Tag: opinions

Why is it OK for a parent to be given custody without their kids’ consent?

Why is it okay for a parent to be given custody without their kids consent or at least their input? This is a great question. I can’t speak for all lawyers, and the laws and rules governing what the courts must and can consider when making child custody awards differs slightly from jurisdiction to jurisdiction, but in the jurisdiction where I practice divorce and child custody law (Utah), there is a general policy that you can’t find written down anywhere but is nevertheless pervasive, and that is: courts will not talk to children in child custody cases if there is any way they can come up with a plausible excuse.

Do not misunderstand me. Courts can interview children on the subject of child custody and solicit the children’s experiences, observations, opinions, and preferences regarding the child custody award, although a child’s desires are “not the single controlling factor” governing the eventual child custody award (See Utah Code Section 30–3–10(5)(ii)). It’s just that most Utah courts, for reasons they’ve never credibly or logically explained to me, just don’t want to do it. Instead, they contract out the interviewing process to what are known as “custody evaluators” and/or “guardians ad litem”. You may ask, “So what’s the harm in that?”

In Utah, interviews between the children and custody evaluators and/or guardians ad litem are not on the record. Thus, we will never know what the children on what subjects the children were interviewed over or even if the children were interviewed at all. neither will we know what questions were asked, the manner in which they were asked, and the content and tone of the children’s responses, if any. Curiously, we don’t treat any other witness this way, but for some reason courts are more than happy to believe or say they believe that a custody evaluator and/or guardian ad litem would lie about a child interview or bungle a child interview.

when a judge interviews the child, not only do you have direct, unfiltered testimony in response to questions that the judge himself or herself deems most important to the child custody and parent time award analysis, that it takes less time, far less time than having a custody evaluator and/or guardian ad litem appointed to do the job. And it’s free of charge to have the judge interview the children, as opposed to costing thousands of dollars to pay for the services of a guardian ad litem, and even costing in excess of $10,000 to pay for the services of a custody evaluator. the value of what guardians ad litem and custody evaluators provide for the money just isn’t there when compared to no cost for a judge to interview the children directly and on the record. For some reason courts are more than happy to believe or say that they believe that it is just as good or better to have a child interview summarize and filtered through a custody evaluator or guardian ad litem then it would be to have the child speak directly to the judge, answering questions most pertinent and relevant in the judge’s opinion, and on the record. If you can explain how that makes any sense, please drop me a line.

Now clearly, some children would be too young to express a credible opinion or desire regarding child custody, are too young to know what they want, so young that they are easily manipulated, coachable, intimidated, or coerced. in those situations, it may make all the sense in the world to have a mental health professional observe the child to provide the court with some guidance as to

what custody and parent time arrangement serve the best interest of the child. but if a child is older than 10 years of age, there’s no harm in having the judge speak to that child to take the measure of the child, the child’s level of maturity and intelligence, and solicit information from that child’s experience to help guide the court in making the child custody and parent time awards. This is simply inarguable. And yet it remains virtually impossible to get a court to interview children directly and on the record. That doesn’t mean you shouldn’t try. That doesn’t mean you shouldn’t ask the court to interview the children on the record, just don’t be surprised if you get inexplicable resistance to such a sensible idea, both from the court and from opposing counsel.

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

https://www.quora.com/Why-is-it-okay-for-a-parent-to-be-given-custody-without-their-kids-consent/answer/Eric-Johnson-311?prompt_topic_bio=1

May 28, 2021Tags: child custody, child custody award, child custody cases, custody and parent time analysis, custody award, custody evaluators, desires Utah Code Section 30–3–10(5)(ii), directly, experiences, free of charge, guardians ad litem, interview children, judge interview, judge interview children, kids’ consent, kids’ input, less time, no cost, not on the record, not talk to children, observations, on the, opinions, plausible excuse, policy, preferences, thousands of dollars, value

Recent thoughts about family law

Recent thoughts about family law

I’ve been prompted recently to express my thoughts and opinions about the judiciary generally in the family law context. Here are a few thoughts I feel are worth sharing:

– Too often litigants and attorneys are afraid to present certain arguments and evidence and proposals for fear that merely raising fair-game topics, much less trying to advance them within the bounds of the law and procedure, will anger and/or offend the court to their detriment.

– Judges and commissioners deciding family law cases must be far more about the law and the facts dictating their decisions and much less about subjectively picking winners and losers.

– Judges and commissioners deciding family law cases must be far more about the law and the facts dictating their decisions and much less about indulging personal biases and subjectively picking winners and losers.

– Judges and commissioners rely on/pass the buck to GALs and custody evaluators far, far too much instead of interviewing children themselves and/or permitting children to testify. Just because this can be said of every district court* (as opposed to juvenile court) in Utah does not make universal failure/refusal right.

*If there is a judge or commissioner in Utah who will/does interview children in child custody cases to avoid the obscene expense, delays, and lack of record suffered by imposing a GAL or custody evaluator on the parties and children, I do not know of any such judge or commissioner. I get told frequently by many judges and commissioners who refuse to interview children something along the lines of, “I am not afraid/unwilling to interview children, I just [insert pretextual/lame excuse here],” and there are many judges and commissioners who tell me that it is their personal policy not to interview children under virtually any and all circumstances.

There are judges and commissioners everywhere, not just Utah, who act a law unto themselves. Always? No. But any time is too often, and there are times when I’ve witnessed this more times than can be written off to mere honest mistakes. Whether a judge or commissioner knowingly acts this way, ignorantly acts this way, or both, it is inexcusable.

May 3, 2021Tags: afraid arguments, anger, attorneys, court, custody evaluators, decisions, delays, evidence, expense, family law, fear, GALs, honest mistakes, ignorantly, inexcusable, interview children, judiciary, knowingly, lack of record, law unto themselves, litigants, offend, opinions, personal biases, proposals, subjective, the law and the facts, winners and losers

How useful are a GAL’s or custody evaluator’s recommendations?

How useful are a GAL’s or custody evaluator’s recommendations?

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

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

Then there’s the nature and quality of the guardian ad litem’s and/or custody evaluator’s recommendations. They are never, never detailed or presented in a manner that subjects them to independent objective verification. The guardian ad litem makes a recommendation to the court the guardians recommendations are cursory and vague. Things like, “I’ve spoken to my client and he is scared of his father.” While a custody evaluator’s recommendations may include more background information and supporting detail, as I stated previously, the problem with custody evaluator recommendations is that I’ve had more than one custody evaluator confided to me that they are afraid to give their frank assessments and opinions because they fear being reported to their licensing boards and/or being sued if they happen to make recommendations adverse to a parent. So, custody evaluators also end up giving vague, equivocal, and less than completely forthright analyses and recommendations.

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

January 20, 2021Tags: afraid, analyses, background information, custody evaluator, detailed, equivocal, fear, forthright, frank assessments, guardian ad litem, licensing board, nature, opinions, quality, recommendations, sued, supporting detail, vague

Why should judges not be political?

Why should judges not be political?

I think they shouldn’t be barred from expressing their political and social views. They obviously have them.

It’s silly to act as if they don’t. Better to know who and what they are than to treat them as having no political and social values and opinions. I’d much rather know that my judge leans liberal or conservative because that way I’d know better how to formulate, couch, and present my arguments.

I’d rather deal with a judge whose values I know and who does his/her best to be impartial than to engage in a legal fiction. If I know a judge’s values then it’s easier (not harder) to determine whether the judge’s decisions are impartial.

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

https://www.quora.com/Why-should-judges-not-be-political/answer/Eric-Johnson-311

July 16, 2020Tags: arguments, conservative, impartial, judges, liberal, opinions, political, social, values

What does a judge ask a child in a custody case?

In Utah (where I practice divorce and child custody law) the answer is: it’s almost impossible to say. Why?

For reasons that I assert I can demonstrate are not highly rational*, the majority of judges are extremely reluctant to question children on the subject of the child custody award.
Case files for child custody cases are classified as private and not accessible to the public, so unless the child is questioned in a public court proceeding (which happens so rarely one could honestly state that, statistically speaking, it never happens), we will never know (we can never know) what the child was asked or what the child said in response. Those judges who are willing to question children—as they are authorized by the Utah Code to do—almost never question children in public court proceedings but instead question them in chambers, although the questioning is conducted on the record and not covertly.
The law gives judges the opportunity to avoid hearing directly from a child by instead appointing an attorney for the children known as a “guardian ad litem” and thus avoid ever actually hearing any testimony from the child’s own mouth by having the GAL claim to have spoken to the child, albeit not on the record (and thus there is no objectively verifiable way to confirm this), to have elicited from the child his/her experiences, observations, feelings, opinions, and desires (again, without there being any objectively verifiable way to confirm this) and then, based upon literally nothing that is objectively verifiable, make recommendations to the judge as to how the judge should rule on the issue of the child custody award.

*The ostensible reasons that most judges give for refusing to question children or allow children to be questioned by an attorney or attorneys are that they:

A) fear that if parents find out what the child says, then the child may feel guilty for expressing a preference or preferences for one parent over another on particular subjects of parental abilities and fitness;
B) fear that once parents discover what the child had to say the child may be punished or retaliated against if what the child said upsets or offends one or both parents; and/or
C) conclude, without first questioning the child, that children in general are incompetent witnesses and that their testimony would be of little help to resolving child custody questions.

Here is why I assert that such reasons are not rational:

1) First, parents are going to find out what a child thinks, feels, and wants with regard to child custody irrespective of whether the judge questions the child in court proceedings. Parents are going to learn of this (whether directly from the child or from his/her siblings, extended family members, friends, neighbors, teachers, counselors, coaches, ministers, etc.) before the child custody case is filed, during the pendency of the child custody case in court, at trial, and after the trial. It’s unavoidable. It’s inevitable. I submit that i) the belief that not questioning a child about his/her opinions and preferences regarding child custody will prevent the child’s parents from discovering those opinions and preferences, and ii) the believe that the only time and place in which the child will express such things is when questioned by the judge, is rather naive; it’s impossible to prevent parents from learning this information from and about the children.

Second, the value that many judges place on preventing children from feeling guilty or uncomfortable is misplaced. For two reasons. One, children who are going to feel guilty and uncomfortable about their child custody preferences, who are going to feel as though they are betraying a parent by expressing a preference for one over the other. are going to feel that way regardless of whether they express those preferences to the judge or a custody evaluator or a guardian ad litem (GAL). Two, getting to the truth about how children feel and why—when it comes to their child custody preferences—is far more important than sparing them from feeling guilty (especially when we already know they’re going to feel guilty regardless of whether they testify). Otherwise stated, preventing child testimony does no good: it protects the children from nothing, while denying the judge the clearest, purest sources of information about the children’s experiences, observations, feelings, opinions, and preferences as they relate to the child custody award.

2) If the judge believes that children will not be punished for expressing a preference for one parent over another, so long as those preferences are not expressed to the judge, again, that’s not rational either. It is impossible for a judge to prevent parents from learning a child’s feelings, opinions, and preferences regarding child custody. Thus it is impossible for a judge to prevent a parent who gets upset by those feelings, opinions and preferences from learning about them and from punishing and retaliating against his/her child once he/she learns of them. A judge can’t even mitigate the amount and severity of the retaliation and punishment because the judge is powerless to prevent the child’s feelings, opinions, and preferences from being discovered. And so once again, we find the court depriving itself of one of the clearest and purest sources of information and guidance on the subject of thee child custody award based upon a fear and a belief that has no rational basis. Closing one’s ears and eyes to what a child can say on the subject displays, frankly, a shocking disregard for the best interest of the child.

3) Concluding, without first questioning the child, that children in general are incompetent witnesses and that their testimony would be of little help to resolving child custody questions. See self-fulfilling prophecy. While it is certainly true that some children may be, for various reasons (such as being too young to talk, too young to have a consistent and reliable understanding of right and wrong and truth and falsity, placed in circumstances that call the veracity or credibility of the child’s testimony into question from the outset, etc.), one sure way to guarantee that we never determine how informative, probative, and reliable a child’s testimony may be and what weight to give such testimony is to dispense with allowing the child to testify in the first place.

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

https://www.quora.com/What-does-a-judge-ask-a-child-in-a-custody-case/answer/Eric-Johnson-311

April 28, 2020Tags: avoid, child custody, conceited, custody, custody dispute, evidence, experiences, feelings, guardian ad litem, guilty, incompetent, information, informed, irrational, judge, mitigate, naive, observations, opinions, preference, preferences, probative, punish, question, questioning, rational, reason, reasons, record, retaliate, testify, testimony, Utah Code Section 30-3-10

Do judges get angry at “dead beat dads” who aren’t biological fathers?

Do judges get angry at supposed “dead beat” dads who are not the biological father and refuse to pay child support for a kid that is not theirs?

Occasionally. There are some well-publicized instances of men who can prove they are not a child’s father who have still been adjudicated the father of the child or ordered to pay child support (often times it’s because the father did not respond to a legal action in which he was alleged to be the child’s father, and so the mother or the state that sued him obtained a judgment by default against him). Later on, these men prove by DNA testing that they are not the child’s father. Some judges nevertheless chastise such men if they refuse to pay child support as ordered. It’s rather silly, but it is “legal”.

Judges are expected not to express their personal feelings and opinions on the issues in the cases they adjudicate, or if they do, to do so sparingly and for a legitimate purpose, not just to vent at the people whose words or actions they dislike.

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

https://www.quora.com/Do-judges-get-angry-at-supposed-dead-beat-dads-who-are-not-the-biological-father-and-refuse-to-pay-child-support-for-a-kid-that-is-not-theirs/answer/Eric-Johnson-311

August 15, 2019Tags: angry, biological father, Child Support, court, deadbeat dad, dna testing, feelings, judge, opinions