’s status had previously not received constitutional protection: (1) the status of foster parents, analyzed in Smith v. Organization of Foster Families for Equality & Reform;[42] and (2) the status of an unmarried father of a child born into a woman’s existing marriage with another man, analyzed in Michael H. v. Gerald D.[43] In both of those cases, the Court looked to the traditional meaning of “parent,” recognizing that “the liberty interest in family privacy has its source, and its contours are ordinarily to be sought, not in state law, but in intrinsic human rights, as they have been understood in this Nation’s history and tradition.”[44]

¶46 Unlike foster parents, whose constitutional rights as parents presented a novel question,[45] and unwed fathers of children born into another marriage, whose rights had not historically been recognized,[46] Ryan is the biological parent of children born into his marriage-a “parent” that has traditionally received constitutional protection. He does not belong to a group that “ha[s] not previously received constitutional protection,”[47] so we frame the asserted right at the same level of generality used by the Prince and Yoder Courts-a right belonging to “parents.”[48]

¶47 Still, as Ryan concedes, his right to encourage his children in the practice of religion is limited by his loss of legal custody. As the sole legal custodian of their children, Jessica has the “power and duty to make the most significant decisions about [the children’s] life and welfare.”[49] Any decision to baptize the children, for example, falls squarely within this authority.

¶48 But Ryan’s loss of legal custody does not mean he is completely bereft of parental rights. The district court’s parenting plan calls for shared physical custody and notes that “[t]he parent with which the children are then located should make day-to-day decisions involving the children,” subject to the outlined restrictions. Utah Code section 30-3-33, which lists advisory guidelines for parenting plans where parents share physical custody, suggests that parents without legal custody should still be notified and allowed to participate in “all significant school, social, sports, and community functions”; “have access directly to all school reports”; and have an equal opportunity to share holidays with their children.[50] Ryan has not lost the right to be his children’s parent-just the right “to make the most significant decisions about [the children’s] life and welfare.”[51]

¶49 Jessica’s status as sole legal custodian curtails Ryan’s fundamental right to encourage his children’s practice of religion only with respect to major decisions. And because the district court’s prohibition against Ryan “encourag[ing] [the children] to adopt the teachings of any religion” is not limited to the most significant decisions, it interferes with Ryan’s fundamental parental right.

C. Strict Scrutiny Applies Because the District Court’s Prohibition
Interferes with Ryan’s Fundamental Right and Goes Beyond Allocating
Custody and Major Decision-Making Authority

¶50 When the United States Supreme Court “has recognized a due process right it deems ‘fundamental,’ it consistently has applied a standard of strict scrutiny to the protection of such a right.”[52] The dissent agrees “that parents have a fundamental right to influence the religious upbringing of their children.”[53] Yet it disagrees that strict scrutiny applies to this case, instead asserting that “we have repeatedly applied the best interest test to evaluate questions that implicate a parent’s fundamental parental rights.”[54]

¶51 In support of this assertion, the dissent relies on three cases involving custody determinations: Doyle v. Doyle,[55] Clarke v. Clarke,[56] and Hogge v. Hogge.[57] We do not dispute that courts, including ours, routinely allocate custody and decision-making authority based on the best interests of the child. But by relying on cases where courts allocated custody, the dissent misses what is unique about the district court’s prohibition in this case: it is not a custody allocation. The prohibition is not about which parent is better suited to make major decisions or have physical custody of the children. The court separately addressed custody, determining that it was in the best interests of the children for Jessica to have legal custody but for both parents to share physical custody. The court went beyond allocating custody when it prohibited Ryan from encouraging his children to adopt the teachings of any religion.

¶52 In Reno v. Flores, the United States Supreme Court distinguished an allocation of custody from an exercise of custody and explained that the best interests of the child standard does not govern the latter:

“The best interests of the child,” a venerable phrase familiar from divorce proceedings, is a proper and feasible criterion for making the decision as to which of two parents will be accorded custody. But it is not traditionally the sole criterion-much less the sole constitutional criterion-for other, less narrowly channeled judgments involving children, where their interests conflict in varying degrees with the interests of others. Even if it were shown, for example, that a particular couple desirous of adopting a child would best provide for the child’s welfare, the child would nonetheless not be removed from the custody of its parents so long as they were providing for the child adequately. Similarly, “the best interests of the child” is not the legal standard that governs parents’ or guardians’ exercise of their custody: So long as certain minimum requirements of child care are met, the interests of the child may be subordinated to the interests of other children, or indeed even to the interests of the parents or guardians the mselves.[58]

The prohibition at issue here does not allocate custody. Rather, it governs Ryan’s exercise of his physical custody. This distinction is significant, and the dissent errs by equating the prohibition to an allocation of custody.

¶53 Noting the significant impact of custody decisions on parental rights, the dissent argues that if the court can do more, then it must be able to do less. So, the dissent’s argument follows, if a court can completely strip a parent of physical or legal custody based on the best interests of the child, then a court must also be able to interfere with a parent’s fundamental rights in any less intrusive way. But divorce does not eliminate a parent’s fundamental rights.[59]

¶54 And while the best interests of the child standard is of primary importance when allocating decision-making authority as to major decisions, strict scrutiny applies to court orders that go beyond this allocation to restrict a parent’s fundamental right to encourage his or her children in the practice of religion. In In re Marriage of McSoud, the Colorado Court of Appeals distinguished court orders that allocate “sole decision making over the child’s religious upbringing” from those that “go[] beyond” allocating this decision-making authority.[60] In that case, a mother challenged district court orders allocating parental rights and restricting parents’ engagement in their child’s religious upbringing. The district court allocated “sole decision-making regarding the child’s religious upbringing” to the father.[61] It also entered permanent orders that subjected the child’s religious upbringing to recommendations made by a special advocate, including a recommendation prohibiting both parents from giving “mixed messages” about religion to the child and another that dictated which parent could take the child to church activities.[62]

¶55 In reviewing the mother’s challenge, the Colorado Court of Appeals recognized that “[p]arents have a fundamental right to make decisions concerning the care, custody, and control of their children.”[63] The court further noted that “[a] parent’s right to determine the religious upbringing of a child derives from the parent’s right both to exercise religion freely and to the care, custody, and control of a child.”[64]

¶56 The court concluded “that in allocating sole religious decision-making to father, the [district] court properly treated ‘the best interests of the child [as] of primary importance,'”[65] reasoning that “as a matter of law, this allocation does not alone deny mother’s additional First Amendment rights to influence the child’s religious upbringing during her parenting time or to exercise her own religious beliefs.”[66] But it concluded that strict scrutiny was appropriate for the orders that went beyond allocating this decision-making authority, including the orders about giving the child mixed religious messages and taking the child to church activities, reasoning that “the best interests standard” was limited by “a parent’s constitutional rights as to religious upbringing of the child.”[67] These two orders were remanded to the district court “[b]ecause the court did not discuss a compelling state interest” and “instead relied on the best interests test.”[68]

¶57 Although, unlike here, the court in McSoud reviewed the mother’s challenge under “both the Free Exercise Clause and a parent’s fundamental right to the care, custody, and control of a child,”[69] it made no attempt to distinguish between the two rights, and there is nothing in the court’s opinion to indicate that the parental right standing alone would be inadequate to mandate strict scrutiny. In remanding the issues, the court provided the following guidance:

To the extent that, on remand, the court goes beyond allocating sole decision making over the child’s religious upbringing and otherwise restricts either parent’s right to expose the child to that parent’s religious beliefs or to practice that parent’s religion, the court must find a compelling state interest in the form of avoiding substantial emotional or physical harm to the child.[70]

In other words, the court directed that strict scrutiny be applied on remand if the district court (1) goes beyond allocating sole decision-making authority and (2) restricts a parent’s Free Exercise right or the fundamental right to expose the child to that parent’s religious beliefs. We agree with this reasoning and conclude that here, the incursion on Ryan’s fundamental right to encourage the children in the practice of religion mandates we apply strict scrutiny to the district court’s prohibition.

¶58 The dissent maintains that many of the issues in this case would be more easily resolved if we had “[a] properly briefed First Amendment challenge,”[71] emphasizing that “the analysis changes” if a parent “claims that the district court’s restrictions violate his individual First Amendment right” because “[u]nlike shared parental rights, a district court cannot compromise those individual rights unless the order can withstand strict scrutiny.”[72] The dissent seems to suggest that while Ryan might have prevailed on a First Amendment claim, he ultimately loses on his claim based on his fundamental right to encourage the children in the practice of religion. We see no reason to subordinate one of Ryan’s constitutional rights to another and are not convinced by the dissent’s suggestion that we should do so here simply because parental rights are “shared” and First Amendment rights are not.

¶59 As mentioned, the district court awarded shared physical custody to Ryan. Its award of legal custody to Jessica is not, in and of itself, a justification for stripping Ryan of the full range of his fundamental parental rights. While he does not challenge Jessica’s right, consistent with the legal custody she enjoys, to make major religious decisions with respect to the children, he does, as a custodial parent, challenge the district court’s broad restriction on his right to encourage his children with respect to religion. Any such restriction should be required to pass strict scrutiny muster. Although many courts have found the best interests of the child standard to be a necessary tool when faced with parents’ competing rights to custody and control over their children, this does not mean that divorced parents are subject to limitless interference with their fundamental parental rights free of strict scrutiny review.

¶60 The district court’s prohibition curtails Ryan’s parental rights beyond assigning all major decision-making-which is all an award of legal custody is supposed to do[73]-to Jessica. Preventing Ryan from “encourag[ing] [the children] to adopt the teachings of any religion” without first receiving Jessica’s permission implicates Ryan’s day-to-day life with the children and the decisions he is otherwise entitled to make during his legal visitation periods. And, contrary to the dissent’s analysis, the statutory scheme for granting custody based on a child’s best interests cannot, absent a showing that the strict scrutiny standard has been met, displace a right guaranteed by the United States Constitution.

II. The District Court’s Prohibition Is Not Narrowly Tailored to
Address the Identified Harms

¶61 Under strict scrutiny, “a fundamental right is protected except in the limited circumstance in which an infringement of it is shown to be ‘narrowly tailored’ to protect a ‘compelling governmental interest.'”[74] Applying this standard here, we conclude that although the district court’s prohibition is aimed at the compelling governmental interest of shielding the children from psychological harm, it is not narrowly tailored to address the identified potential harms.

A. The District Court’s Prohibition Aims to Shield the Children from
Psychological Harm

¶62 United States Supreme Court caselaw sets a high bar for defining state interests as compelling, indicating that “the state interest in overriding a parent’s fundamental rights is ‘compelling’ only in circumstances involving the avoidance of harm that is substantial.”[75]

¶63 Other states that have considered the right of noncustodial parents to encourage their children in the practice of religious belief have applied tests similar to strict scrutiny-requiring that any incursion on a parent’s fundamental right be directly tied to preventing harm to the children. In Zummo v. Zummo, the Pennsylvania Supreme Court held that a court can only interfere with “a parent’s post-divorce parental rights regarding the religious upbringing of his or her children” when there is a “substantial threat of physical or mental harm to the child” and the court is using the “least intrusive measures adequate to protect the interests identified.”[76] The California Court of Appeals, in In re Marriage of Murga, adopted the rule of “the majority of American jurisdictions” that courts may not “restrain the noncustodial parent from exposing the minor child to his or her religious beliefs and practices, absent a clear, affirmative showing that these religious activities will be harmful to the child.”[77]

¶64 Although these courts did not use the term “strict scrutiny,” the tests they applied are almost identical to our application of strict scrutiny. We require courts to identify a compelling state interest and recognize “the avoidance of harm that is substantial” as one such interest.[78] The Zummo court required a showing of “a substantial risk of harm”[79] and the Murga court similarly required a showing “that the child will be … harmed.”[80] Like our court’s requirement for narrow tailoring, the Zummo court’s requirement that the “least intrusive measures adequate” be used and the Murga court’s requirement that a court show that “these religious activities will be harmful to the child” both require a direct connection between the prohibited conduct and the potential harm. And our court has held that when “the right infringed or foreclosed is a right we have deemed ‘fundamental,'” we adhere to “our strict scrutiny standard.”[81]

¶65 Jessica argues that the district court’s prohibition survives strict scrutiny because it protects three compelling state interests: (1) “the state’s interest in awarding legal custody based upon the best interests of the child”; (2) “the state’s compelling interest in resolving parental disagreements”; and (3) “the state’s compelling interest[] [in] shielding the minor children from exposure to psychological harm resulting from teachings found to be harmful to them.”

¶66 First, while we agree with Jessica that the State has a compelling interest in awarding legal custody based on the best interests of the child,[82] the district court’s prohibition goes beyond this interest. And Ryan has not challenged the award of sole legal custody to Jessica in this appeal. As discussed above, because Jessica has legal custody of the children, she has the authority to make the “most significant decisions” about their upbringing.[83] But the district court’s prohibition includes no such limiting principle-it forbids Ryan from “encouraging [the children] to adopt the teachings of any religion,” without distinguishing between major decisions, like baptism, and minor decisions, like saying grace in front of the children before a shared meal or taking them to a learning day at a synagogue.

¶67 Second, the State’s interest in “resolving parental disagreements” is not typically a compelling interest. This is because it is not usually an interest aimed at preventing harm that is substantial.[84] Several states have addressed what restrictions are appropriate when divorced parents have conflicting religious beliefs, and “the vast majority” of them

have concluded that each parent must be free to provide religious exposure and instruction, as that parent sees fit, during any and all period of legal custody or visitation without restriction, unless the challenged beliefs or conduct of the parent are demonstrated to present a substantial threat of present or future, physical or emotional harm to the child in absence of the proposed restriction.[85]

We agree with these states that preventing children from exposure to conflicting religions is not in itself a compelling interest. Indeed, “it’s plausible that children may benefit from being taught just one religion-but it’s also plausible that they may benefit from being taught two.”[86] The State’s interest in resolving parental disagreements about religion must be tied to preventing “a substantial threat of present or future, physical or emotional harm to the child” in order to be compelling. And the district court’s findings do not tie disagreement between Ryan and Jessica over day-to-day decisions to any substantial threat of harm to the children.[87]

¶68 But we agree with Jessica that the State has a compelling interest in shielding the children from psychological harm. The district court found that “[t]he Order’s religious teachings jeopardize the health or safety of the children, and will cause harm to the children’s welfare.” Specifically, the court identified two potentially substantial harms to the children associated with Ryan’s religious beliefs: (1) grooming of the children for early marriage; and (2) exposure to Order teachings that ostracize outsiders and demonize those who have left the group, including Jessica. Protecting the children from these harms is a compelling state interest.

B. The District Court’s Prohibition Is Not Narrowly Tailored to Address
the Identified Potential Harms to the Children

¶69 Having recognized that the district court’s prohibition protects a compelling governmental interest, we must assess whether it was narrowly tailored to meet that objective. “In other words, we consider whether the challenged [prohibition] w[as] ‘necessary’ to achieve the state’s purpose . . . .”[88]

¶70 The district court’s prohibition is broader than necessary to prevent the identified potential harms to the children. The court prohibited Ryan from “encourag[ing] [the children] to adopt the teachings of any religion” without Jessica’s consent.[89] This prohibition applies broadly to “the teachings of any religion,” but the court only identified specific harms associated with the Order. As written, the prohibition would prevent Ryan from teaching the children the Lord’s Prayer or encouraging them to adopt the teachings of Islam. Based on a plain language reading of the prohibition, Ryan would have to seek Jessica’s consent before engaging in either of these activities. The prohibition cannot be described as “narrowly tailored” when it reaches far beyond the compelling interest it is meant to address.

¶71 And while there is a relationship between the identified potential harms to the children and the district court’s prohibition, this is not enough to satisfy strict scrutiny. Barring Ryan from “encourag[ing] [the children] to adopt the teachings of any religion” is not narrowly tailored to protecting a compelling state interest.

Conclusion

¶72 The district court’s prohibition against Ryan “encourag[ing] [the children] to adopt the teachings of any religion … without [Jessica’s] consent” interferes with Ryan’s fundamental right protected by the Due Process Clause of the Fourteenth Amendment. Parents have a fundamental right to encourage their children in the practice of religion. Awarding one parent legal custody does not deprive the other parent of this right beyond limiting the noncustodial parent’s authority to make major decisions for the children. Because the district court’s prohibition interferes with Ryan’s fundamental right, it is subject to strict scrutiny. And while the State has a compelling interest in protecting the children from harm, the district court’s prohibition is not narrowly tailored to address the harms identified. We remand for the court to craft a more narrowly tailored remedy.

ASSOCIATE CHIEF JUSTICE PEARCE, dissenting in the Opinion of the Court:

¶73 The majority applies strict scrutiny to a district court’s order allocating to the custodial parent the sole ability to determine her children’s religious upbringing. This is an unprecedented step. Never before have we applied strict scrutiny to the allocation of parental rights between two divorcing parents. Until today, we have followed the statutory framework that makes the child’s best interest the paramount concern and permits a court to allocate a fundamental parental right to one parent when presented with evidence that the other parent’s exercise of that right risks harm to the child. Strict scrutiny review should be reserved to those cases where a district court’s allocation of parental rights infringes a separate constitutional right-such as a parent’s First Amendment right. But here, where Ryan has inadequately briefed his First Amendment challenge, there is no cause for strict scrutiny review. I respectfully dissent.

¶74 The district court’s order prohibits Ryan from “encourag[ing]” his children “to adopt the teachings of any religion” without Jessica’s consent. As I see it, and seemingly as does the majority, the district court’s order implicates three separate rights: Ryan’s right to make major decisions concerning the children’s religious upbringing; Ryan’s right to make minor, or day-to-day, decisions concerning the children’s religious upbringing; and Ryan’s First Amendment right. Ryan challenges the district court’s ruling only as it affects the last two of these rights.

PEARCE, ACJ, dissenting

¶75 The majority determines that Ryan’s First Amendment argument is inadequately briefed, thereby limiting its “constitutional analysis . . . to Ryan’s argument that the district court’s prohibition interferes with his fundamental right as a parent ‘to encourage [his children] in the practice of religion.'” Supra ¶ 22 (second alteration in original). I agree with that assessment.

¶76 But the majority also concludes that “Jessica’s status as sole legal custodian curtails Ryan’s fundamental right to encourage his children’s practice of religion only with respect to major decisions.” Supra ¶ 49. “And because the district court’s prohibition against Ryan ‘encourag[ing] [the children] to adopt the teachings of any religion’ is not limited to the most significant decisions, it interferes with Ryan’s fundamental parental right” and is therefore subject to strict scrutiny. Supra ¶ 49 (alterations in original). I cannot agree with that.

¶77 By statute, all parental rights-including the rights to make major and minor decisions concerning the children’s religious upbringing-are subject to allocation by the district court based on the best interest of the children. Strict scrutiny review comes into play only to the extent that the district court’s allocation of parental rights impacts a parent’s First Amendment right.

I. Child Custody Orders Assigning Parental Rights Are Subject to the Best Interest of the Children, Not Strict Scrutiny

¶78 The majority first asserts that parents have a fundamental right to influence the religious upbringing of their children. Supra Part I.A. I agree.[90] But the majority also concludes that a district court’s decision assigning this fundamental parental right to one parent over the other to promote the best interest of the children is subject to strict scrutiny review. Supra Part I.C. I disagree.

¶79 Utah Code provides that decisions concerning custody and post-divorce parental rights should be made in accordance with the children’s best interest. UTAH CODE § 30-3-10(2) (“In determining any form of custody and parent-time under [Utah Code section 30-3­10(1)], the court shall consider the best interest of the child ….” (emphasis added)). The Code further states, “Absent a showing by a preponderance of evidence of real harm or substantiated potential harm to the child . . . it is in the best interests of the child to have both parents actively involved in parenting the child.” Id. § 30-3-32(2)(b)(iii) (emphasis added). Utah Code includes “the child’s education, healthcare, and religious upbringing” as elements of parenting a child. See id. § 30-3-10.9(5)(a) (listing required elements of a parenting plan).

¶80 Under Utah law, therefore, it is presumptively in the best interest of the children for both parents-regardless of custodial status-to participate in the religious upbringing of their children. Id. § 30-3-32(2)(b)(iii). That presumption may be overcome, however, upon “a showing by a preponderance of evidence of real harm or substantiated potential harm to the child[ren].” Id. § 30-3-32(2)(b). When such a showing is made, as it was here, the district court is charged with allocating the parental right to direct the children in the practice of religion in accordance with the children’s best interest.[91] See id. § 30-3-10(2).

¶81 With this framework in mind, we have repeatedly applied the best interest test to evaluate questions that implicate a parent’s fundamental parental rights. Indeed, many of the decisions that a district court may need to make in a case involving divorcing parents with children touches such rights. For example, this court has held that the best interest test is the correct standard to apply in a case granting a parent sole decision-making authority over the other parent’s objections. See Doyle v. Doyle, 2011 UT 42, ¶¶ 3, 19-20, 24, 258 P.3d 553. That authority included the ability to enroll the child in special education classes and counseling. See id. ¶¶ 14, 16.

¶82 Additionally, our court of appeals has concluded that because a father “lack[ed] the ability to compromise [and] make good decisions quickly,” and would not “act in the children’s best interests with respect to their health and safety,” that all medical and health care decisions be left to the mother who possessed “the ability to be flexible and compromise to promote the children’s best interest.” Clarke v. Clarke, 2012 UT App 328, ¶¶ 5, 8, 292 P.3d 76 (alterations in original).

¶83 Perhaps more strikingly, this court upheld a district court’s ruling that stripped a parent of all physical custody of his children after examining whether that decision was in the children’s best interest. Hogge v. Hogge, 649 P.2d 51, 55-56 (Utah 1982).

¶84 Doyle, Clarke, and Hogge all involved a parent’s fundamental rights. And in each of those cases, we stuck to the statutory framework and affirmed orders after examining them to ensure that they were in the child’s best interest. In none of those cases did we require that the district court compromise the child’s best interest by narrowly tailoring the order to accommodate the noncustodial parent’s parental rights. In none of those cases did we even hint that the Constitution might require strict scrutiny review when a district court allocates parental rights between divorcing parents.

¶85 The majority attempts to distinguish the district court order in this case from the “routine[] allocat[ions]” of “custody and decision-making authority” in Doyle, Clarke, and Hogge. Supra ¶ 51. The majority opines that the district court “went beyond allocating custody when it prohibited Ryan from encouraging his children to adopt the teachings of any religion.” Supra ¶ 51. I agree, but that fact does not change the analysis. The statute does not distinguish between the larger questions of custody and decision-making authority and the lesser-included questions of restrictions on routine, day-to-day interactions with a child. The statute certainly does not demand the anomalous result the majority’s position dictates-that a court need not apply strict scrutiny to an order that takes away a parent’s right to decide what church the child will join, but must apply strict scrutiny to a restriction on what a parent who has lost that right might do to undercut the custodial parent’s decisions about the child’s religious upbringing.[92] This is a new step for our case law, and one that ignores the logic of Doyle, Clarke, and Hogge. In each of those cases, we upheld a district court order that restricted a parent’s fundamental parental right based on the best interest of the child.93

¶86 Most states that have considered whether one parent can prevent the other from directing the children’s religious upbringing do not apply strict scrutiny. These states instead examine whether there has been a sufficient showing of harm to the child to justify assigning exclusive decision-making to one parent over the other. The California Court of Appeals observed that “in the majority of American jurisdictions that have considered the question, … courts have refused to restrain the noncustodial parent from exposing the minor child to his or her religious beliefs and practices, absent a clear, affirmative showing that these religious activities will be harmful to the child.” In re Marriage of Murga, 163 Cal. Rptr. 79, 82 (Ct. App. 1980) (citations omitted). The California court applied this principle to conclude that “while the custodial parent undoubtedly has the right to make ultimate decisions concerning the child’s religious upbringing, a court will not enjoin the noncustodial parent from . . . involving the child in his or her religious activities in the absence of a showing that the child will be thereby harmed.” Id. (emphasis added).

¶87 The Pennsylvania Supreme Court has similarly decided that a parent “must be free to provide religious exposure and instruction, as that parent sees fit, during any and all period of legal custody or visitation without restriction, unless the challenged beliefs or conduct of the parent are demonstrated to present a substantial threat of … harm to the child.” Zummo v. Zummo, 574 A.2d 1130, 1154-55 (Pa. 1990). The Pennsylvania court emphasized that its standard was one that “requires proof of a ‘substantial threat'” of harm and not simply “some probability” of harm or “the speculative possibility of mere disquietude, disorientation, or confusion arising from exposure to ‘contradictory’ religions.” Id. at 1155.

¶88 The majority reads Murga and Zummo differently. In its view, these cases direct a reviewing court to apply strict scrutiny-or, at the very least, something “almost identical” to it-to a district court’s decision affecting a parent’s right to decide their children’s religious upbringing. Supra ¶ 64. But the majority sees strict scrutiny where it does not exist. While the Murga and Zummo courts undoubtedly require a connection between the harm alleged and the restriction imposed, they do not require reviewing courts to walk through the well-established two-part analysis we all know as strict scrutiny.

¶89 In Zummo, for example, the court said that a parent must make a showing of “a substantial threat of present or future, physical or emotional harm to the child” to deprive the other parent of the right to “provide religious exposure and instruction.” See 574 A.2d at 1154-55 (citations omitted). To the majority, this resembles a compelling governmental interest. Supra ¶ 64. To me, this mirrors the language in Utah Code section 30-3-32 requiring “a showing . . . of real harm or substantiated potential harm to the child” to rebut the presumption in favor of joint parenting. UTAH CODE § 30-3­32(2)(b).

¶90 The majority heavily relies on a case from the Colorado Court of Appeals, In re Marriage of McSoud, 131 P.3d 1208 (Colo. App. 2006). Supra ¶¶ 54-57. But McSoud does not provide the answer the majority is looking for. As the majority explains, in McSoud, “[t]he district court allocated ‘sole decision-making regarding the child’s religious upbringing’ to the father” and adopted the recommendations of a special advocate “prohibiting both parents from giving ‘mixed messages’ about religion … and … dictat[ing] which parent could take the child to church activities.” Supra ¶ 54 (citing McSoud, 131 P.3d at 1218-19). The mother challenged the district court’s decision, arguing that it violated both her fundamental parental right to “influence … the child’s religious upbringing” and her First Amendment right to free exercise. McSoud, 131 P.3d at 1214.

¶91 The majority correctly points out that the McSoud court upheld the district court’s decision allocating sole religious decision-making to the father based on the best interest of the child. Supra ¶ 56 (citing McSoud, 131 P.3d at 1219). The majority also rightly reads McSoud as applying strict scrutiny to the portions of the district court’s order adopting the recommendations of the special advocate. Supra ¶ 56 (citing McSoud, 131 P.3d at 1217). But contrary to the majority’s suggestion, the McSoud court did not apply strict scrutiny review because it was allocating a fundamental parental right. It applied heightened review to those portions of the district court’s order that impacted the mother’s First Amendment right to free exercise.[93]

 

¶92 The McSoud court explained that “the best interest standard . . . cannot overcome the express constitutional right to freedom of religion,” and where a district court order “not only affects [a parent’s] rights with respect to the religious upbringing of her child, [but] also interfere[s] with her own rights under the Free Exercise Clause,” it must survive strict scrutiny. 131 P.3d at 1217. Turning to the district court order before it, the McSoud court concluded,

In allocating to father sole decision-making regarding the child’s religious upbringing, the court expanded one parent’s right to the care, custody, and control of a child at the expense of the other parent’s similar right. But as a matter of law, this allocation does not alone deny mother’s additional First Amendment rights to influence the child’s religious upbringing during her parenting time or to exercise her own religious beliefs.

Id. at 1219 (citation omitted). The McSoud court then evaluated each of the special advocate’s recommendations impacting the mother’s religious rights through a strict scrutiny lens. See id. at 1219-20.

¶93 Like the court in McSoud, I would evaluate the district court’s decision allocating religious decision-making to Jessica under the best interest standard. And I would turn to strict scrutiny only to evaluate Ryan’s First Amendment claims.

¶94 The majority emphasizes that “Ryan’s loss of legal custody does not mean he is completely bereft of parental rights.” Supra ¶ 48. I agree. A district court’s decision to award legal custody to one parent does not necessarily deprive the other, as the majority frames it, from “the right to be [a] parent.” Supra ¶ 48. I also do not doubt that the right to be a parent includes the right to make major and minor decisions concerning the children’s religious upbringing. But in light of section 30-3-32(2)(b), I cannot agree with the majority’s conclusion that when a district court finds that a divorcing parent will exercise a parental right to harm a child, its decision to allow one parent to call the shots should be subject to strict scrutiny.

¶95 This is especially true in this instance where the district court’s decision is backed by a series of unchallenged factual findings demonstrating that “Ryan’s religious practices . . . represent a direct threat of harm to the children.” Supra ¶ 12 (alteration in original). There is simply no reason that justifies treating a parent’s right to direct the child’s religious upbringing differently than the other fundamental rights a parent has with respect to the child-rights that we have repeatedly allowed a district court to assign to one parent or the other when it is in the child’s best interest.[94]

¶96 This causes me to conclude that strict scrutiny is the wrong test to apply to a court’s decision to allocate decision-making over a child’s religious upbringing, and even all of the small decisions that might support or undercut that decision-making, to a single parent. I would follow the Utah Code and analyze whether the district court found, by a preponderance of the evidence, real or substantiated potential harm to the child if the parent is allowed to participate in the child’s religious upbringing.

¶97 Viewed under the correct test, Ryan cannot show that the district court erred when it assigned the right to make religious decisions for the children to Jessica. The district court found that “Ryan’s religious practices … represent a direct threat of harm to the children.” Specifically, the district court determined that “Ryan wishes to raise [his three young daughters] in a culture that grooms them to be child brides,” as evidenced, in part, by Ryan’s marriages to teenagers. The district court also found that “[t]he Order’s teachings alienate the children from their mother, and ongoing exposure to certain Order teachings would be tantamount to abuse.” The district court further noted concerns about “Ryan’s desire to raise the children in [the Order], to permit and encourage the children to participate in Order extracurricular activities and his earlier insistence on them attending Order schools,” which “lack . . . qualified, licensed teachers” and “[teach] obedience to the ‘Order,’ compliance to Kingston authority figures, and which encourage[] the children to reject outsiders.” Based on these findings-which, again, remain unchallenged-the district court concluded that exposure to Ryan’s religious practices would “jeopardize the health or safety of the children, and [would] cause harm to the children’s welfare.”

¶98 We are presented with an unchallenged factual record that demonstrates that if given the opportunity to influence his children’s religious upbringing, Ryan will harm his children. The evidence in the record-evidence that we are duty-bound to accept as true-reveals that Ryan will harm his children by, among other things, promoting a religious culture that will encourage his daughters to be child brides. That evidence also shows that Ryan will teach his children to obey authority figures who will instruct them to reject people outside the Order-people including their own mother. Against this factual backdrop, the district court did not err when it concluded that Jessica alone should exercise all of the parental rights associated with religion.

II. A District Court’s Order Implicating a Parent’s First Amendment Right Is Subject to Strict Scrutiny

¶99 Part of what seems to be motivating the majority’s concern is the potential overbreadth of the district court’s order. The majority concludes that the district court’s order “[b]arring Ryan from ‘encourag[ing] [the children] to adopt the teachings of any religion'” without Jessica’s consent “is not narrowly tailored to protecting a compelling state interest.” Supra ¶ 71 (second and third alteration in original). The majority states that “[a]s written, the prohibition would prevent Ryan from teaching the children the Lord’s Prayer or encouraging them to adopt the teachings of Islam.” Supra ¶ 70.

¶100 There is absolutely no evidence in the record that Ryan’s objection to the district court’s order is fueled by a desire to read the Quran to his children or to lead them in the Lord’s Prayer. Nor is there any suggestion that such behavior would be interpreted as encouraging the children to adopt religious teachings in violation of the district court’s order. And there is nothing in the record that would allow us to conclude that Jessica would withhold her consent from Ryan doing any of those things. A properly briefed First Amendment challenge would have allowed us to get to the bottom of those questions without needing to rely on speculation and hypotheticals.

¶101 In the absence of a properly briefed First Amendment challenge, I respectfully dissent and would affirm the district court’s order.

http://www.utcourts.gov/opinions/view.html?court=supopin&opinion=Kingston v. Kingston20221222.pdf

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

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[1] Because both parties share the same last name, we refer to Mr. Kingston as Ryan and Ms. Kingston as Jessica throughout the opinion for ease of reading. The use of first names is in no way intended to show disrespect to the parties.

[2] (Citing Prince v. Massachusetts, 321 U.S. 158, 165 (1944).)

[3] Davis v. Davis, 749 P.2d 647, 648 (Utah 1988) (citations omitted).

[4] In re Adoption of K.T.B., 2020 UT 51, ¶ 15, 472 P.3d 843 (“Constitutional issues, including questions regarding due process, are questions of law, and we review the lower court’s conclusions for correctness.” (citation omitted)).

[5] 5 Ryan’s hybrid rights argument does not satisfy the requirement of rule 24 of the Utah Rules of Appellate Procedure that an “argument must explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal.” UTAH R. APP. P. 24(a)(8). Ryan points to “the hybrid exception alluded to in Smith,” referring to Employment Division v. Smith, 494 U.S. 872, 877 (1990), to argue that free exercise claims “brought in conjunction with parental right or free speech claims” are subject to heightened scrutiny. But he does not cite binding caselaw or meaningfully engage with the conflict between various courts about how the language from Smith suggesting a hybrid rights exception should be interpreted. See, e.g., Kissinger v. Bd. of Trs. of Ohio State Univ., 5 F.3d 177, 180 (6th Cir. 1993) (holding that the hybrid rights theory leads to “completely illogical” outcomes and refusing to apply it); Miller v. Reed, 176 F.3d 1202, 1207 (9th Cir. 1999) (recognizing that Smith “excepts a hybrid-rights claim from its rational basis test”). In addition to disagreeing about the existence of a hybrid rights exception, “[c]ourts are . . . divided on the strength of the independent constitutional right claim that is required to assert a cognizable hybrid rights claim.” Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 656 (10th Cir. 2006). Ryan does not sufficiently explain why this court should recognize a hybrid rights exception based on Smith or how it should be applied. He relies almost entirely on the Pennsylvania Supreme Court’s application of the hybrid rights exception in Shepp v. Shepp, 906 A.2d 1165 (Pa. 2006), but does not engage with caselaw suggesting no such exception exists. Instead, he states that even if the hybrid rights exception is not real, free speech alone would be protected here. But he does not develop an independent free speech argument, stating in his reply brief that “[his] free speech arguments are tied to his parental rights and free exercise arguments as part of . . . a hybrid claim.” Ryan’s “failure to provide relevant case law and to develop an argument based on that law leaves us with the task of developing the contours of these important constitutional arguments. We decline to do so.” Ramos v. Cobblestone Ctr., 2020 UT 55, ¶ 49, 472 P.3d 910.

[6] 262 U.S. 390, 399 (1923).

[7] (Quoting Prince v. Massachusetts, 321 U.S. 158, 165 (1944).)

[8] Jones v. Jones, 2015 UT 84, ¶ 21, 359 P.3d 603.

[9] In re Adoption of K.T.B., 2020 UT 51, ¶ 32, 472 P.3d 843 (citation omitted).

[10] Id.

[11] Id. ¶ 59.

[12] Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality opinion) (quoting Washington v. Glucksberg, 521 U.S. 702, 719 (1997)).

[13] Glucksberg, 521 U.S. at 720.

[14] Troxel, 530 U.S. at 65.

[15] 262 U.S. at 399.

[16] 268 U.S. 510, 534-35 (1925).

[17] 321 U.S. 158.

[18] 406 U.S. 205 (1972).

[19] 321 U.S. at 159.

[20] Id. at 159,162.

[21] Id. at 160-61.

[22] Id.

[23] Id. at 164.

[24] Id. at 165.

[25] Id.

[26] Id. at 165-66.

[27] Id. at 166.

[28] Id. at 168.

[29] Yoder, 406 U.S. at 213-14.

[30] Id. at 207.

[31] Id. at 211.

[32] Id. at 209.

[33] Id. at 214.

[34] Id. at 232.

[35] Id. at 233.

[36] Id. at 236.

[37] Id. at 233.

[38]  494 U.S. 872, 881 n.1 (1990) (quoting Yoder, 406 U.S. at 233).

[39] 2020 UT 51, ¶ 62.

[40] Prince, 321 U.S. at 165 (referring to the right of “parents to give [their children] religious training and to encourage them in the practice of religious belief” (emphasis added)); Yoder, 406 U.S. at 233 (“[T]he court’s holding in Pierce stands as a charter of the rights of parents to direct the religious upbringing of their children.” (emphasis added)).

[41] In re Adoption of K.T.B., 2020 UT 51, ¶ 70.

[42] Id. (citing Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816, 839 (1977)).

[43] Id. ¶ 72 (citing Michael H. v. Gerald D., 491 U.S. 110, 125 (1989) (plurality opinion)).

[44] Smith, 431 U.S. at 845 (footnote omitted) (citation omitted) (internal quotation marks omitted).

[45] In re Adoption of K.T.B., 2020 UT 51, ¶ 70 (citing Smith, 431 U.S. at 839-40).

[46] Id. ¶ 72 (citing Michael H., 491 U.S. at 125).

[47] Id. ¶ 70.

[48] Prince, 321 U.S. at 165; Yoder, 406 U.S. at 233.

[49] Hansen v. Hansen, 2012 UT 9, ¶ 17, 270 P.3d 531 (citation omitted) (distinguishing legal custody from physical custody, the latter of which involves the “right, obligation, and ‘authority to make necessary day-to-day decisions concerning the child’s welfare'” (quoting SANDRA MORGAN LITTLE, CHILD CUSTODY & VISITATION LAW AND PRACTICE § 10.03(3)(b)(i), (iii) (2011))).

[50] See UTAH CODE § 30-3-33(11), (12), & (17).

[51] Hansen, 2012 UT 9, ¶ 17 (citation omitted) (internal quotation marks omitted).

[52] Jones, 2015 UT 84, ¶ 26.

[53] Infra ¶ 78.

[54] Infra ¶ 81.

[55] 2011 UT 42, 258 P.3d 553 (reviewing father’s challenge to district court’s transfer of sole custody from himself to child’s mother).

[56] 2012 UT App 328, 292 P.3d 76 (reviewing father’s challenge to district court’s custody award).

[57] 649 P.2d 51 (Utah 1982) (reviewing father’s challenge to district court’s transfer of custody from himself to child’s mother).

[58] Reno v. Flores, 507 U.S. 292, 303-04 (1993) (emphasis in last sentence added) (citations omitted).

[59] See, e.g.Pater v. Pater, 588 N.E.2d 794, 801 (Ohio 1992) (concluding that “parents’ right to expose their children to their religious beliefs … does not automatically end when they are divorced”).

[60] 131 P.3d 1208, 1217 (Colo. App. 2006).

[61] Id. at 1219.

[62] Id. at 1218.

[63] Id. at 1215 (citing Troxel, 530 U.S. at 57).

[64] Id. (citing Yoder, 406 U.S. 205).

[65] Id. at 1219 (second alteration in original) (citation omitted).

[66] Id.

[67] Id. at 1217.

[68] Id.

[69] Id. at 1216.

[70] Id. at 1217.

[71] Infra ¶ 100.

[72] Infra ¶ 85 n.93.

[73] Black’s Law Dictionary defines “legal custody” as “[t]he authority to make significant decisions on a child’s behalf, including decisions about education, religious training, and healthcare.” Custody, BLACK’S LAW DICTIONARY (11th ed. 2019). See also supra ¶ 47.

[74] Jones v. Jones, 2015 UT 84, ¶ 27, 359 P.3d 603 (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)).

[75] Id. ¶ 32.

[76] 574 A.2d 1130, 1140-41 (Pa. 1990) (internal quotation marks omitted).

[77] 163 Cal. Rptr. 79, 82 (Ct. App. 1980).

[78] Jones, 2015 UT 84, ¶ 32.

[79] 574 A.2d at 1140.

[80] 163 Cal. Rptr. at 82.

[81] In re Adoption of K.T.B., 2020 UT 51, ¶ 32, 472 P.3d 843.

[82] See Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (“The goal of granting custody based on the best interests of the child is indisputably a substantial governmental interest for purposes of the Equal Protection Clause.”).

[83] Hansen v. Hansen, 2012 UT 9, ¶ 17, 270 P.3d 531 (citation omitted) (internal quotation marks omitted).

[84] See Jones, 2015 UT 84, ¶ 32.

[85] Zummo, 574 A.2d at 1154-55 (collecting cases).

[86] Eugene Volokh, Parent-Child Speech and Child Custody Speech Restrictions, 81 N.Y.U. L. REv. 631, 719 (2006).

[87] The district court found that although major decisions were a source of conflict, “day-to-day decisions regarding the children appear to be different,” as Ryan and Jessica had been able to “coordinat[e] travel and pick-ups[] and jointly supervis[e] and facilitate[e] their children’s homework and activities . . . with relatively little conflict.”

[88] In re Adoption of K.T.B., 2020 UT 51, ¶ 43. 89 (Emphasis added.)

[89] (Emphasis added.)

[90] I do note, however, that none of the cases the majority relies upon in Part I.A of its opinion involve the kind of dispute at issue in this case, even when that dispute is characterized as broadly as a common custody dispute between divorcing parents. For this reason, these cases d o nothing more than cement the existence of a parent’s fundamental right to participate in the child’s religious upbringing. See Jones v. Jones, 2015 UT 84, 359 P.3d 603 (contemplating whether a child’s grandparents can be given visitation rights against the will of the child’s only surviving parent); In re Adoption of K.T.B., 2020 UT 51, 472 P.3d 843 (addressing a trial court’s denial of a mother’s motion to intervene in the adoption of her daughter to a third party); Troxel v. Granville, 530 U.S. 57 (2000) (examining two grandparents’ petition for visitation with children born out of wedlock); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (restricting a state from prohibiting a parent from teaching her child a language besides English “under the guise of protecting the public interest”); Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 534-35 (1925) (deciding that a state law requiring young children to attend public school “unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control”); Prince v. Massachusetts, 321 U.S. 158 (1944) (upholding a state law prohibiting children from selling magazines in the evening); Wisconsin v. Yoder, 406 U.S. 205 (1972) (concluding that a state may not compel Amish parents to send their children to high school).

[91] One way to think about this question involves the bundle of sticks metaphor we all learned in law school. Parents possess a bundle of rights, or sticks, with respect to their children. When the state tries to give one of those sticks to a nonparent, or take a stick for itself, strict scrutiny applies. The cases the majority cites in Part I.A of its opinion speak to this situation. See, e.g., Jones, 2015 UT 84; In re Adoption of K.T.B., 2020 UT 51; Pierce, 268 U.S. 510. But when two parents divorce, the district court must determine whether those parents can continue to share the sticks and if not, which parent should possess which stick. As we explain later, we have not applied strict scrutiny review to these decisions.

[92] It bears remembering that the district court will have entered such an order only after “a showing by a preponderance of evidence of real harm or substantiated potential harm to the child.” UTAH CODE § 30-3-32(2)(b). 93 But we hasten to add that the analysis changes if that parent claims that the district court’s restrictions violate his individual First Amendment right. Unlike shared parental rights, a district court cannot compromise those individual rights unless the order can withstand strict scrutiny.

[93] For what it is worth, the Colorado Court of Appeals reads McSoud the way I do. See In re Marriage of Crouch, 490 P.3d 1087 (Colo. App. 2021). The Crouch court explained,

[McSoud] held that by preventing mother from taking the child to her church during her parenting time, the court unconstitutionally restricted mother’s religious rights. And, to the extent the order also required the mother to accompany the child to the father’s church services during her parenting time, it further restricted her religious rights. Because the court was imposing the restrictions, such orders required strict scrutiny. That is, before the court could infringe on the mother’s religious rights, it must show a compelling state interest . . . .

Id. at 1092 (emphases added) (citations omitted). The Crouch court continued, “McSoud expressly rejects the need for strict scrutiny . . . when allocating decision-making responsibility between the child’s parents because, in that context, the court is merely expanding one parent’s fundamental right at the expense of the other parent’s similar right.” Id. (citation omitted).

[94] To be clear, I am not suggesting that divorcing parents cannot share the right to decide their child’s religious upbringing. For example, in Munoz v. Munoz, 489 P.2d 1133 (Wash. 1971) (en banc), the court concluded that where “there is no evidence to support a finding that exposure to two religious beliefs has had, or will have, any adverse effect upon the children,” a trial court’s order prohibiting a noncustodial father from taking his children to his church or to instructional classes sponsored by that church was an abuse of discretion. Id. at 1135-36; see also Murga, 163 Cal. Rptr. at 82 (rejecting a custodial mother’s claim that she had an absolute right to direct the child’s religious upbringing and holding that, absent a clear, affirmative showing that the noncustodial parent’s religious activities would harm the child, the noncustodial parent could not be restrained from exposing the child to his or her religious beliefs and practices).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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What does temporary custody without prejudice mean?

It means that the child custody order is a temporary, as opposed to a permanent and final, order of the court. 

Why would a court enter a temporary child custody order? For obvious reasons and necessity. If to parents are fighting over custody of a child and what the ultimate child custody and parent time order will be, it will likely take a year or two before that case goes to trial. The child needs to be taken care of during that period (known as the pendente lite period in the litigation; pendent lite literally means “while the litigation is pending”), and so the court will issue temporary orders as to how much time the child spends with each parent until the final child custody order is made.  

These temporary orders are not to be intended have a “prejudicial” effect on the outcome of the final child custody award (but that is rarely the case).  

“Prejudicial” in a legal sense means a preconceived opinion that is not based on reason or actual experience, harm or injury that results or may result from some action or judgment. As you can imagine, if the existence or purported success of a temporary order was cited by the court as evidence that the temporary order must become the permanent order of the court, then the so-called “temporary” order is anything but. To assert that a temporary custody order has proven itself to be better than any other possible custody order on the grounds that it has been in place to the exclusion of any other possible custody arrangement would be an example of giving the temporary order prejudicial impact and effect.  

And now to address the elephant in the room:  

Courts routinely claim that temporary child custody orders cannot and will not have a prejudicial effect on the final child custody order. That is simply not true.  

Now clearly, if a court found the temporary orders to be disastrous for the child, and the court will need to impose a different permanent custody order for the sake of the child’s welfare and the sake of the court’s legitimacy.  

But what about a temporary order that isn’t best for the child but isn’t manifestly catastrophic? How can anyone believe a judge who says that he or she isn’t looking to the track record of that sub-optimal, so-called temporary order when determining what the permanent child custody order should be?  

It takes an extremely intellectually disciplined judge to disregard that temporary orders track record as evidence in favor of that temporary custody arrangement.  

Instead, however, most judges will take the path of least resistance and adopt as the permanent order a temporary order that hasn’t been a patent failure, and then cite in support of that decision the fact that the parent opposing that schedule has “failed to produce sufficient evidence” to rebut the proposition that the so-called temporary order is in the best interest of the child. Judges will deny that they do this, but it’s obvious that they do. Do you see the problem with this approach?  

When the court: 

  • imposes one and only one custody schedule during the pendente lite phase of the case, 
  • claims that this one and only one schedule will not have a prejudicial effect on the ultimate permanent child custody order,  
  • refuses to implement any other proposed schedule to test and evaluate it against the other schedule,  
  • bars the other parent from implementing his/her proposed custody schedule in any kind of real life/real-time setting during the pendente lite phase,  
  • then cites to the other parent having failed to produce sufficient fact(s) that his/her proposed custody schedule better serves the best interest of the child,  
  • and cites to the track record of the so-called non-prejudicial temporary order as fact(s) in support of the argument for imposing it as a permanent order,  

the so-called non-prejudicial temporary order is anything but. 

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

https://www.quora.com/What-does-temporary-custody-without-prejudice-mean/answer/Eric-Johnson-311  

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What can you do if your ex-husband does not want to pay school fees?

What can you do if your husband does not want to pay school fees for his children when you are divorced? 

First, it is not necessarily a given that a divorced parent must pay for a child’s school fees. I don’t know the law for all jurisdictions, of course, but in the jurisdiction where I practice divorce and family law (Utah), there is no law that expressly requires the parents to share the cost of the child’s school fees. 

Second, in the jurisdiction where I practice divorce and family law (Utah), unless the parents are awarded joint physical custody* of the child(ren), the child support obligor parent (meaning the parent who is obligated to pay child support to the other parent) is not required to pay for anything over and above the monthly base child support obligation amount. 

Even when parents are awarded joint physical custody of children, that does not necessarily guarantee that the parents must share the children’s school fees. First, they are fees that a student must pay as a condition of being enrolled in school, but there are many other optional fees that a student may incur but is not required to incur. A joint physical custodial parent in Utah who has a monthly base child support payment obligation is required to do as follows, when it comes to child support obligations other than/in addition to the base monthly Child support amount: 

(3) “Joint physical custody”: 

(a) means the child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support; 

(See Utah Code section 30-3-10.1(3)(a)) 

Could the phrase “both parents contribute to the expenses of the child in addition to paying child support” be any more ambiguous? It’s hard to imagine how it could be. And yet that is the law in the state of Utah for joint physical custodial parents. So while it is by no means black letter law that joint physical custodial parents in Utah must share the costs of their children’s school fees, it is likely a safe bet that a court would, if the issue arose, order a child support obligor parent to pay, in addition to monthly base child support, a portion (likely half) of a school’s fees that must be paid so that a child can be enrolled in school. 

———— 

*In Utah, joint physical custody does not mean joint equal custody (50/50), it means, “the child stays with each parent overnight for more than 30% of the year,” which means that the child spends no less than 111 overnights with a parent. 

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

https://www.quora.com/What-can-you-do-if-your-husband-does-not-want-to-pay-school-fees-for-his-children-when-you-are-divorced/answer/Eric-Johnson-311  

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Can a parent with full custody deny visitation due to unsanitary conditions?

Can a parent with full custody refuse to allow visitation due to unsanitary living conditions?

Good question.

I will answer this question in the context of some applicable law for the jurisdiction where I practice divorce and family law (Utah).

There are many ways to approach this question, but briefly one thing you need to be aware of are the custodial interference laws.

Under the custodial interference laws (76-5-303. Custodial interference), A parent can refuse to comply with a child custody and/or parent time order under certain circumstances:

(a) the action is consented to by the person whose custody or visitation of the child was interfered with; or

(b)

(i) the action is based on a reasonable belief that the action is necessary to protect a child from abuse, including sexual abuse; and

(ii) before engaging in the action, the person reports the person’s intention to engage in the action, and the basis for the belief described in Subsection (6)(b)(i), to the Division of Child and Family Services or law enforcement.

See also 76-5-305. Defenses:

(a) the actor was acting under a reasonable belief that:

(i) the conduct was necessary to protect any person from imminent bodily injury or death; or

(ii) the detention or restraint was authorized by law; or

(b) the alleged victim is younger than 18 years of age or is mentally incompetent, and the actor was acting under a reasonable belief that the custodian, guardian, legal guardian, custodial parent, or person acting in loco parentis to the victim would, if present, have consented to the actor’s conduct.

There is no hard and fast rule you could apply in this situation, of course, but I think it’s reasonable to say that if the living conditions that the other parent’s house were so unsanitary as to pose a serious risk of harm to the child’s life or health, refusing to comply with parent time on that basis might not result in criminal guilt.

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

https://www.quora.com/Can-a-parent-with-full-custody-refuse-to-allow-visitation-due-to-unsanitary-living-conditions/answer/Eric-Johnson-311

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In a divorce, should children live with their favorite parent?

I can’t speak for all jurisdictions, but I can tell you that in the jurisdiction where I practice divorce and family law (Utah), currently the child’s preference for one parent over the other is not expressly among the factors specified in the Utah Code that a judge must consider when making the child custody award. This was not always the case 

As late as the mid-1960s, the law in the state of Utah (and in many other states) was that the child aged 10 years or older and of sound mind had the absolute right to choose which parent would be awarded custody of the child. 

Under the current laws governing the child custody award, a court is not limited to the express child custody factors of the Utah Code when making its child custody determinations. The Utah Code provides that, in addition to the factors the court must consider, it may also consider “any other factor the court finds relevant.” (Utah Code § 30-3-10(2)(r) and Utah Code § 30-3-10.2(2)(i)) 

There is also this provision in Utah Code § 30-3-10(5):  

(5)  

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

(b)  

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

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

So does this mean a court could or would consider a child preference for a parent when making the child custody award? It’s certainly possible and permitted.  

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

https://www.quora.com/In-a-divorce-should-children-live-with-their-favorite-parent/answer/Eric-Johnson-311?prompt_topic_bio=1

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How do we counteract the adverse effects of trusting custody evaluators?

The question was asked: In a study in 2012 proved many custody evaluators falsely believe most DV victims lied & alienated kids. So How do you prevent that evaluators report from poisoning all reports or evaluators after, since they always review historical reports? 

This is a great question, but not for the reasons you may believe.  

The problem isn’t the errors the evaluators make (as if to suggest that all that is needed is for the evaluators to get more accurate, as if that is even realistically possible). The problem lies in being so trusting of custody evaluators’ recommendations for child custody and visitation (also known as parent time) decisions. These so-called experts are little better than a coin toss when it comes to getting to the truth not only about spousal and/or child abuse allegations but about virtually any factor affecting the child custody and parent time award. 

It’s not really a matter of trust. It’s a matter of analytical and jurisprudential sloth, a matter of passing the buck to so-called experts who aren’t really experts, whose involvement helps get to truth and sound understanding no better than than does their absence in the custody and parent time analysis. 

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

(35) Eric Johnson’s answer to In a study in 2012 proved many custody evaluators falsely believe most DV victims lied & alienated kids. So How do you prevent that evaluators report from poisoning all reports or evaluators after, since they always review historical reports? – Quora 

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The way UT courts conduct custody evaluations nowadays is indefensible

The way courts in Utah conduct custody evaluations nowadays is indefensible.

  • There is nothing in UCJA rule 4-903 (the rule governing custody evaluations) that requires a custody evaluation to consist of little more than educated guesses. Yet the custody evaluation process in Utah currently consists of ordering the custody evaluator: 
    • to compare the actually implemented, so-called [1] “temporary” child custody and parent-time schedule against the other parent’s proposed schedule without ever having the other parent’s proposed schedule implemented too (if ever there were an example of an apples to oranges comparison, this is it); and then
    • make a recommendation as to what custody and parent-time schedule “is in the child’s best interest”. 
  • Otherwise stated, though rule 4-903 does not require that one and only one temporary custody and parent time schedule be imposed upon parents and children throughout the duration of the pendente lite/discovery phase of a pending child custody dispute, that’s how must custody evaluations are not just performed, but required by the court to be performed without exception. 
  • Custody evaluations 
    • needlessly cost thousands of dollars and often exceed $10,000; 
    • are supposed to take approximately four months to complete (and could easily be completed in four months or even less), but are never completed in anything close to that amount of time or less.  
    • Have a probative value that is, for the most part, not merely nil, but of negative probative value because they are more often than not incompetently conducted. 
  • It is hard to imagine: 
    • a worse, less probative way to conduct a custody evaluation than to require that one and only one temporary custody and parent time schedule be imposed throughout the duration of a custody evaluation; and 
    • a better, more probative way to conduct a custody evaluation than to implement and compare and analyze the parents’ respective competing child custody and parent time schedule proposals what ultimate custody and parent time schedule best serves the best interest of the child. 
  • Implementing, during the pendente lite/discovery phase of the case could, in many (likely most) cases eliminate any need for a custody evaluation, but even in cases where a custody evaluation is deemed necessary, the custody evaluator, parents, and child would only benefit from comparing and analyzing the parents’ respective child custody and parent time schedule proposals in real time for the purpose of obtaining actual, verifiable proof as to what ultimate custody and parent time schedule best serves the best interest of the child.

Implementing, testing, comparing, and analyzing the parents’ respective competing custody and parent time plans during the pendente lite/discovery phase of the case would not take any more time than already permitted under the rules of discovery and procedure. 

Parents could avoid the expense of time and money entailed by a custody evaluation by using the pendente lite/discovery period to examine and test the parties’ opposing proposed custody and parent-time awards. Why would anyone try to prevent obtaining any such evidence on the subject of child custody and parent-time? The answer is clear enough: the less evidence there is, the better for the party who benefits from the dearth of evidence. Usually, that’s the parent who is made—by judicial fiat issued following a proffer hearing—the custodial parent under the so-called “temporary custody order”.[1] That parent wants to ensure that the other parent has as little custodial and parent time awarded to (let’s call him “him”) him as possible. Given that the so-called “temporary order” so often awards one parent sole or primary physical custody of the parties’ child, that “temporary” custodial parent has everything to lose 1) if a joint physical custody schedule is ever implemented and tested during the custody evaluation and shown to be as good as or better than the statutory minimum; and 2) if a custody evaluator recommends a joint physical custody award. 

If neither 1) the parties’ competing proposed child custody and parent- time awards are implemented nor 2) a custody evaluation is conducted during the pendente lite/discovery phase of this case for the purpose of gathering evidence bearing upon the child custody and parent time award, then inertia favors the so-called “temporary” custodial parent.  

Yet nothing about testing competing proposed custody schedules and/or performing a custody evaluation prevents either parent from presenting any admissible evidence he/she could and would present in the absence of a custody evaluation. Parents who oppose testing competing proposed child custody and parent-time awards do so for one reason alone: to ensure the court has as little compelling real-world, reliable, probative evidence available to it as possible on the issue of child custody and parent time.[2] 

Trying and testing and comparing competing child custody award proposals are the best and least expensive means whereby the parties can gather factually verifiable evidence of the parties’ competing custody and parent time award proposals actually implemented. Leaving the question of what child custody and parent time schedule actually works to the guesswork of a custody evaluator (who, when a conventional child custody evaluation order is issued, is left to “compare” the implementation of sole custody schedule to nothing else, and then on that basis determine whether joint equal custody will work without actually seeing joint equal custody ever implemented for any evidentially adequate period of time) is patently absurd.   

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

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Can I legally stop talking to my dad if he has custody (I live with my mom full time, but he’s still legally my parent as well)?

This is a good question because it deals with an issue that the law either has not addressed or cannot effectively address. 

First, is there any legally permissible and practicable way to force a child to talk with a parent? I don’t see how a parent whose child refuses to speak to him/her could compel that child through the legal process to speak with or otherwise communicate with that parent. Now, of course, if a parent and his/her lawyer wanted to get really creative about this problem, I can imagine that the parent and lawyer might dream up some kind of civil lawsuit against the child for the negligent or intentional infliction of emotional distress or some other such nonsense, but in the end, I don’t see how one could use the legal system to compel a child to speak with or communicate with a parent if that child refuses to do so. 

This does not mean, however, that a parent is powerless in dealing with a recalcitrant child. While a parent cannot neglect or physically or emotionally abuse a child in an effort to compel the child to speak with or otherwise communicate with that parent, there’s certainly nothing wrong with taking legal and reasonable disciplinary action against the child. Grounding, privilege restrictions and removal, even corporal punishment (yes, it’s legal in many jurisdictions) are options available to a parent, and they may work. For a parent to stride every other option, these are measures a parent can try and they may be worth trying under appropriate circumstances. 

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

https://www.quora.com/Can-I-legally-stop-talking-to-my-dad-if-he-has-custody-I-live-with-my-mom-full-time-but-he-s-still-legally-my-parent-as-well/answer/Eric-Johnson-311  

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After a divorce, should my kids be with me or with the mom?

First, you need to understand that you’re asking the wrong question.

Child custody is not a zero-sum game; otherwise stated, when parents divorce, or when unmarried parents separate, where you get the idea that the children must be in the custody of one parent or the other, but not in the joint custody of both?

Perhaps it has come from the idea you been taught most of your life that children of divorced or separated parents must spend the majority of their time in the custody of one parent. I’m 52 years old at the time I write this, and throughout my youth I was taught that very thing.

Not only were we taught the children should spend most of their time in the custody of just one parent, but we were taught that the parent that should be the “custodial” or primary custodial” parent was the mother. Almost always the mother. The mother, unless it could be proven that the mother was heinously unfit to have custody of the children. It was not uncommon to hear about perfectly good and decent fathers not being awarded custody or not being awarded joint physical custody of their children even when mom had a substance abuse problem or was physically and/or emotionally abusive.

The idea that children could be or should be cared for equally or as near to equally as possible by both parents was in the not so distant past unthinkable. The idea of children being cared for by their fathers was believed to be emotionally and psychologically damaging to children, especially very young children. The more research that is conducted on the subject, however, the more we learn that such thinking is wrong. I’ll be the first to admit that, especially in American culture, it seemed somewhat intuitive to believe that children might need or fare better in the care of their mothers instead of their fathers, but it turns out that’s false.

Unfortunately, the legal profession and the courts have been very slow to accept, let alone embrace, this fact. But things are changing in the legal profession and the courts, and at a comparatively rapid pace.

Now (I write this May 27, 2021), things are different, or I should say they are becoming different. As well they should be. Just as this country realized it made no sense to make the black man or woman sit at the back of the bus and that all citizens deserve fair and equal treatment under the law, it makes no sense to deny children of as much love and care and companionship of both of their loving, fit parents as possible.

To crib from C.S. Lewis a bit, asking which fit parent the children are better off with is like asking which blade of the scissors we’re better off with.

When children have to loving, caring parents who are physically and emotionally and financially capable of providing the minimally necessary levels of care their children require, there is no to deny children the benefits of being reared by both parents equally. Period.

I am a divorce lawyer in Utah. For those of you who are currently facing or who are contemplating a possible divorce or child custody dispute in Utah, you may find these statutory criteria that the courts are supposed to apply when making child custody determinations:

Utah Code:


Section 10
. Custody of a child — Custody factors.

Section 10.1. Definitions — Joint legal custody — Joint physical custody.

Section 10.2. Joint custody order — Factors for court determination — Public assistance.

And these sections are worth reviewing to get an idea of what the definitions of child custody are, whether that be legal custody or physical custody:


Section 33
. Advisory guidelines.

Section 34. Parent-time — Best interests — Rebuttable presumption.

Section 34.5. Supervised parent-time.

Section 35. Minimum schedule for parent-time for children 5 to 18 years old.

Section 35.1. Optional schedule for parent-time for children 5 to 18 years of age.

Section 35.2. Equal parent-time schedule.

Section 35.5. Minimum schedule for parent-time for children under five years of age.

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

https://www.quora.com/After-a-divorce-should-my-kids-be-with-me-or-with-the-mom/answer/Eric-Johnson-311

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How can a mother leave the father of her baby and get full custody, when she does not trust him to look after the baby by himself?

How can a mother leave the father of her baby and get full custody, when she does not trust him to look after the baby by himself? The mother (or any parent in such a situation) would need to prove, by a preponderance of evidence, to the court that the father (or other parent) is sufficiently unfit to be entrusted with the child. Simply telling the court “I don’t trust the other parent” is not enough, not even close to enough to persuade the court.

The mother would need to provide the court independently verifiable facts that show the father is either unable or unwilling to provide adequate care and attention and supervision of the child. A court cannot award a parent sole legal and/or sole physical custody of a child without first finding there is sufficient evidence to justify such an award (or at least cannot do its job properly without first finding there is sufficient evidence to justify such an award).

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

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What does it take to get the court to award custody to the father?

What does it take to get the court to award custody to the father?

Either:

A) a miracle

or

B) the mother has to be so clearly an unfit parent that the court cannot both i) award her custody and ii) be taken seriously.

Now first, I exaggerate, but only a bit.

While fathers are being increasingly (albeit slowly) treated more fairly in child custody awards, there is an obvious bias against awarding fathers sole, much less joint, physical custody of children. Culturally, the courts (and society at large) has been duped into believing that mothers “make better parents.” Courts frequently cite to the fact that the mother was “the primary caregiver” as a reason for awarding custody solely or primarily to mothers. That might actually be a valid argument if a child is a nursing infant dependent upon a parent for 24/7 care. Yet even when the children are in school and Mom now has a job, the “mom was the primary caregiver” argument is often made. That’s silly and grossly unfair to fathers and children alike. That’s like saying Kareem Abdul Jabar should be paid tens of millions of dollars to play in the NBA again because he was such a great player before he turned 73 years old.

Second, no parent—whether father or mother—should seek sole legal or physical custody of children if both parents are at least minimally fit and their geographic proximity, job schedules, and other such material factors enable them to exercise joint physical and legal custody of the the children. The children love both of their parents and want to spend as much time as possible with each of them. Unless joint physical custody is a practicable impossibility, the “best parent” is both parents.

“We cannot expect men to be active, engaged fathers when they have been told since birth that they are the lesser parent, that they should defer to the mothers, and that once they no longer live in the same home as their children, they are relegated to a visitor and a paycheck.”

Emma Johnson

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

https://www.quora.com/What-does-it-take-to-get-the-court-to-award-custody-to-the-father/answer/Eric-Johnson-311

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Child Custody in Utah – Myths and Misunderstandings No More!

There were many myths and misunderstandings surrounding what child custody means and how it is applied state of Utah in divorce and other child custody actions.  Not anymore, just read on.

First you need to understand what “child custody” means in a legal sense. In Utah, there are two different kinds of child custody: physical custody and legal custody.

“Physical custody” is not defined as “which parent the child lives with” because, when you think about it, the rather vague definition.   “Physical custody” means, in legal terms and specifically, where the child stays with a parent overnight.  If a child spends 30% of the year or less with a parent overnight, that parent would be defined as a “noncustodial” parent.  If a child spends more than 30% of the year with both parents overnight, and both parents contribute to the expenses of the child in addition to paying child support, then those parents would be defined as “joint custodians” of their child.

“Legal custody” is the right, privilege, duty, and powers of a parent to make specific decisions regarding a child’s education, health care, moral and religious upbringing, and other matters pertaining to the overall welfare of the minor child.  Courts can award sole or joint legal custody to parents.  Some people believe, erroneously, that the only kind of child custody issue a court considers is physical custody, and that just because a child’s parents no longer remain married or living together a parents parental rights of legal custody don’t or can’t change.  As you see from reading this paragraph, the parent can lose his or her rights of legal custody if the court orders it.

Now that you understand the difference between physical custody and legal custody, you need to understand the different kinds of physical custody awards a court can make in Utah.

“Sole Custody” (sometimes also called “Primary Custody”) is where the court orders that the child or children spend 70% or more of their overnights in the physical care and custody of a parent.  Sole custody used to be the norm in Utah and in most states.  Typically, mothers were awarded sole custody of the kids far more often than were fathers.  But this is changing, both in Utah and across the country. The trend is toward joint custody unless there is a compelling reason not to award joint custody.

 “Joint Custody.” Many people, however, have the wrong concept of what joint physical custody can mean in Utah.  It is understandable if you think that joint custody means equal periods of time that the children spend in the custody of both parents, i.e., 50-50.  You can be considered a joint physical custodian in Utah and still only have the children with you 111 overnights per year because the Utah Code defines a joint physical custodian as a parent who has the children with him or her overnight more than 30% of the year.  30% of 365 days a year equals 109.5 days, so to have the children in your physical custody more than 30% of the year requires you to have them stay with you at least 111 overnights annually.

“Split Custody” can only apply when there are two or more children.  Split custody arises where some of the children reside with one parent more than the other.  Rather than moving as a unit between one parent and the other, they are “split up,” between parents.  Split custody is rare and most commonly ordered to keep siblings who don’t get along well with each other separated.

Now that you know how to define child custody and its various types, but take a moment to discuss child custody litigation.  Child custody is one of the most hotly contested issues in a divorce or child custody case between unwed parents.  Although it shouldn’t, fighting over custody can consume tens or even hundreds of thousands of dollars in some cases, and can make cases last years longer than they would otherwise have were children not involved.

Many flaky attorneys (and they are legion) will tell you that child custody is still, in this day and age, a foregone conclusion. And by that what they mean to persuade you to believe is that in the majority of cases sole custody of the children is awarded to mothers.  There is an element of truth to this.  Although most of them will never admit it, I am of the opinion that some judges and court commissioners in Utah are biased in favor of mothers when it comes to making child custody awards. Still, as I stated above, the trend in Utah and throughout the country is toward joint physical custody awards, unless there is a compelling reason or reasons arguing against it.  Unfortunately, this does not mean that getting an award of joint custody is very easy, but where there is a will there is almost always a way, for a fit parent.

You can stop reading here, but if you’d like to know more about what criteria the courts consider when making child custody awards, you will find this selection of some Utah child custody case law summaries very helpful to developing your understanding:

Davis v. Davis, 749 P.2d 647, 648 (Utah 1988)

Reviewing the trial court’s findings and conclusions pertaining to the custody award in light of the foregoing standard, we conclude that no abuse of discretion occurred. The trial court considered a number of factors in awarding custody to James. Principal among them were that James had been J.Z.’s primary caregiver for over a year and had provided a very stable environment. In considering competing claims to custody between fit parents under the “best interests of the child” standard, considerable weight should be given to which parent has been the child’s primary caregiver. Pusey v. Pusey, 728 P.2d 117, 120 (Utah 1986).

Penny, however, contends that the court’s order was improper because it had the effect of rewarding James for his exploitative conduct in securing the earlier hurried divorce and custody order. But for that order, he would not have had custody of J.Z. for the year in question. The law does not, when determining custody of a child, attempt to reward or punish one parent or the other. This Court has repeatedly stated that the child’s best interests are to be the primary focus of a custody decision. See Sanderson v. Tryon, 739 P.2d 623, 626 (Utah 1987); Fontenot v. Fontenot, 714 P.2d 1131, 1132 (Utah 1986); Becker v. Becker, 694 P.2d 608, 610 (Utah 1984); Mitchell v. Mitchell, 668 P.2d 561, 564 (Utah 1983); Hyde v. Hyde, 22 Utah 2d 429, 431, 454 P.2d 884, 885 (1969). Of course, if the primary caregiver gained that status wrongfully, courts should be careful not to reward such conduct by giving the wrongdoer a consequential advantage in evaluating the custody question. See, e.g., In re Halloway, 732 P.2d 962, 971–72 (Utah 1986).

In the instant case, however, there is no finding that James acted wrongfully in obtaining custody of J.Z. In fact, Penny actually wanted her husband to take custody at the time of the initial divorce. Difficulties she was encountering in caring for the child were one of the reasons she sought the divorce. In light of her reasons for seeking a divorce and her emotional instability during the fall of 1984, there is no reason to believe that Penny would have acted differently toward J.Z. or that the trial court would have awarded her custody if the initial proceedings had been conducted in any other fashion. She has now changed her mind, but that does not mean that the court that granted the second divorce should have discounted the fact that her husband had actual custody of the child for a substantial period and functioned well as a primary caregiver. J.Z. has resided with his father since August of 1984. He has lived in the same house since he was born. Ample evidence was presented to support the trial court’s determination that J.Z. lives in a stable, secure environment and that he and James have a loving relationship.

Penny, on the other hand, failed to present any evidence to support her contention that J.Z.’s best interests would have been furthered by placing J.Z. with her. Although she presented testimony that she is now emotionally stable and no longer depressed, the trial court was not persuaded that her present stability was sufficient to offset its concerns about her ability to provide a stable environment for J.Z. The court found that Penny was still in a period of reconstruction from her earlier emotional difficulties. Based on the evidence presented, the trial court’s award of custody to James was within its discretion.

Pusey v. Pusey, 728 P.2d 117, 120 (Utah 1986)

Plaintiff cross-appeals from that portion of the divorce decree awarding custody of the older son of the marriage to defendant and requests that both children be awarded to her. This Court’s judicial preference for the mother, reaffirmed in Nilson v. Nilson, 652 P.2d 1323 (Utah 1982), and Lembach v. Cox, 639 P.2d 197 (Utah 1981), is cited in support. We acknowledged in dictum the continued vitality of that preference in Jorgensen v. Jorgensen, 599 P.2d 510, 511 (Utah 1979), “all other things being equal.” We believe the time has come to discontinue our support, even in dictum, for the notion of gender-based preferences in child custody cases. A review of the cases cited by plaintiff shows that “all other things” are rarely equal, and therefore this Court has not treated a direct challenge to the maternal preference rule in over five years. In the unlikely event that a case with absolute equality “of all things” concerning custody is presented to us, the provisions of article IV, section 1 of the Utah Constitution and of the fourteenth amendment of the United States Constitution would preclude us from relying on gender as a determining factor.

Several courts have declared the maternal preference, or “tender years presumption,”  unconstitutional. As early as 1973, the New York Family Court, Kooper, J., held that “application of the ‘tender years presumption’ would deprive [the father] of his right to equal protection of the law under the Fourteenth Amendment to the United States Constitution.” State ex rel. Watts v. Watts, 77 Misc.2d 285, 350 N.Y.S.2d 285, 290 (1973). Citing several studies which determined that a child needs “mothering” rather than a mother, id., the court determined that the presumption does not serve a compelling state interest. Id., 350 N.Y.S.2d at 291. Although Watts used a strict scrutiny test, it is equally doubtful that the maternal preference can be sustained on an intermediate level of review. See Hyde, Child Custody in Divorce, 35 Juv. & Fam.Ct.J. 1 at 10 (Spring 1984). This is particularly true when the tender years doctrine is used as a “tie-breaker,” as it is in Utah, because in that situation the Court is “denying custody to all fathers who … are as capable as the mother…. [W]hile over inclusiveness [sic] is tolerable at the rational basis level of review, it becomes problematic at the heightened level of scrutiny recognized in gender discrimination cases.” Id. at 11 (emphasis added; footnotes omitted).

Even ignoring the constitutional infirmities of the maternal preference, the rule lacks validity because it is unnecessary and perpetuates outdated stereotypes. The development of the tender years doctrine was perhaps useful in a society in which fathers traditionally worked outside the home and mothers did not; however, since that pattern is no longer prevalent, particularly in post-separation single-parent households, the tender years doctrine is equally anachronistic. See Hyde, supra, at 6. Further, “[b]y arbitrarily applying a presumption in favor of the mother and awarding custody to her on that basis, a court is not truly evaluating what is in the child’s best interests.” Id. at 10.

We believe that the choice in competing child custody claims should instead be based on function-related factors. Prominent among these, though not exclusive, is the identity of the primary caretaker during the marriage. Other factors should include the identity of the parent with greater flexibility to provide personal care for the child and the identity of the parent with whom the child has spent most of his or her time pending custody determination if that period has been lengthy. Another important factor should be the stability of the environment provided by each parent. See generally Atkinson, Criteria for Deciding Child Custody in the Trial and Appellate Courts, 18 Fam.L.Q. 1 (Spring 1984).

In accord with those guidelines, we disavow today those cases that continue to approve, even indirectly, an arbitrary maternal preference, thereby encouraging arguments such as those made by the cross-appellant in this case.

Hudema v. Carpenter, 989 P.2d 491 (1999 UT App)

Mother, who had sole physical custody of child with shared joint legal custody with father, moved to increase child support after father moved to another city to accept new job at higher salary. Father moved to modify custody based on changed circumstances. The Second District Court, Farmington Department, Jon M. Memmott, J., awarded sole physical custody to father with structured visitation. Mother appealed.  The Court of Appeals held that the trial court did not err in ruling that there was a sufficient change of circumstances to warrant modifying custody; trial court abused its discretion in determining that religious compatibility and comparison of moral character favored awarding custody to father; it was within the court’s discretion to rule that child’s interests were best served by awarding custody to father because child’s stronger bond with his father and the increased kinship ties near father’s home.

Trial court generally may not consider evidence of the child’s best interests until it finds changed circumstances that will permit modification of custody award. U.C.A. § 30–3–10.4.

When a custody order is entered pursuant to a stipulated agreement, rather than a prior adjudication of the child’s best interests, res judicata policy underlying rule requiring changed circumstances to modify custody award is at a particularly low ebb. U.C.A. §, 30–3–10.4.

Legal conclusion that changed circumstances permitted modification of custody award was not abuse of discretion based on findings that both parents had remarried and moved to new communities separated by a distance that prohibited child’s daily contact with both parents, and that child had begun school, making extended periods of visitation unworkable during most of the year. U.C.A. §, 30–3–10.4.

Generally in determining whether change of custody is in child’s best interests, it is within the trial court’s discretion to determine, based on the facts before it and within the confines set by the appellate courts, where a particular factor falls within the spectrum of relative importance and to accord each factor its appropriate weight. U.C.A. §, 30–3–10.4; Judicial Administration Rule 4–903.

Continuity of placement is at critically important end of the spectrum of factors used in determining whether child’s best interests favor change in custody when the child is thriving, happy, and well-adjusted. U.C.A. §, 30–3–10.4; Judicial Administration Rule 4–903.

Existing child custody arrangements in which the child has thrived should be disturbed only if the court finds compelling circumstances. U.C.A. §, 30–3–10.4; Judicial Administration Rule 4–903.

Interest in stability, while still favoring mother’s continued sole physical custody of child who was well-adjusted in existing arrangement did not preclude change of custody where mother had changed interpersonal dynamics of her household by remarrying and by moving from child’s lifelong home to a new home in another state. U.C.A. §, 30–3–10.4; Judicial Administration Rule 4–903.

Trial court abused its discretion in concluding individual factor of religious compatibility favored modifying custody award to grant father sole physical custody of child on basis that mother, while of same religion as child and while encouraging child’s religious participation, was not as active a participant as father in church, as there was no evidence that mother’s religious beliefs or practices were detrimental to child’s welfare. U.C.A. §, 30–3–10.4; Judicial Administration Rule 4–903.

Only when the parents’ religiously based actions, either in their own right or by conflicting with the child’s religious identity, negatively impact the child, as by compromising his health or safety, or by interfering with the stability and continuity in his life, or by diminishing the child’s self image, should the religious compatibility factor be used to favor custody by one parent over the other. U.C.A. §, 30–3–10.4; Judicial Administration Rule 4–903.

Moral standards’ are a statutory consideration that may be relevant to a custody determination to the extent they affect the children’s best interests. U.C.A. §, 30–3–10(1).

In absence of any evidence that mother’s short period of premarital cohabitation adversely impacted on child’s best interests, trial court exceeded its discretion in concluding that a comparison of mother’s and father’s moral character favored changing custody of child to father based on mother’s move to out-of-state home of her current husband six weeks before her marriage to him. U.C.A. §, 30–3–10(1).

Finding that award of custody to father would promote child’s kinship ties was within trial court’s discretion, based on evidence that father resided near extended family and with child’s half-sister, while mother had no extended family residing near her out-of-state residence. U.C.A. §, 30–3–10.

Presence of extended family and promotion of kinship ties, while factor in determining child’s best interests, is alone relatively unimportant and cannot override interest in preserving stability. U.C.A. §, 30–3–10.

Child’s bond with a particular parent is at the significant end of the spectrum in determining best interests of child on motion for custody modification and should weigh heavily in the court’s determination.

When trial court finds that child has bonded more closely with one parent than another, the court is within its discretion in concluding that the difference in bonding overrides the general interest in stability in determining whether child’s best interests favor custody modification, especially where the prospect of stability is diminished. U.C.A. §, 30–3–10.

Trial court did not abuse its discretion in determining that child’s best interests be served by modifying custody to award father primary physical custody based on child’s closer bond with his father, which court found outweighed interest in preserving existing custodial arrangement where continuity had been disturbed by both parents’ remarriages and moves to new locations. U.C.A. §, 30–3–10.

Clarke v. Clarke, 292 P.3d 76, 78 (Utah App., 2012

Husband first challenges the district court’s decision to award Wife sole legal and physical custody of their children. In reviewing “initial custody awards, we give trial courts broad discretion. So long as that discretion is exercised within the confines of the legal standards we have set … we will not disturb the resulting award.” Davis v. Davis, 749 P.2d 647, 648 (Utah 1988) (citations omitted). “The trial court’s discretion stems from the reality that in some cases the court must choose one custodian from two excellent parents, and its proximity to the evidence places it in a more advantaged position than an appellate court.” Tucker v. Tucker, 910 P.2d 1209, 1214 (Utah 1996). Indeed, “[o]ur statutes and case law are consistent and clear with respect to the considerable discretion allowed the trial court in child custody matters, with the controlling factor being that which is in the best interest and welfare of the minor child.” Rice v. Rice, 564 P.2d 305, 306 (Utah 1977); see also Utah Code Ann. § 30–3–10(1)(a) (Supp.2012) FN1 (“In determining any form of custody, the court shall consider the best interests of the child ….”); id. § 30–3–10.2(2) (2007) (listing several factors that are relevant to determining “the best interest of a child”); Mecham v. Mecham, 544 P.2d 479, 480 (Utah 1975) (explaining that in determining custody, the best interest of the child “is of paramount importance”). The determination of the best interest of the child requires consideration of a number of nonexhaustive statutory factors, which have been supplemented and expanded by our case law. See Utah Code Ann. §§ 30–3–10(1)(a)(i)–(iv), –10.2(2); see, e.g., Tucker, 910 P.2d at 1215 (listing numerous factors the district court may consider to determine the best interest of the child).

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

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How many states favor mothers in child custody proceedings?

How many states favor giving the child to its mother in a custody hearing?

You’re asking a good question, but it’s not the question you think you’re asking.

The question is not whether a particular “state” favors awarding custody of children to mothers over fathers, but whether particular judges favor awarding custody of children to mothers over fathers.

First, we need to understand a few things about the way the law governing the award of child custody has evolved.

I am not aware of any state in the United States with a law that expressly discriminates against men for child custody purposes; if any such law existed, it would likely be challenged and easily struck down as sexually discriminatory and thus unconstitutional. There may still be a few states with laws on the books that surreptitiously favor mothers over fathers. By employing language and stating tests and elements that favor to women and mothers over men and fathers without overt references to men or women, such laws still manage to discriminate in favor of mothers over fathers without appearing to be indulging in blatant sexual discrimination. A good example of this in my jurisdiction (Utah) is favoring the “primary caregiver” of the child. Many judges simply presume that a child’s primary caregiver is its mother, particularly when the child is an infant or very young, even if there is insufficient evidence or even no evidence to support such a presumption.

And that’s a good segue into the next topic of this discussion. When it comes to child custody, laws are usually not your biggest impediment to a fair child custody award. While it is true that in the past there were child custody laws that were blatantly and grossly discriminatory against men and fathers, those laws are disappearing fast (thank goodness). Now the problem lies primarily not in the law but in those who administer the law: the judges.

Many of the current/outgoing generation of judges came from nuclear families (i.e., a family consisting of a married mother and father of their children) in which the mother seldom worked outside the home, if at all. In families like these, it was clear that the mother usually did, in the majority of divorce cases involving such families, the majority of the child care taking. Reasonable arguments could be made in these circumstances for why the mother would be awarded primary physical custody of the couple’s children. Many of these judges have so many cultural biases in favor of awarding custody of children to mothers that they are incapable of even conceiving of the idea of a father being awarded primary custody or even having both parents share physical custody of their children equally. Not all of the current generation of judges are this way, but many are.

But the new/incoming generation of judges are as likely to be children of divorce as to have come from a traditional nuclear family, and many of the current generation of judges also have children who have divorced. These judges remember how awful it felt to be limited to time with their fathers on alternating weekends and holidays. These judges see their own adult divorce children no longer treated as co-equal parents and instead being marginalized as “visitors” of their own children. Many of these judges are far more sympathetic to men and fathers than the previous generation of judges are and have been. Not all of the new generation of judges are this way, but many are, and their ranks are growing.

So if you have a judge who is over the age of 60 years, and you are a fit and loving father who wants to be as involved in your children’s lives as you want their mother to be, odds are you have an uphill battle before you. If it becomes clear that your judge is culturally biased and/or discriminates on the basis of sex, you need to expose this on the record, and you need to acquire and present so much evidence showing your parental fitness and that the best interest of the children benefit from joint custody that it leaves the judge no other rational, justifiable choice but to award you (and the kids) joint custody. It can be done, but it’s extraordinarily difficult these days, so be prepared to work very hard (yes, even unfairly hard) for it.

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

https://www.quora.com/How-many-states-favor-giving-the-child-to-its-mother-in-a-custody-hearing/answer/Eric-Johnson-311

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What is the best way to get a 50/50 custody and visitation plan in family court?

There are many, many factors the judge will consider. I’ll list them.

First and foremost is: distance between the parents. If the parents don’t live close enough to each other to make joint custody work, the court simply won’t award joint custody.

To make joint physical custody feasible the parents obviously must be able to transport the children between their respective residences without the travel being a burden and a hardship on the child.

That means the parents must live close enough to each other to get the child to school when the child is with each parent. It also means that the child gets to spend time with one parent without spending too much time away from the other parent. And that usually means that the parents live within about 30 minutes or less of each other; otherwise, all the time, effort, travel and expense associated with shuttling the child back and forth in the long distance between the parents benefits no one, particularly the child.

So parents who live in different states (and by “living in different states” I’ll assume that means parents that live a long distance away from each other, not just over the state line from each other) could still be awarded joint legal custody of their child, but the odds of being awarded joint physical custody are slim, and for obvious reasons.

If you want to get joint physical custody of your children in Utah, you need to live close to the other parent, so that going between the parents’ respective homes will not be an undue burden on the kids.

Other factors the court considers when determining whether to award joint physical custody. These are the factors the court considers in Utah, where I practice law.

Custody Factors – Utah Code § 30-3-10 and § 30-3-10.2, UCJA Rule 4-903:

i. the past conduct and demonstrated moral standards of each of the parties;

ii. which parent is most likely to act in the best interest of the child, including allowing the child frequent and continuing contact with the noncustodial parent;

iii. the extent of bonding between the parent and child, meaning the depth, quality, and nature of the relationship between a parent and child;

iv. whether the parent has intentionally exposed the child to pornography or material harmful to a minor, as defined in Utah Code § 76-10-1201; and

v. domestic violence in the home or in the presence of the child;

vi. special physical or mental needs of a parent or child, making joint legal custody unreasonable;

vii. physical distance between the residences of the parents, making joint decision making impractical in certain circumstances;

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

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

x. whether each parent is capable of encouraging and accepting a positive relationship between the child and the other parent, including the sharing of love, affection, and contact between the child and the other parent;

xi. whether both parents participated in raising the child before the divorce;

xii. the geographical proximity of the homes of the parents;

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

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

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

xvi. any history of, or potential for, child abuse, spouse abuse, or kidnapping;

xvii. the relative benefit of keeping siblings together;

xviii. previous parenting arrangements where the child has been happy and well adjusted;

xix. factors relating to the prospective custodians’ character and their capacity and willingness to function as parents, including:

  1. parenting skills;
  2. co-parenting skills (including, but not limited to, the ability to facilitate the child’s relationship with the other parent, and to appropriately communicate with the other parent);
  3. moral character; emotional stability;
  4. duration and depth of desire for custody and parent-time;
  5. ability to provide personal rather than surrogate care;
  6. significant impairment of ability to function as a parent through drug abuse, excessive drinking or other causes;
  7. reasons for having relinquished custody or parent-time in the past; religious compatibility with the child;
  8. the child’s interaction and relationship with the child’s step-parent(s), extended family members, and/or any other person who may significantly affect the child’s best interest;
  9. financial responsibility; evidence of abuse of the subject child, another child, or spouse;

xx. any other factors the court finds relevant.

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

https://www.quora.com/What-is-the-best-way-to-get-a-50-50-custody-and-visitation-plan-in-family-court/answer/Eric-Johnson-311

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Bullet Proofing Your Summer Parent Time – Part 1 of 4 Series

BULLET PROOF ADVANCE NOTICE

Note:  This is the first of four blog postings on bullet proofing your summer parent time, that I’ll publish in as many weeks.  You will want to read them all.

At the time I write this, spring has sprung.  It’s hard for me at a time like this to decide whether spring or fall is my favorite season.  This has got to be one of the most gorgeous spring times I can ever remember in Salt Lake City, Utah, where I live.  The grass is as green as it’ll ever be, the air is fresh and cool (yet comfy), and we’re all celebrating the end of winter and the coming of summer.

For many a divorced parent, however, the coming of summer fills them with dread. Once again, you worry that you’ll have to fight with your ex over scheduling time with the children during summer vacation.

If this is your first summer after your decree of divorce was entered, you may foolishly believe that you simply dust off your Decree of Divorce, go to the page in paragraphs in your parenting plan that describe how summer scheduling is governed, and plan accordingly.  While I hope that you have an ex-spouse who is reasonable and fair, if you don’t, then you should not expect scheduling summer visitation or parent time with the kids to be a pleasant experience.

Whether you are the primary custodial parent, the “non-custodial” parent, or share custody with your children, there are myriad ways to (pardon my language) screw with the other parent over parent-time and child custody.  Some parents love to do it!, and for certain reasons; in no particular order:

  1. Sore losers Type A.  If your ex didn’t get what he or she wanted in the divorce (whether had to do a child custody or some other issue or issues in your divorce), a great way to be a sore loser is to get you where you’re most vulnerable– your relationship with your kids.
  1. Sore losers Type B.  Another category of sore loser is the parent who feels that he or she has a right to the child custody arrangement he or she wants regardless of the child custody and parent-time award the court actually ordered.
  1. Crazy exes.  Many of you (and you know who you are) got divorced because your spouse was crazy.  Your children form a virtually indestructible link to the other parent her children.  While your divorce cut you loose from marriage to a crazy spouse, it is impossible to escape a crazy co-parent.
  1. Evil, vengeful exes.  See “Crazy exes” above.

If you were married to a sore loser, a crazy person, and evil person, or a crazy evil person, you need to start now, well before school is dismissed for the summer, to ensure that your summer parent time and summer plans with the children are safeguarded.  Do not wait another moment.  Start today, and you can do so by implementing some of these suggestions for providing BULLET PROOF ADVANCE NOTICE:

  1. Regardless of whether your decree of divorce provides that you and your ex must agree upon a summer schedule for time-sharing between you and your ex with the children, or your decree of divorce sets out a specific schedule assigned to each parent, notify your ex—no less than 60 days before school is dismissed—of your plans for summer for the children.*
  1. DO NOT force or ask your children to provide notice to your ex.
  1. If you are reading this when there is less than 60 days before school is dismissed for the summer, give as much advanced notice as you possibly can.
    1. Do this in writing;
    2. Do this in a detailed writing;
    3. Do this in a detailed writing that bears the date you sent it;
    4. Do this in a detailed writing that bears the date you sent it and that you can prove was delivered to your ex.  There are several ways to approach this.  The tried-and-true method of sending a letter by certified mail or FedEx that your ex has to sign for, proving it was received.  You can hand deliver a letter to your ex’s house, and take it to the door or place it under the mat, and take a picture of it (make sure the date stamp function on your camera is turned on).  You can send your ex an e-mail with a request to confirm when it has been received and/or read.  Most of the popular e-mail apps have this feature, so if you don’t know how to use it, ask a friend or go online to get instructions.
    5. Include in your written notice the following statements and information:
i.     The reference in your decree of divorce to the provisions for the summer schedule (feel free to attach a copy of those pages from the decree, if you believe it will be helpful and provide clarity);
ii.     A statement describing and explaining your understanding of how the schedule in the decree of divorce works and what part(s) of the summer that entitles you and the children to exercise together this year;
iii.    The dates you intend to have the children in your care and custody for your period(s) of summer parent time;
iv.    If you will be traveling outside the state of Utah during summer parent-time with the children (or outside the state in which you reside, if you live outside the state of Utah already), provide your ex with:
  • Your travel itinerary, including the dates of travel and your destinations;
  • The name and address of places where the children and you will be lodging and can be reached during your travels;
  • The name and telephone number of an available third person who would be knowledgeable of your and the children’s location during your travels.

Even if you really don’t want your ex to know this much about your summer vacation plans what you’ll be doing, this is a concession worth making because it shows how responsible you are makes it extremely difficult for your vindictive ex (if that’s the kind of ex you have) to complain of being kept in the dark or being worried sick about his or her precious children.

Note:  If you plan to travel outside the country during your summer parent time, make sure you made that abundantly clear to your ex.

Be sure to secure your children’s passports and proper parental consent, so that you will not be barred from boarding the plane, boat, or train.  Click here for more information and direction from the U.S. Customs and Border Protection agency of the office of Homeland Security about obtaining parental consent that will pass muster with Customs and Border protection.

 

Even if you will be traveling within the United States, but on commercial flight, bus, boat, or train, you will want to get a parental consent or letter that the Customs and Border Protection agency will accept.

 

  1. If your decree of divorce include a provision that the parties must first attempt to resolve a dispute in mediation before they can ask the court to resolve the dispute, make sure your written notice contains a statement such as, “If you dispute my interpretation of the summer parent time provisions of our decree and how I have asserted they apply, please speak to me immediately so that we can resolve any questions of interpretation and make our respective summer parent time plans without any conflict.  If you would prefer to meet in mediation instead of speaking or meeting with me alone, please notify me immediately of an acceptable choice of mediator who is available to meet with us immediately, and I will schedule that mediation to take place as soon as possible.”  Including this language in your notice
  2. Don’t be afraid to provide your notice in more than one form.  For example, it would be not just wise, but very wise to send your letter, if possible for you, by certified mail or by FedEx, and also by e-mail, and by hand-delivery, so that it is harder for your ex to claim “I don’t check my mail” or “I don’t check my e-mail” or “I never enter my house through the front door or ever gaze down at my doormat.”
  3. Don’t be afraid to provide this notice on more than one occasion.  If you send notice at least 60 days before school is dismissed, and you don’t get a response from your ex within a week or so, send another notice.
  4. And don’t just send your original notice a second time.  Instead, take a copy of your original notice and attached to it a cover note stating something like, “Attached to this cover note is a copy of a previous notice I sent to you on [DATE], but to which you have not yet responded.  I am resending you the original notice, and ask that you respond within the next three days, so that you and I can make summer plans with the children without our schedules conflicting.”
  5. If your decree allows you to make telephone or personal contact with your ex, try to give telephone and/or personal notification of your summer parent time plans to your ex as well.  If it’s possible to have a witness to this telephone or personal contact when you make it, that would be helpful.  After you make telephone and/or personal contact with your ex about your summer parent time plans, record this in your calendar or a journal, noting the date, time, place, and any witnesses to when you gave the notice.
  6. If, after you have sent to written notices (one notice a week for two weeks), you have not received any response—in writing—from your ex confirming receipt of the notice AND either approval of your travel plans or a counter proposal, do not try to give any further notice, it’s time for you to go straight to court.

Ah, but wait—many Utah decrees of divorce include a provision that before the parties can come to court to resolve the dispute, they must first attempt to resolve their dispute in mediation. Such a provision often trips up a parent who is otherwise doing a good job of policing his/her summer parent time rights.  How?

Well, at least 60 days before your summer parent time was to commence, you dutifully provided written notice, which your ex blew off for two weeks, and so then you proposed mediation, and duly sent notice of that once a week for two weeks.  Now you’re down to 30 days before your summer parent time is scheduled to kick in.  But your divorce decree says you have to try to go to mediation before you can go to court.  And your ex is ignoring your efforts to schedule mediation.  This is why I advised you in sub paragraph 1(f) to proposed mediation in your original notice.

By proposing mediation in your original notice, this makes it far easier for you to go directly to court after you have given notice and been ignored because you can show the court that but for your ex’s failure and refusal to meet in mediation, you were more than willing to do so, but not too much time has passed to address the matter in mediation successfully, thus requiring court intervention before it’s too late to make a difference.

My next blog posting discusses how to seek court assistance to enforce your summer parent time, if the need arises.  Answers to general Child Custody and Parent Time Visitation can be found here.

If you are someone who is already experiencing issues with your Summer Parent Time, and need to speak to somebody now, click below:

 

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Bullet Proofing Your Summer Parent Time – Part 4 of 4

BULLET PROOF YOUR HEARING

Note:  This is the fourth of four blog postings that I’ll publish in as many weeks.  You will want to read them all (and likely want to read them in order to get the most out of them).

The first blog posting on Bullet Proofing Your Summer Parent Time dealt with providing bullet proof advance notice of your summer parent time plans to your ex.  The second blog posting discussed your options for seeking court assistance, if your efforts to give advance notice and coordinate with your ex fail. The third posting covered how to maximize the impact of your motion you file with the court seeking enforcement of your parent-time.

This blog posting deals with your presentation in court itself, in person, before the judge or commissioner assigned to hear your motion, and how to ensure you make it as persuasive and effective as possible.

We start with the assumption that you have followed the steps outlined in blog postings 1 through 3 on this topic, meaning:

  1.       You gave your ex plenty of advance, clear, courteous, written AND oral, repeated (but not excessive) notice of your summer (or other) parent-time plans.  You have evidence of advance, clear, courteous, written AND oral, repeated (but not excessive) efforts to show you are cooperative and flexible.  You had at least one witness to your efforts.  When you ex ignored you or refused to comply, you gave your ex plenty of clear, courteous, written AND oral, repeated (but not excessive) notice of your intentions to enforce your summer (or other) parent-time plans.
  1.       When you ex ignored you or refused to comply, you gave your ex plenty of clear, courteous, written AND oral, repeated (but not excessive) notice of your intentions to enforce your summer (or other) parent-time plans, and again, you had at least one witness to these efforts as well.
  1.       You considered your options as to what forms of court assistance would be best for you and prepared yourself and your other communications with your ex accordingly, so that you ensure you have everything you need to seek the help you need or want.
  1.       With evidence in hand of your advance, clear, courteous, written AND oral, repeated (but not excessive) notice of your summer (or other) parent-time plans and evidence of your efforts to be cooperative and flexible, you neatly organized it and presented it clearly and concisely in your motion to the court.  You complied with every prong of statutory and court rule procedures to ensure that your motion will be accepted by the court and cannot be rejected for failure to comply with the rules.  You made sure that you served your motion properly and timely upon your ex.  You got a court date from the court and provided notice of the hearing both to the court and to your ex well in advance of your hearing date.

Now here is where the rubber meets the road.

All of your effort, all of your preparation all of your planning, and all of your argumentation rides on making a favorable impression on the court.  While it may be possible for you to have won the court over with the motion and supporting documents you filed with the court, typically the court does not make up its mind until after your hearing.

Your hearing give you the opportunity to ensure the court fully understands your predicament.  Your hearing is where you ensure the court has read all of your documentation, and is familiar with the provisions of your parent time orders, so that it cannot do anything clued it must rule in your favor.  And how do we do that?

First, DO NOT assume that your commissioner or judge has fully reviewed what you filed or that your commissioner or judge completely understands the situation and the bases for your complaints.  Sometimes the clerk for commissioner or judge may not have given the commissioner or judge all of the documents you filed with the court.  Other times, your commissioner or judge may not be aware of everything you filed.  Frankly, it’s possible your commissioners or judge just skimmed what you wrote and submitted, or simply did bother to read it at all.  So make sure that you are satisfied that the commissioner or judge knows the story and knows the important elements of your argument.

Second, one of the best commissioners I know explained it to me this way when giving me a winning formula for winning a motion:  build the box to which you trap your opponent.  What he meant was this:  if you are, for example, moving the court to hold your ex in contempt of court for violating parent time provisions, then make sure you establish proof of each element of contempt.  Each element of contempt constitutes one “side” of the box you build around your enemy.  Once you have every part of the box collected and assembled, your enemy is trapped, and you have won.  Fail to build a complete box, and you leave your enemy and escape route, and you lose.

Know what the law and the court rules require of you to establish a winning argument.  Make sure you have as much evidence as necessary support that winning argument.  If you don’t have everything you need to make a winning argument, don’t file your motion.  The court cannot grant the motion that is not legally sound.  It cannot give an “A” for effort.  I would be lying if I told you that I have seen court’s grant motions they should not have granted, but did so anyway out of bias or sympathy, but don’t count on that happening to you.

Third, know how to make favorable impressions when you appear in court to argue your case.  Here are some tips for making the most favorable impression (now a lot of people will think what I’m about to recommend is self-serving on my part, but it’s not):  even if you could pass for looking like and sounding like and acting like a lawyer, there are many commissioners and judges who don’t like dealing with people who represent themselves (self-represented people don’t have a great reputation for being particularly skilled in legal matters, so those are the one who ruin it for everyone).

I have seen self-represented people (known as pro se litigants) go to court and make articulate, well- reasoned arguments that were neither too long or too short, and who lost any way, and frankly, the only reason I could conclude they lost is because they somehow offended or insulted the court by having the nerve to show up and argue without a lawyer at their sides.  That’s just the way it is. It isn’t fair. There’s no law that requires you to hire a lawyer, but having a good, well-spoken, well-organized lawyer argue your case in court can make a strong argument stronger, and a weak argument a winner just by virtue of having it presented by a lawyer who inspires the confidence and gains the respect of the court.

As my father-in-law so sagely stated to me, “Don’t jump over dollars to pick up pennies.”  Look, I realize that you may only be prepared to argue your case in court without needing a lawyer to make the arguments themselves, but it’s not merely making the argument be need to concern yourself with, it’s making a persuasive argument, so if you want to improve your odds of winning, invest in a good lawyer to accompany you to court and make your argument before the judge or commissioner.

If you absolutely, positively cannot afford a lawyer to come to court with you and present your argument, keep these principles and some in mind throughout your entire presentation:

Dress Code

Make sure your dress and grooming is an asset to your case, not a detriment.

  1.       Business attire is the best dress code for court.  The courts will often let you wear almost anything you want to court, but that doesn’t mean you should.  While you could come to court in a T-shirt and jeans, the court session is the kind of occasion but should be treated with more solemnity that a baseball game.  Yes, you can argue that you’re right to dress however you want, but don’t let your bullheadedness and pride stand in the way of you winning the legal argument by having the court draw unfair conclusions about you because of the way you dress.
  1.       Dress and groom yourself well enough that your dress and grooming do not distract the court.  Your dress and grooming should be neither sloppy nor over-the-top glamorous.  Both you and your clothing should be clean and smell good.  Clothing should be wrinkle free.  Shoes that are polishable should be freshly polished.  If you have no sense of style, ask someone who does to help you put together an outfit for court.
  1.       Make sure your hair is freshly trimmed and combed.  Men’s faces and women’s legs should be freshly shaven.
  1.       Don’t smell like smoke.  Cover tattoos as best you can.  Take your piercings out, if you have them.
  1.       Men, ideally you should wear a well-fitting suit to court.  If you do not own a suit and need to borrow one, make sure it fits you.  Showing up to court in a jacket that is clearly too big or too small for you makes you look like a rube and all but shouts to the court that you are a fish out of water.  If you try to wear a blue blazer and khakis to court, there are worse things to do, but a suit is a much better bet.

Where real dress shoes with your suit.  No, black tennis shoes do not count as dress shoes.  Wear black socks with your shoes.  White socks with dress shoes is another mark of a bumpkin in court.  ‘Sorry if I may have offended you at this stage, but better to tell you now and have you discover the sad truth after it’s too late to do anything about it.

Ladies, if you have access to a business suit, wear it.  If you don’t have access to a business suit, cobble something together that closely mimics a business suit: modest blouse, jacket, closed toe shoes.  Wear your hair in a conservative, businesslike style.  Make sure your clothing fits well and does not draw unwanted attention to you.

Courtroom demeanor

  1.       Stand when the commissioner or judge enters the room and do not sit down until the judge or commissioner tells you that you may be seated.
  1.       Each time you address the court, stand before you speak and then address the court.  Almost every courtroom has a podium. You do not have to stand at the podium when you address the court, although you do have that option.
  1.       Address your judge or your commissioner as “Your Honor,” and not as” judge” or “commissioner”.  There is technically nothing wrong with calling a judge a judge or a commissioner a commissioner, but some judges and commissioners get very touchy about this, and you can never go wrong by using “Your Honor,” so play it safe.
  1.       Remember that old saw, “a child does not speak unless spoken to”?  Even though you are not a child, this principle applies rigorously in court.  Do not talk to your judge or your commissioner until her or she asks you to begin your argument or to answer a question.  If you feel you must speak to the court before your judge or your commissioner asks you to speak, do not just pipe up out of nowhere with “Hey, I forgot to mention . . .”; instead, meekly, but audibly and clearly say something like, “Pardon me, Your Honor, but may I ask/point out . . .”  or “Excuse me, Your Honor, but you may want to know . . . ”  Even when you are on your best behavior, don’t expect your judge or commissioner to treat you kindly simply because you are being so polite, you can rarely interrupt the court without the judge or the commissioner at least acting upset, prepared and don’t let it throw you.
  1.       Do not argue with your judge or commissioner.  Actually, this is not an absolute rule, but a generally good rule of thumb.  Sometimes, frankly, if you don’t argue with your judge or commissioner, then your judge or commissioner may rule against you when he shouldn’t.  Do not be afraid to stand your ground when it really counts.  That stated, pick your battles and remember that you don’t want to win one of those battles only to lose the greater war.
  1.       When your opponent is making his/her argument, sit quietly and politely listen.  Do not sign, snort, grunt, roll your eyes, murmur “that’s a lie” under your breath or tap your pen.  This is extremely rude and distracting, and will do your case no good.  Ensure that anyone who accompanies you to court and who sits in the gallery follows the same rules.  Ms. behaving in court can get spectators removed from the courtroom, and in extreme situations jailed for contempt of court.
  1.       You are to present your argument to the court, and not argue with the opposing party.  If you argue with each other, the court will chastise you both and will likely shorten the hearing just to keep you from sniping at each other.
  1.       When the hearing is completed and the judge or commissioner issues its ruling, the time for argument has ended.  You may certainly ask clarifying questions about the terms of the court’s ruling and order, but you cannot continue to attempt to argue your case any longer.  Just listen and take notes of the court’s decision now.

If your case is before a domestic relations commissioner and you didn’t get the ruling you believe you deserved, you can file an objection to the commissioner’s ruling and ask the judge assigned to your case to give you a new hearing.  You cannot object because you lost fair and square, but if you feel the commissioner committed an error of law, you have the option of and right to object.  To learn the details of the procedure for objecting to a commissioner’s recommendation, consult a good family law attorney.

Make sure your motion asks the court to include in the order express and explicit instructions to law enforcement to enforce the order, by force if necessary, to deliver your children into your custody in compliance with the court’s child custody order.  If you win your motion, make sure the court actually does include in the order those express and explicit instructions to law enforcement.  See Utah Code § 30-3-5(5)(b):

(b) Upon a specific finding by the court of the need for peace officer enforcement, the court may include in an order establishing a parent-time or visitation schedule a provision, among other things, authorizing any peace officer to enforce a court-ordered parent-time or visitation schedule entered under this chapter.

Forewarned is forearmed.  Take this series of four blog postings to heart when you’ve had enough and are ready to put some teeth into your parent-time order.  You and your children deserve it.

If you’ve read this article and feel you need help now protecting your parent time, click below to schedule an appointment.

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

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Bullet Proofing Your Summer Parent Time – Part 2 of 4

BULLET PROOF YOUR REQUEST FOR COURT ASSISTANCE

Note:  This is the second of four blog postings that I’ll publish in as many weeks.  You will want to read them all.

My previous and first blog posting on Bullet Proofing Your Summer Parent Time dealt with providing bullet proof advance notice of your summer parent time plans to your ex.  The purpose of this blog posting was to ensure that by giving the best possible advance notice you can, your ex will not fight you and cooperate with you and your summer parent time plans.

Even if, however, you provided detailed, clear, courteous, and timely advance notice, if your ex wants to (again, pardon my language) screw with your summer parent time, he or she can start by ignoring your advance notice and failing or refusing to cooperate with you in your efforts.

If, after you have sent your bullet proof advance notice, your ex ignores or outright defies you, it is no longer a matter of providing notice. It’s time for you to go straight to court.

If you followed the suggestions in Part 1 of this series, you have already done much of the heavy lifting associated with seeking the assistance of the court in the exercise of your summer parent time.

Because the court either cannot or will not help you if you do not first demonstrate an established to the satisfaction of the court that the reason you are having difficulty exercising your summer parent time is due to the fault of your ex, and not your own fault.

So if you have done as directed in Part 1, then you have some of the best evidence you or the court could hope for.  You have in your hands:

  • a complete copy of the written notice that was provided to your ex at least in advance of the date school is dismissed for the summer (and if you didn’t read Part 1 before school is dismissed, then you gave as much advanced notice as you possibly could); and
  • a certificate from the post office or FedEx and/or an e-mail read or delivery receipt proving delivery and/or receipt of your notice.

You will attach both a copy of your notice and proof of delivery/receipt to the documents you filed with the court.

If, in the course of notifying your ex of your summer parent time plans and making efforts to coordinate them with your ex, you also personally telephoned or met with your ex for this purpose, then if you follow the advice Part 1 , you had a witness present for that telephone conversation and/or during that face-to-face meeting.  That witness can fill out and sign a written affidavit or verified declaration confirming that you provided notice, and that affidavit or declaration is further evidence you can provide to the court.

With your evidence of bullet proof advance notice in hand, you are now ready to seek the help of the court, and you’re in a very sympathetic position.

You have several options available to you when seeking court help:

  1. The most popular option (though perhaps not the most effective) is known as a Motion for Order to Show Cause Re: Contempt.  Contempt of court occurs when someone who is subject to an order of the court knows about the order, has the ability to comply with the order, but willfully violates the order nevertheless.  Clearly, if a parent is violating another parent’s custody or parent time rights, as ordered by a court, that parent can be prosecuted in the divorce action for contempt and sanctioned.  What kinds of sanctions?
A fine not exceeding $1,000 and/or a jail term of 30 days, or both (note: a court commissioner may punish for contempt by a fine not to exceed $500 or by incarceration for five days or both).  See Utah Code § 78B-6-310.  Contempt—Action by court.
If an actual loss or injury to a party is caused by the contempt, the court, in lieu of or in addition to the fine or imprisonment imposed for the contempt, may order the person proceeded against to pay a sum of money sufficient to indemnify the party aggrieved and to satisfy his costs and expenses.  See Utah Code § 78B-6-311.  Damages to party aggrieved.
When the contempt consists of the omission to perform an act enjoined by law, which is yet in the power of the person to perform, the person may be imprisoned until the act is performed, or until released by the court. The act shall be specified in the warrant of commitment.  See Utah Code § 78B-6-312.   Imprisonment to compel performance.
  1. Another option, particularly when time is of the essence or when a parent and/or child is in danger in conjunction with a dispute over the exercise of summer parent time, is a Motion for Temporary Restraining Order.  Rule 65A of the Utah Rules of Civil Procedure governs the procedure for obtaining a temporary restraining order.

 

  1. There is also the option of a Writ of Assistance.  “Writ of assistance” means an order issued by a court authorizing law enforcement officers to take physical custody of a child. (Utah Code § 78B-13-102(17). Definitions).

Another, but least reliable, and thus often the least desirable, option for enforcing your summer parent time does not involve the court directly.  This option consists of reporting your ex to the police or sheriff’s deputy (depending upon which law enforcement agency has jurisdiction) for the crime of custodial interference.  Custodial interference, however, is not popular among law enforcement officers or prosecutors or courts.  It is rarely charged and even more rarely prosecuted, and even more rarely prosecuted successfully.  Still, it is important to report custodial interference to law enforcement officers, if for no other reason than to create a paper trail through the proper law enforcement channels that can provide useful evidence to you in pursuing other remedies such as those described above.

My next blog posting discusses how to argue your case for summer parent-time to the court, both in writing, and orally when you appear before the court commissioner or judge.

If you would like to speak to someone in receiving assitance in obtaining court assistance in securing your Summer Parent Time, click below.

 

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