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Tag: legislation

We Can Call It the “Presumption of Guilt Act”

Did you see this in the news in Utah (from the Salt Lake Tribune)?

A Utah man never hit his wife — until he tried to kill her. But how he treated her was a warning sign.

Saying that the proposed “coercive control” legislation is needed because of the “failure of the courts” to detect crime makes no sense. It’s not a judge’s job to detect crime. It’s the police and prosecutors’ jobs. The judge applies the law to the facts and the evidence and renders judgment.

Moreover, by its nature crime occurs in the shadows. It’s going to happen no matter how much anti-crime legislation is passed. Otherwise stated, crime does not occur due to a lack of laws on the books. Legislation might help to punish crime, but isn’t much a deterrent to crime (and never has been).

The idea that we “must work toward” zero domestic violence is absurd. Domestic violence has always occurred and always will in an imperfect world. Thus, domestic violence is going to occur regardless of how many laws are passed “in opposition to” it.

Proposed statutes like this can “work” only by having the public and law enforcement and the courts indulge in a mass group delusion.

Laws like this will result in a presumption of guilt as a way of getting rid of the pesky preponderance of evidence standard of proof and letting “better safe than sorry” and “abundance of caution” and “guilty until proven innocent” rule. Miraculously, this new not-a-real-standard standard will create a new class of abuser (i.e., those who self-proclaimed victims subjectively deem to be abusers and that the courts will treat as abusers unless and until the presumed abuser proves otherwise).

Perversely, proponents of such a bill will claim that it is reducing domestic violence by increasing arrests, prosecutions, and convictions–but at the cost of throwing the presumption of innocence and a preponderance of evidence and or beyond a reasonable doubt standards out the window. Not just thrown out the window, but shot at high velocity out the window beyond retrieval. This would create a net that will end up snaring innocent people who will be falsely accused and convicted in the name of “better” detection and prevention.

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

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House Bill 81 ” Domestic Violence Modifications”

Today’s blog post treats another proposed law that is up for consideration during the 2024 Utah legislative session: House Bill 81 (HB0081 (utah.gov)), entitled “Domestic Violence Modifications”.

It would add the crime of propelling a bodily substance or material to the list of crimes that qualify as a domestic violence offense in certain circumstances. ‘Not sure how often bodily substances get propelled between spouses and cohabitants, not sure this was a gaping hole in our domestic violence law, and knowingly propelling bodily substances at others is already a separate crime (a class B misdemeanor, see Utah Code § 76-5-102.9), so I see no pressing need for this legislation. Do you?

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

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Encourage Your Legislators to Vote Against H.B. (House Bill) 272 (2024 Utah General Legislative Session)

According to the “General Description” of H.B. 272, what’s not to like?:

Highlighted Provisions:

This bill:

▸ defines terms;

▸ in certain proceedings involving child custody:

  • specifies requirements for the admission of expert evidence; and
  • requires a court to consider evidence relating to domestic violence or abuse by a parent;

▸ imposes certain requirements and limitations regarding orders to improve the relationship between a parent and a child;

▸ requires the state court administrator to make recommendations regarding the education and training of court personnel involving child custody and related proceedings;

▸ requires that certain protective order proceedings comply with specific standards; and

▸ makes technical and conforming changes.

H.B. 272’s intentions are laudable, but the implementation, if H.B. 272 was made law, would be disastrous (and I choose my words carefully).

We don’t need more laws to prevent domestic violence and child abuse, reason being that more laws never have prevented and never will prevent (because they cannot prevent) domestic violence and child abuse.

Can you identify a single domestic violence victim who wouldn’t have been victimized but for a lack of legislation? Laws in the abstract don’t protect anyone. It’s the fair, effective, creation and enforcement of (needed) laws that protects. Passing more laws cannot guarantee anyone’s safety; laws and court orders don’t stop fists and bullets.

There are real DV and child abuse cases in the courts, but there are far too many fake ones in the courts (more than you likely imagine), and everyone knows why courts are afraid to acknowledge and condemn it: because they’re afraid they’ll be branded as “insensitive” and “uncaring” about DV and child abuse. So judges and commissioners who don’t want to “get it wrong,” overcompensate by “finding” DV and abuse that isn’t there. That way, nobody can claim the courts don’t care, and if innocent people go to prison and become pariahs as a result, “well, better him/her than me.” That’s not justice. That’s not rule of law.

Regarding the proposal in H.B. 272 for amending Section 30-3-10, determining credibility is the sole province of the court. Thus, the problem with “a credible allegation of child abuse” is that few courts can resist the temptation to err on the side of caution by treating virtually any allegation of child abuse as “credible”. To err on the side of caution is still error. Worse, it’s error knowingly committed for the sake of protecting the commissioner or judge from being criticized (or worse) for “getting it wrong.” See the article: Erring on the Side of Hidden Harm.

When judges are told “you need to do a better job identifying protecting DV and child abuse victims,” you’re telling judges to do a job that is not theirs. Overwhelmed judges will (unfortunately) respond to such unfair burdens simply by “finding” more DV and child abuse victims, and then say to the legislature, “Satisfied now?” That benefits no one. It erodes public trust in the courts.

There is a tremendous volume of false DV and child abuse claims. Indeed, I deal with more false claims than real claims at the district court level as a divorce and family law attorney. If you feel judges must “get more training” in the field of DV and child abuse, then requiring them to learn how better to identify real DV and child abuse inherently requires requiring them to learn how better to identify fake DV and child abuse claims.

It is unfair to demand of judges that they compensate for what the litigants might fail to do, i.e., gather and present the evidence necessary to prevail.

“More DV and abuse detection training for judges” sounds good but isn’t. If the state can’t afford more and better judges (and we need to accept that, if it can’t), “more DV and abuse training” is a counterproductive half-measure. If the legislature wants to spend more money on judge training, then spend that money helping judges learn and develop better command of the law, of evidence, and of sound adjudication.

The idea that state district court judges “need more training” in every particular dispute they hear is a problem generally. Our judges cannot become experts on every area of law, nor are they expected to be. All that a judge needs to do competently (and can be expected to do competently) is weigh the evidence presented to him/her correctly and apply the facts to the law that governs the case correctly.

We could “protect kids” from abuse by locking up every parent–that way they can’t abuse their kids. Of course, that way they can’t love and take care of their kids either. We will never solve DV and child abuse with more laws, but we will victimize the innocent if we howl for more witch hunt lawmaking.

Draconian creation and/or enforcement of laws like those proposed by H.B. 272 “protects” some by violating the rights of others. As does legislating and adjudicating on a “better safe than sorry” basis (regardless of whether it’s sincere), instead of on the facts (including the lack thereof). Experts can be helpful, but most cause more confusion than they dispel. Child custody cases today don’t suffer from a lack of expert input, rarely from a lack of needed or even warranted expert input, competent expert input, or justice-promoting expert input. “Expertise” on abuse (whatever this ever-expanding definition of “abuse” is coming to mean) is too subjective and pseudoscientific. This is why HB 272 would ultimately do more harm than good.

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

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Law from a legal assistant’s point of view, week 31: Brian Flores

Law from a legal assistant’s point of view, week 31: Brian Flores and the NFL

By Quinton Lister, legal assistant 

My experiences as a legal assistant to a divorce attorney have started to change my perspective on many aspects of law and the legal profession. My view on the class action lawsuit Brian Flores (a former head coach of the Miami Dolphins) just filed against the NFL shows how my perspectives have changed.   

If I were not working as a legal assistant when Flores filed his lawsuit, I would have likely swallowed the narrative from the news and entertainment media on who is right and wrong and what action should be taken. 

For those who may not be familiar with the Brian Flores case, I will summarize: Flores, who is black, filed a class action lawsuit against the NFL and multiple teams for racist hiring practices. After he was fired from the Miami Dolphins as head coach, Flores applied for a new coaching job and interviewed with many teams, including the New York Giants. 

Flores received a congratulatory text from Bill Belichick (coach of the New England Patriots) for landing the new head coach position with the New York Giants. The problem is that first, Belichick’s text message was meant to go to a different “Brian”; specifically, Brian Daboll (a white man), who did in fact get the head coaching job). Belichick sent Flores the text by mistake. Second, Flores received Belichick’s congratulatory text message 3 days before his interview with the Giants. Flores claims this is evidence the Giants conducted a “sham” interview. Flores alleges that he interviewed by the New York Giants as the token black man to comply with the NFL’s “Rooney Rule”, a policy the NFL adopted in 2003 to boost hiring of minority coaches.  

Granted, my legal knowledge is limited, but to me it was a mistake for Flores to file a lawsuit. It appears to me that Flores cannot prove he was the victim of racial discrimination. Indeed, if even he could prove his race was, ironically, exploited to comply with anti-discrimination rules, that wouldn’t prove Flores was rejected for the job because of his race. Diversity quotas may be well-intentioned, but they accomplish the opposite of what they are intended to do. While the Rooney rule and anti-discrimination laws may result in more racial minority representation the NFL’s coaching ranks, is that really racial neutrality? Trying to legislate discrimination out of existence paradoxically fosters racism, albeit a more complex, covert kind of racism. Racism is a cultural problem that can only change with a change in the culture. As affirmative action and other failed legal efforts show, such a change can only come by choice, not by fiat or force; that only aggravates existing tensions and creates more problems than it solves. 

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

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More proposed family law-related proposed laws 2022 Utah

More proposed family law-related proposed laws from the 2022 Utah Legislative Session

Last week I covered four family law bills proposed during the 2022 session of the Utah State Legislature. Today’s post will review 3 more proposed bills.

First, SB 74, entitled “Alimony Modifications”. This bill, if passed into law, would define the term, “length of the marriage” which currently is not defined in the Utah Code. Under S.B. 74, “length of the marriage” would mean the number of years from the day on which the parties are legally married to the day on which the petition for divorce is filed with the court. S.B. 74 would also amend provisions related to alimony and enact provisions regarding cohabitation by a spouse during the pendency of a divorce action; specifically, it would 1) provide that if a party is ordered to pay temporary alimony before entry of the divorce decree, the period of time that the party pays temporary alimony shall be counted towards the period of time for which the party is ordered to pay alimony; and 2) if a party establishes before entry of the divorce decree of divorce that a current spouse is cohabiting with another individual before entry of the divorce decree, the court may not order the party to pay alimony, including temporary alimony, to the current spouse.

Next, there is SB 85, entitled “Protective Order and Civil Stalking Injunction Expungement”. This bill seeks to define terms relating to the expungement of protective orders and stalking injunctions; makes statutory provisions for the expungement of protective orders and stalking injunctions retroactive; allows for the expungement of certain protective orders and stalking injunctions; provides the requirements for expunging certain protective orders and stalking injunctions; and addresses the distribution and effect of an order for expungement of certain protective orders and stalking injunctions.

SB 87, entitled “Court Fee Waiver Amendments,” would amend provisions regarding an affidavit of indigency; defines the term, “indigent”; allow court fees, costs, or security to be waived for indigent individuals; and require a court to find an individual indigent under certain circumstances.

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

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What policies and factors determine how child support is calculated?

What policies and factors determine how child support is calculated?

This is a good question and a question that many parents ask.

Every state in U.S. has child support calculation guidelines and formulae to determine which parent pays child support and how much child support that parent will pay. Each state’s child support calculation guidelines utilizes or is based upon one of three different models:

  • Income Shares Model
  • Percentage of Income Model
  • The Melson Formula

Under the Income Shares Model, each parent is responsible for a portion of the amount of financial support a child needs to maintain the lifestyle the child would have had the parents were not separated. The Income Shares Model relies upon knowing each parent’s to calculate the support award. The parent with the lower income of the two parents will receive a monthly child support payment from the other parent. This amount is known as the base child support award.

The Percentage of Obligor Income Model utilizes the obligor parent’s income only in calculating child support. Many (though not all) Percentage of Obligor Income guidelines assume that the support payee parent’s child-rearing costs are the same dollar amount or percentage of income as the obligor parent’s child-rearing costs. The Income Shares Model considers the incomes of both parents. The Percentage of Obligor Income Model does not factor in the custodial parent’s income in calculating the support award amount.

The Melson Formula[1] is different from the other two models. Rather than calculating child support based upon parental incomes, it first considers the basic needs of the child and each parent before determining whether and how much child support the obligor parent can and will pay.

This July 10, 2020 article from the National Conference of State Legislatures [click the link to access the article] provides a list of links to the child support calculation guidelines for every state and Washington D.C. in the U.S., as well as the Guan and Virgin Islands territories

Note: legislation, regulations, and caselaw governing child support policy and calculation change, so be sure you know both A) what your jurisdiction’s current child support guidelines are and B) how to use apply them correctly and accurately when calculating child support.

Income Shares Model

• Alabama • Arizona • Arkansas • California • Colorado • Connecticut • Florida • Georgia • Idaho • Illinois • Indiana • Iowa • Kansas • Kentucky • Louisiana • Maine • Maryland •  Massachusetts • Michigan • Minnesota • Missouri • Nebraska • New Hampshire • New Jersey • New Mexico • New York • North Carolina • Ohio • Oklahoma • Oregon • Pennsylvania • Rhode Island • South Carolina • South Dakota • Tennessee • Utah • Vermont • Virginia • Washington • West Virginia • Wyoming (also • Guam • Virgin Islands)

Percentage of Income Model (this model has two variations: the Flat Percentage Model and the Varying Percentage Model)

Percentage of Income Model

• Alaska • Mississippi • Nevada • North Dakota • Texas • Wisconsin

Flat Percentage Model

Alaska • Mississippi • Nevada • Wisconsin

Varying Percentage Model

• North Dakota • Texas

Melson Formula

• Delaware • Hawaii • Montana

According to the July 10, 2020 NCSL article the District of Columbia uses a hybrid model that starts as a varying percentage of income model and is then reduced by a formula based on the custodial parent’s income.

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

[1] Named from the Delaware Family Court judge who articulated the formula in Dalton v. Clanton, 559 A.2d 1197 (Del. 1989).

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What can we do about the laws that are outdated about taking custody of a child?

What can we do about the laws that are outdated about taking custody of a child?

  1. In a clear and concise manner write to A) your state legislators, and B) the judges in your state explaining what law(s) you want to see changed, why the change is warranted, and what you suggest the change be.
  2. Find out when your state legislature is in session, and when it is in session, attend the public hearings on proposed new legislation, giving your legislators 1) arguments as to why they should or should not support the proposed new legislation; and 2) suggested amendments that may improve upon the proposed new legislation.
  3. Form or join or support (with volunteer time and money) a group that advocates reforming and revising child custody laws that are unfair and/or out of date. One of the best is the National Parents Organization. They are a national organization that also sponsors local chapters. You can find them at https://nationalparentsorganizat….
  4. Find and support experts on child psychology and child development who can testify in court and in legislative sessions and show judges and legislators what the outdated notions of what is best for child are and what the truly good, rigorous science shows is best.

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

https://www.quora.com/What-can-we-do-about-the-laws-that-are-outdated-about-taking-custody-of-a-child/answer/Eric-Johnson-311

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