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Tag: parental fitness

What Is the Point of Granting Divorced Parents Joint Custody and Splitting Parenting Time? Isn’t It the Idea That the Children Benefit From Having Two Parents? Isn’t That True Only So Long as Both Parents Are Positive Influences and Not Criminals?

You pose two very good questions, and there are very good answers to each of them.

Question 1) What is the point of granting divorced parents joint custody and splitting parenting time? Isn’t it the idea that the children benefit from having two parents?

Answer: Yes. More specifically, the idea is that the children benefit from having both of their fit* parents involved in their children’s lives as possible.

Question 2) Isn’t that true only so long as both parents are positive influences and not criminals?

Answer: Essentially, yes. The idea is that the children benefit from having both of their fit* parents involved in their children’s lives as possible. No one suggests that a child is inherently benefited by a parent exercising custody of that child if the parent is unfit to exercise custody of the child.

*What does it mean to be a fit parent? Every jurisdiction has different, though similar criteria for defining and evaluating parental fitness. Most concisely stated, a parent is not fit if that parent abuses, neglects, and/or poses a clear danger of such to his/her children.

What are the factors the courts consider in Utah when determining what the custody award will be?

30-3-10.  Custody of a child — Custody factors.

  1. If a married couple having one or more minor children are separated, or the married couple’s marriage is declared void or dissolved, the court shall enter, and has continuing jurisdiction to modify, an order of custody and parent-time.
  2. In determining any form of custody and parent-time under Subsection (1), the court shall consider the best interest of the child and may consider among other factors the court finds relevant, the following for each parent:

(a)        evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the parent, or a household member of the parent;

(b)        the parent’s demonstrated understanding of, responsiveness to, and ability to meet the developmental needs of the child, including the child’s:

(i)         physical needs;

(ii)        emotional needs;

(iii)       educational needs;

(iv)       medical needs; and

(v)        any special needs;

(c)        the parent’s capacity and willingness to function as a parent, including:

(i)         parenting skills;

(ii)        co-parenting skills, including:

(A)       ability to appropriately communicate with the other parent;

(B)       ability to encourage the sharing of love and affection; and

(C)       willingness to allow frequent and continuous contact between the child and the other parent, except that, if the court determines that the parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration; and

(iii)       ability to provide personal care rather than surrogate care;

(d)       in accordance with Subsection (10), the past conduct and demonstrated moral character of the parent;

(e)        the emotional stability of the parent;

(f)        the parent’s inability to function as a parent because of drug abuse, excessive drinking, or other causes;

(g)        whether the parent has intentionally exposed the child to pornography or material harmful to minors, as “material” and “harmful to minors” are defined in Section 76-10-1201;

(h)        the parent’s reasons for having relinquished custody or parent-time in the past;

(i)         duration and depth of desire for custody or parent-time;

(j)         the parent’s religious compatibility with the child;

(k)        the parent’s financial responsibility;

(l)         the child’s interaction and relationship with step-parents, extended family members of other individuals who may significantly affect the child’s best interests;

(m)       who has been the primary caretaker of the child;

(n)        previous parenting arrangements in which the child has been happy and well-adjusted in the home, school, and community;

(o)        the relative benefit of keeping siblings together;

(p)        the stated wishes and concerns of the child, taking into consideration the child’s cognitive ability and emotional maturity;

(q)        the relative strength of the child’s bond with the parent, meaning the depth, quality, and nature of the relationship between the parent and the child; and

(r)        any other factor the court finds relevant.

(3)        There is a rebuttable presumption that joint legal custody, as defined in Section 30-3-10.1, is in the best interest of the child, except in cases when there is:

(a)        evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse involving the child, a parent, or a household member of the parent;

(b)        special physical or mental needs of a parent or child, making joint legal custody unreasonable;

(c)        physical distance between the residences of the parents, making joint decision making impractical in certain circumstances; or

(d)       any other factor the court considers relevant including those listed in this section and Section 30-3-10.2.

(4)

(a)        The person who desires joint legal custody shall file a proposed parenting plan in accordance with Sections 30-3-10.8 and 30-3-10.9.

(b)        A presumption for joint legal custody may be rebutted by a showing by a preponderance of the evidence that it is not in the best interest of the child.

(5)

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

(b)

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

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

(c)

(i)         If an interview with a child is conducted by the court pursuant to Subsection (5)(b), the interview shall be conducted by the judge in camera.

(ii)        The prior consent of the parties may be obtained but is not necessary if the court finds that an interview with a child is the only method to ascertain the child’s desires regarding custody.

(6)

(a)        Except as provided in Subsection (6)(b), a court may not discriminate against a parent due to a disability, as defined in Section 57-21-2, in awarding custody or determining whether a substantial change has occurred for the purpose of modifying an award of custody.

(b)        The court may not consider the disability of a parent as a factor in awarding custody or modifying an award of custody based on a determination of a substantial change in circumstances, unless the court makes specific findings that:

(i)         the disability significantly or substantially inhibits the parent’s ability to provide for the physical and emotional needs of the child at issue; and

(ii)        the parent with a disability lacks sufficient human, monetary, or other resources available to supplement the parent’s ability to provide for the physical and emotional needs of the child at issue.

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

(1)        The court may order joint legal custody or joint physical custody or both if one or both parents have filed a parenting plan in accordance with Section 30-3-10.8 and the court determines that joint legal custody or joint physical custody or both is in the best interest of the child.

(2)        In determining whether the best interest of a child will be served by ordering joint legal custody or joint physical custody or both, the court shall consider the custody factors in Section 30-3-10 and the following factors:

(a)        whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal custody or joint physical custody or both;

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

(c)        co-parenting skills, including:

(i)         ability to appropriately communicate with the other parent;

(ii)        ability to encourage the sharing of love and affection; and

(iii)       willingness to allow frequent and continuous contact between the child and the other parent, except that, if the court determines that the parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration; and

(d)       whether both parents participated in raising the child before the divorce;

(e)        the geographical proximity of the homes of the parents;

(f)        the preference of the child if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to joint legal custody or joint physical custody or both;

(g)        the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents;

(h)        the past and present ability of the parents to cooperate with each other and make decisions jointly; and

(i)         any other factor the court finds relevant.

(3)        The determination of the best interest of the child shall be by a preponderance of the evidence.

(4)        The court shall inform both parties that an order for joint physical custody may preclude eligibility for cash assistance provided under Title 35A, Chapter 3, Employment Support Act.

(5)        The court may order that when possible the parties attempt to settle future disputes by a dispute resolution method before seeking enforcement or modification of the terms and conditions of the order of joint legal custody or joint physical custody through litigation, except in emergency situations requiring ex parte orders to protect the child.

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

(1)

(a)        A court may order the equal parent-time schedule described in this section if the court determines that:

(i)         the equal parent-time schedule is in the child’s best interest;

(ii)        each parent has been actively involved in the child’s life; and

(iii)       each parent can effectively facilitate the equal parent-time schedule.

(b)        To determine whether each parent has been actively involved in the child’s life, the court shall consider:

(i)         each parent’s demonstrated responsibility in caring for the child;

(ii)        each parent’s involvement in child care;

(iii)       each parent’s presence or volunteer efforts in the child’s school and at extracurricular activities;

(iv)       each parent’s assistance with the child’s homework;

(v)        each parent’s involvement in preparation of meals, bath time, and bedtime for the child;

(vi)       each parent’s bond with the child; and

(vii)      any other factor the court considers relevant.

(c)        To determine whether each parent can effectively facilitate the equal parent-time schedule, the court shall consider:

(i)         the geographic distance between the residence of each parent and the distance between each residence and the child’s school;

(ii)        each parent’s ability to assist with the child’s after school care;

(iii)       the health of the child and each parent, consistent with Subsection 30-3-10(6);

(iv)       the flexibility of each parent’s employment or other schedule;

(v)        each parent’s ability to provide appropriate playtime with the child;

(vi)       each parent’s history and ability to implement a flexible schedule for the child;

(vii)      physical facilities of each parent’s residence; and

(viii)     any other factor the court considers relevant.

(2)

(a)        If the parties agree to or the court orders the equal parent-time schedule described in this section, a parenting plan in accordance with Sections 30-3-10.7 through 30-3-10.10 shall be filed with an order incorporating the equal parent-time schedule.

(b)        An order under this section shall result in 182 overnights per year for one parent, and 183 overnights per year for the other parent.

(c)        Under the equal parent-time schedule, neither parent is considered to have the child the majority of the time for the purposes of Subsection 30-3-10.3(4) or 30-3-10.9(5)(c)(ii).

(d)       Child support for the equal parent-time schedule shall be consistent with Section 78B-12-208.

(e)

(i)         A court shall determine which parent receives 182 overnights and which parent receives 183 overnights for parent-time.

(ii)        For the purpose of calculating child support under Section 78B-12-208, the amount of time to be spent with the parent who has the lower gross monthly income is considered 183 overnights, regardless of whether the parent receives 182 overnights or 183 overnights under Subsection (2)(e)(i).

(3)

(a)        Unless the parents agree otherwise and subject to a holiday, the equal parent-time schedule is as follows:

(i)         one parent shall exercise parent-time starting Monday morning and ending Wednesday morning;

(ii)        the other parent shall exercise parent-time starting Wednesday morning and ending Friday morning; and

(iii)       each parent shall alternate weeks exercising parent-time starting Friday morning and ending Monday morning.

(b)        The child exchange shall take place:

(i)         at the time the child’s school begins; or

(ii)        if school is not in session, at 9 a.m.

(4)

(a)        The parents may create a holiday schedule.

(b)        If the parents are unable to create a holiday schedule under Subsection (4)(a), the court shall:

(i)         order the holiday schedule described in Section 30-3-35; and

(ii)        designate which parent shall exercise parent-time for each holiday described in Section 30-3-35.

(5)

(a)        Each year, a parent may designate two consecutive weeks to exercise uninterrupted parent-time during the summer when school is not in session.

(b)

(i)         One parent may make a designation at any time and the other parent may make a designation after May 1.

(ii)        A parent shall make a designation at least 30 days before the day on which the designated two-week period begins.

(c)        The court shall designate which parent may make the earlier designation described in Subsection (5)(b)(i) for an even numbered year with the other parent allowed to make the earlier designation in an odd numbered year.

(d)       The two consecutive weeks described in Subsection (5)(a) take precedence over all holidays except for Mother’s Day and Father’s Day.

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

(1)        As used in Sections 30-3-32 through 30-3-37:

(a)        “Child” means the child of divorcing, separating, or adjudicated parents.

(b)        “Supervised parent-time” means parent-time that requires the noncustodial parent to be accompanied during parent-time by an individual approved by the court.

(c)        “Surrogate care” means care by any individual other than the parent of the child.

(d)       “Uninterrupted time” means parent-time exercised by one parent without interruption at any time by the presence of the other parent.

(e)        “Virtual parent-time” means parent-time facilitated by tools such as telephone, email, instant messaging, video conferencing, and other wired or wireless technologies over the Internet or other communication media, to supplement in-person visits between a noncustodial parent and a child or between a child and the custodial parent when the child is staying with the noncustodial parent.

(2)

(a)        A court shall consider as primary the safety and well-being of the child and the parent who experiences domestic or family violence.

(b)        Absent a showing by a preponderance of evidence of real harm or substantiated potential harm to the child:

(i)         it is in the best interests of the child of divorcing, divorced, or adjudicated parents to have frequent, meaningful, and continuing access to each parent following separation or divorce;

(ii)        each divorcing, separating, or adjudicated parent is entitled to and responsible for frequent, meaningful, and continuing access with the parent’s child consistent with the child’s best interests; and

(iii)       it is in the best interests of the child to have both parents actively involved in parenting the child.

(3)        An order issued by a court pursuant to Title 78B, Chapter 7, Part 6, Cohabitant Abuse Protective Orders, shall be considered evidence of real harm or substantiated potential harm to the child.

(4)        If a parent relocates because of an act of domestic violence or family violence by the other parent, the court shall make specific findings and orders with regards to the application of Section 30-3-37.

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

(1)        If the parties are unable to agree on a parent-time schedule, the court may:

(a)        establish a parent-time schedule; or

(b)        order a parent-time schedule described in Section 30-3-35, 30-3-35.1, 30-3-35.2, or 30-3-35.5.

(2)        The advisory guidelines as provided in Section 30-3-33 and the parent-time schedule as provided in Sections 30-3-35 and 30-3-35.5 shall be considered the minimum parent-time to which the noncustodial parent and the child shall be entitled.

(3)        A court may consider the following when ordering a parent-time schedule:

(a)        whether parent-time would endanger the child’s physical health or mental health, or significantly impair the child’s emotional development;

(b)        evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, a parent, or a household member of the parent;

(c)        the distance between the residency of the child and the noncustodial parent;

(d)       a credible allegation of child abuse has been made;

(e)        the lack of demonstrated parenting skills without safeguards to ensure the child’s well-being during parent-time;

(f)        the financial inability of the noncustodial parent to provide adequate food and shelter for the child during periods of parent-time;

(g)        the preference of the child if the court determines the child is of sufficient maturity;

(h)        the incarceration of the noncustodial parent in a county jail, secure youth corrections facility, or an adult corrections facility;

(i)         shared interests between the child and the noncustodial parent;

(j)         the involvement or lack of involvement of the noncustodial parent in the school, community, religious, or other related activities of the child;

(k)        the availability of the noncustodial parent to care for the child when the custodial parent is unavailable to do so because of work or other circumstances;

(l)         a substantial and chronic pattern of missing, canceling, or denying regularly scheduled parent-time;

(m)       the minimal duration of and lack of significant bonding in the parents’ relationship before the conception of the child;

(n)        the parent-time schedule of siblings;

(o)        the lack of reasonable alternatives to the needs of a nursing child; and

(p)        any other criteria the court determines relevant to the best interests of the child.

(4)        The court shall enter the reasons underlying the court’s order for parent-time that:

(a)        incorporates a parent-time schedule provided in Section 30-3-35 or 30-3-35.5; or

(b)        provides more or less parent-time than a parent-time schedule provided in Section 30-3-35 or 30-3-35.5.

(5)        A court may not order a parent-time schedule unless the court determines by a preponderance of the evidence that the parent-time schedule is in the best interest of the child.

(6)        Once the parent-time schedule has been established, the parties may not alter the schedule except by mutual consent of the parties or a court order.

30-3-34.5.  Supervised parent-time.

(1)        Considering the fundamental liberty interests of parents and children, it is the policy of this state that divorcing parents have unrestricted and unsupervised access to their children. When necessary to protect a child and no less restrictive means is reasonably available however, a court may order supervised parent-time if the court finds evidence that the child would be subject to physical or emotional harm or child abuse, as described in Sections 76-5-109, 76-5-109.2, 76-5-109.3, and 76-5-114, from the noncustodial parent if left unsupervised with the noncustodial parent.

(2)        A court that orders supervised parent-time shall give preference to persons suggested by the parties to supervise, including relatives. If the court finds that the persons suggested by the parties are willing to supervise, and are capable of protecting the children from physical or emotional harm, or child abuse, the court shall authorize the persons to supervise parent-time.

(3)        If the court is unable to authorize any persons to supervise parent-time pursuant to Subsection (2), the court may require that the noncustodial parent seek the services of a professional individual or agency to exercise their supervised parent-time.

(4)        At the time supervised parent-time is imposed, the court shall consider:

(a)        whether the cost of professional or agency services is likely to prevent the noncustodial parent from exercising parent-time; and

(b)        whether the requirement for supervised parent-time should expire after a set period of time.

(5)        The court shall, in its order for supervised parent-time, provide specific goals and expectations for the noncustodial parent to accomplish before unsupervised parent-time may be granted. The court shall schedule one or more follow-up hearings to revisit the issue of supervised parent-time.

(6)        A noncustodial parent may, at any time, petition the court to modify the order for supervised parent-time if the noncustodial parent can demonstrate that the specific goals and expectations set by the court in Subsection (5) have been accomplished.

_______________

For a more detailed discussion of parental fitness factors in other jurisdictions, feel free to read on:

Parental fitness “is in some way tied into the best interest of the child. The jurisprudence variously has interpreted this statutory fitness as physical, economic, mental, or moral fitness[.]” Joint Custody in Louisiana, 43 LALR 85 (September 1982)

Another definition of parental fitness in the context of termination of parental rights is found in Louisiana Statutes, Louisiana Children’s Code, Title XI. Surrender of Parental Rights, Chapter 1. Preliminary Provisions; Definitions, at Art. 1103(5)(Definitions), but it wouldn’t make a bad standard for evaluating parental fitness in a child custody dispute either:

(5) “Parental fitness” means:

(a) That a parent has not abused the child. For purposes of this Subparagraph, abuse means the infliction of physical or mental injury which causes deterioration to the child, sexual abuse, exploitation, or overworking of a child to such an extent that his health or moral or emotional well-being is endangered.

(b) That a parent has consistently offered to provide reasonably necessary food, clothing, appropriate shelter, or treatment for the child. For purposes of this Subparagraph, treatment means medical care or other health services provided in accordance with the tenets of a well- recognized religious method of healing with a reasonable, proven record of success.

(c) That a parent suffers from no medical or emotional illness, mental deficiency, behavior or conduct disorder, severe physical disability, substance abuse, or chemical dependency which makes him unable or unwilling to provide an adequate permanent home for the child at the present time or in the reasonably near future based upon expert opinion or based upon an established pattern of behavior.

(d) Viewed in its entirety, the parent’s past or present conduct, including his criminal convictions, would not pose a risk of substantial harm to the physical, mental, or emotional health of the child.

See also this from Legal Rights of Children (November 2022 Update, Thomas R. Young), Part II. Children and the Family Relationship, Chapter 2. Child Custody. § 2:5. The best interests of the child rule:

The evolution of the best interests approach has focused on the development of a comprehensive list of factors that a court may or must consider in making its determination. As previously illustrated with regard to what the courts in the State of Missouri look for to determining a child’s best interest, the criteria upon which a court may rely in deciding which parent should be awarded custody may include the child’s preference, the bond the child may have with a parent, his or her health (physical and mental), the child’s sex and age,15 and each parent’s fitness to assume custody.[footnote 16]

[16] Hall v. Hall, 571 So. 2d 1176 (Ala. Civ. App. 1990); Stephen v. Stephen, 1997 OK 53, 937 P.2d 92 (Okla. 1997); Irwin v. Schmidt, 236 A.D.2d 401, 653 N.Y.S.2d 627 (2d Dep’t 1997); Issac v. Issac, 2004 WL 2915330 (Ky. Ct. App. 2004); Klausman v. Klausman, 2004-Ohio-3410, 2004 WL 1461356 (Ohio Ct. App. 9th Dist. Summit County 2004); Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 (2006); Patterson v. Patterson, 207 S.W.3d 179 (Mo. Ct. App. S.D. 2006); Kreps v. Kreps, 2010 SD 12, 778 N.W.2d 835 (S.D. 2010); and Pietrzak v. Schroeder, 2009 SD 1, 759 N.W.2d 734 (S.D. 2009) (when considering parental fitness during an initial child custody determination, a court may consider: (1) mental and physical health; (2) capacity and disposition to provide the child with protection, food, clothing, medical care, and other basic needs; (3) ability to give the child love, affection, guidance, education and to impart the family’s religion or creed; (4) willingness to maturely encourage and provide frequent and meaningful contact between the child and the other parent; (5) commitment to prepare the child for responsible adulthood, as well as to insure that the child experiences a fulfilling childhood; and (6) exemplary modeling so that the child witnesses firsthand what it means to be a good parent, a loving spouse, and a responsible citizen).

Other courts have suggested other criteria: the quality of the home environment and the nature of parental guidance that can be offered, the character and reputation of the parties involved, the ability to provide for the continued emotional and intellectual needs and development of the children, the potentiality of maintaining natural family relationships, the material opportunities affecting the future life of the child,20 and the opportunity for visitation.

Parental fitness can be subdivided into several categories: moral fitness, love and affection of the parent for the child, and past conduct affecting the child’s needs, both physically and mentally as well as financially. When making a custody award, a New York court has said that in determining what is best for the child, the court should review the child’s emotional and intellectual development, the quality of the home environment, parental guidance that is being or could be provided, the stability of the respective homes involved, and the child’s own desires.

Traditionally, courts have taken a moralistic approach to evaluating the fitness of a parent. A parent found to be an adulterer has historically been deemed to be morally unfit by reviewing courts and denied custody of the child as punishment. Courts, in using this approach, arguably never reached the issue of the child’s best interests. Today, however, courts tend to be more concerned with a child’s psychological well-being. Focusing more on the child’s rights and its best interests, rather than those of the parent, courts now give far less consideration to a parent’s conduct if it does not affect his or her relationship with the child. Several states have laws which expressly forbid consideration of parental conduct which does not directly affect the parent’s relationship with the child.

Courts are moving toward a more objective analysis of parental fitness as it affects a child’s well-being. This change in perspective requires that each parent be evaluated in terms of ability and willingness to care for the child, free of gender-based presumptions. For example, in 1982, the Virginia Supreme Court found that it was in the child’s best interests to be in the father’s custody where both parents were fit but where the home environment offered by the father was more conducive to the child’s well-being. In other cases, the maternal presumption has been replaced by a gender-neutral presumption favoring the parent found to be the primary caretaker. Still, other courts have rejected outright a mother’s claim to her child based only on the tender years doctrine. Today, a judicial finding of parental unfitness and denial of custody often requires compelling evidence of emotional instability, repeated and flagrant immoral acts, or a failure to provide care and guidance to the child through cruelty, abandonment, or neglect.

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

Eric Johnson’s answer to What is the point of granting divorced parents joint custody and splitting parenting time? Isn’t it the idea that the children benefit from having two parents? Isn’t that true only so long as both parents are positive influences and not criminals? – Quora

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Should I get sole custody of my children if the dad does not want custody?

Should I get sole custody of my children if their dad does not want to be involved with them? Or try to talk it out before I go through with it?

Your children deserve a loving, salutary relationship with both of their parents, so it is morally right to urge and encourage the father in this situation to love and care for his children. Yes, have that talk with the father. It’s pointless, however, to nag or try to guilt a father into loving and caring for his children when he doesn’t want to love and care for his own children. And it’s plain irresponsible and wrong to try to involve a father in his children’s lives if that father is a danger to the children, whether physically or emotionally/psychologically.  

But where a father is not abusive, not a danger to the life or health of his own children, it’s not a bad idea to leave the door open. One day Dad might wake up and want to walk through it for the children’s benefit. Leaving open the possibility does not, of course, mean that the children will be receptive to repairing (or in some cases forming) their relationship with their father, but why slam that door and nail it shut if you must not? Do unto others as you would have them do for you. Don’t needlessly deprive the children of an opportunity to bond with their father.  

That stated, this does not mean that you must ask the court for a joint child custody award. “Leaving the door open” does not require you treat Dad like an involved parent when he’s not. If Dad’s not around, not interacting with the children, not playing with them, bathing, feeding them, etc., not financially supporting the children, then there’s no good reason to act as though he is when the child custody awards are made. There’s no reason to “leave the door open” in a way that sets the kids up to have their hopes dashed and their hearts broken. If an absentee parent (father or mother) says that he or she recognizes the error of that absentee parent’s ways and wants to make amends, there must needs be a price to be paid by that parent. There will be hard words to hear from the other parent and child. He or she should expect caution and hesitancy, even skepticism, from the children and the other parent. There will be hard work and sacrifice ahead as well (and not just for Dad). Easier said than done. I get it. But if the children are willing to give Dad a second chance and he’s proven he can and wants to make good, it would be tragic and frankly inexcusable to deny the children that. 

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

https://parenttoparenttalk.quora.com/Should-I-get-sole-custody-of-my-children-if-their-dad-does-not-want-to-be-involved-with-them-Or-try-to-talk-it-out-befo?__nsrc__=4  

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How can I reveal my soon-to-be ex as having NPD in our custody case?

How can I reveal my soon-to-be ex as having NPD in our child custody case?

You’re asking the wrong question. You shouldn’t be asking how you can prove your spouse has NPD (or some other mental or emotional disorder), but whether your spouse in some way unfit—due to mental illness or emotional disorder—to exercise custody of or parent-time with the children. 

There are so many people who believe that if he/she can prove that his/her spouse or the other parent merely suffers from a mental illness or emotional disorder he/she will somehow win the custody battle. 

It seems as though people believe that mental illness or emotional disorders automatically disqualify one from exercising custody or parent time (visitation) with one’s children. It’s not true. I don’t know where this misconception came from. 

First, merely having a mental or emotional disorder does not make one an unfit parent. Merely having a certain mental or emotional disorder or disorders does not automatically make one a danger to himself or to others. 

Second, even having a mental illness or emotional disorder that could render one a danger to himself or others does not mean that one cannot function as a fit parent. Many parents with serious mental and emotional disorders take medication to treat and manage those disorders successfully. Merely having a mental or emotional disorder (or other kinds of disabilities) does not automatically disqualify a parent as fit to exercise child custody and parent-time. 

Third, proving that one has a serious and disqualifying mental or emotional disorder or disorders is extraordinarily difficult. Diagnosis of many mental and emotional disorders is highly subjective. And if there isn’t associated seriously bad behavior to provide tangible, verifiable proof of actual serious harm resulting from suffering from mental illness or emotional disorders, then accusing a spouse or other parent of suffering from mental illness or emotional disorders essentially comes down to a matter of “your word against mine.” 

Fourth, even if a parent is self-absorbed, hot-tempered, hypocritical, etc., that doesn’t make the parent inherently unfit to exercise custody or parent-time. There are innumerable people suffering from some form of mental illness or personality disorder who still manage to function adequately in society. We may not know exactly why they’re so difficult to deal with, why they’re such jerks, why they won’t change, but they still meet minimum standards of behavior for normal society. 

Finally, accusing the other spouse or parent of suffering from mental illness or emotional disorders as a means of poisoning the opinion of the court against your spouse or other parent (and thereby obtain an advantage) can backfire. Making unsupported allegations comes across to courts as cheap shots (which they are). Unsupported allegations damage your credibility. It can make you look like the crazy and unstable one. It’s trendy to throw around these terms and accuse your spouse of suffering from NPD (narcissistic personality disorder) or BPD (borderline personality disorder), or other defects and disabilities. Mere allegations are a dime a dozen. Mere allegations and uncorroborated stories of mental illness or ability disorders don’t usually get a court’s attention (false claims of child abuse and domestic violence, however, are a different story altogether). 

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

https://www.quora.com/How-can-I-reveal-my-soon-to-be-ex-as-having-NPD-in-our-child-custody-case/answer/Eric-Johnson-311  

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What happens after an affair when you have kids?

What happens after an affair when you have kids? I will 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 have had an extramarital affair, it generally will not do your divorce case any favors, will not 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 Utah Code § 30-3-5(9)(c)) provides:

“The court may consider the fault of the parties in determining whether to award alimony and the terms of the alimony” and “”Fault” means any of the following wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship: engaging in sexual relations with an individual other than the party’s spouse[.]”

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)): “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. And this: “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 | divorceutah.com | 801-466-9277

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Will my medical marijuana prescription adversely affect my child custody case?

If I have a prescription for marijuana, will this affect my custody case? I do not smoke in front of my child or have it around my child.

Probably not, as long as you can A) prove the prescription is legitimate; B) that you use as prescribed; C) that prescribed usage does not impair your ability to function as a fit parent; and D) that you keep your marijuana secured from access by the children.

As you may know, a lot of people get marijuana cards who don’t really have a legitimate medical need for marijuana use, so you’d need to overcome any (frankly reasonable) skepticism and prove your medical marijuana use is not to disqualifying factor in determining your parental fitness when the court makes its child custody and parent-time awards.

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

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How do courts view mothers who abandon their family during a divorce?

How does the court view mothers that abandon their family during a divorce?

Generally, with disbelief, at first. Why? A few reasons.

One, to its credit, our culture still holds the concept and institution of motherhood in high esteem, so most people (and judges are people) believe that mothers are good, devoted caregivers. Most mothers are just that. So it is not easy to accept what our senses are conveying when a mother behaves contrary to our cultural expectations. We tend to see mothers as we want to see them, not as they always are.

Two, few bad mothers are honest with the court about being bad mothers. So the false face that most bad mothers present to the court is (primarily, but not solely, because of point number one) not only hard to detect as false, but easily accepted or acceptable as genuine.

  • One way bad mothers divert attention from their faults and misconduct is by blaming the fathers for those faults and misdeeds. Just as we tend to put mothers on a pedestal in our culture, we unfairly tend to see and treat many fathers as second-class parents. The feeling is like, “Yeah, they are important to a child’s upbringing, I guess, but they aren’t as vital and important to a child’s development as a mother, so we give dads less of the benefit of the doubt.” This is so wrong for so many reasons, but nevertheless it happens so often.
    • If kids are abused or neglected, bad mothers blame the guiltless fathers with a high rate of success in court. For example: violence perpetrated by men can be more severe than violence perpetrated by women, so if a child is a victim of domestic violence, it’s easy to assume Dad is the perpetrator (interestingly, FBI statistics show women commit just as much, if not more, domestic violence than men). If Dad has a full-time job, it’s easy to presume that Mom is the full-time caregiver, not a lazy slob who drinks herself numb every day and lets the kids run amok until Dad gets home to restore order and attend to the children’s need.

Three, even when a bad mother’s defects are unavoidably and undeniably exposed, many courts possess surprisingly great supplies of sympathy and forgiveness that they would rarely or not so readily extend to a father. It so often gets framed like this, for example: a mother who abuses drugs or alcohol is a victim whose substance abuse is a cry for help. A father who abuses drugs is a narcissist who lacks self-discipline. A mother with crippling mental health issues is deserving of our concern and rehabilitation. A father with crippling mental health issues is a danger against which the children need protection. I’ve personally witnessed many cases where mom was abusive and/or neglectful and dad was not, yet mom was awarded primary physical custody of the children because the court felt so strongly that the kids “need their mother,” that somehow mom had earned the right to be the custodial parent by virtue of being a woman, and that mom could and would overcome her shortcomings (not because there was credible evidence that she can and wanted to overcome those shortcomings, but because the court had to make such a finding to justify the award of custody to the worse of the two parents).

To be clear, I am not telling you that courts cannot identify bad mothers or that they cannot or will not shield children from bad mothers. Many people—moms and dads alike—when discovered for the mediocre, even dangerous, parents they are, are not awarded child custody and/or are subject to supervision around their children. It can and does happen. But that is not what discussed here. In response to the question of which parent among mothers and fathers gets undeserved breaks more in divorce cases, it is mothers hands down. Now you know some of the main reasons why.

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

https://www.quora.com/How-does-the-court-view-mothers-that-abandon-their-family-during-a-divorce/answer/Eric-Johnson-311?prompt_topic_bio=1

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After a divorce, is joint residential custody better or worse for the children?

Let’s indulge an analogy to answer this question.

Is sugar good for you, or bad for you? It depends upon the circumstances. An occasional slice of cake or pie is a safe and pleasant way to enjoy sugar. ‘Nothing wrong with that. Eating so much sugar that your teeth rot and you pack on 30 unneeded pounds is irresponsible and hazardous to your health. ‘Nothing good about that. Yes, you have the right to ruin your health with too much sugar, but that does not mean you have the right to expect everyone around you to endorse or accommodate your irresponsible lifestyle.

So is joint residential custody better or worse for the children? It depends on the joint residential custody circumstances. Assuming there’s nothing emotionally or psychologically off about a child, when both parents are fit (not abusive or neglectful and physically and psychologically able to care for children), loving and supportive, there to provide personal care and attention, have residences that are safe and hygienic, and can at least tolerate the exercise of joint custody with each other, joint residential custody is unquestionably best for children (the research is copious and only getting clearer). When one of the parents is unfit, disengaged, and lives in a pig sty and/or in his/her car, joint residential custody would clearly not be in a child’s best interest.

Parental rights are fundamental, God-given, human rights. But they are not a parent’s absolute inviolable rights. If a parent is not minimally fit to exercise custody of a child, the law provides that such a parent’s parental rights can be infringed, restricted, even terminated. This is why a court can award sole custody of children, if it finds that the parents are not both fit to exercise joint custody and/or if it finds that joint custody would not subserve the child’s best interest.

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

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https://www.quora.com/After-a-divorce-is-joint-residential-custody-better-or-worse-for-the-children/answer/Eric-Johnson-311

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If somebody’s wife gets pregnant by another man will it be easy for the husband to gain custody of their children?

If somebody’s wife gets pregnant by another man will it be easy for the husband to gain custody of their children?

In my opinion, 9.5 times out of 10 the fact—standing alone—that the wife got pregnant in the course of an extramarital affair will have virtually no impact on which of the two spouses will get custody of the children of the marriage. So to answer your question: no, it will not be easy for the husband to gain custody of their children, if his wife gets pregnant by another man.

Why? Because the factors that affect the award of child custody do not place a great deal of importance on something like an extramarital affair. The factors that matter far, far more to a court are things like

Section 30–3–10 (Utah Code):

  • the past conduct and demonstrated moral standards of each of the parties;
  • which parent is most likely to act in the best interest of the child, including allowing the child frequent and continuing contact with the noncustodial parent;
  • the extent of bonding between the parent and child, meaning the depth, quality, and nature of the relationship between a parent and child;
  • whether the parent has intentionally exposed the child to pornography or material harmful to a minor;
  • whether there has been domestic violence in the home or in the presence of the child;
  • special physical or mental needs of a parent or child;
  • physical distance between the residences of the parents.

Section 30-3-10.2 (Utah Code):

  • the physical, psychological, and emotional needs and development of the child;
  • the ability of each parent to give first priority to the welfare of the child;
  • whether each parent is capable of encouraging and accepting a positive relationship between the child and the other parent, including the sharing of love, affection, and contact between the child and the other parent;
  • whether both parents participated in raising the child before the divorce;
  • the preference of the child if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to legal or physical custody;
  • the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents.

Utah Code of Judicial Administration, Rule 4–903

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

As you can see, while moral character is one factor, it is clearly not the only factor, nor is it the most important factor in making a child custody award. To be sure, the court will take into account the wife’s moral failings and recklessness by her having engaged in an extramarital affair and getting pregnant, but this factor will not carry much weight in view of the other more pragmatic factors, such as parenting skills, bonding between parents and children, availability to care for children, what arrangement would be easiest on the kids and what custody arrangement will benefit them going forward, etc.

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

https://www.quora.com/If-somebody-s-wife-gets-pregnant-by-another-man-will-it-be-easy-for-the-husband-to-gain-custody-of-their-children/answer/Eric-Johnson-311

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What are the legal repercussions of posting an email chain between myself and my daughter’s custodial parent exposing her downright shady behavior?

What are the legal repercussions of posting an email chain between myself and my daughter’s custodial parent exposing her downright shady behavior?

Many who “answered” your question didn’t read your question carefully.

You asked what the legal repercussions would be if you were to “post” (and by “post” I presume you meant sharing on social media or something like that) an e-mail chain between you and the other parent. You did NOT ask what would happen if you posted an e-mail chain between you and your daughter.

So to answer your question as you posed it:

First, if your daughter is old enough to read what you post or be read to and understand what you post, then posting correspondence on social media between you and her mother will likely do you more harm than good, to say nothing of the harm it might do you daughter and/or the harm it may do to the relationship between you and your daughter;

It is generally not illegal to post correspondence between two people, and I have difficulty imagining how posting an email chain between you and your child’s mother could rise to the level of being a crime; however, even if the posting is not illegal, beware: posting the email chain may expose you to criminal prosecution if the correspondence itself constitutes a crime, such as correspondence that contains threats of violence or correspondence that constitutes harassment or correspondence that constitutes stalking, etc. You also probably won’t want to post correspondence that casts you in a worse light than the other parent. Review with an attorney what you consider posting before you post.

The court won’t know about you having posted correspondence between you and the other parent unless someone brings the post to the court’s attention.

The court won’t care about you having posted correspondence between you and the other parent unless someone brings the post to the court’s attention and the post is relevant to any of the issues the court has to determine in your court case. If the correspondence between you and the other parent is not material (“material” evidence is evidence that is being offered to prove an element of a claim or defense that needs to be established for one side or the other to prevail) or relevant {evidence is not “relevant” unless it is first material and then has any tendency to make the existence of any fact of consequence to the action more or less probable than it would be without the evidence) than the court won’t pay much, if any, attention to it.

So if the email chain you have in mind shows:

  • that Mom views pornography (legal pornography), but doesn’t expose the child to it, the court probably won’t care;
  • that Mom likes to drink, but doesn’t get impaired by alcohol, the court probably won’t care;
  • that Mom holds unpopular opinions, but those opinions do no harm, the court probably won’t care;
  • that Mom argues with you over visitation or parent-time scheduling, but eventually works out a schedule with you, the court probably won’t care;

If the email chain you have in mind shows:

  • that Mom makes illegal use of drugs, the court probably will care;
  • that Mom gets drunk a lot (even if not around the child or when with the child), the court probably will care;
  • that Mom admits to being violent with the child or that Mom neglects the child’s needs, the court probably will care;
  • that Mom has lied to the court, to police, to the child welfare agencies, etc. in an effort to deceive the court about herself or about you, the court probably will care.

You get the idea?

So if you want the court to know about the email chain, so that the court can take it into account when making its orders, don’t post the chain on social media (all that does is air dirty laundry in public, and that can—and likely will—backfire on you), submit it directly to the court through proper channels.

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

https://www.quora.com/What-are-the-legal-repercussions-of-posting-an-email-chain-between-myself-and-my-daughters-custodial-parent-exposing-her-downright-shady-behavior/answer/Eric-Johnson-311

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