Tag: parent

In re K.R. – 2023 UT App 75 – termination of parental rights vs. guardianship

In re K.R. – 2023 UT App 75










Per Curiam Opinion

No. 20230255-CA

Filed July 13, 2023

Third District Juvenile Court, Salt Lake Department

The Honorable Monica Diaz

No. 1207437

Kelton Reed and Lisa Lokken

Attorneys for Appellant

Sean D. Reyes, John M. Peterson, and Carol L.C.

Verdoia, Attorneys for Appellee

Martha Pierce, Guardian ad Litem





¶1        R.S. (Mother) appeals the juvenile court’s order terminating her parental rights with respect to K.R. (Brother) and R.B. (Sister) (collectively, the children). Mother alleges the juvenile court exceeded its discretion in determining that it was strictly necessary to terminate her rights rather than awarding permanent custody and guardianship to the children’s maternal grandmother (Grandmother). We affirm.

¶2        In January 2022, the Department of Child and Family Services (DCFS) received a report that Mother was using drugs and neglecting Sister, who was an infant at the time. Four-year-old Brother was already living with Grandmother, and DCFS soon placed Sister with Grandmother as well.

¶3        Following a disposition hearing, the Court set a primary goal of reunification and set up a child and family plan. Mother received an initial substance abuse and mental health assessment but made no progress toward receiving treatment. She took only five of ninety-six required drug tests and tested positive on all five.

¶4        Nevertheless, Mother continued to demonstrate an attachment to the children. She participated in visits with the children on a bi-weekly basis, although she did miss some visits and had not seen the children for several weeks prior to the termination trial. The visits were supervised by a DCFS caseworker (Caseworker), and the children had to travel six-and-a-half hours round trip to attend. On some occasions, Mother cancelled visits without notifying Grandmother, leading the children to make the trip unnecessarily. Brother became upset when Mother missed visits with him.

¶5        Early on, Caseworker observed Mother having “inappropriate conversations” with Brother regarding Grandmother, such as telling him that Grandmother was not properly caring for him. Caseworker would redirect Mother to more appropriate topics, and “with reminders, this behavior . . . stopped.” Mother engaged with the children during visits and planned activities for them to do together.

¶6      Grandmother and Mother used to have a good relationship, but it had deteriorated due to Mother’s drug use and the DCFS case. According to Grandmother, Brother’s behavior would “deregulate[] for a couple days” after visits with Mother and he would become belligerent toward Grandmother. Mother would send Grandmother insulting text messages, and she had trouble respecting boundaries Grandmother set. Both women indicated they would not be comfortable “co-parenting” with one another.

¶7        Following the termination trial, the juvenile court found several grounds for termination, which Mother does not challenge on appeal. The court then turned to the best interest analysis, including the question of whether termination of parental rights was strictly necessary.

¶8        The court considered whether awarding permanent guardianship to Grandmother was an alternative to termination that could “equally protect and benefit the children.” However, the court ultimately determined that termination was strictly necessary for the following reasons:

·         Mother and Grandmother “do not have a relationship” and are “unable to communicate regarding the children’s needs and wellbeing.” And while Grandmother attempts to set reasonable boundaries, Mother does not respect them. Mother herself acknowledged that “having her and [Grandmother] co-parent would not be healthy for the children.”

·         Mother had a history of making inappropriate comments regarding Grandmother to Brother during parent time. These comments led Brother to become belligerent toward Grandmother following visits. Although Mother had stopped making such comments at the direction of Caseworker, the court was concerned that she would “revert to making these comments, without the oversight of the Division.” The court found that pitting the children against their caregiver in this way was “unhealthy” for their “emotional development and wellbeing.”

·         Visits with Mother “are emotionally hard on the children.” Brother experiences behavioral problems after visits with Mother.

·        The children have to travel six-and-a-half hours round trip to visit Mother. Because Mother does not communicate with Grandmother, she does not let her know when she is unable to attend visits. This has led the children to “endure the travel time needlessly.” Additionally, it is emotionally hard on Brother when Mother misses visits. The long travel time, emotional harm due to missed visits, and Mother’s inability to communicate with Grandmother combine to undermine the children’s stability. “They need to know that their relationships are stable and that they can count on the adults in their lives. . . . [Mother] missing visits undermines and disregards the children’s psychological and emotional security.”

·        The children are happy and thriving in Grandmother’s care. She addresses their physical, mental, developmental, and emotional needs. The children are bonded to their extended family, which consists of Grandmother’s husband and other children living in Grandmother’s home. The children “need a permanent home,” and “[f]rom the children’s point of view, that home is [Grandmother’s] home.”

Based on these factors, the court found that termination of Mother’s parental rights was “strictly necessary from the children’s point of view.”

¶9        Mother challenges the juvenile court’s determination that termination of her rights was strictly necessary. “Whether a parent’s rights should be terminated presents a mixed question of law and fact.” In re B.W., 2022 UT App 131, ¶ 45, 521 P.3d 896 (quotation simplified), cert. denied, 525 P.3d 1269 (Utah 2023). “We will overturn a termination decision only if the juvenile court either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” Id. (quotation simplified).

¶10 Mother asserts (1) that the court did not appropriately weigh certain evidence and (2) that the court inappropriately focused on the needs of the adults rather than the children by basing its decision on Mother and Grandmother’s inability to “coparent” the children.

¶11      Before terminating a parent’s rights, the court must find that termination is “strictly necessary to promote the child’s best interest.” In re B.T.B., 2020 UT 60, ¶ 60, 472 P.3d 827. And this analysis must be undertaken from the child’s point of view. See Utah Code § 80-4-301(1); In re B.T.B., 2020 UT 60, ¶ 64. “Termination is strictly necessary only when, after exploring possible placements for the child, the juvenile court concludes that no other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights.” In re J.P., 2021 UT App 134, ¶ 15, 502 P.3d 1247 (quotation simplified). “If the child can be equally protected and benefited by an option other than termination, termination is not strictly necessary.” Id. (quotation simplified).

¶12      The strictly necessary analysis “is designed to ensure that the court pause long enough to thoughtfully consider the range of available options that could promote the child’s welfare and best interest.” In re B.T.B., 2020 UT 60, ¶ 69. “[I]f a court has complied with its statutory obligations, its resultant best interest determination is entitled to deference.” In re B.W., 2022 UT App 131, ¶ 69. Thus, a parent’s mere dissatisfaction “with the manner in which the juvenile court weighed the evidence . . . has no traction on appeal.” In re J.P., 2021 UT App 134, ¶ 23.

¶13      Mother argues that the court’s finding that Brother was upset when she missed visits should weigh against a finding that termination was strictly necessary. She also asserts that the court should have given more weight to her recent history of stopping her inappropriate comments to Brother rather than inferring that she was likely to resume such comments in the future. These arguments ultimately take issue with “the manner in which the juvenile court weighed the evidence” rather than its compliance with its statutory mandate. See id. The court’s findings are entitled to deference, and we will not disturb them on appeal. See In re B.W., 2022 UT App 131, ¶ 69.

¶14      Mother next asserts that the court’s focus on her and Grandmother’s inability to “co-parent” the children was inappropriate and led it to consider the strictly necessary analysis from the adults’ perspective rather than the children’s perspective. See Utah Code § 80-4-301(1) (dictating that the strictly necessary analysis must be undertaken from the child’s point of view). Mother argues that a permanent custody and guardianship order does not result in “co-parenting” but rather involves “the Guardian call[ing] the shots” while “the parent has a handful of residual rights.” We take Mother’s point that co-parenting may not have been quite the right term to use in describing the relationship between a parent and a permanent guardian.[1] However, we are more concerned with the substance of the court’s analysis than the term it used. And that analysis indicates that the court’s true concern was whether it was in the children’s best interests to be pitted between a parent and guardian who could neither cooperate nor communicate with one another.

¶15      “[L]ong-term guardianship arrangements are typically only in a child’s best interest where the guardians and the parent have a working, relatively healthy relationship in which they are both willing to work together to preserve the parent-child relationship and where the child has a healthy relationship with both the guardian and the parent.” In re J.P., 2021 UT App 134, ¶ 22 (quotation simplified). Thus, when a parent and guardian have “little to no relationship,” the particular circumstances of the case may indicate that permanent custody and guardianship will not meet the children’s needs as well as termination of parental rights. See id. That is what the juvenile court found here, and such a finding was not an abuse of its discretion under the circumstances.

¶16      Furthermore, we are not convinced that the juvenile court inappropriately conducted the strictly necessary analysis from the adults’ point of view rather than that of the children. The court explicitly discussed the effect Mother and Grandmother’s inability to cooperate had on the children, finding that being put in the middle of the conflict was “unhealthy” for the children’s “emotional development and wellbeing” and undermined their stability, that the children suffered when Mother did not communicate with Grandmother about missing visits, and that Mother herself acknowledged that the conflict was “unhealthy” for the children. These findings indicate that the court considered the conflict between Mother and Grandmother from the children’s point of view in determining that the conflict made termination of Mother’s rights strictly necessary.

¶17      The juvenile court here carefully considered whether the children could be equally benefited and protected by a permanent custody and guardianship arrangement as opposed to termination of Mother’s parental rights. It also made detailed findings in support of its determination that termination was strictly necessary from the children’s point of view. Accordingly, the juvenile court’s decision to terminate Mother’s parental rights is affirmed.


Utah Family Law, LC | | 801-466-9277

[1] Nevertheless, as the guardian ad litem observes, it is not apparent from the record that Mother was “up to the tasks involved with residual parental rights,” given that she has not paid child support, has not respected the boundaries Grandmother has put in place, has not progressed past supervised visitation, and has disappointed the children by failing to communicate about missed visits.

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The Father of My Child Has Visitation Rights Ordered by Court, Yet He Will Be in a Different State During His Visitation Time, but Wants His Aunt to Take Over. Do I Have to Allow His Aunt Visitation While He’s on Vacation?

This is a good question and one that arises frequently in one form or another; a parent either can’t or won’t provide personal care and supervision of the parties’ children his/her scheduled parent-time or custody yet does not want the other parent to care for the children in his/her absence.

Some parents try to pull this stunt because either 1) they are territorial about “my time” with the children and thus can’t stand the idea of the other parent caring for the children during “my time”; or 2) they maliciously want to deny the other parent the opportunity to provide this care for the children. Others try to pull this stunt because they are afraid they will lose the child custody or parent-time they were awarded if they allow the other parent the opportunity to provide care for the children (yet believe that if someone else provides the care that somehow makes retaining custody and parent-time more “secure”). This is wrong, and is something you can take to the court to complain about and seek new court orders to remedy.

But sometimes a parent occasionally wants to leave the children in the care of someone else for perfectly reasonable, even laudable reasons, such as wanting the kids to enjoy time with grandma and grandpa or with the cousins, a sleepover at a friend’s house, and things like that. Clearly, it’s not defensible if it is the rule and not the exception, but there is nothing wrong with this on occasion. Indeed, refusing to be flexible and to allow a parent to do this for your kids is unfair to your kids.

Utah Family Law, LC | | 801-466-9277

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So I want to ask my dad to divorce my mom.

So I want to ask my dad to divorce my mom. She has a troublesome personality, to say. I’m currently 16 and the relationship between not just me and my mother, but also the one between her and my father, is not good in the slightest. Should I ask him? 

Before answering this question myself, I looked at the other answers that have already been provided because I was expecting at least one of them to be along the lines of, “Whether your parents divorce is their choice, and thus none of your business.” And indeed I did. 

It’s a comforting, and thus attempting, position to adopt. But it’s utterly false. 

Given that you are now 16 years old and have, according to you, lived a life in the company of two enemies who happen to be spouses clearly makes your parents’ marriage and the possibility of divorce “your business.” 

Being 16 years old, you are at a unique point in your life where you are starting to think and act more like an adult, but you are still a child. Unless you are unusually mature and wise for your age, there are still many things about adulthood and marriage and family life you don’t completely understand, so you need to respect your parents’ history and experience and thinking on the subject of divorce, if their positions on the subject differ from your own. At the same time, however, given that you have been living in a dysfunctional family for 16 years, your experience, observations, desires, and opinions clearly have weight as well. 

If you determine that you have, in fairness and objectivity, determined in your own mind that your parents would be better off divorced, and you can persuasively articulate why, I can’t think of any reason why you wouldn’t have not only good reason, but the right as well, to argue the case for divorce to your parents. 

If your parents refused to divorce, and you cannot bear to spend another moment of an acrimony-filled existence at home, another option you might consider would be having your parents permit you to leave their custody to live with grandparents or an aunt or uncle or older sibling who might be willing to take you in, if such an option exists. Depending upon the circumstances, that could be done on an informal basis without having to go through a guardianship proceeding, or it may require court action. 

Finally, and as I mentioned before, if you happen to be mature and wise beyond your years, if you are able to support yourself financially (meaning that you can earn enough income to house, feed, and close yourself without contribution from your parents or the government), you might have the option of petitioning a court to declare you legally emancipated before you turn 18 years of age. 

Either way, if your parents don’t want to divorce and you can stand being enmeshed in their dysfunctional marriage another moment, living away from them could be the right thing for you, if circumstances are conducive to it. 

Utah Family Law, LC | | 801-466-9277  

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How can I help my stepdaughter get away from an abusive mother?

How can I help my 12-year-old step daughter get away from an emotionally abusive mother? 

Tell the child’s father (your husband) about the trouble and have him handle it. It’s not legally your fight. You should certainly share your observations and your suggestions, if sought, and you should offer to help in any reasonable way your husband my want or need you to help. But if Dad’s not on board, then no matter how much you want to help, it’s not your place to go it alone. 

Be supportive of your step-daughter and of your husband, but don’t be the one who initiates anything with the mother or the courts. Again, it’s not legally your fight. If you raise the concern you might do your step-daughter’s cause (and both her credibility as a victim and your credibility as a witness) a disservice by looking like a busybody, a “jealous wife” trying to smear the child’s mother to gain the child’s and your husband’s favor and loyalty.  

Utah Family Law, LC | | 801-466-9277

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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):  


(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. 


(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 | | 801-466-9277

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What if a parent sued their child for all the money they spent raising them?

What would happen if a parent were to sue a child for every single penny they spent on raising such a child and the judge were to rule in the parent’s favor? 

You’d likely have an incompetent and/or biased judge. 

Utah Family Law, LC | | 801-466-9277  

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Can a divorced parent with the parties’ child primarily lives stop the child from switching to live with the other parent?

So, the question is this: if I am the parent to whom custody of our child was awarded, and that child doesn’t want to live with me anymore, what can I do to stop this child from living with the other parent? 

If the reason the child doesn’t want to live with you anymore is because you are an unfit parent (or worse, an antagonistic and unfit parent), then shame on you for trying to prevent this child from going to live with the better parent. 

If, however, you are the better (meaning the more fit, more responsible, more concerned) parent, and the child wants to live with the other parent because that parent would give the child license to be a hoodlum and otherwise make a mess of the child’s life, even then there will come a point where despite your best efforts, there is really nothing you or the courts can do to prevent this child from, as they say, “voting with his/her feet.” 

As the court ordered custodial parent, do you have the legal right to control the child and to dictate where the child will live and not live? Yes, but this so-called legal right or legal power is essentially only as powerful as the child’s willingness to recognize and submit to it. It is possible in some cases to have rebellious children placed in juvenile detention for being a runaway, but that’s clearly not a permanent solution to the problem, and — ironically — it doesn’t prevent the child from living apart from you. 

Now we all know there are some children who simply don’t have good sense, who are self-destructive, and who may not want to reside with the better of his/her two parents for those reasons. There’s not a lot you can do to prevent this child from following his/her rebellious and self-destructive path. But for the children who can be reasoned with, if you and this child find yourself in a strained relationship and don’t know what to do, it may be time to speak with the therapist or counselor, a minister, and to ensure your taking care of your relationship with each other and giving it the attention it deserves. It may be time for both of you to engage in an activity together, from something as simple as preparing meals together or attending church together, to engaging in a team sport or restoring an old car, etc. 

Parting thoughts: 

“Thaw with his gentle persuasion is more powerful than Thor with his hammer. The one melts, the other breaks into pieces.” – Henry D. Thoreau 

Aesop’s Fables: The North Wind & the Sun 

The North Wind and the Sun had a quarrel about which of them was the stronger. While they were disputing with much heat and bluster, a Traveler passed along the road wrapped in a cloak. 

“Let us agree,” said the Sun, “that he is the stronger who can strip that Traveler of his cloak.” 

“Very well,” growled the North Wind, and at once sent a cold, howling blast against the Traveler. 

With the first gust of wind the ends of the cloak whipped about the Traveler’s body. But he immediately wrapped it closely around him, and the harder the Wind blew, the tighter he held it to him. The North Wind tore angrily at the cloak, but all his efforts were in vain. 

Then the Sun began to shine. At first his beams were gentle, and in the pleasant warmth after the bitter cold of the North Wind, the Traveler unfastened his cloak and let it hang loosely from his shoulders. The Sun’s rays grew warmer and warmer. The man took off his cap and mopped his brow. At last he became so heated that he pulled off his cloak, and, to escape the blazing sunshine, threw himself down in the welcome shade of a tree by the roadside. 

Gentleness and kind persuasion win where force and bluster fail. 


Utah Family Law, LC | | 801-466-9277  

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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 | | 801-466-9277

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

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

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

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

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

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

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

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

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

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

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

Utah Family Law, LC | | 801-466-9277

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How do I console a father who has lost custody of his child?

How do I console a father who has lost custody of his child?

“He’s [the father who lost custody] permanently damaged.” That’s what someone else wrote in response to your question. It’s true. Time lost between a parent and child is never found. These kinds of wounds can heal, but rarely will they heal fully or not leave scars.

There is still not just some consolation, but much consolation to be found, however.

First, all of us suffer injustices in life yet the overwhelming majority of us still have far more reasons to be happy than miserable. So does Dad. That’s not a Pollyanna view of life, it’s a fact. And a fact one must not let grief blind Dad to.

If one focuses on the negative to the exclusion of the good and positive, then all one will see is the negative and miss out on most or even all of the good. Parents who are alienated from their children have an obligation to themselves not to dwell on it. Feel the pain, of course. Don’t deny it. It’s inevitable and it’s necessary to let the pain run its proper course before you can start to recover.

But don’t let the pain drown you. Don’t let the pain and the bitterness deprive you of all the other good things life has in store for you. That’s what your alienating ex-spouse is hoping for. At the very least don’t give your alienating ex-spouse the satisfaction. Your kids need to see you can rise above this so that they believe they can rise above adversity too.

Second and more importantly (and this is the truth, even if it’s new to you or you think it’s silly; regardless, you have nothing to lose by exploring whether there really is consolation to be found here), by suffering and dying for you (and for your children), Jesus Christ has the power not only to right all wrongs in the next life, but has the power to comfort you and help you heal in this life now as well.

Utah Family Law, LC | | 801-466-9277

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What is a complete list of reasons someone can file child support that cannot be fought?

What is a complete list of reasons someone can file child support that cannot be fought?

There is no such list; however, here is my list of pretty dang safe bets that you’ll be paying child support if one or more of these factors are met:

You are the biological or adoptive parent of the child for whom child support is sought and:

You meet all the statutory/regulatory criteria for your jurisdiction to obligate a parent to pay child support.

You have substantially more money than you need on a monthly basis, i.e., a surplus of money that you can obvious spare for the payment of child support.

Or you are found to be able to earn or otherwise obtain more money than you need on a monthly basis, i.e., a surplus of money that you can obvious spare for the payment of child support.

Or you earn (or are deemed able to earn) enough money such that, even if you have to reduce your standard of living slightly or even somewhat significantly to pay child support, you can still live relatively well on less than you currently spend and pay the difference in child support.

About the only sure way to avoid being ordered to pay child support is to prove to the satisfaction of the court that you are unable to earn enough money to support both yourself and the child financially. Even if the other parent has more than enough money to support the child financially and does not even need your money, most jurisdictions will order you to pay child support, if the other parent wants such an order. The child support may be minimal (say, $30 or even less), but you’ll likely be ordered to pay child support, if you aren’t the child’s sole physical custodian.

Utah Family Law, LC | | 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 | | 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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Are there laws that protect one parent from being a victim of the other parent’s continuous reporting, through the other parent’s attorney, about violations of a restraining order that are all lies?

Are there laws that protect one parent from being a victim of the other parent’s continuous reporting, through the other parent’s attorney, about violations of a restraining order that are all lies?

Are there laws that protect one parent from being a victim of the other parent’s continuous reporting, through the other parent’s attorney, about violations of a restraining order that are all lies?

Practically speaking (and in my experience), yes and no.

I’ll start with the “no” part of my answer because it’s short. I say “no” because although there are rules against frivolous, bad-faith litigation (such as litigation based on lies), these rules are shamefully under-enforced. So even if you can make a clear case for an opposing party engaging in frivolous, bad-faith litigation, in my experience courts rarely punish such behavior. It’s one of the main reasons people lose faith in the legal system when they find themselves subject to the system.

The best way to protect yourself from having a court believe the opposing party’s lies is to prove them false by objective, independently verifiable evidence that cannot be denied. So, document your words and deeds six ways from Sunday. If it’s not a close call, the opposing side’s efforts to cheat won’t make any difference.

And here’s my “yes” part of the answer: Most jurisdictions, including the jurisdiction in which I practice law (Utah), have a rule or rules that is intended to prevent frivolous litigation. One such rule in Utah is the Utah Rules of Civil Procedure rule 11 (which is almost identical to the Federal Rules of Civil Procedure rule 11). Utah’s rule 11 provides:

(b) Representations to court. By presenting a pleading, written motion, or other paper to the court (whether by signing, filing, submitting, or advocating), an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,

(b)(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(b)(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(b)(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(b)(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

(c) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that paragraph (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated paragraph (b) or are responsible for the violation.

There are also laws against making frivolous and bad-faith claims. Utah’s law is:

78B-5-825. Attorney fees — Award where action or defense in bad faith — Exceptions.

(1) In civil actions, the court shall award reasonable attorney fees to a prevailing party if the court determines that the action or defense to the action was without merit and not brought or asserted in good faith, except under Subsection (2).

(2) The court, in its discretion, may award no fees or limited fees against a party under Subsection (1), but only if the court:

(a) finds the party has filed an affidavit of impecuniosity in the action before the court; or

(b) the court enters in the record the reason for not awarding fees under the provisions of Subsection (1).

Utah Family Law, LC | | 801-466-9277


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If a parent disappears for five years, what are his/her chances of winning child custody?

If a parent disappears for five years, what are his/her chances of winning child custody? 

As long as 1) Dad’s story/situation isn’t worse than Mom’s, and 2) Dad’s not responsible for Mom being out of the picture for 5 years, then Mom’s chances (due to her child abandonment) are likely pretty slim, regardless of what state the child custody case is being contested.

Utah Family Law, LC | | 801-466-9277  

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If a parent exceeds parent-time by an hour or so, what can I do?

If a parent exceeds parent-time by an hour or so, what can I do? Our custody order provides that child visitation is 11 a.m. – 4 p.m. My ex and I agreed by e-mail to change it to 10 a.m. to 3 p.m. But now my ex picks up at 10 and returns the child at 4 p.m. instead of 3 p.m.Is there no recourse since the order says 4pm despite their agreement? 

Great question. 

If you were to take this problem to court for the judge to resolve, odds are that the hearing would unfold something like this and that the judge would do something like this:  

Argument from parents: 

  • Parent 1 “The custody order says child visitation is 11 a.m.-4 p.m. Parent 2 asked to make it 10 a.m. to 3 p.m., and I agreed, but now Parent 2 picks up at 11 a.m. and brings the kids back at 4 p.m. I want Parent 2 held in contempt of court!” 
  • Parent 2 “Parent 1 lies! It’s true that Parent 2 and I agreed to change visitation start and end times from 11 and 4 to 10 and 3, but I always bring the kids back by 3 p.m. Sometimes I may run into a traffic jam or something that causes me to run a little late, but I’m not trying to ‘steal’ an extra hour. I am outraged!” 

Judge’s decision:  

“Well, you both can’t be telling the truth, but it’s impossible for me to know which of you is lying. So, unless and until one of you has independently verifiable proof to support his/her argument, I am not going to reward one of you or punish the other on such a dearth of evidence and shaky evidence at that. Now both of you obey court orders. If there is a problem with Parent 2 going an extra hour over the court-ordered visitation period, and if Parent 1 has a problem with that, then Parent 1 may want to consider keeping a photographic or videographic log of pick up and return times to document the problem and provide the court with proof. If Parent 2 is being falsely accused, then Parent 2 may also want to consider keeping a photographic or videographic log of pick up and return times and a log of photos or videos showing that if and when Parent 2 is late it’s because of traffic jams or other things beyond Parent 2’s control.  

Utah Family Law, LC | | 801-466-9277  

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Can a parent legally keep the other parent from the children?

Can a parent legally keep the other parent from the children? Can a parent (married or unmarried) legally keep the other parent from the children without having gone to court? Yes. It can be done under certain circumstances. In the absence of a court order to the contrary, it is not illegal for one parent to keep the children from the other parent. I know that sounds weird, but it is true. This means that—whether the parents are married or not—if:

(Example 1) Dad, say, picks up the kids from school and then takes them to his house and does not let Mom see them or pick them up to spend time with her (whether at her house or just out and about), Dad is not doing anything illegal. Even if no one accuses Mom of being a danger to the children, she cannot force Dad to let her see or spend time with the children and if she calls the police for help there is nothing they can do because what Dad is doing is not illegal.

(Example 2) Mom and Dad break up and Mom moves out with the baby, and Dad calls the police asking them to help him see or spend time with the baby, the police can do nothing because what Mom is doing is not illegal. As with many things one can do, just because parents can keep their children from the other parent does not mean parent should do such a thing. Keeping children from their other parent, when the parent is not a danger to the children, is absolutely wrong.  Now if there is a decree of divorce or other valid court order that awards shared custody and/or parent-time to a parent and the other parent withholds the children from that parent in violation of that court order, that can be both prosecuted criminally and penalized civilly as contempt of court.

Utah Family Law, LC | | 801-466-9277

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How can I get full custody, when I don’t trust the other parent with the baby?

How can my friend leave the father of her baby and get full custody, when she doesn’t 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 | | 801-466-9277

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What happens after an affair when you have kids?

What happens after an affair when you have kids?

I’ll answer as if this question were asked in the belief that the affair will have a profound effect upon child custody, child support, and/or alimony.

If you’ve had an extramarital affair, it generally won’t do your divorce case any favors, won’t win you any sympathizers.

But will it generally result in you being “punished” by the divorce court? The answer to that question is, in my experience as a divorce lawyer: probably not (unless your affair could be shown to have done your spouse and kids egregious financial, physical, or emotional harm) and/or you were a serial, unrepentant adulterer/adulteress).

Child custody: in the jurisdiction where I practice divorce law (Utah), it has been my experience that extramarital affairs are rarely seen as rendering a parent “unfit” to exercise sole or joint custody of his/her children.

While the court is required to consider “the past conduct and demonstrated moral character of the parent” (Utah Code § 30-3-10(2)(d)) in making its child custody evaluation and award, usually the court will reason that an adulterous parent is not inherently any worse as a parent than one who is not.

If the affair cause the parent to spend excessive time away from the children, caused the parent to neglect the children, or if the children’s knowledge of the affair caused the children serious psychological or emotional harm and/or the children distrust or hate a parent because of the affair, then it’s not really the affair that is the problem itself, but the effects of the extramarital affair.

Child support: I have never seen an extramarital affair cited as a reason for awarding more or less child support had the child support payor not committed adultery.

Alimony: in Utah (where I practice divorce law), adultery can affect the alimony award, but will not automatically have an effect on the alimony award. Here is what the Utah Code contains:

(b) The court may consider the fault of the parties in determining whether to award alimony and the terms of the alimony.

(c) “Fault” means any of the following wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship:

(i) engaging in sexual relations with an individual other than the party’s spouse[.]

(See Utah Code § 30-3-5(9)(c))

What does this mean? The Utah Supreme Court construed that section of the Utah Code in the case of Gardner v. Gardner (2019 UT 61, 452 P.3d 1134 (Supreme Court of Utah 2019)):

¶ 26 As with harm in a negligence case, a “great number of events” may have contributed to a divorce. In fact, we have previously recognized “that it is seldom, perhaps never, that there is any wholly guilty or wholly innocent party to a divorce action.” So in almost all divorce cases, it could be argued that each spouse contributed in some way to the breakup of the marriage. But some causes are clearly more substantial, or significant, than others. So even though it may be impossible to state with certainty a sole, or even the first, cause leading to the breakup of the marriage, it will certainly be possible in many cases for a court to determine the significant or important causes of the divorce.

¶ 27 Accordingly, we conclude that “substantially contributed” to the breakup of the marriage is conduct that was a significant or an important cause of the divorce. Under this definition, conduct need not be the sole, or even the most important, cause for it to substantially contribute to a divorce. So when an important or significant cause falls into a category of conduct specifically identified in section 30-3-5(8), courts are authorized to consider it in an alimony determination, even if the at-fault party can point to other potential causes of the divorce.


¶ 53 Section 30-3-5(8)(a) requires district courts to consider the financial situations of both spouses as part of its alimony determination. Additionally, section 30-3-5(8)(e) urges district courts to “look to the standard of living, existing at the time of separation, in determining alimony in accordance with Subsection (8)(a),” and section 30-3-5(8)(f) provides that the “court may … attempt to equalize the parties’ respective standards of living.” Together these provisions codify the default rules that an alimony award should be crafted to “provide support for the [receiving spouse] as nearly as possible at the standard of living [he or] she enjoyed during marriage,” and, “to the extent possible,” to “equalize the parties’ respective standards of living.”

¶ 54 As we have explained, these default rules tend to further the court’s aim of achieving “a fair, just, and equitable result between the parties” because they typically put the parties in the best possible position to “reconstruct their [separate] lives on a happy and useful basis.” So the economic factors, and the general aim of placing the parties in the same position they enjoyed during the marriage, stand as an important starting point in any alimony determination.

¶ 55 But section 30-3-5(8) also provides courts the flexibility and discretion to depart from these default rules in certain situations where fairness demands. For example, in addition to the economic factors listed in section 30-3-5(8)(a), section 30-3-5(8)(b) also authorizes courts to consider “the fault of the parties in determining whether to award alimony and the terms of the alimony.” So the statute expressly provides district courts with the discretion to consider fault in determining whether to award alimony, as well as in determining the terms—the amount and length—of the alimony award.

¶ 56 Section 30–3–5 also provides guidance for how a court may adjust the amount and length of an alimony award in the event the court determines that one spouse’s fault necessitates a departure from the default economic alimony factors. For example, although section 30-3-5(8)(e) urges district courts as “a general rule,” to “look to the standard of living, existing at the time of separation,” it also instructs courts to “consider all relevant facts and equitable principles,” and grants courts “discretion” to “base alimony on the standard of living that existed at the time of trial.” When section 30-3-5(8)(e) is read together with section 30-3-5(8)(b)’s fault provision, it is clear that where a court determines that one spouse’s fault would make it inequitable to maintain both parties at the standard of living enjoyed during the marriage, the court has the discretion to lower the award to an amount sufficient to sustain the at-fault spouse at a reasonable standard of living post-marriage, rather than the standard of living the couple enjoyed during the marriage.

¶ 57 Similarly, section 30-3-5(8)(f) authorizes courts to depart from default alimony awards where fault contributed to the break-up of the marriage. It instructs courts to “attempt to equalize the parties’ respective standards of living.” But it also notes that courts should do so only “under appropriate circumstances.” So once again, when this provision is read together with section 30-3-5(8)(b)’s fault provision, it is clear that courts need not attempt to equalize the parties’ respective standards of living where one spouse’s fault would make equalization inappropriate.

¶ 58 Therefore, under the plain language of section 30-3-5(8), courts have discretion to depart from the default economic rules where one party’s fault makes it appropriate to do so. Because the district court determined that Ms. Gardner’s conduct qualified as fault under the statute, the court was authorized to depart from the default alimony rules by reducing Ms. Gardner’s alimony award by some amount.

Utah Family Law, LC | | 801-466-9277

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Can a parent discipline a child by taking the child’s phone away?

Can a parent discipline a child by taking the child’s phone away?

Before researching this question, I thought the answer was obvious. It’s not. As a both a lawyer and a parent myself, I always believed that I had control over my minor children’s property, meaning I could, among other things, withhold use of a phone or a bike as a disciplinary measure. Now I’m not so sure. Here’s what I found. What do you think? (read this whole thing because if you don’t you’ll be fooled):

I found two cases (in Texas and Michigan) in which a parent was arrested and charged with theft of a phone. In the Texas case, a father was charged with theft, but the court found the father not guilty because there was insufficient evidence of theft. The mother of the child claimed the phone was hers, but the court could not determine ownership. In the Michigan case, a mother was charged with theft, but charges were dropped when it was discovered that the phone was not the property of the ex-husband/father, but that the minor daughter’s owned the phone.

From what I can tell from the cursory research I have conducted, I can confidently conclude: 1) courts and prosecutors generally don’t want to deal with these kinds of family disputes (good for them) and 2) these kinds of cases can turn out however the prosecutors and/or courts want, i.e., they can construe the same facts and the same law to reach the desired outcome either way. Otherwise stated, if a conviction for theft is wanted, it can be found “as a matter of law” that taking a child’s phone is theft, and if a conviction for theft is not wanted, it can be found “as a matter of law” (often times referring to the same statutes) that a parent taking the child’s phone away was not theft.

But is there a more definitive legal answer? Here’s what I found on that question:

See 61 A.L.R.2d 1270 (Originally published in 1958):

§ 1. Generally [Cumulative Supplement]

Although a parent, either as natural guardian or otherwise, has no title to the property of his minor child, nor any custody or control over it, and may make a gift inter vivos to such child which, when fully executed, is irrevocable, property furnished by a parent to his child for the purpose of support and maintenance, or education, unless in some definite way given to the child as his own property, or unless the child has been emancipated, from which a gift may be implied, appears to remain the property of the parent, who is entitled to recover for damage thereto or loss thereof.

And see:

5 Summ. Pa. Jur. 2d Family Law § 8:38 (2d ed.) | June 2020 Update

§ 8:38. Parent’s right to control of child’s property

A parent has no authority to sell and convey the interest of a minor child in real or personal property. Parents are also precluded from bargaining away the rights of their minor children.

But then you get cases like Kemp v. Kemp, 485 N.E.2d 663, 665 (Ind.Ct.App.1985):

Court necessarily grants to divorced parent some degree of control over child’s property in process of determining which parent acquires or retains custody of child upon dissolution of marriage.

Inherent in the concept of “child custody” is the right and obligation to care for, control, and maintain the child. It is a matter of common sense, then, that in the process of determining which parent acquires or retains custody of a child, a court necessarily grants to that parent some degree of control over the child’s property.

For example, no one would deny a “divorce” court’s jurisdiction when dissolving a marriage and disposing of marital property to order a husband to surrender to his former wife a motorcycle belonging to their sixteen-year-old child, now in the wife’s custody. An argument that the court in such a hypothetical has thereby “awarded property not owned by the parties” or “distributed assets in excess of the marital estate” misses the mark entirely. In fact, such a court has awarded nothing and distributed nothing. It has simply decided which parent should exercise the guidance and control over the minor’s life and property that inhere in the concept of parental custody.

Before and after the dissolution the motorcycle “belongs” to the child; the court has merely determined which party ultimately possesses what might be termed parental dominion over the property by virtue of having custody of its owner. Thus, even though the mother might subsequently deny her minor child the use of his motorcycle, her right to do so lies in her rights and duties as custodial parent, not in any rights of legal ownership. See McKinnon v. First National Bank of Pensacola (1919) 77 Fla. 777, 82 So. 748 (In McKinnon, the Florida Supreme Court noted that while a father had given money to his children as an absolute gift, he “did not intend for them to acquire extravagant habits by permitting them to use the money as they pleased before they were eighteen years old. This, as their natural guardian, he had the right to do, and if the gifts had been made by a third person he could have controlled his children in its expenditure until they reached an age when he considered it was advisable for them to use it as they saw fit.” 82 So. at 749, 750 (emphasis supplied)).

. . . and like State v. Udell (Court of Appeals of Kansas, July 22, 2005 34 Kan.App.2d 163, 115 P.3d 176):

a parent/child relationship gives rise to a presumption of control of property. Rith, 164 F.3d at 1330. The Rith court noted evidence which would tend to rebut that presumption included the child’s payment of rent, a lock on the bedroom door, or an implicit or explicit agreement the parents never enter a particular area. 164 F.3d at 1331.

. . . and like L. A. M. v. State (Supreme Court of Alaska. March 15, 1976, 547 P.2d 827)

While there is much discussion of parental rights in reported cases, few cases attempt to define those rights making discussion difficult. A careful review of the literature, including case law, treatise and law review, indicates that the following have been listed as ‘parental rights’ protected to varying degrees by the Constitution:


(4) The right to control and manage a minor child’s property.*

*I can’t find any U.S. Supreme Court or other case law supporting this claim.

But then there are cases such as In re Casey (December 4, 2008, Not Reported in Cal.Rptr.3d2008 WL 51229895 Cal. State Bar Ct. Rptr. 1172008 Daily Journal D.A.R. 17,952)

(Emery v. Emery (1955) 45 cal.2d 421, 432 [minor child’s property is his or her own, and not that of child’s parents]; see also Fam.Code, § 7502 [parent has “no control over the property of [a] child”]; In re Tetsubumi Yano’s Estate (1922) 188 Cal. 645, 649 [minority does not incapacitate a person from taking and holding real estate].)

Black’s Law Dictionary ((11th ed. 2019), under the definition of “parental rights”) has this, but then gives no citations to the Constitution or statutes or case law:

parental rights (18c) A parent’s rights to make all decisions concerning his or her child, including the right to determine the child’s care and custody, the right to educate and discipline the child, and the right to control the child’s earnings and property.

Before researching this question, I thought the answer was obvious. It’s not.

See 61 A.L.R.2d 1270 (Originally published in 1958):

§ 1. Generally [Cumulative Supplement]

Although a parent, either as natural guardian or otherwise, has no title to the property of his minor child, nor any custody or control over it, and may make a gift inter vivos to such child which, when fully executed, is irrevocable, property furnished by a parent to his child for the purpose of support and maintenance, or education, unless in some definite way given to the child as his own property, or unless the child has been emancipated, from which a gift may be implied, appears to remain the property of the parent, who is entitled to recover for damage thereto or loss thereof.

Utah Family Law, LC | | 801-466-9277

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Why does a parent asking questions turn into a trial?

Why does a parent asking questions turn into a trial?

A parent questioning a child often turns into “a trial” when either

1) the child questioned is guilty of wrongdoing and does not want to be exposed or

2) the child questioned is innocent of any wrongdoing and feels as though the questions call his/her good character into doubt, which leads to the child resenting the questioning.

Keep that in mind if you are a divorcing or separated parent.

Utah Family Law, LC | | 801-466-9277

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