BLANK

Tag: parenting

Parenting before, during, and divorce litigation By Braxton Mounteer, Legal Assistant

Divorce is already hard enough on the parties involved, but it is even harder on the children of the recently separated family. I speak as a child of divorce, who had to live through it and who has experienced the effect that divorce has had on me and on and my siblings.

When your divorce is contentious or negotiations have broken down, you shouldn’t use your children as messengers between your spouse and you on divorce-related subjects. Your children are not the proper avenue of communication between you and your estranged or ex-spouse.  You’re the adult. Communicate like one.

The worst thing you can do is force your children to choose sides. Forcing your children to pick a side causes damage that may be irreparable. This isn’t just forcing Tim and Susan to choose to live with Mom or Dad. How confident are you that they would choose you anyway (or for how long)? For all of your and your spouse’s faults and failings, you are the children’s parents and your children need you to work (and deserve to have you work) together for the children’s benefit. You need to start (if you have not already started) acting in your children’s best interest and stop thinking of them as problems and/or as solutions to your problems.

Don’t bad-mouth your ex-spouse to your children. Your children are literally a part of their parents, and (except in truly dysfunctional situations) they love both of their parents. If you tell your children their mother or father is a loser, an abuser, or other kind of scoundrel, your children may (and likely will) start to believe that they are that way too. If you’ve disparaged your ex-spouse (whether what you said is true or not), act like the adult that you are, swallow your pride, and apologize for including your children in something you had no business discussing with them.

In the early stages of a divorce, you may be tempted to buy your children’s affection. While it is not the worst thing you could do, it has unintended adverse consequences. If you try to buy your children’s affection in an effort to get a better outcome in the divorce case, only to “cut off” this level of affection or material exchange with your children after the ink dries on the decree, this sends your kids the message that you see your children as pawns for self-serving purposes. If you try to buy your children’s affection for the rest of their lives (or at least the duration of their minority), you’re throwing good money after bad, you’re engaging in an unsustainable practice. Kids will quickly tire of movie tickets and theme parks and start expecting cars and luxury experiences. How long can you keep that up? And how insufferable will your children be if they become accustomed to getting whatever they want?

You reap what you sow. The path of least resistance makes for weak parents and for weak kids. Do right by your children, for their sake and yours.

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

Tags: , , , , , , ,

Do you think the child support laws in your state are fair? If no, then describe the changes that you would make.

I can’t speak for all jurisdictions, but in the jurisdiction where I practice divorce and family law (Utah), child support awards are generally, in my opinion, 1) too high, 2) often wrongfully misused by those seeking child support (and by the courts that award child support) as a means of providing financial support for a parent (not just the child(ren)), and 3) not subject to enough (if any) oversight regarding their properly use.

One factor that can cause child support to be awarded unfairly to the child support recipient is this: I’ve attended the meetings of the committee that sets child support guidelines in my state. It was clear in my observations of the committee’s work that some on the committee don’t see child supporters as financial support exclusively for children, but for the parent receiving the child support payments also. I’ve seen courts award sole or primary child custody to a parent not because that was in the best interest of the child, but because the court wanted to ensure that the parent awarded custody got the extra child support money that comes with a sole or primary custody award. In my view, that is unfair. There are many times when a judge will award child support (and the associated child custody) not strictly for the purpose of providing some financial support for the children but for the custodial parent as well. When they do, it is manifestly inequitable and unjust (to child and parent alike), and a violation of the public trust, but it still happens. Not in every child support case, but it happens.

One factor that can cause child support to be spent unfairly by the child support recipient is: no accountability on the part of the child support funds recipient for the expenditure of the child support funds. Once the parent who was awarded child support receives the funds, he/she can spend them however he/she wants. If the child support recipient (also known as the child support obligee) does not actually spend the child support on the financial needs of the children, he/she gets away with it.

In my jurisdiction (Utah), while the law provides for accountability as to how child support funds are spent, that law is literally never applied (Play 26 years of practice I have never seen it ordered). There is no accountability for how child support funds are paid. That is not opinion, that is fact. About the only way to get accountability for use of child support funds is if the child support recipient so grossly and obviously misspends them that it cannot be denied, in which case the court may make some changes to the child support award as a result.

In fairness, while it may be a little easier to devise a means for a fairer calculation of needed child support than it is to devise a workable, reliable means of holding child support obligees accountable, both tasks are extremely difficult. Everyone has a different opinion of what is a “fair calculation,” and where there’s a will to misappropriate the child support funds with which one is entrusted without being detected, there’s a way (multiple ways, in fact, the number of which is limited only by the imagination).

In my jurisdiction, there are different kinds of child support. Three different kinds, to be exact (sometimes four, under certain circumstances). What most people consider child support is known as base monthly child support in Utah. That is the amount that is paid directly to the custodial parent. But child support also includes sharing equally the cost of the child’s health, medical, dental, and hospital insurance premiums, and half of all uninsured medical, health, dental, and hospitalization expenses. Child support also includes the responsibility that the parents share equally the cost of all work-related childcare expenses. And in joint physical custody cases, often the court will order that the parties share equally the costs of certain expenses for the child in addition to base monthly child support to cover things like mandatory school expenses and cost of reasonable extracurricular expenses.

A parent has his/her own living expenses. While it is true that in some cases a parent may incur housing expenses greater than what they would be were there no need for extra room to house the child or children, child support is not needed for “extra” housing expenses if the size of the parent’s residence would have been the same regardless of the child custody award.

The problem with thinking that “half of all living expenses are the child’s”) is that rarely are half of all living expenses are, in fact, the child’s. For example, if a parent would have been residing in the same sized residence with or without the child present, then the “child’s portion” of rent is $0. Even if the residence is a 2-bedroom house/apartment, the second bedroom is not equivalent to half the cost of the residence. Children don’t eat as much food until they are older (and even so, they are not eating on the custodial parent’s dime every day because they eat some time meals the noncustodial parent). I cannot speak for all jurisdictions, but in Utah child support is usually more than what the child (the child, not the custodial parent, the child) needs to be sufficiently financially supported).

All common expenses clearly do not divide perfectly equally between the parent and child. A parent whose residence would have been the same size regardless of whether he/she shared it with a child would have $0 in child housing expenses, $0 in certain utilities expenses (i.e., heating, garbage removal, cable TV, internet), for example. So, the idea that child support must take into account that a child’s “shelter” expenses are equal to half the parent’s rent or mortgage payment is false on its face. If a court wants to indulge such a fiction for the sake of making it easier to calculate child support, that’s a different matter. A child’s transportation needs are not necessarily equal to half or 25% of those of the parent either.

In Utah, work-related daycare is an expense shared equally between the parents and is separate from the base monthly child support amount. To be clear: a noncustodial parent pays base monthly child support in addition to sharing half the costs of work-related child care expenses.

While it is true that a child’s food consumption changes as the child ages, that’s built in to the child support calculations, so that it averages out—child support is more than necessary to feed a 5-year-old and less than necessary to feed a 17-year-old, but the average child support amount accounts for both scenarios as the child ages. I have never, in 26 years of practice in Utah, personally witnessed a case (nor have I heard of any other case in which) child support was ordered increased for a teenaged child on the basis of “additional food and clothing expenses of a teenager”. Child support calculations are the same for all children, regardless of age.

The “poor hapless custodial parent” story is tired and not credible. Of course, there are many deadbeat noncustodial parents to pay less than full court-ordered child support and many deadbeats who pay none. But that is not the discussion here. The idea that child support that is awarded is somehow insufficient to meet a child’s needs (needs) is bunk. All the arguments that “child support is too low” are bunk too. Consider this: in Utah, both parents have a child support obligation (that includes the custodial parent). That means that that the custodial parent has an obligation to spend his/her own money on the child’s support in addition to the money he/she receives in child support from the noncustodial parent. So, if we have John and Jane Doe as parents, they have two minor children, John’s gross monthly income is $6,500 and Jane’s gross monthly income is $2,400, and John is the noncustodial parent, then John’s monthly child support obligation is $1,111. That’s $555.50 per child, per month, that John pays. Jane’s child support obligation is less, but still $411 per month (see the Utah child support worksheet below, calculated on a sole custody basis in this hypothetical scenario). That’s an additional $205.50 per child per month. Don’t tell me that $761 per month isn’t enough to provide for a child’s needs monthly. Remember: base monthly child support does not include both parents sharing the costs of child health insurance equally, uninsured child health care equally, and work-related daycare equally. That’s all in addition to the base monthly child support amount. In other words, the custodial parent doesn’t have to spend out of that $761 per month for child health insurance, uninsured out of pocket health care, and daycare (the parents bear those expenses separately on an equal shares basis). $761 is likely more than what the parents would have spent on the child’s support had the parents resided together with the children under the same roof.

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

https://www.quora.com/Do-you-think-the-child-support-laws-in-your-state-are-fair-If-no-then-describe-the-changes-that-you-would-make/answer/Eric-Johnson-311

 

 

Don’t tell me that $761 per month isn’t enough to provide for a child’s needs monthly. Remember: base monthly child support does not include both parents sharing the costs of child health insurance equally, uninsured child health care equally, and work-related daycare equally. That’s all in addition to the base monthly child support amount. In other words, the custodial parent doesn’t have to spend out of that $761 per month for child health insurance, uninsured out of pocket health care, and daycare (the parents bear those expenses separately on an equal shares basis). $761 is likely more than what the parents would have spent on the child’s support had the parents resided together with the children under the same roof.

Don’t tell me that $761 per month isn’t enough to provide for a child’s needs monthly. Remember: base monthly child support does not include both parents sharing the costs of child health insurance equally, uninsured child health care equally, and work-related daycare equally. That’s all in addition to the base monthly child support amount. In other words, the custodial parent doesn’t have to spend out of that $761 per month for child health insurance, uninsured out of pocket health care, and daycare (the parents bear those expenses separately on an equal shares basis). $761 is likely more than what the parents would have spent on the child’s support had the parents resided together with the children under the same roof.

Tags: , , , , ,

What does temporary custody without prejudice mean?

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

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

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

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

And now to address the elephant in the room:  

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

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

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

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

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

When the court: 

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

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

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

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

Tags: , , , , , , ,

What are the primary concerns in determining parenting issues? Why?

What are the primary concerns of the courts in determining parenting issues? Why? 

In Utah (and in no particular order), the court must consider the factors articulated in these sections of the Utah Code when making a legal and physical custody award: 

  1. § 30-3-10. Custody of a child — Custody factors. 
  2. § 30-3-10.2. Joint custody order — Factors for court determination — Public assistance. 
  3. § 30-3-34. Parent-time — Best interests — Rebuttable presumption. 
  4. § 30-3-35.1. Optional schedule for parent-time for children 5 to 18 years of age. 
  5. § 30-3-35.2. Equal parent-time schedule. 

If I were to create a list of all factors from the above-referenced Utah Code sections, this answer would be too long, which is why I have provided hyperlinks to the Code sections for your review.  

CONCERN FOR FATHERS. What do fathers encounter far too often (not always, but far too often): “How can I rule against the father’s request for an award of joint equal legal and physical custody without my ruling appearing to be contrary to the facts, contrary to the best interest of the children and the irrational, biased or arbitrary, inequitable, discriminatory, unconstitutional thing that it is?” 

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

https://www.quora.com/What-are-the-primary-concerns-of-the-courts-in-determining-parenting-issues-Why/answer/Eric-Johnson-311  

Tags: , , , , , , , , , ,

Can an adult child be sued for helping one parent divorce the other?

Taking your question literally: 

Can? Yes. 

You can file a lawsuit for any “reason” or no reason at all. Crazy and/or malicious people file crazy/malicious/frivolous/unintelligible lawsuits all the time. 

Just because you can file a lawsuit does not mean, however, that you will prevail in court on your claim(s) made in your lawsuit. 

So is it possible to find some plausible legal basis for a cause of action by one adult child against a sibling who helps one of their parents divorce the other? I’m sure it is. 

Is it likely to succeed? No. 

But could it? Possibly, depending upon the legal solidity of the bases for the claim(s), the skill with which the pleadings are drafted and the legal arguments are made, how persuasively you or your attorney argue the matter, and how receptive your judge and/or jury are to your arguments. 

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

https://www.quora.com/Can-an-adult-child-be-sued-for-helping-one-parent-divorce-the-other/answer/Eric-Johnson-311 

Tags: , , , , , , , ,

How can I better understand the importance of marriage?

As a child with divorced parents, I find it hard to answer questions such as, “What is the importance of marriage?” How can I better understand the importance of marriage?

Being a divorced parent does make it harder to make a strong case for marriage. You are afraid to look hypocritical and not credible. Fortunately, you are not alone in your predicament. 

  • Ex-con parents have the same problem when advising their children to obey the law. That doesn’t make the advice wrong.
  • Fat, out of shape parents have the same problem when advising their children to exercise and stay fit. That doesn’t make the advice wrong.
  • High school dropout parents have the same problem when advising their children to get a good education. That doesn’t make the advice wrong. 

 Although telling children to “do as I say, not as I do,” is a hard sell, there is an obvious silver lining to encouraging children to differently than you did: “Kid, you don’t need to end up like me. Learn from my example not to do as I did.” That’s authentic. That has real value. Vicarious learning is learning from the experience of others. Everyone can benefit from vicarious learning, whether it’s learning how to succeed by repeating what successful people do (and don’t do) or how to succeed by avoiding the mistakes and wrong decisions of those who failed. 

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

https://www.quora.com/As-a-child-with-divorced-parents-I-find-it-hard-to-answer-questions-such-as-What-is-the-importance-of-marriage-How-can-I-better-understand-the-importance-of-marriage/answer/Eric-Johnson-311  

Tags: , , , , , , ,

What are the chances of a mother getting full custody?

In my experienced opinion: 

If the fight is over which parent will be awarded sole (full) custody of the children, and if no other factors are considered: the chances of a mother winning full custody of the children are always better than the chances of a father winning full custody of the children. 

If the mother is seeking sole custody, but the father is seeking joint equal custody, and if no other factors are considered: then 1) unless you are in a jurisdiction in which it is the law that joint custody of children shall be presumptively awarded, 2) unless that presumption is (honestly) rebutted, and 3) the courts in such a jurisdiction actually follow that law and the facts, the odds still favor the mother, though not as much as when the parents are both seeking sole custody. The father has to work much harder than the mother to persuade the court to award joint equal custody than the mother does to persuade the court to award less than joint equal custody. 

If the mother is seeking sole custody and the father is seeking joint custody, but is not seeking joint equal custody (meaning that the father is not limited to the statutory minimal amount of visitation or parent time but is also not awarded the same amount of time with the children as is the mother) and if no other factors are considered: then the father may have a decent shot at winning a “more than minimum and less than equal” joint custody award. Why? Because I think that when a court is sexist it likes the “booby prize” look and sound of a child custody award that has the word “joint” in it. The thinking seems to be in the minds of such judges, “Hey, be grateful I awarded you something better than minimal time with your kids. It could’ve been worse.” 

Loving, fit fathers who want the children to have the benefit of being reared equally by both parents are often shocked and then heartbroken to learn that such a sentiment generally doesn’t get a very warm reception from the courts. There is an amazing and shameful amount of sexual discrimination against fit fathers in the child custody decisions of courts, even after giving the courts credit for a slow trend of decreasing discrimination. 

I am not exaggerating when I state—as a divorce and family lawyer who has fought these battles for fathers—that generally (except in the extremely “progressive” jurisdictions) 1) fathers have to work 20 times harder to win sole custody (when that is truly what is best for the children) than a mother does to win sole custody and 2) fathers have to work at least 10 times harder to win joint equal custody (when that is truly what is best for the children) than a mother does to win sole custody. 

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

https://www.quora.com/What-are-the-chances-of-a-mother-getting-full-custody/answer/Eric-Johnson-311  

Tags: , , , , , , ,

Is it damaging for a child to witness a divorce/parents fighting constantly?

Is it damaging for a child to witness a divorce or witness their parents fighting constantly?

Yes. 

Yes, of course. 

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

https://www.quora.com/Is-it-damaging-for-a-child-to-witness-a-divorce-or-witness-their-parents-fighting-constantly/answer/Eric-Johnson-311 

Tags: , , , , , , , , ,

How easy is it to change your child’s last name?

I cannot answer this question as it applies in all jurisdictions, but I can answer the question as it applies in the jurisdiction where I practice divorce and family law (Utah): 

Here are the applicable Utah Code sections: 

42-1-1. By petition to district court — Contents. 

Any natural person, desiring to change his name, may file a petition therefor in the district court of the county where he resides, setting forth: 

(1) The cause for which the change of name is sought. 

(2) The name proposed. 

(3) That he has been a bona fide resident of the county for the year immediately prior to the filing of the petition. 

42-1-2. Notice of hearing — Order of change. 

The court shall order what, if any, notice shall be given of the hearing, and after the giving of such notice, if any, may order the change of name as requested, upon proof in open court of the allegations of the petition and that there exists proper cause for granting the same. 

42-1-3. Effect of proceedings. 

Such proceedings shall in no manner affect any legal action or proceeding then pending, or any right, title or interest whatsoever. 

That seems fairly easy, right? I agree, it does seem easy (it deceptively seems easy), and if all you needed to do was go by what the Utah Code says is required of you to get a name change, you’d be right. But for reasons I do not understand, there are many “unwritten rules” governing a name change in Utah, whether for an adult or a minor child. Otherwise stated, if all you did was: 

  • file a petition in the court stating: 
    • the cause for which the change of name is sought; 
    • the name proposed; 
    • that you or your minor child have/has been a bona fide resident of the county for the year immediately prior to the filing of the petition. 
  • schedule the hearing on the petition; 
    • prove three allegations that you were required to make in the petition; 
    • prove that there exists “proper cause” (whatever that means) for granting the petition for change of name; 

that should be all you need to do, according to the Utah Code. But if that is all you did, there is a good chance your petition would be denied. So what are the “unwritten rules” you need to abide by to get a name change for yourself or your minor child? A good place to find out is here: 

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

https://www.quora.com/How-easy-is-it-to-change-your-child-s-last-name/answer/Eric-Johnson-311  

Tags: , , , , , , , , , ,

Would you want to groom your children to become lawyers?

Would you enlist your children into a pre-law school program which grooms them to become top notch lawyers? 

No. I have gone in the opposite direction. I have told my children (who love dogs and want dogs because their mother and I do not want a dog and have never had a dog) that I will buy each of them a dog, if they promise not to go to law school and become lawyers. The “legal biz” can, and often does, ruin good people who become lawyers. I don’t want to risk my children being ruined by the legal profession. There are some good people in the legal profession, but there aren’t enough good people in it to redeem it, in my opinion. 

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

https://www.quora.com/Would-you-enlist-your-children-into-a-pre-law-school-programme-which-grooms-them-to-become-top-notch-lawyers/answer/Eric-Johnson-311

Tags: , , , , , , , ,

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 | divorceutah.com | 801-466-9277  

https://www.quora.com/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-parents-favor/answer/Eric-Johnson-311  

Tags: , , , , , , , ,

How do I best explain to my daughters that I am divorcing their stepmom?

What is the best way for me to explain to my 3 daughters that the reason in which I am divorcing their Assistant Prosecutor stepmother is because I wouldn’t let her legally adopt them and that I had an affair with one of her former friend’s?

I realize that there may be more to your question and its context than the question itself may indicate. I realize you may or may not be the only one to blame for the deterioration of your marriage. 

Do right by both your children and your wife. Resist the temptation to “correct” one mistake by making others in an effort to cover for past wrongs you have committed. 

I’d speak with a good (a good) psychologist or qualified counselor to help me confront how and why I came to this point and how my family did. I’d seek some help to understand what I should do going forward and why I should do so, how I should and can take responsibility for my actions in the past and for the future. 

I’d speak with a good (a good) child psychologist to gain an understanding of how to break this kind of news to your children and how to discuss any questions your children may have. 

I’d speak with my pastor or priest (or whoever your religious leader may be) to get some guidance as well. 

I’d be sure to be honest with my children, in a way that is sensitive to their age and maturity and needs. 

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

https://www.quora.com/What-is-the-best-way-for-me-to-explain-to-my-3-daughters-that-the-reason-in-which-I-am-divorcing-their-Assistant-Prosecutor-stepmother-is-because-I-wouldn-t-let-her-legally-adopt-them-and-that-I-had-an-affair-with/answer/Eric-Johnson-311  

Tags: , , , , , , ,

How do I get custody back of my child if the custodial parent is not keeping the child safe?

The best way to phrase this question is as follows, “How do I get an order awarding custody of our child to me, if I assert as the basis for my petition that the custodial parent is not keeping the child safe?” 

As an attorney who gets ask this question frequently, the first things I tell people who ask me such a question are: 

1. Is the noncustodial parent in fact not adequately protecting the child in keeping the child safe, as you assert? Could reasonable minds differ as to whether the custodial parent truly is not taking at least a minimal action to keep the child adequately safe? Or are the bases for your assertion—even if you could prove as a matter of fact the bases for your assertion—not reasonable?

a. For example parents have come to me asking if they could seek a change of custody or visitation (also known as parent-time) because: 

i. the other parent started drinking alcoholic beverages (when previously, before the divorce, neither parent drank alcohol as a matter of religious beliefs or health consciousness). Not that the parent has become a drunk, but just drinks. That’s not a winning argument for a change of custody. That’s not enough to prove the child is in danger; 

ii. the other parent is dating or living with a convicted felon. As long as that convicted felon is behaving himself/herself, conducting himself/herself in compliance with law, and not barred from being around minor children as a condition of his/her parole or release from prison, another parent dating or living with a convicted felon is almost certainly not going to be a sufficient basis for seeking a change of custody on the grounds that the child is in danger/not safe. 

      1. Granted, if the convicted felon is a multiple murderer or a snitch shoes being hunted down by the mob, that may be enough for a court to determine the risks are too great, but parents who come to me with the felon concern are usually faced with a situation where the new boyfriend or girlfriend was convicted of fraud, or the new boyfriend’s/girlfriend’s felony conviction took place so long ago that nobody believes the new boyfriend/girlfriend is the same person he/she was back then;

iii. parents have come to me asking if they could seek a change of custody or parent-time because the other parent lives in a dangerous part of town and/or in messy or small apartment. No sale. Unless you can prove that the conditions are so dangerous that it’s just a matter of time until a child is harmed, or at least show that the risks or dangers to which the child is exposed as a result of where that parent lives, the court’s just not going to make a change on that basis; 

iv. What about a parent who has a dog as a pet, and your child is allergic to dogs? That would depend upon how bad the allergy is. I found out in my late 40s that I am allergic to cats. That was news to me. We had a cat in the house I grew up in. I had friends whose cats I played with as a child. I never noticed and still never notice any harm come to me from being around cats or in houses where there are cats. So if I were a child and my parents were divorced and Dad was the primary custodial parent and he owned a cat or two, would Mom be able to get a change of custody because I technically tested allergic to cats? I doubt it; 

v. What about a parent who doesn’t have the children bathe as often as you would like, or who doesn’t have them brush their teeth at his/her house? Yeeeaaaah, probably not enough to get a change of custody. Maybe, if your judge is really into hygiene, but odds are against you. 

2. Even if it’s true that the custodial parent is a danger to the child or exposes the child to unreasonably dangerous situations, if you can’t amass enough evidence to prove it to the satisfaction of the judge, then mere truth doesn’t matter. Many times I’ve encountered cases where the parent and I knew the truth, but didn’t have enough to prove it. This happens a lot in situations of substance abuse and physical abuse that can be explained away as being caused by something other than the abusive parent. 

Bottom line: unless you have a legally sufficient argument that the child is suffering serious harm or that the child is in real danger of serious harm AND have sufficient evidence to prove it, you will likely lose a petition to modify custody on the grounds the custodial parent is not keeping the child adequately safe. 

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

https://www.quora.com/How-do-I-get-custody-back-of-my-child-if-the-custodial-parent-is-not-keeping-the-child-safe/answer/Eric-Johnson-311?prompt_topic_bio=1  

Tags: , , , , , , , ,

Why is disciplining a child a sign of parental alienation in the long-term?

This is an example of a logical fallacy; specifically, begging the question. It assumes the conclusion in the premise 

It is not a given that disciplining a child is a sign of parental alienation in the long-term. 

Disciplining a child (whether physically or otherwise) does not inexorably cause parental alienation. My parents disciplined me, both with spankings and by grounding me or taking away privileges. This made me unhappy, but did not alienate me from either of my parents. 

It is possible for a parent to engage in excessive and/or inappropriate child discipline that will have the effect of alienating the child from that parent or (eve more tragically) from the innocent parent, but it is not a given that mere discipline of a child causes parental alienation. 

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

https://www.quora.com/Why-is-disciplining-a-child-a-sign-of-parental-alienation-in-the-long-term/answer/Eric-Johnson-311 

Tags: , , , , ,

Pro-fairness and Pro-child

Pro-fairness and Pro-child

Recently, public service YouTube channel I run (UFTLV – Utah Family Law TV – not run by or run to support Utah Family Law, LC) received a comment on this video:

Do you think it’s fair that Brad Pitt got joint custody of his kids?

The comment:

“I’m pretty convinced this channel is a pro fathers [sic] rights movement channel. Its [sic] not surprising at all he got joint custody. Its [sic] an automatic presumption nowadays for mother and father to share joint custody.

My response follows below:

Thank you so much for watching and for commenting. You are mistaken on both counts. 1) This is not a pro-father’s rights channel (nor is it a “pro-mother’s rights” channel). It is a pro-fairness, pro-child, pro-due process, and pro-common sense channel. 2) It is not automatically presumed everywhere that child custody will be awarded to both parents on a joint custody basis.

1) For generations mothers were (and still remain in most jurisdictions) presumed to be “the better parent” simply by virtue of their being mothers/women, without evaluating the parental fitness of each parent to determine whether the children would be best served by a sole or joint child custody award. It was (and still is in many jurisdictions) believed that children need to spend more time in their mothers’ care than in their fathers’ care, even if and when the father is ready, willing, and able to share joint equal custody of the children.

2) While there are more and more states in the U.S. passing laws that presume the parents will be awarded joint legal and joint physical custody of their children, many states have no such presumption and many states still treat fathers as second class parents when it comes to making the child custody award. I myself have been told by a judge just this year that “it’s not the quantity of time the children spend with their father but the quality that matters.” But quality of time parents and children spend together is a factor of quantity. Where both parents are fit parents, the “best parent” is both parents. Children deserve no less than joint equal custody in such situations. Fit parents deserve no less as well.

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

Tags: , , , , , , , ,

Does a family court judge know when a parent is being malicious?

Rarely, and when the judge does know, it’s usually because the other parent’s malicious behavior is so way over the top as to be impossible to detect or ignore or plausibly deny. Indeed, many courts in divorce and child custody cases are often adept at “seeing” malicious behavior on the part of an innocent parent or detecting real malicious behavior, but attributing it to the innocent parent instead of correctly identifying the real culprit.

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

https://www.quora.com/Does-a-family-court-judge-know-when-a-parent-is-being-malicious/answer/Eric-Johnson-311?prompt_topic_bio=1

Tags: , , ,

How would it be, if when a couple with children divorce instead of custody the court requires them to secure a stable home for the children and require the parents to shuttle around every week?

This is something that many parents already do. It is often known as “nesting”. 

Some parents feel it would be best for their children if they don’t have to shuttle back and forth between their divorced parents’ respective homes, so the parents maintain one home where the children live permanently, then the parents will take turns living in the house with the children, typically on a week on, week off basis, such that Mom is in the house for a week, then Dad is in the house for a week.  

There are at least two common ways to do this. The most preferred way, which is also the most expensive, is to have three homes. One home for the children, and then one home where Mom lives when she’s not living with the children, and a home where Dad lives when is now living with the children. Another option, which requires the ex-wife annexed has been to get along well enough to share the use of our home, is for Mom and Dad to share the use and cost of a home where each of them lives when he/she is not living in the children’s home. That way you only have to have two homes in rotation. It also requires that the ex-wife and ex-husband trust each other enough and can tolerate each other enough to share a common residence, albeit one in which they would, by design, almost never reside at the same time.  

Regardless of how appealing nesting might appear, it is clear that it is not an arrangement that every divorcing couple can implement successfully. 

Nesting is a polarizing subject for many in the legal profession. Some think it’s a great new innovation that makes shared custody of children easier on the children. Others think it’s a goofy, burdensome, and impracticable idea; one that sounds good in concept, but does not work well in practice.  

As you can imagine, nesting would become very difficult, if not impossible, to implement if either of the parents remarries. There are few people willing to have their spouses move out of the marital home every other week to spend time with their kids, or to bounce back and forth between the marital home and the stepchildren’s home every other week. 

Another snag divorced parents may encounter when contemplating a nesting arrangement is the question of who owns the house where the children reside. Divorcing spouses usually want to disentangle themselves from each other financially, so they are often not eager to share ownership or be co-lessees of real property and having to deal with all of the burdens and obligations associated with it ( mortgage payments, insurance and tax payments, maintenance and repairs, usage, etc.). 

It takes a special kind of ex-husband and ex-wife to make a nesting arrangement work successfully for both them and their children. Clearly, nesting cannot be for everyone. But just because it may not be easy does not mean it could be a perfect solution for particular families. The more options of which divorcing parents are aware, the better they can tailor their custody and parent time schedule for the mutual benefit of parents and children alike. 

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

https://www.quora.com/How-would-it-be-if-when-a-couple-with-children-divorce-instead-of-custody-the-court-requires-them-to-secure-a-stable-home-for-the-children-and-require-the-parents-to-shuttle-around-every-week/answer/Eric-Johnson-311   

Tags: , , , ,
Click to listen highlighted text!