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Tag: physical custody

Obstacles Fathers Face in Trying to Get Joint Custody of Their Children

I have been asked by a reader to answer two questions.

The first: whether I believe courts generally apply a double standard in the treatment of mothers and fathers when courts make their child custody and parent-time (visitation) orders. The answer is “yes”. Not just “yes,” but “unquestionably, yes.”

The second: What do fathers need to do to meet and overcome that double standard? This is not a polar or closed question, so it requires a prescriptive response.

Before I answer the second question in detail, we need to understand—really and fully understand—why courts generally apply a double standard in the treatment of mothers and fathers when courts make their child custody and parent-time orders. Several volumes could easily be dedicated to the reasons why, so understand what I provide here is not merely concise but rather terse and not exhaustive (though no less true). In no particular order, here are the reasons I’ve encountered:

  • Few will admit it, but most people—both men and women—harbor the belief that women are better parents than men generally.[1]Many judges (both men and women) literally find it impossible to conceive that a father can be as effective a parent as a mother. Consequently, many courts substitute scrutiny and analysis of each particular parent in each particular case for playing the odds by awarding sole primary custody of the children to the mothers.
  • For jurisdictions that base child custody and parent time decisions upon which parent is the “primary caregiver,” courts inexcusably apply a needlessly biased definition of “primary caregiver.” For example, in Utah, “primary caregiver” has been defined as:

We believe that the choice in competing child custody claims should instead be based on function-related factors. Prominent among these, though not exclusive, is the identity of the primary caretaker during the marriage. Other factors should include the identity of the parent with greater flexibility to provide personal care for the child and the identity of the parent with whom the child has spent most of his or her time pending custody determination if that period has been lengthy. Another important factor should be the stability of the environment provided by each parent.

(Pusey v. Pusey, 728 P.2d 117 (August 18, 1986 Supreme Court of Utah))

The Pusey standard is over 37 years old as of the date this post is written, but is still followed in Utah. The standard is outmoded and do for a change. I believe that change is coming soon and that when that day comes, sexual discrimination against father in the child custody and parent time awards will suffer a fatal or near-fatal blow, but that day is not here yet. Even so, the seeds of Pusey’s destruction are found in the decision itself:

“[T]he provisions of article IV, section 1 of the Utah Constitution and of the fourteenth amendment of the United States Constitution would preclude us from relying on gender as a determining factor.”

The primary caregiver standard is (as many of you have already surmised), in many respects, just another disguise for bias in favor of mothers and against fathers.

I would like to say that I do not understand why courts in Utah continue to overlook the obvious fact that most of these so-called primary caregiver parents’ status depends upon the other parent being the sole or primary breadwinner. Otherwise stated, the reason mom can stay home with the kids is because dad is the one working to put that roof over their heads and providing all of the other necessities of life without the mother having to work outside the home herself. And so the courts have these kinds of fathers on the heads, ostensibly thank them for their sacrifices and for being upstanding, responsible men, then turn around and hand over sole or primary custody of the children to the mother nonetheless.

o   The problem with this thinking is that divorce fundamentally changes family dynamics. The primary caregiver analysis often fails to acknowledge that the physical primary caregiver status will rarely remain static post-divorce.

She (or he, in rare instances) who was the primary caregiver when the family all resided under the same roof will rarely remain able to be a stay-at-home parent post-divorce. That stay-at-home parent may find herself having to work outside the home to provide financially both for herself and for the children.

Likewise, fathers who used to come home to their children every day but who now realize they will be lucky if they get to see their kids every other day, will often make sacrifices so that they can spend as much time caring for their kids as possible when they are not at work. Courts, however, largely act as though this fact of life isn’t real. Or they may ostensibly acknowledge the fact in their custody and parent time decisions, custody and parent time awards themselves– mom still ends up with sole or primary custody, and dad ends up with every other weekend, alternating holidays, and a few weeks in the summer.

In Utah, the law is:

“Determining which factors the court must address in a given case, and to what degree, presents a tricky task,” and that “courts are not required to render a global accounting of all evidence presented or to discuss all aspects of a case that might support a contrary ruling.” See Twitchell, 2022 UT App 49, ¶ 21, 509 P.3d 806

But “where significant evidence concerning a particular factor is presented to the district court,” especially where that factor is a critically important one, “findings that omit all discussion of that evidence” and of that factor “must be deemed inadequate.” Id.

(Twitchell v. Twitchell, 2022 UT App 49, ¶ 21, 509 P.3d 806)

But it doesn’t take a genius to find that courts can, if they so desire, overlook pretty much whatever evidence they want (to get to the ruling they want) by simply deeming/dismissing/discounting such evidence as “insignificant”.

So what can (or even must) fathers do to ensure that they (and their children’s relationships with them) are simply treated fairly and impartially in the child custody and parent-time awards? An exhaustive list of pointers could run into the hundreds, but here are the most important, in my estimation (again, in no particular order):

  1. Approach your case like a black man would back in the 1960s who was a defendant in a criminal case: to win, he had to prove his innocence, and he had do it with 10 times more evidence than a white defendant needed. Fathers need to prove their parental fitness. Rarely will a court presume fitness of a father (they presume a mother’s fitness all the time). Generally, fathers must have far more and far better evidence of their fitness compared to what the courts require of mothers. Otherwise stated, you need so much evidence, and so much high-quality evidence, that even the most biased/cynical judge cannot deny you without looking inept or corrupt.
  2. Prove that you satisfy every custody factor the court must consider. In Utah, those factors are found here:

Utah Code § 30-3-10.  Custody of a child—Custody factors.

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

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

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

Utah Code § 30-3-35.1.  Optional schedule for parent-time for a child five to 18 years old.

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

  1. Document everything you possibly can to prove you are a fit parent who can and should exercise at least equal custody of your children (do not seek sole custody or primary custody out of spite—that is wrong).
  2. Do everything you reasonably, possibly can to show you are a fit parent in every way.
  3. If you and your wife are separated, make sure you live as close to your wife as you can, so that the children are in the same neighborhood near their same friends and familiar favorite places, same school district where the children attend school, and can attend the same church they have been historically attending, so that the court doesn’t say, “Dad, you live too far away to make awarding you equal custody good for the children.” Do you see why?
  4. If you live too far away from your kids, they will end up presenting spending any time with you, resent the travel back and forth between their parents’ homes, they won’t have any friends in your neighborhood, they will be too far away from school and extracurricular and church activities, and you risk them telling you that spending time with you is more trouble than it’s worth.
  5. Get your hands on all the latest rigorous research showing that children, whether boys or girls, fare better in an equal custody arrangement. You may even need to retain the services of an expert witness to testify to these things. If you simply dump scholarly articles on the court, they will likely not be admissible without an expert witness to verify that they are legitimate and valid.
  6.       Live a life beyond reproach, and document it in painstaking detail.
  7. You want to do everything to prove this beyond any reasonable doubt: “Your Honor, if what I have set up by way of where I live and what my work schedule is and how much time I can spend providing personal care and attention for the children doesn’t qualify me in every meaningful way to exercise equal physical custody of our children, then there is no other realistic situation that can.”
  8. Ensure that the court makes findings that you meet every factor (ensure that the court makes findings on every factor and points to the evidence supporting each and every finding).
  9. Don’t merely prove you are a good parent. To the extent you can, also DISPROVE all the claims that you are not a good parent.
  10. Be careful about admitting your wife is a good and fit parent if she’s claiming you are a bad and unfit parent.
  11. No, I’m not advising you to lie about your wife’s parental fitness, I’m warning you that I’ve seen courts make findings like this far too often: “Dad admits that Mom is a good parent, but Mom claims Dad is a bad parent, and so Mom wins the parental fitness argument.” It’s disgusting, but it happens.
  12. Don’t believe that “falling on your sword for your kids” will benefit you, or the kids for that matter. When you do that, you run the unnecessary risk of the court pulling a “no good deed goes unpunished” move like, “Dad said he’s willing to agree to less than equal custody to settle the case and put an end to the fighting; so be it.” That may have worked with Solomon, but it rarely works in court.
  13. Show that depriving a child of any care and love and companionship and tutelage that a parent is able and willing to give that child is inherently contrary to the best interest of the child. Show that “the best parent” is BOTH parents. Show that children have a right to loved and reared by both of their parents as much as possible.
  14. Blow the “primary caregiver” argument as meaning “woman” or even “the stay-at-home parent” to smithereens. It’s a pernicious lie. Read my other blog post for more on this and other bogus arguments against fathers and joint legal and physical custody of children: All Men Are Created Equal: A Proof for the Presumption of Joint Physical Custody – Divorce Utah

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


[1] I am nothing, if not frank. It is probably true that if you took a random sampling of parents and analyzed which of the two, among the mother and the father, is the more competent and attentive parent, a higher percentage of those parents would be mothers instead of fathers. But that doesn’t mean that every mother is presumptively a better parent than every father in a child custody dispute. It’s when courts indulge in such a presumption that they indulge in sexual discrimination, indulge in analytical laziness, and thus can (and often do) commit error.

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What happens in court if I file for divorce but my husband has an active case on me for child support? Will I get the child?

Whether you “get the child” (meaning whether you will be awarded physical custody of the child) has little to no relevance to the fact that your spouse is seeking child support from you.

My guess is, based upon the way you phrased your question, that 1) you and your husband are separated and were separated before you filed, or before you have contemplated filing, for divorce; 2) the children have been, on an informal basis (i.e., no court order) your spouse has been exercising sole or primary custody of the children for a while since the separation occurred; and 3) your spouse has applied for an administrative order or court order for child support without having filed for a divorce. Under such circumstances, what would weaken your case for awarding custody to you would be the fact that the children have been in the sole or primary custody of your spouse during separation (and thus, the argument would go, that is the way it should stay, if and when a court issues a decree of divorce), not that he/she has sought child support from you.

If the children have been in the sole or primary custody of your spouse since separation and this is not due to your spouse having concealed the children from you, having absconded with the children, or having otherwise not obtained and exercised this de facto sole/primary custody wrongfully, then it’s not the fact that your spouse is seeking child support from you that hurts your case for custody. What hurts your case for custody being awarded to you is the fact that your spouse stepped up to take care of the kids and you did not.

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

Eric Johnson’s answer to What happens in court if I file for divorce but my husband has an active case on me for child support? Will I get the child? – Quora

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Kingston v. Kingston – 2022 UT 43 – Parental Rights, Due Process Rights

2022 UT 43

IN THE SUPREME COURT OF THE STATE OF UTAH

RYAN CLYDE KINGSTON,
Appellant,

v.

JESSICA BENNY KINGSTON,
Appellee.

No. 20200350

Heard April 11, 2022
Filed __

On Appeal of Final Decree of Divorce

Third District, Salt Lake

The Honorable Andrew H. Stone

No. 144904226

Attorneys:

Steve S. Christensen, Clinton R. Brimhall, Salt Lake City, for appellant

Benjamin K. Lusty, Lisa Watts Baskin, Jaryl L. Rencher, Salt Lake City, for appellee

CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
JUDGE MORTENSEN and JUDGE TENNEY joined.

ASSOCIATE CHIEF JUSTICE PEARCE filed a dissenting opinion, in which
JUSTICE PETERSEN joined.

Having recused himself, JUSTICE LEE did not participate herein;
COURT OF APPEALS JUDGE RYAN D. TENNEY sat.

Due to his retirement, JUSTICE HIMONAS did not participate herein;
COURT OF APPEALS JUDGE DAVID N. MORTENSEN sat.

JUSTICE HAGEN and JUSTICE POHLMAN became members of the Court
after oral argument in this matter and accordingly did not participate.

CHIEF JUSTICE DURRANT, opinion of the Court

Introduction

¶1 Ryan and Jessica Kingston[1] divorced in 2016, following eight years of marriage and the birth of four children. At the time of their marriage, Ryan and Jessica were both members of the Order, also known as the Kingston Group, a polygamous religious community. Ryan remains a member of the Order today, but Jessica left the Order before the divorce.

¶2 During the divorce proceedings, the teachings and practices of the Order became a key issue as both Ryan and Jessica sought custody of their four children. Jessica argued that some of the Order’s teachings and practices, such as polygamy, were contrary to their children’s best interests. The district court found that the children faced potential harm from exposure to the Order-specifically noting the group’s practices of grooming children for early marriage and demonizing those, including Jessica, who have left the religion.

¶3 Based on Jessica and Ryan’s inability to agree on decisions regarding the children, concerns about Ryan’s behavior (including his membership in the Order), and a finding that Jessica had been the children’s primary caretaker, the district court granted sole legal custody to Jessica. The court ordered that physical custody be shared by both parents. Addressing its concerns about Ryan’s religious beliefs, the court also ordered in the divorce decree that “[t]he children should not be encouraged to adopt the teachings of any religion or be baptized into any religion without the consent of the legal guardian.”

¶4 Ryan does not challenge the district court’s award of sole legal custody to Jessica or its prohibition against him baptizing the children without her consent. But he argues the court’s prohibition against him encouraging the children “to adopt the teachings of any religion” without Jessica’s consent violates his fundamental right “to encourage them in the practice of religion”[2] protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. He also argues that the court’s prohibition violates his free speech, free exercise, and parental rights simultaneously under a hybrid rights theory. Alternatively, Ryan argues that even if the prohibition does not violate his constitutional rights, the district court abused its discretion because the prohibition “is not support[ed] by findings that show a rational basis for the ultimate decision.” We conclude that Ryan’s hybrid rights argument is inadequately briefed, so our analysis focuses on his argument that the prohibition interferes with his fundamental right as a parent. Ryan contends that any interference with this fundamental right must be narrowly tailored to achieve a compelling state interest and that the district court’s prohibition was overly broad.

¶5 Jessica counters that Ryan has no fundamental right to assert because he does not have legal custody of the children, and that even if Ryan’s fundamental right is implicated, the prohibition was narrowly tailored to address the State’s compelling interests in (1) “awarding legal custody based upon the best interests of the children”; (2) “resolving parenting disagreements”; and (3) “shielding the minor children from exposure to psychological harm resulting from teachings found to be harmful to them.”

¶6 We agree with Ryan that he has a fundamental right to encourage his children in the practice of religion. And the court’s award of sole legal custody to Jessica does not eliminate this fundamental right. Rather, the award of legal custody to Jessica limits Ryan’s parental right only to the extent necessary to provide Jessica with the authority to make major decisions for the children.

¶7 We also hold that the district court’s prohibition against Ryan “encourag[ing] [the children] to adopt the teachings of any religion” is not narrowly tailored to address the potential harms identified by the court. So we remand to the district court to craft a more narrowly tailored remedy. Because we determine that the prohibition violates Ryan’s fundamental right-and are remanding on this basis-we do not reach his alternative argument that the district court abused its discretion by failing to make adequate findings to support its prohibition.

Background

¶8 Ryan and Jessica grew up in a polygamist religious community known as the Order. They were married in 2008 and subsequently had four children together. At the time of their marriage, Ryan was twenty-one years old and Jessica was only sixteen. Jessica gave birth to their first child just six months after turning eighteen.

¶9 On July 29, 2014, Ryan and Jessica separated, and at that time, Jessica sought and was granted a temporary protective order from Ryan. The following month, Ryan filed a petition for conciliation, but Ryan and Jessica were unable to work out their differences.

¶10 Ryan filed for divorce in July 2015. The divorce trial began in September 2016. The district court bifurcated the proceedings, granting the divorce on September 27, 2016, but “reserving the remainder of the certified issues for further trial.”

¶11 After the divorce was granted, but before the resolution of the rest of the divorce proceedings, Ryan began to practice polygamy, entering into two new marriages. One of Ryan’s new wives was a teenager who “had only weeks before testified at trial that she herself had no intentions of marrying Ryan.” The other was Jessica’s half-sister. Leading up to the second part of the divorce trial in July 2019, Ryan and Jessica engaged in discovery, debated several motions that are not relevant to this appeal, completed two full custody evaluations, and unsuccessfully attempted to mediate their outstanding differences.

¶12 In July 2019, an eight-day trial took place, with the district court hearing testimony from dozens of witnesses, including multiple custody evaluators. After the trial, the court granted Jessica sole legal custody, determining a sole legal custodian was necessary because Ryan and Jessica were unable to agree on major decisions. The court decided to award Jessica sole legal custody because it found that she had been the primary caretaker of the children and that “Ryan’s religious practices . . . represent a direct threat of harm to the children.”

¶13 The court made both general and specific findings that Ryan’s religious beliefs could be harmful to the children, stating that “[t]he Order’s religious teachings jeopardize the health or safety of the children, and will cause harm to the children’s welfare.” Specifically, the court raised two concerns: (1) that the Order promotes the grooming of young girls to be child brides; and (2) that “[t]he Order’s teachings alienate the children from their mother” because “the Order community as a whole engages in ostracizing outsiders and demonizing people who have chosen to leave the group; actually referring to them as ‘the Devil’ or ‘of the Devil.'” And these concerns were exacerbated because “Ryan prioritizes plural marriages and adhering to his religious practices” over the best interests of the children.

¶14 The court was particularly concerned that “the parties have three young girls who[m] Ryan wishes to raise in a culture that grooms them to be child brides.” The court noted that Ryan had married Jessica, when she was only sixteen, and a second wife, who was only eighteen at the time of marriage. The court determined that “the potential for the ‘grooming’ of girls and young women in the Order represents a potential for significant social burdens, and the parties’ daughters should be reasonably protected from the potential harms related to grooming.”

¶15 Turning to its concern that the children may be alienated from Jessica by the Order’s teachings, the court noted that “[a]ny attempts to teach the children to denounce Jessica would be abusive.” The court found “that the Order community as a whole engages in ostracizing outsiders” and that exposure to these teachings “would be tantamount to abuse.”

¶16 The court also found that Ryan’s decision to marry Jessica’s half-sister and an eighteen-year-old while the divorce was pending, coupled with his desire that the children attend Order-run schools and extracurricular activities, was “indicative of his inability to prioritize the well-being of his children.” The court found that Ryan’s two marriages exposed the children to “[t]he inherent confusion that comes with such intermingled familial relationships” and were not in the children’s best interests. Looking at educational choices, the court found that Ryan had prioritized the Order over the children’s best interests by insisting they attend Ensign Academy, a school run by the Order, despite the school lacking “qualified or licensed educators.” This finding was supported by evidence demonstrating that the curriculum at Ensign Academy emphasizes “obedience to the ‘Order'” and “compliance to Kingston authority figures,” while also “encourag[ing] the children to reject outsiders”-including by teaching them “a ‘Memory Gem’ that taught, ‘If the Order doesn’t have it, we don’t need it.'”

¶17 Despite these concerns, the court granted Ryan and Jessica shared physical custody of the children, recognizing that “[b]oth parents have shown an ability to address the physical, psychological, and emotional needs of the children, though the evidence strongly favors Jessica on this point.” The court noted that although major decisions were a source of conflict, “day-to-day decisions regarding the children appear to be different,” as Ryan and Jessica had been able to “coordinat[e] travel and pick-ups[] and jointly supervis[e] and facilitat[e] their children’s homework and activities … with relatively little conflict.” The court also found that “[e]ach parent has demonstrated responsibility in caring for the children” and that “the children are happy, healthy, and thriving.” Based on these findings, the court granted shared physical custody-with Jessica as the custodial parent-requiring that Ryan get at least the minimum amount of time with the children set out in Utah Code section 30-3­35.1.

¶18 As part of the parenting plan, the court ordered that “the children shall not be encouraged to adopt the teachings of any religion or be baptized into any religion without the consent of the legal guardian.” Ryan filed a motion for the district court to amend its findings of fact, conclusions of law, and judgment, but the district court made only one minor revision, which did not address the prohibition against religious encouragement.

¶19 Ryan appealed, arguing the prohibition against religious encouragement violates his constitutional rights under the First and Fourteenth Amendments and that, even if it does not violate his constitutional rights, it is an abuse of the district court’s discretion. Specifically, he contends the order violates his fundamental right as a parent protected by the Due Process Clause and his free speech, free exercise, and parental rights simultaneously under a hybrid rights theory. The case was certified to us by the court of appeals. We have jurisdiction under Utah Code section 78A-3-102(3)(b).

Standard of Review

¶20 We review custody determinations deferentially, and so long as the district court’s “discretion is exercised within the confines of the legal standards we have set, and the facts and reasons for the decision are set forth fully in appropriate findings and conclusions, we will not disturb the resulting award.”[3] But to the extent Ryan’s appeal is based on an alleged violation of his constitutional rights, we review the district court’s decisions on constitutional issues for correctness.[4]

Analysis

¶21 Ryan argues that the district court violated his constitutional rights and abused its discretion by prohibiting him from “encourag[ing] [the children] to adopt the teachings of any religion … without the consent of the legal guardian.” He presents two overarching arguments: (1) the prohibition violates Ryan’s constitutional rights “under both a substantive due process theory and under a hybrid free speech/free exercise/parental rights theory”; and (2) in the alternative, even if the district court’s order is constitutionally sound, the district court’s “findings do not logically, rationally, or reasonably justify the prohibition.”

¶22 Looking at Ryan’s constitutional arguments, we start by noting that Ryan’s hybrid rights argument is inadequately briefed.[5] So our constitutional analysis is limited to Ryan’s argument that the district court’s prohibition interferes with his fundamental right as a parent “to encourage [his children] in the practice of religion.” And because we resolve the case based on Ryan’s fundamental parental right, we do not reach his alternative argument that even if the prohibition is constitutional, the district court’s findings do not adequately support it. Ryan’s fundamental right argument is two­fold. He argues that (1) the district court’s prohibition must satisfy strict scrutiny because it interferes with a fundamental right; and (2) the prohibition is not narrowly tailored to address the compelling interests identified by the court.

¶23 Jessica counters that (1) because Ryan does not have legal custody of the children, he has no fundamental right at issue; and (2) even if strict scrutiny applies, the prohibition is narrowly tailored to fit a compelling state interest.

¶24 We agree with Ryan that parents have a fundamental right to encourage their children in the practice of religion under the Due Process Clause of the Fourteenth Amendment. We further determine that the award of sole legal custody to Jessica does not rob Ryan of this right but curtails it only to the extent necessary to give Jessica the authority to make major decisions for the children. And we conclude that strict scrutiny applies because the district court’s prohibition interferes with Ryan’s fundamental right and goes beyond allocating custody and decision-making authority.

¶25 Next, applying strict scrutiny, we hold that although the district court’s prohibition is aimed at serving a compelling governmental interest, it is not narrowly tailored to address that interest. So because the prohibition violates Ryan’s constitutional right, we remand to the district court to amend the divorce decree in accordance with this opinion.

I. The District Court’s Prohibition Interferes with Ryan’s Fundamental Right to Encourage His Children in the Practice of Religion

¶26 Ryan argues that the district court’s order preventing him from encouraging his children to adopt the teachings of any religion without Jessica’s consent violates his fundamental right to participate in his children’s religious upbringing. He contends that a string of United States Supreme Court cases, starting with Meyer v. Nebraska,[6] recognizes a liberty interest protected by the Due Process Clause of the Fourteenth Amendment for parents to give their children “religious training and to encourage them in the practice of religious belief.”[7]

¶27 Jessica counters that because she has been awarded sole legal custody, “Ryan does not have a fundamental liberty interest in providing religious instruction to the children contrary to [her] wishes.” She contends that “a key distinction between a custodial and a noncustodial parent must be made to determine whether a fundamental liberty interest is indicated.”

¶28 To review the district court’s limitation on Ryan’s parental rights, “we must identify and apply a standard of scrutiny.”[8] And to identify the correct level of scrutiny, we must determine if a fundamental right is at issue. “If the right infringed or foreclosed is a right we have deemed ‘fundamental,'” we adhere to “our strict scrutiny standard.”[9] If the right identified is not fundamental, then the state interference is subject to only deferential, rational basis review.[10]

¶29 “Under the approach established by the Supreme Court, the nature of parental rights is defined based on (1) the status of the individual invoking the right and (2) the parental conduct to be protected.”[11] Looking to Supreme Court caselaw, we hold that parents have a fundamental right to encourage their children in the practice of religion. And while an award of legal custody to one parent in a divorce limits the other parent’s ability to make major decisions for the children, it does not eliminate this fundamental right. So any state interference with parents’ right to encourage their children in the practice of religion, including the district court’s prohibition here, is subject to strict scrutiny.

A. The United States Supreme Court Has Recognized Parents’ Fundamental Right to Encourage Their Children in the Practice of Religion

¶30 The Due Process Clause of the Fourteenth Amendment to the United States Constitution declares that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” The Supreme Court “ha[s] long recognized that the Amendment’s Due Process Clause, like its Fifth Amendment counterpart, ‘guarantees more than fair process.'”[12] “The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests.”[13] And “the interest of parents in the care, custody, and control of their children … is perhaps the oldest of the fundamental liberty interests recognized by th[e] Court.”[14]

¶31 In Meyer v. Nebraska, the Supreme Court held that the Due Process Clause refers to liberty beyond “mere[] freedom from bodily restraint,” to include individual rights such as “the right of the individual to … bring up children.”[15] Two years later, the Court again recognized this right in Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary as “the liberty of parents and guardians to direct the upbringing and education of children under their control.”[16]

¶32 The Court continued to develop its jurisprudence around the rights of parents under the Fourteenth Amendment in two cases addressing parents’ right to take part in their children’s religious upbringing: Prince v. Massachusetts[17] and Wisconsin v. Yoder.[18]

¶33 In Prince, Ms. Prince, the aunt and legal custodian of a nine-year-old child, argued that Massachusetts’s child labor laws unconstitutionally interfered with her “rightful exercise of her religious convictions.”[19] She was found to have violated Massachusetts’s child labor laws when she took her niece with her to preach and distribute Jehovah’s Witness religious materials in the evening.[20] Massachusetts’s law prohibited children from selling magazines in the evening and specifically prevented adults from providing magazines to children for this purpose.[21] Guardians were also prohibited from knowingly allowing their children to violate child labor laws.[22]

¶34 Ms. Prince argued that the child labor statutes were unconstitutional as applied to her because they violated both her First Amendment right to freedom of religion and her right under the Due Process Clause of the Fourteenth Amendment to teach her child “the tenets and the practices of [her] faith.”[23] The Prince Court recognized the significance of these two rights coming together, commenting that “[t]he parent’s conflict with the state over control of the child and his training is serious enough when only secular matters are concerned. It becomes the more so when an element of religious conviction enters.”[24]

¶35 The Prince Court proceeded to balance the State’s interest in protecting child welfare through child labor laws against Ms. Prince’s “sacred private interests.”[25] The Court recognized the right of “parents to give [their children] religious training and to encourage them in the practice of religious belief,” noting that “[i]t is cardinal with us that the custody, care[,] and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”[26] But the Court held that “neither rights of religion nor rights of parenthood are beyond limitation,”[27] determining that the child labor laws were necessary to address “the crippling effects of child employment.”[28]

¶36 In Wisconsin v. Yoder, the Court revisited the right of parents to direct their children’s religious upbringing.[29] In that case, a group of Amish parents questioned the constitutionality of a Wisconsin law requiring children to remain in school through the age of sixteen.[30] The Amish parents believed sending their children to school beyond the eighth grade violated their religious tenets, such as independence from the outside world, living cooperatively rather than competitively, and education based on doing rather than formal learning.[31] They believed that complying with the compulsory attendance law and sending their children to high school would ” endanger their own salvation and that of their children.”[32]

¶37 Like in Prince, the Court looked at the intersection of free exercise rights protected by the First Amendment and the fundamental rights of parents protected by the Due Process Clause of the Fourteenth Amendment. The Court recognized that the compulsory education law interfered with the Amish parents’ rights “specifically protected by the Free Exercise Clause of the First Amendment” and also the fundamental right “of parents with respect to the religious upbringing of their children.”[33]

¶38 The Court concluded, “Even more markedly than in Prince, therefore, this case involves the fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children.”[34] And when balancing the State’s interests versus those of the Amish parents, the Court applied a heightened level of scrutiny, stating that “when the interests of parenthood are combined with a free exercise claim of the nature revealed by this record, more than merely a ‘reasonable relation to some purpose within the competency of the State’ is required to sustain the validity of the State’s requirement under the First Amendment.”[35]

¶39 The Court struck down Wisconsin’s compulsory attendance requirement as applied to the Amish parents, holding that the State failed to show with sufficient “particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish.”[36]

¶40 Although the Yoder Court partially relied on the Free Exercise Clause, it also referred throughout the decision to parents’ fundamental right to encourage their children in the practice of religion. The Court referred to the holding in Pierce as “stand[ing] as a charter of the rights of parents to direct the religious upbringing of their children.”[37] Years later, in Employment Division v. Smith, the Court distinguished Yoder from other free exercise cases on the basis that the holding rested partially on “the rights of parents to direct the religious upbringing of their children.”[38]

¶41 Looking at the chain of cases from Meyer to Yoder, the Supreme Court has recognized that parents have a fundamental right to encourage their children in the practice of religion.

B. Parents’ Fundamental Right to Encourage Their Children in the Practice of Religion Is Not Dependent upon Legal Custody

¶42 Jessica does not directly attack the existence of parents’ fundamental right to encourage their children in the practice of religion; rather, she argues that it does not extend to Ryan, because she is the sole legal custodian of their children. She contends that under the two-part test used in In re Adoption of K.T.B.[39]-looking at both an individual’s status and the conduct protected in analyzing parental rights-the fundamental right established by the Supreme Court is limited to those with the status of parent with legal custody.

¶43 Ryan counters that “[t]he correct approach … is to view Ryan and other parents who did not win joint or sole legal custody of their children during their divorce as having lost only as much of their parental rights as was necessary to fulfill the government’s compelling purpose.” He argues that the compelling purpose served by an award of sole legal custody is “to allocate indivisible parental rights, such as deciding which school the child is enrolled at or into what religion the child is formally inducted.” According to Ryan, the district court’s award of sole legal custody to Jessica limits his parental rights only with regard to these decisions.

¶44 We find Ryan’s argument to be more persuasive. Both Prince v. Massachusetts and Wisconsin v. Yoder describe the fundamental right to “encourage [their children] in the practice of religious belief” as belonging to those with the status of “parent.”[40] Jessica is asking us to change “[t]he level of generality” at which the right identified in Prince and Yoder is framed, but “[t]he level of generality at which an asserted right is framed may properly be considered an unresolved issue only where a party argues that the Due Process Clause protects someone whose (1) status or (2) conduct had not previously received constitutional protection.”[41]

¶45 In In re Adoption of K.T.B., we examined this standard by looking at two cases where the Supreme Court addressed the level of generality of a right when an individual’s status had previously not received constitutional protection: (1) the status of foster parents, analyzed in Smith v. Organization of Foster Families for Equality & Reform;[42] and (2) the status of an unmarried father of a child born into a woman’s existing marriage with another man, analyzed in Michael H. v. Gerald D.[43] In both of those cases, the Court looked to the traditional meaning of “parent,” recognizing that “the liberty interest in family privacy has its source, and its contours are ordinarily to be sought, not in state law, but in intrinsic human rights, as they have been understood in this Nation’s history and tradition.”[44]

¶46 Unlike foster parents, whose constitutional rights as parents presented a novel question,[45] and unwed fathers of children born into another marriage, whose rights had not historically been recognized,[46] Ryan is the biological parent of children born into his marriage-a “parent” that has traditionally received constitutional protection. He does not belong to a group that “ha[s] not previously received constitutional protection,”[47] so we frame the asserted right at the same level of generality used by the Prince and Yoder Courts-a right belonging to “parents.”[48]

¶47 Still, as Ryan concedes, his right to encourage his children in the practice of religion is limited by his loss of legal custody. As the sole legal custodian of their children, Jessica has the “power and duty to make the most significant decisions about [the children’s] life and welfare.”[49] Any decision to baptize the children, for example, falls squarely within this authority.

¶48 But Ryan’s loss of legal custody does not mean he is completely bereft of parental rights. The district court’s parenting plan calls for shared physical custody and notes that “[t]he parent with which the children are then located should make day-to-day decisions involving the children,” subject to the outlined restrictions. Utah Code section 30-3-33, which lists advisory guidelines for parenting plans where parents share physical custody, suggests that parents without legal custody should still be notified and allowed to participate in “all significant school, social, sports, and community functions”; “have access directly to all school reports”; and have an equal opportunity to share holidays with their children.[50] Ryan has not lost the right to be his children’s parent-just the right “to make the most significant decisions about [the children’s] life and welfare.”[51]

¶49 Jessica’s status as sole legal custodian curtails Ryan’s fundamental right to encourage his children’s practice of religion only with respect to major decisions. And because the district court’s prohibition against Ryan “encourag[ing] [the children] to adopt the teachings of any religion” is not limited to the most significant decisions, it interferes with Ryan’s fundamental parental right.

C. Strict Scrutiny Applies Because the District Court’s Prohibition
Interferes with Ryan’s Fundamental Right and Goes Beyond Allocating
Custody and Major Decision-Making Authority

¶50 When the United States Supreme Court “has recognized a due process right it deems ‘fundamental,’ it consistently has applied a standard of strict scrutiny to the protection of such a right.”[52] The dissent agrees “that parents have a fundamental right to influence the religious upbringing of their children.”[53] Yet it disagrees that strict scrutiny applies to this case, instead asserting that “we have repeatedly applied the best interest test to evaluate questions that implicate a parent’s fundamental parental rights.”[54]

¶51 In support of this assertion, the dissent relies on three cases involving custody determinations: Doyle v. Doyle,[55] Clarke v. Clarke,[56] and Hogge v. Hogge.[57] We do not dispute that courts, including ours, routinely allocate custody and decision-making authority based on the best interests of the child. But by relying on cases where courts allocated custody, the dissent misses what is unique about the district court’s prohibition in this case: it is not a custody allocation. The prohibition is not about which parent is better suited to make major decisions or have physical custody of the children. The court separately addressed custody, determining that it was in the best interests of the children for Jessica to have legal custody but for both parents to share physical custody. The court went beyond allocating custody when it prohibited Ryan from encouraging his children to adopt the teachings of any religion.

¶52 In Reno v. Flores, the United States Supreme Court distinguished an allocation of custody from an exercise of custody and explained that the best interests of the child standard does not govern the latter:

“The best interests of the child,” a venerable phrase familiar from divorce proceedings, is a proper and feasible criterion for making the decision as to which of two parents will be accorded custody. But it is not traditionally the sole criterion-much less the sole constitutional criterion-for other, less narrowly channeled judgments involving children, where their interests conflict in varying degrees with the interests of others. Even if it were shown, for example, that a particular couple desirous of adopting a child would best provide for the child’s welfare, the child would nonetheless not be removed from the custody of its parents so long as they were providing for the child adequately. Similarly, “the best interests of the child” is not the legal standard that governs parents’ or guardians’ exercise of their custody: So long as certain minimum requirements of child care are met, the interests of the child may be subordinated to the interests of other children, or indeed even to the interests of the parents or guardians the mselves.[58]

The prohibition at issue here does not allocate custody. Rather, it governs Ryan’s exercise of his physical custody. This distinction is significant, and the dissent errs by equating the prohibition to an allocation of custody.

¶53 Noting the significant impact of custody decisions on parental rights, the dissent argues that if the court can do more, then it must be able to do less. So, the dissent’s argument follows, if a court can completely strip a parent of physical or legal custody based on the best interests of the child, then a court must also be able to interfere with a parent’s fundamental rights in any less intrusive way. But divorce does not eliminate a parent’s fundamental rights.[59]

¶54 And while the best interests of the child standard is of primary importance when allocating decision-making authority as to major decisions, strict scrutiny applies to court orders that go beyond this allocation to restrict a parent’s fundamental right to encourage his or her children in the practice of religion. In In re Marriage of McSoud, the Colorado Court of Appeals distinguished court orders that allocate “sole decision making over the child’s religious upbringing” from those that “go[] beyond” allocating this decision-making authority.[60] In that case, a mother challenged district court orders allocating parental rights and restricting parents’ engagement in their child’s religious upbringing. The district court allocated “sole decision-making regarding the child’s religious upbringing” to the father.[61] It also entered permanent orders that subjected the child’s religious upbringing to recommendations made by a special advocate, including a recommendation prohibiting both parents from giving “mixed messages” about religion to the child and another that dictated which parent could take the child to church activities.[62]

¶55 In reviewing the mother’s challenge, the Colorado Court of Appeals recognized that “[p]arents have a fundamental right to make decisions concerning the care, custody, and control of their children.”[63] The court further noted that “[a] parent’s right to determine the religious upbringing of a child derives from the parent’s right both to exercise religion freely and to the care, custody, and control of a child.”[64]

¶56 The court concluded “that in allocating sole religious decision-making to father, the [district] court properly treated ‘the best interests of the child [as] of primary importance,'”[65] reasoning that “as a matter of law, this allocation does not alone deny mother’s additional First Amendment rights to influence the child’s religious upbringing during her parenting time or to exercise her own religious beliefs.”[66] But it concluded that strict scrutiny was appropriate for the orders that went beyond allocating this decision-making authority, including the orders about giving the child mixed religious messages and taking the child to church activities, reasoning that “the best interests standard” was limited by “a parent’s constitutional rights as to religious upbringing of the child.”[67] These two orders were remanded to the district court “[b]ecause the court did not discuss a compelling state interest” and “instead relied on the best interests test.”[68]

¶57 Although, unlike here, the court in McSoud reviewed the mother’s challenge under “both the Free Exercise Clause and a parent’s fundamental right to the care, custody, and control of a child,”[69] it made no attempt to distinguish between the two rights, and there is nothing in the court’s opinion to indicate that the parental right standing alone would be inadequate to mandate strict scrutiny. In remanding the issues, the court provided the following guidance:

To the extent that, on remand, the court goes beyond allocating sole decision making over the child’s religious upbringing and otherwise restricts either parent’s right to expose the child to that parent’s religious beliefs or to practice that parent’s religion, the court must find a compelling state interest in the form of avoiding substantial emotional or physical harm to the child.[70]

In other words, the court directed that strict scrutiny be applied on remand if the district court (1) goes beyond allocating sole decision-making authority and (2) restricts a parent’s Free Exercise right or the fundamental right to expose the child to that parent’s religious beliefs. We agree with this reasoning and conclude that here, the incursion on Ryan’s fundamental right to encourage the children in the practice of religion mandates we apply strict scrutiny to the district court’s prohibition.

¶58 The dissent maintains that many of the issues in this case would be more easily resolved if we had “[a] properly briefed First Amendment challenge,”[71] emphasizing that “the analysis changes” if a parent “claims that the district court’s restrictions violate his individual First Amendment right” because “[u]nlike shared parental rights, a district court cannot compromise those individual rights unless the order can withstand strict scrutiny.”[72] The dissent seems to suggest that while Ryan might have prevailed on a First Amendment claim, he ultimately loses on his claim based on his fundamental right to encourage the children in the practice of religion. We see no reason to subordinate one of Ryan’s constitutional rights to another and are not convinced by the dissent’s suggestion that we should do so here simply because parental rights are “shared” and First Amendment rights are not.

¶59 As mentioned, the district court awarded shared physical custody to Ryan. Its award of legal custody to Jessica is not, in and of itself, a justification for stripping Ryan of the full range of his fundamental parental rights. While he does not challenge Jessica’s right, consistent with the legal custody she enjoys, to make major religious decisions with respect to the children, he does, as a custodial parent, challenge the district court’s broad restriction on his right to encourage his children with respect to religion. Any such restriction should be required to pass strict scrutiny muster. Although many courts have found the best interests of the child standard to be a necessary tool when faced with parents’ competing rights to custody and control over their children, this does not mean that divorced parents are subject to limitless interference with their fundamental parental rights free of strict scrutiny review.

¶60 The district court’s prohibition curtails Ryan’s parental rights beyond assigning all major decision-making-which is all an award of legal custody is supposed to do[73]-to Jessica. Preventing Ryan from “encourag[ing] [the children] to adopt the teachings of any religion” without first receiving Jessica’s permission implicates Ryan’s day-to-day life with the children and the decisions he is otherwise entitled to make during his legal visitation periods. And, contrary to the dissent’s analysis, the statutory scheme for granting custody based on a child’s best interests cannot, absent a showing that the strict scrutiny standard has been met, displace a right guaranteed by the United States Constitution.

II. The District Court’s Prohibition Is Not Narrowly Tailored to
Address the Identified Harms

¶61 Under strict scrutiny, “a fundamental right is protected except in the limited circumstance in which an infringement of it is shown to be ‘narrowly tailored’ to protect a ‘compelling governmental interest.'”[74] Applying this standard here, we conclude that although the district court’s prohibition is aimed at the compelling governmental interest of shielding the children from psychological harm, it is not narrowly tailored to address the identified potential harms.

A. The District Court’s Prohibition Aims to Shield the Children from
Psychological Harm

¶62 United States Supreme Court caselaw sets a high bar for defining state interests as compelling, indicating that “the state interest in overriding a parent’s fundamental rights is ‘compelling’ only in circumstances involving the avoidance of harm that is substantial.”[75]

¶63 Other states that have considered the right of noncustodial parents to encourage their children in the practice of religious belief have applied tests similar to strict scrutiny-requiring that any incursion on a parent’s fundamental right be directly tied to preventing harm to the children. In Zummo v. Zummo, the Pennsylvania Supreme Court held that a court can only interfere with “a parent’s post-divorce parental rights regarding the religious upbringing of his or her children” when there is a “substantial threat of physical or mental harm to the child” and the court is using the “least intrusive measures adequate to protect the interests identified.”[76] The California Court of Appeals, in In re Marriage of Murga, adopted the rule of “the majority of American jurisdictions” that courts may not “restrain the noncustodial parent from exposing the minor child to his or her religious beliefs and practices, absent a clear, affirmative showing that these religious activities will be harmful to the child.”[77]

¶64 Although these courts did not use the term “strict scrutiny,” the tests they applied are almost identical to our application of strict scrutiny. We require courts to identify a compelling state interest and recognize “the avoidance of harm that is substantial” as one such interest.[78] The Zummo court required a showing of “a substantial risk of harm”[79] and the Murga court similarly required a showing “that the child will be … harmed.”[80] Like our court’s requirement for narrow tailoring, the Zummo court’s requirement that the “least intrusive measures adequate” be used and the Murga court’s requirement that a court show that “these religious activities will be harmful to the child” both require a direct connection between the prohibited conduct and the potential harm. And our court has held that when “the right infringed or foreclosed is a right we have deemed ‘fundamental,'” we adhere to “our strict scrutiny standard.”[81]

¶65 Jessica argues that the district court’s prohibition survives strict scrutiny because it protects three compelling state interests: (1) “the state’s interest in awarding legal custody based upon the best interests of the child”; (2) “the state’s compelling interest in resolving parental disagreements”; and (3) “the state’s compelling interest[] [in] shielding the minor children from exposure to psychological harm resulting from teachings found to be harmful to them.”

¶66 First, while we agree with Jessica that the State has a compelling interest in awarding legal custody based on the best interests of the child,[82] the district court’s prohibition goes beyond this interest. And Ryan has not challenged the award of sole legal custody to Jessica in this appeal. As discussed above, because Jessica has legal custody of the children, she has the authority to make the “most significant decisions” about their upbringing.[83] But the district court’s prohibition includes no such limiting principle-it forbids Ryan from “encouraging [the children] to adopt the teachings of any religion,” without distinguishing between major decisions, like baptism, and minor decisions, like saying grace in front of the children before a shared meal or taking them to a learning day at a synagogue.

¶67 Second, the State’s interest in “resolving parental disagreements” is not typically a compelling interest. This is because it is not usually an interest aimed at preventing harm that is substantial.[84] Several states have addressed what restrictions are appropriate when divorced parents have conflicting religious beliefs, and “the vast majority” of them

have concluded that each parent must be free to provide religious exposure and instruction, as that parent sees fit, during any and all period of legal custody or visitation without restriction, unless the challenged beliefs or conduct of the parent are demonstrated to present a substantial threat of present or future, physical or emotional harm to the child in absence of the proposed restriction.[85]

We agree with these states that preventing children from exposure to conflicting religions is not in itself a compelling interest. Indeed, “it’s plausible that children may benefit from being taught just one religion-but it’s also plausible that they may benefit from being taught two.”[86] The State’s interest in resolving parental disagreements about religion must be tied to preventing “a substantial threat of present or future, physical or emotional harm to the child” in order to be compelling. And the district court’s findings do not tie disagreement between Ryan and Jessica over day-to-day decisions to any substantial threat of harm to the children.[87]

¶68 But we agree with Jessica that the State has a compelling interest in shielding the children from psychological harm. The district court found that “[t]he Order’s religious teachings jeopardize the health or safety of the children, and will cause harm to the children’s welfare.” Specifically, the court identified two potentially substantial harms to the children associated with Ryan’s religious beliefs: (1) grooming of the children for early marriage; and (2) exposure to Order teachings that ostracize outsiders and demonize those who have left the group, including Jessica. Protecting the children from these harms is a compelling state interest.

B. The District Court’s Prohibition Is Not Narrowly Tailored to Address
the Identified Potential Harms to the Children

¶69 Having recognized that the district court’s prohibition protects a compelling governmental interest, we must assess whether it was narrowly tailored to meet that objective. “In other words, we consider whether the challenged [prohibition] w[as] ‘necessary’ to achieve the state’s purpose . . . .”[88]

¶70 The district court’s prohibition is broader than necessary to prevent the identified potential harms to the children. The court prohibited Ryan from “encourag[ing] [the children] to adopt the teachings of any religion” without Jessica’s consent.[89] This prohibition applies broadly to “the teachings of any religion,” but the court only identified specific harms associated with the Order. As written, the prohibition would prevent Ryan from teaching the children the Lord’s Prayer or encouraging them to adopt the teachings of Islam. Based on a plain language reading of the prohibition, Ryan would have to seek Jessica’s consent before engaging in either of these activities. The prohibition cannot be described as “narrowly tailored” when it reaches far beyond the compelling interest it is meant to address.

¶71 And while there is a relationship between the identified potential harms to the children and the district court’s prohibition, this is not enough to satisfy strict scrutiny. Barring Ryan from “encourag[ing] [the children] to adopt the teachings of any religion” is not narrowly tailored to protecting a compelling state interest.

Conclusion

¶72 The district court’s prohibition against Ryan “encourag[ing] [the children] to adopt the teachings of any religion … without [Jessica’s] consent” interferes with Ryan’s fundamental right protected by the Due Process Clause of the Fourteenth Amendment. Parents have a fundamental right to encourage their children in the practice of religion. Awarding one parent legal custody does not deprive the other parent of this right beyond limiting the noncustodial parent’s authority to make major decisions for the children. Because the district court’s prohibition interferes with Ryan’s fundamental right, it is subject to strict scrutiny. And while the State has a compelling interest in protecting the children from harm, the district court’s prohibition is not narrowly tailored to address the harms identified. We remand for the court to craft a more narrowly tailored remedy.

ASSOCIATE CHIEF JUSTICE PEARCE, dissenting in the Opinion of the Court:

¶73 The majority applies strict scrutiny to a district court’s order allocating to the custodial parent the sole ability to determine her children’s religious upbringing. This is an unprecedented step. Never before have we applied strict scrutiny to the allocation of parental rights between two divorcing parents. Until today, we have followed the statutory framework that makes the child’s best interest the paramount concern and permits a court to allocate a fundamental parental right to one parent when presented with evidence that the other parent’s exercise of that right risks harm to the child. Strict scrutiny review should be reserved to those cases where a district court’s allocation of parental rights infringes a separate constitutional right-such as a parent’s First Amendment right. But here, where Ryan has inadequately briefed his First Amendment challenge, there is no cause for strict scrutiny review. I respectfully dissent.

¶74 The district court’s order prohibits Ryan from “encourag[ing]” his children “to adopt the teachings of any religion” without Jessica’s consent. As I see it, and seemingly as does the majority, the district court’s order implicates three separate rights: Ryan’s right to make major decisions concerning the children’s religious upbringing; Ryan’s right to make minor, or day-to-day, decisions concerning the children’s religious upbringing; and Ryan’s First Amendment right. Ryan challenges the district court’s ruling only as it affects the last two of these rights.

PEARCE, ACJ, dissenting

¶75 The majority determines that Ryan’s First Amendment argument is inadequately briefed, thereby limiting its “constitutional analysis . . . to Ryan’s argument that the district court’s prohibition interferes with his fundamental right as a parent ‘to encourage [his children] in the practice of religion.'” Supra ¶ 22 (second alteration in original). I agree with that assessment.

¶76 But the majority also concludes that “Jessica’s status as sole legal custodian curtails Ryan’s fundamental right to encourage his children’s practice of religion only with respect to major decisions.” Supra ¶ 49. “And because the district court’s prohibition against Ryan ‘encourag[ing] [the children] to adopt the teachings of any religion’ is not limited to the most significant decisions, it interferes with Ryan’s fundamental parental right” and is therefore subject to strict scrutiny. Supra ¶ 49 (alterations in original). I cannot agree with that.

¶77 By statute, all parental rights-including the rights to make major and minor decisions concerning the children’s religious upbringing-are subject to allocation by the district court based on the best interest of the children. Strict scrutiny review comes into play only to the extent that the district court’s allocation of parental rights impacts a parent’s First Amendment right.

I. Child Custody Orders Assigning Parental Rights Are Subject to the Best Interest of the Children, Not Strict Scrutiny

¶78 The majority first asserts that parents have a fundamental right to influence the religious upbringing of their children. Supra Part I.A. I agree.[90] But the majority also concludes that a district court’s decision assigning this fundamental parental right to one parent over the other to promote the best interest of the children is subject to strict scrutiny review. Supra Part I.C. I disagree.

¶79 Utah Code provides that decisions concerning custody and post-divorce parental rights should be made in accordance with the children’s best interest. UTAH CODE § 30-3-10(2) (“In determining any form of custody and parent-time under [Utah Code section 30-3­10(1)], the court shall consider the best interest of the child ….” (emphasis added)). The Code further states, “Absent a showing by a preponderance of evidence of real harm or substantiated potential harm to the child . . . it is in the best interests of the child to have both parents actively involved in parenting the child.” Id. § 30-3-32(2)(b)(iii) (emphasis added). Utah Code includes “the child’s education, healthcare, and religious upbringing” as elements of parenting a child. See id. § 30-3-10.9(5)(a) (listing required elements of a parenting plan).

¶80 Under Utah law, therefore, it is presumptively in the best interest of the children for both parents-regardless of custodial status-to participate in the religious upbringing of their children. Id. § 30-3-32(2)(b)(iii). That presumption may be overcome, however, upon “a showing by a preponderance of evidence of real harm or substantiated potential harm to the child[ren].” Id. § 30-3-32(2)(b). When such a showing is made, as it was here, the district court is charged with allocating the parental right to direct the children in the practice of religion in accordance with the children’s best interest.[91] See id. § 30-3-10(2).

¶81 With this framework in mind, we have repeatedly applied the best interest test to evaluate questions that implicate a parent’s fundamental parental rights. Indeed, many of the decisions that a district court may need to make in a case involving divorcing parents with children touches such rights. For example, this court has held that the best interest test is the correct standard to apply in a case granting a parent sole decision-making authority over the other parent’s objections. See Doyle v. Doyle, 2011 UT 42, ¶¶ 3, 19-20, 24, 258 P.3d 553. That authority included the ability to enroll the child in special education classes and counseling. See id. ¶¶ 14, 16.

¶82 Additionally, our court of appeals has concluded that because a father “lack[ed] the ability to compromise [and] make good decisions quickly,” and would not “act in the children’s best interests with respect to their health and safety,” that all medical and health care decisions be left to the mother who possessed “the ability to be flexible and compromise to promote the children’s best interest.” Clarke v. Clarke, 2012 UT App 328, ¶¶ 5, 8, 292 P.3d 76 (alterations in original).

¶83 Perhaps more strikingly, this court upheld a district court’s ruling that stripped a parent of all physical custody of his children after examining whether that decision was in the children’s best interest. Hogge v. Hogge, 649 P.2d 51, 55-56 (Utah 1982).

¶84 Doyle, Clarke, and Hogge all involved a parent’s fundamental rights. And in each of those cases, we stuck to the statutory framework and affirmed orders after examining them to ensure that they were in the child’s best interest. In none of those cases did we require that the district court compromise the child’s best interest by narrowly tailoring the order to accommodate the noncustodial parent’s parental rights. In none of those cases did we even hint that the Constitution might require strict scrutiny review when a district court allocates parental rights between divorcing parents.

¶85 The majority attempts to distinguish the district court order in this case from the “routine[] allocat[ions]” of “custody and decision-making authority” in Doyle, Clarke, and Hogge. Supra ¶ 51. The majority opines that the district court “went beyond allocating custody when it prohibited Ryan from encouraging his children to adopt the teachings of any religion.” Supra ¶ 51. I agree, but that fact does not change the analysis. The statute does not distinguish between the larger questions of custody and decision-making authority and the lesser-included questions of restrictions on routine, day-to-day interactions with a child. The statute certainly does not demand the anomalous result the majority’s position dictates-that a court need not apply strict scrutiny to an order that takes away a parent’s right to decide what church the child will join, but must apply strict scrutiny to a restriction on what a parent who has lost that right might do to undercut the custodial parent’s decisions about the child’s religious upbringing.[92] This is a new step for our case law, and one that ignores the logic of Doyle, Clarke, and Hogge. In each of those cases, we upheld a district court order that restricted a parent’s fundamental parental right based on the best interest of the child.93

¶86 Most states that have considered whether one parent can prevent the other from directing the children’s religious upbringing do not apply strict scrutiny. These states instead examine whether there has been a sufficient showing of harm to the child to justify assigning exclusive decision-making to one parent over the other. The California Court of Appeals observed that “in the majority of American jurisdictions that have considered the question, … courts have refused to restrain the noncustodial parent from exposing the minor child to his or her religious beliefs and practices, absent a clear, affirmative showing that these religious activities will be harmful to the child.” In re Marriage of Murga, 163 Cal. Rptr. 79, 82 (Ct. App. 1980) (citations omitted). The California court applied this principle to conclude that “while the custodial parent undoubtedly has the right to make ultimate decisions concerning the child’s religious upbringing, a court will not enjoin the noncustodial parent from . . . involving the child in his or her religious activities in the absence of a showing that the child will be thereby harmed.” Id. (emphasis added).

¶87 The Pennsylvania Supreme Court has similarly decided that a parent “must be free to provide religious exposure and instruction, as that parent sees fit, during any and all period of legal custody or visitation without restriction, unless the challenged beliefs or conduct of the parent are demonstrated to present a substantial threat of … harm to the child.” Zummo v. Zummo, 574 A.2d 1130, 1154-55 (Pa. 1990). The Pennsylvania court emphasized that its standard was one that “requires proof of a ‘substantial threat'” of harm and not simply “some probability” of harm or “the speculative possibility of mere disquietude, disorientation, or confusion arising from exposure to ‘contradictory’ religions.” Id. at 1155.

¶88 The majority reads Murga and Zummo differently. In its view, these cases direct a reviewing court to apply strict scrutiny-or, at the very least, something “almost identical” to it-to a district court’s decision affecting a parent’s right to decide their children’s religious upbringing. Supra ¶ 64. But the majority sees strict scrutiny where it does not exist. While the Murga and Zummo courts undoubtedly require a connection between the harm alleged and the restriction imposed, they do not require reviewing courts to walk through the well-established two-part analysis we all know as strict scrutiny.

¶89 In Zummo, for example, the court said that a parent must make a showing of “a substantial threat of present or future, physical or emotional harm to the child” to deprive the other parent of the right to “provide religious exposure and instruction.” See 574 A.2d at 1154-55 (citations omitted). To the majority, this resembles a compelling governmental interest. Supra ¶ 64. To me, this mirrors the language in Utah Code section 30-3-32 requiring “a showing . . . of real harm or substantiated potential harm to the child” to rebut the presumption in favor of joint parenting. UTAH CODE § 30-3­32(2)(b).

¶90 The majority heavily relies on a case from the Colorado Court of Appeals, In re Marriage of McSoud, 131 P.3d 1208 (Colo. App. 2006). Supra ¶¶ 54-57. But McSoud does not provide the answer the majority is looking for. As the majority explains, in McSoud, “[t]he district court allocated ‘sole decision-making regarding the child’s religious upbringing’ to the father” and adopted the recommendations of a special advocate “prohibiting both parents from giving ‘mixed messages’ about religion … and … dictat[ing] which parent could take the child to church activities.” Supra ¶ 54 (citing McSoud, 131 P.3d at 1218-19). The mother challenged the district court’s decision, arguing that it violated both her fundamental parental right to “influence … the child’s religious upbringing” and her First Amendment right to free exercise. McSoud, 131 P.3d at 1214.

¶91 The majority correctly points out that the McSoud court upheld the district court’s decision allocating sole religious decision-making to the father based on the best interest of the child. Supra ¶ 56 (citing McSoud, 131 P.3d at 1219). The majority also rightly reads McSoud as applying strict scrutiny to the portions of the district court’s order adopting the recommendations of the special advocate. Supra ¶ 56 (citing McSoud, 131 P.3d at 1217). But contrary to the majority’s suggestion, the McSoud court did not apply strict scrutiny review because it was allocating a fundamental parental right. It applied heightened review to those portions of the district court’s order that impacted the mother’s First Amendment right to free exercise.[93]

 

¶92 The McSoud court explained that “the best interest standard . . . cannot overcome the express constitutional right to freedom of religion,” and where a district court order “not only affects [a parent’s] rights with respect to the religious upbringing of her child, [but] also interfere[s] with her own rights under the Free Exercise Clause,” it must survive strict scrutiny. 131 P.3d at 1217. Turning to the district court order before it, the McSoud court concluded,

In allocating to father sole decision-making regarding the child’s religious upbringing, the court expanded one parent’s right to the care, custody, and control of a child at the expense of the other parent’s similar right. But as a matter of law, this allocation does not alone deny mother’s additional First Amendment rights to influence the child’s religious upbringing during her parenting time or to exercise her own religious beliefs.

Id. at 1219 (citation omitted). The McSoud court then evaluated each of the special advocate’s recommendations impacting the mother’s religious rights through a strict scrutiny lens. See id. at 1219-20.

¶93 Like the court in McSoud, I would evaluate the district court’s decision allocating religious decision-making to Jessica under the best interest standard. And I would turn to strict scrutiny only to evaluate Ryan’s First Amendment claims.

¶94 The majority emphasizes that “Ryan’s loss of legal custody does not mean he is completely bereft of parental rights.” Supra ¶ 48. I agree. A district court’s decision to award legal custody to one parent does not necessarily deprive the other, as the majority frames it, from “the right to be [a] parent.” Supra ¶ 48. I also do not doubt that the right to be a parent includes the right to make major and minor decisions concerning the children’s religious upbringing. But in light of section 30-3-32(2)(b), I cannot agree with the majority’s conclusion that when a district court finds that a divorcing parent will exercise a parental right to harm a child, its decision to allow one parent to call the shots should be subject to strict scrutiny.

¶95 This is especially true in this instance where the district court’s decision is backed by a series of unchallenged factual findings demonstrating that “Ryan’s religious practices . . . represent a direct threat of harm to the children.” Supra ¶ 12 (alteration in original). There is simply no reason that justifies treating a parent’s right to direct the child’s religious upbringing differently than the other fundamental rights a parent has with respect to the child-rights that we have repeatedly allowed a district court to assign to one parent or the other when it is in the child’s best interest.[94]

¶96 This causes me to conclude that strict scrutiny is the wrong test to apply to a court’s decision to allocate decision-making over a child’s religious upbringing, and even all of the small decisions that might support or undercut that decision-making, to a single parent. I would follow the Utah Code and analyze whether the district court found, by a preponderance of the evidence, real or substantiated potential harm to the child if the parent is allowed to participate in the child’s religious upbringing.

¶97 Viewed under the correct test, Ryan cannot show that the district court erred when it assigned the right to make religious decisions for the children to Jessica. The district court found that “Ryan’s religious practices … represent a direct threat of harm to the children.” Specifically, the district court determined that “Ryan wishes to raise [his three young daughters] in a culture that grooms them to be child brides,” as evidenced, in part, by Ryan’s marriages to teenagers. The district court also found that “[t]he Order’s teachings alienate the children from their mother, and ongoing exposure to certain Order teachings would be tantamount to abuse.” The district court further noted concerns about “Ryan’s desire to raise the children in [the Order], to permit and encourage the children to participate in Order extracurricular activities and his earlier insistence on them attending Order schools,” which “lack . . . qualified, licensed teachers” and “[teach] obedience to the ‘Order,’ compliance to Kingston authority figures, and which encourage[] the children to reject outsiders.” Based on these findings-which, again, remain unchallenged-the district court concluded that exposure to Ryan’s religious practices would “jeopardize the health or safety of the children, and [would] cause harm to the children’s welfare.”

¶98 We are presented with an unchallenged factual record that demonstrates that if given the opportunity to influence his children’s religious upbringing, Ryan will harm his children. The evidence in the record-evidence that we are duty-bound to accept as true-reveals that Ryan will harm his children by, among other things, promoting a religious culture that will encourage his daughters to be child brides. That evidence also shows that Ryan will teach his children to obey authority figures who will instruct them to reject people outside the Order-people including their own mother. Against this factual backdrop, the district court did not err when it concluded that Jessica alone should exercise all of the parental rights associated with religion.

II. A District Court’s Order Implicating a Parent’s First Amendment Right Is Subject to Strict Scrutiny

¶99 Part of what seems to be motivating the majority’s concern is the potential overbreadth of the district court’s order. The majority concludes that the district court’s order “[b]arring Ryan from ‘encourag[ing] [the children] to adopt the teachings of any religion'” without Jessica’s consent “is not narrowly tailored to protecting a compelling state interest.” Supra ¶ 71 (second and third alteration in original). The majority states that “[a]s written, the prohibition would prevent Ryan from teaching the children the Lord’s Prayer or encouraging them to adopt the teachings of Islam.” Supra ¶ 70.

¶100 There is absolutely no evidence in the record that Ryan’s objection to the district court’s order is fueled by a desire to read the Quran to his children or to lead them in the Lord’s Prayer. Nor is there any suggestion that such behavior would be interpreted as encouraging the children to adopt religious teachings in violation of the district court’s order. And there is nothing in the record that would allow us to conclude that Jessica would withhold her consent from Ryan doing any of those things. A properly briefed First Amendment challenge would have allowed us to get to the bottom of those questions without needing to rely on speculation and hypotheticals.

¶101 In the absence of a properly briefed First Amendment challenge, I respectfully dissent and would affirm the district court’s order.

http://www.utcourts.gov/opinions/view.html?court=supopin&opinion=Kingston v. Kingston20221222.pdf

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

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[1] Because both parties share the same last name, we refer to Mr. Kingston as Ryan and Ms. Kingston as Jessica throughout the opinion for ease of reading. The use of first names is in no way intended to show disrespect to the parties.

[2] (Citing Prince v. Massachusetts, 321 U.S. 158, 165 (1944).)

[3] Davis v. Davis, 749 P.2d 647, 648 (Utah 1988) (citations omitted).

[4] In re Adoption of K.T.B., 2020 UT 51, ¶ 15, 472 P.3d 843 (“Constitutional issues, including questions regarding due process, are questions of law, and we review the lower court’s conclusions for correctness.” (citation omitted)).

[5] 5 Ryan’s hybrid rights argument does not satisfy the requirement of rule 24 of the Utah Rules of Appellate Procedure that an “argument must explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal.” UTAH R. APP. P. 24(a)(8). Ryan points to “the hybrid exception alluded to in Smith,” referring to Employment Division v. Smith, 494 U.S. 872, 877 (1990), to argue that free exercise claims “brought in conjunction with parental right or free speech claims” are subject to heightened scrutiny. But he does not cite binding caselaw or meaningfully engage with the conflict between various courts about how the language from Smith suggesting a hybrid rights exception should be interpreted. See, e.g., Kissinger v. Bd. of Trs. of Ohio State Univ., 5 F.3d 177, 180 (6th Cir. 1993) (holding that the hybrid rights theory leads to “completely illogical” outcomes and refusing to apply it); Miller v. Reed, 176 F.3d 1202, 1207 (9th Cir. 1999) (recognizing that Smith “excepts a hybrid-rights claim from its rational basis test”). In addition to disagreeing about the existence of a hybrid rights exception, “[c]ourts are . . . divided on the strength of the independent constitutional right claim that is required to assert a cognizable hybrid rights claim.” Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 656 (10th Cir. 2006). Ryan does not sufficiently explain why this court should recognize a hybrid rights exception based on Smith or how it should be applied. He relies almost entirely on the Pennsylvania Supreme Court’s application of the hybrid rights exception in Shepp v. Shepp, 906 A.2d 1165 (Pa. 2006), but does not engage with caselaw suggesting no such exception exists. Instead, he states that even if the hybrid rights exception is not real, free speech alone would be protected here. But he does not develop an independent free speech argument, stating in his reply brief that “[his] free speech arguments are tied to his parental rights and free exercise arguments as part of . . . a hybrid claim.” Ryan’s “failure to provide relevant case law and to develop an argument based on that law leaves us with the task of developing the contours of these important constitutional arguments. We decline to do so.” Ramos v. Cobblestone Ctr., 2020 UT 55, ¶ 49, 472 P.3d 910.

[6] 262 U.S. 390, 399 (1923).

[7] (Quoting Prince v. Massachusetts, 321 U.S. 158, 165 (1944).)

[8] Jones v. Jones, 2015 UT 84, ¶ 21, 359 P.3d 603.

[9] In re Adoption of K.T.B., 2020 UT 51, ¶ 32, 472 P.3d 843 (citation omitted).

[10] Id.

[11] Id. ¶ 59.

[12] Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality opinion) (quoting Washington v. Glucksberg, 521 U.S. 702, 719 (1997)).

[13] Glucksberg, 521 U.S. at 720.

[14] Troxel, 530 U.S. at 65.

[15] 262 U.S. at 399.

[16] 268 U.S. 510, 534-35 (1925).

[17] 321 U.S. 158.

[18] 406 U.S. 205 (1972).

[19] 321 U.S. at 159.

[20] Id. at 159,162.

[21] Id. at 160-61.

[22] Id.

[23] Id. at 164.

[24] Id. at 165.

[25] Id.

[26] Id. at 165-66.

[27] Id. at 166.

[28] Id. at 168.

[29] Yoder, 406 U.S. at 213-14.

[30] Id. at 207.

[31] Id. at 211.

[32] Id. at 209.

[33] Id. at 214.

[34] Id. at 232.

[35] Id. at 233.

[36] Id. at 236.

[37] Id. at 233.

[38]  494 U.S. 872, 881 n.1 (1990) (quoting Yoder, 406 U.S. at 233).

[39] 2020 UT 51, ¶ 62.

[40] Prince, 321 U.S. at 165 (referring to the right of “parents to give [their children] religious training and to encourage them in the practice of religious belief” (emphasis added)); Yoder, 406 U.S. at 233 (“[T]he court’s holding in Pierce stands as a charter of the rights of parents to direct the religious upbringing of their children.” (emphasis added)).

[41] In re Adoption of K.T.B., 2020 UT 51, ¶ 70.

[42] Id. (citing Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816, 839 (1977)).

[43] Id. ¶ 72 (citing Michael H. v. Gerald D., 491 U.S. 110, 125 (1989) (plurality opinion)).

[44] Smith, 431 U.S. at 845 (footnote omitted) (citation omitted) (internal quotation marks omitted).

[45] In re Adoption of K.T.B., 2020 UT 51, ¶ 70 (citing Smith, 431 U.S. at 839-40).

[46] Id. ¶ 72 (citing Michael H., 491 U.S. at 125).

[47] Id. ¶ 70.

[48] Prince, 321 U.S. at 165; Yoder, 406 U.S. at 233.

[49] Hansen v. Hansen, 2012 UT 9, ¶ 17, 270 P.3d 531 (citation omitted) (distinguishing legal custody from physical custody, the latter of which involves the “right, obligation, and ‘authority to make necessary day-to-day decisions concerning the child’s welfare'” (quoting SANDRA MORGAN LITTLE, CHILD CUSTODY & VISITATION LAW AND PRACTICE § 10.03(3)(b)(i), (iii) (2011))).

[50] See UTAH CODE § 30-3-33(11), (12), & (17).

[51] Hansen, 2012 UT 9, ¶ 17 (citation omitted) (internal quotation marks omitted).

[52] Jones, 2015 UT 84, ¶ 26.

[53] Infra ¶ 78.

[54] Infra ¶ 81.

[55] 2011 UT 42, 258 P.3d 553 (reviewing father’s challenge to district court’s transfer of sole custody from himself to child’s mother).

[56] 2012 UT App 328, 292 P.3d 76 (reviewing father’s challenge to district court’s custody award).

[57] 649 P.2d 51 (Utah 1982) (reviewing father’s challenge to district court’s transfer of custody from himself to child’s mother).

[58] Reno v. Flores, 507 U.S. 292, 303-04 (1993) (emphasis in last sentence added) (citations omitted).

[59] See, e.g.Pater v. Pater, 588 N.E.2d 794, 801 (Ohio 1992) (concluding that “parents’ right to expose their children to their religious beliefs … does not automatically end when they are divorced”).

[60] 131 P.3d 1208, 1217 (Colo. App. 2006).

[61] Id. at 1219.

[62] Id. at 1218.

[63] Id. at 1215 (citing Troxel, 530 U.S. at 57).

[64] Id. (citing Yoder, 406 U.S. 205).

[65] Id. at 1219 (second alteration in original) (citation omitted).

[66] Id.

[67] Id. at 1217.

[68] Id.

[69] Id. at 1216.

[70] Id. at 1217.

[71] Infra ¶ 100.

[72] Infra ¶ 85 n.93.

[73] Black’s Law Dictionary defines “legal custody” as “[t]he authority to make significant decisions on a child’s behalf, including decisions about education, religious training, and healthcare.” Custody, BLACK’S LAW DICTIONARY (11th ed. 2019). See also supra ¶ 47.

[74] Jones v. Jones, 2015 UT 84, ¶ 27, 359 P.3d 603 (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)).

[75] Id. ¶ 32.

[76] 574 A.2d 1130, 1140-41 (Pa. 1990) (internal quotation marks omitted).

[77] 163 Cal. Rptr. 79, 82 (Ct. App. 1980).

[78] Jones, 2015 UT 84, ¶ 32.

[79] 574 A.2d at 1140.

[80] 163 Cal. Rptr. at 82.

[81] In re Adoption of K.T.B., 2020 UT 51, ¶ 32, 472 P.3d 843.

[82] See Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (“The goal of granting custody based on the best interests of the child is indisputably a substantial governmental interest for purposes of the Equal Protection Clause.”).

[83] Hansen v. Hansen, 2012 UT 9, ¶ 17, 270 P.3d 531 (citation omitted) (internal quotation marks omitted).

[84] See Jones, 2015 UT 84, ¶ 32.

[85] Zummo, 574 A.2d at 1154-55 (collecting cases).

[86] Eugene Volokh, Parent-Child Speech and Child Custody Speech Restrictions, 81 N.Y.U. L. REv. 631, 719 (2006).

[87] The district court found that although major decisions were a source of conflict, “day-to-day decisions regarding the children appear to be different,” as Ryan and Jessica had been able to “coordinat[e] travel and pick-ups[] and jointly supervis[e] and facilitate[e] their children’s homework and activities . . . with relatively little conflict.”

[88] In re Adoption of K.T.B., 2020 UT 51, ¶ 43. 89 (Emphasis added.)

[89] (Emphasis added.)

[90] I do note, however, that none of the cases the majority relies upon in Part I.A of its opinion involve the kind of dispute at issue in this case, even when that dispute is characterized as broadly as a common custody dispute between divorcing parents. For this reason, these cases d o nothing more than cement the existence of a parent’s fundamental right to participate in the child’s religious upbringing. See Jones v. Jones, 2015 UT 84, 359 P.3d 603 (contemplating whether a child’s grandparents can be given visitation rights against the will of the child’s only surviving parent); In re Adoption of K.T.B., 2020 UT 51, 472 P.3d 843 (addressing a trial court’s denial of a mother’s motion to intervene in the adoption of her daughter to a third party); Troxel v. Granville, 530 U.S. 57 (2000) (examining two grandparents’ petition for visitation with children born out of wedlock); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (restricting a state from prohibiting a parent from teaching her child a language besides English “under the guise of protecting the public interest”); Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 534-35 (1925) (deciding that a state law requiring young children to attend public school “unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control”); Prince v. Massachusetts, 321 U.S. 158 (1944) (upholding a state law prohibiting children from selling magazines in the evening); Wisconsin v. Yoder, 406 U.S. 205 (1972) (concluding that a state may not compel Amish parents to send their children to high school).

[91] One way to think about this question involves the bundle of sticks metaphor we all learned in law school. Parents possess a bundle of rights, or sticks, with respect to their children. When the state tries to give one of those sticks to a nonparent, or take a stick for itself, strict scrutiny applies. The cases the majority cites in Part I.A of its opinion speak to this situation. See, e.g., Jones, 2015 UT 84; In re Adoption of K.T.B., 2020 UT 51; Pierce, 268 U.S. 510. But when two parents divorce, the district court must determine whether those parents can continue to share the sticks and if not, which parent should possess which stick. As we explain later, we have not applied strict scrutiny review to these decisions.

[92] It bears remembering that the district court will have entered such an order only after “a showing by a preponderance of evidence of real harm or substantiated potential harm to the child.” UTAH CODE § 30-3-32(2)(b). 93 But we hasten to add that the analysis changes if that parent claims that the district court’s restrictions violate his individual First Amendment right. Unlike shared parental rights, a district court cannot compromise those individual rights unless the order can withstand strict scrutiny.

[93] For what it is worth, the Colorado Court of Appeals reads McSoud the way I do. See In re Marriage of Crouch, 490 P.3d 1087 (Colo. App. 2021). The Crouch court explained,

[McSoud] held that by preventing mother from taking the child to her church during her parenting time, the court unconstitutionally restricted mother’s religious rights. And, to the extent the order also required the mother to accompany the child to the father’s church services during her parenting time, it further restricted her religious rights. Because the court was imposing the restrictions, such orders required strict scrutiny. That is, before the court could infringe on the mother’s religious rights, it must show a compelling state interest . . . .

Id. at 1092 (emphases added) (citations omitted). The Crouch court continued, “McSoud expressly rejects the need for strict scrutiny . . . when allocating decision-making responsibility between the child’s parents because, in that context, the court is merely expanding one parent’s fundamental right at the expense of the other parent’s similar right.” Id. (citation omitted).

[94] To be clear, I am not suggesting that divorcing parents cannot share the right to decide their child’s religious upbringing. For example, in Munoz v. Munoz, 489 P.2d 1133 (Wash. 1971) (en banc), the court concluded that where “there is no evidence to support a finding that exposure to two religious beliefs has had, or will have, any adverse effect upon the children,” a trial court’s order prohibiting a noncustodial father from taking his children to his church or to instructional classes sponsored by that church was an abuse of discretion. Id. at 1135-36; see also Murga, 163 Cal. Rptr. at 82 (rejecting a custodial mother’s claim that she had an absolute right to direct the child’s religious upbringing and holding that, absent a clear, affirmative showing that the noncustodial parent’s religious activities would harm the child, the noncustodial parent could not be restrained from exposing the child to his or her religious beliefs and practices).

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Is 50/50 custody likely when the parents live in the same neighborhood?

What is the likelihood of reverting to 50/50 custody when the parents live in the same neighborhood? Mom still cares for the child over 80%

Your question states in part, “What is the likelihood of reverting to 50-50 custody.” Your use of the word “reverting” implies that at one time in the past you and the other parent exercised joint equal (50/50) custody of the child. It appears that at some point one or both of you moved away from each other such that 50/50 custody could not be practicably exercised anymore, at which point sole or primary custody of the child was awarded to the mother. 

It appears that either the mother has moved into your neighborhood or you have moved into the mother’s neighborhood, such that 50/50 custody can now be practicably exercised again.  

Unless you have an unusual case in which the court does not allow the parents to determine what the custody and parent time schedules are, you and the mother could agreed to resume a 50/50 custody and parent time schedule, if you wanted. If you want to do that, it would be wise to write up a new agreement indicating that you and the mother agree to exercise 50/50 custody and parent time and have that agreement made the new order of the court. 

If the mother refuses to agree to resume a 50/50 custody and parent time schedule, the question then becomes whether the court would grant your petition to revert back to a 50/50 schedule and resume that schedule for you and the child. 

I cannot speak for all jurisdictions and the laws that apply in each of them, but I can tell you that in the state of Utah, where I practice divorce and family law, simply moving closer to the other parent, so that joint equal (50/50) custody could be practicably unsuccessfully exercised, is usually not enough of a reason to modify the child custody and parent time order: 

Huish v. Munro, 191 P.3d 1242 (2008 UT App 283): 

To demonstrate a substantial change of circumstances . . . the asserted change must, therefore, have some material relationship to and substantial effect on parenting ability or the functioning of the presently existing custodial relationship. 

Thorpe v. Jensen, 817 P.2d 387, 391 (Utah Ct.App. 1991): 

[The] need for caution was emphasized in Kramer v. Kramer, 738 P.2d 624 (Utah 1987), where the court noted that “a central premise of our recent child custody cases is the view that stable custody arrangements are of critical importance to the child’s proper development.” Id. at 626 (citations omitted). The “change of circumstances” threshold announced in Hogge and Becker is elevated to discourage frequent petitions for modification of custody decrees. The Hogge test was designed to “protect the custodial parent from harassment by repeated litigation and [to] protect the child from ‘ping-pong’ custody awards.” Hogge v. Hogge, 649 P.2d at 53-54. This policy is soundly premised. 

But there is this (from the case of Miller v. Miller, 480 P.3d 341 (2020 UT App 171): 

[I]f a court determines a petition as a whole clearly does not allege a change in circumstances that has any relation to the parenting skills or custodial relationship or the circumstances on which the custodial arrangement was based, it may dismiss the petition for failure to state a claim. See O’Hearon v. Hansen, 2017 UT App 214, ¶ 10, 409 P.3d 85; cf. Becker v. Becker, 694 P.2d 608, 610 (Utah 1984) (stating that, to meet the materiality requirement, the change in circumstances must “have some material relationship to and substantial effect on parenting ability or the functioning of the presently existing custodial relationship” or “appear on their face to be the kind of circumstances on which an earlier custody decision was based”). 

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

https://www.quora.com/What-is-the-likelihood-of-reverting-50-50-custody-when-the-parents-live-in-the-same-neighborhood-Mom-still-cares-for-the-child-over-80/answer/Eric-Johnson-311  

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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  

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Can a parent with full custody deny visitation due to unsanitary conditions?

Can a parent with full custody refuse to allow visitation due to unsanitary living conditions?

Good question.

I will answer this question in the context of some applicable law for the jurisdiction where I practice divorce and family law (Utah).

There are many ways to approach this question, but briefly one thing you need to be aware of are the custodial interference laws.

Under the custodial interference laws (76-5-303. Custodial interference), A parent can refuse to comply with a child custody and/or parent time order under certain circumstances:

(a) the action is consented to by the person whose custody or visitation of the child was interfered with; or

(b)

(i) the action is based on a reasonable belief that the action is necessary to protect a child from abuse, including sexual abuse; and

(ii) before engaging in the action, the person reports the person’s intention to engage in the action, and the basis for the belief described in Subsection (6)(b)(i), to the Division of Child and Family Services or law enforcement.

See also 76-5-305. Defenses:

(a) the actor was acting under a reasonable belief that:

(i) the conduct was necessary to protect any person from imminent bodily injury or death; or

(ii) the detention or restraint was authorized by law; or

(b) the alleged victim is younger than 18 years of age or is mentally incompetent, and the actor was acting under a reasonable belief that the custodian, guardian, legal guardian, custodial parent, or person acting in loco parentis to the victim would, if present, have consented to the actor’s conduct.

There is no hard and fast rule you could apply in this situation, of course, but I think it’s reasonable to say that if the living conditions that the other parent’s house were so unsanitary as to pose a serious risk of harm to the child’s life or health, refusing to comply with parent time on that basis might not result in criminal guilt.

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

https://www.quora.com/Can-a-parent-with-full-custody-refuse-to-allow-visitation-due-to-unsanitary-living-conditions/answer/Eric-Johnson-311

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I signed a CPS safety plan but the court orders protective supervision.

What happens if I signed a CPS safety plan but the court orders protective supervision? 

The court’s order supersedes the agreement. 

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

https://www.quora.com/What-happens-if-I-signed-a-CPS-safety-plan-but-the-court-orders-protective-supervision/answer/Eric-Johnson-311  

 

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Twitchell v. Twitchell – 2022 UT App 49 – child custody and support

Twitchell v. Twitchell – 2022 UT App 49

THE UTAH COURT OF APPEALS

JAZMIN S. TWITCHELL,

Appellee,

V.

JOSEPH N. TWITCHELL,

Appellant.

Opinion

No. 20200546-CA

Filed April 14, 2022

First District Court, Logan Department

The Honorable Brian G. Cannell

No. 184100383

Ryan L. Holdaway and Diane Pitcher, Attorneys

for Appellant

Robert L. Neeley, Attorney for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Joseph N. Twitchell appeals from a divorce decree and appurtenant findings of fact and conclusions of law, arguing that the district court failed to consider relevant statutory factors when forming its custody determination, awarded him less parent-time than the statutory minimum, and erroneously calculated his child support obligation based on an inaccurate accounting of the income of his ex-wife, Jazmin S. Twitchell. We find Joseph’s arguments persuasive on each of these issues, and accordingly, we remand for further proceedings.

BACKGROUND

¶2 Joseph and Jazmin[1] were married in 2016 and share one child (Child), who was born in May 2017. The parties “separated about a year after she was born.” Shortly thereafter, in June 2018, Jazmin filed for divorce, citing “irreconcilable differences.”

¶3 The court issued temporary orders in December 2018, awarding the parties joint legal custody of Child and designating Jazmin as the primary physical custodian, “subject to [Joseph’s] right to parent-time.” As to the parent-time schedule, the court directed the parties to follow the minimum schedule set out in section 30-3-35 of the Utah Code, with Joseph generally “designated as the non-custodial parent,” meaning that he could exercise parent-time on alternating weekends. In addition, the temporary orders granted Joseph an additional overnight with Child “every Thursday night,” with Joseph keeping Child for the weekend when it was one of his parent-time weekends and returning Child to Jazmin’s care by noon on Friday when it was not.

¶4 As the case proceeded to trial, Jazmin filed her financial disclosures, dated November 7, 2019. In her disclosures, Jazmin reported her gross monthly income as $2,111. In this document, under an entry entitled “Employment Status,” Jazmin listed the name of a child care center where she worked at some point. Under an entry for “Name of Employer,” she listed a local private school. Jazmin also filed a supplemental disclosure, dated September 23, 2019, informing the court that she had been serving as a “houseparent” at the private school since September 1, 2019, for which she received no monetary compensation but was provided room and board. Jazmin included a letter from a representative of the school who estimated that the value of the housing and utilities provided to Jazmin was $980 per month.

¶5 A two-day trial was held in December 2019, at which multiple witnesses testified. During Joseph’s testimony, he described instances of physical and verbal altercations beginning a few months into the parties’ marriage. He averred that the first time things became physical between the two was in November 2016, when stress regarding the upcoming holiday season resulted in an argument and Jazmin eventually “going after [him] with a knife,” cutting his hand. Joseph also described a time in Spring 2017 when he and Jazmin were in another argument, and he “went to go give her a hug and apologize . . . and she bit [his] right arm.” He then described one more instance where Jazmin told Joseph “she hated [him], over and over and over again,” which prompted him to threaten leaving with Child. In response, Jazmin “slapped or hit [him] with something across the face.” Joseph also presented photographs of injuries he sustained from each of these incidents, which were admitted into evidence without objection.

¶6 Several witnesses also testified as to their observations of Child’s condition once she went from Jazmin’s to Joseph’s care. One witness testified that on multiple occasions when Joseph received Child from Jazmin, Child had “severe diaper rashes” with blistering, “yeast infections,” and “bite marks on her feet,” and that she was “really dehydrated” to the point of not “even having a bowel movement for a day or two after.” Another witness also confirmed that Child had severe diaper rashes when she came to Joseph, to the point that Joseph had to seek care from a pediatrician, and testified that Child often “had bite marks on both her hands . . . and her feet.” Joseph also produced evidence documenting incidents of what he characterizes as “assaults” from other children at a daycare while Child was in Jazmin’s care.

¶7 Jazmin testified about her employment history since the parties’ separation. During the marriage, Jazmin had been “a stay-at-home mom,” but she started a job “within two weeks of leaving” to help provide for Child. She testified to working at a child care center from approximately July 2018 until March 2019, when she left to accept an offer to work for higher pay at another daycare center. She worked at that second center full-time until October 2019. Jazmin began serving as a houseparent at the private school in September 2019, a role she was still working in at the time of trial.

¶8 In addition to her financial disclosure in which she reported the aforementioned $2,111 figure, Jazmin also offered her 2018 tax return into evidence. That return listed only the first child care center as her employer and an annual gross income of $7,044.75—which would translate to approximately $587 per month. Jazmin nevertheless confirmed at trial that her gross monthly income was $2,100. When asked if that amount included the $980 value of her housing and utilities, she stated, “No. That . . . doesn’t have anything to do with that.” When asked about her current employment, she testified that she had just started working as a substitute teacher earning $75 per day, which she “guesstimate[d]” she did two to three days per week. Based on that “guesstimate,” Jazmin testified that she earned approximately $813 per month from substitute teaching as opposed to the $2,100 in her financial declaration. Jazmin also confirmed that, at the time of trial, she had no sources of income other than her “service as a houseparent, [and her] income from substitute teaching.”

¶9 Later, on cross-examination, when asked about the $2,111 reported as her gross monthly income in her disclosure, Jazmin admitted that there was actually “no documentation being provided with that [disclosure] that would substantiate that number.” While Jazmin was being cross-examined, the court interjected and expressed its confusion as to whether the $980 value of her housing expenses had been included in her reported monthly income; although Jazmin never answered the court directly, her attorney asserted that it was included within that amount (contradicting Jazmin’s earlier testimony in which she had stated the opposite). Jazmin also stated that at the time of trial, she had actually worked as a substitute teacher on only one occasion up to that point.

¶10 Testimony was also given by a representative of the private school, whom Jazmin had contacted to secure documentation of the value of her housing and utilities. A final draft of a letter from the representative was attached to Jazmin’s supplemental disclosure. But at trial, Joseph offered evidence of an earlier draft of the letter in which the representative had originally stated that the value of what Jazmin received was estimated at $1,800 per month for rent and $1,000 per month for utilities, whereas the amount given in the final letter was $980 for both rent and utilities. The representative testified that she had sent the initial draft to Jazmin’s grandmother asking if it was “acceptable,” and either Jazmin or her grandmother had then asked additional questions about the square footage and what portion of the house Jazmin was actually living in, and whether that was reflected in the amount the representative gave. This prompted the representative to change the amount to $980 in the final letter, based on a “pro-rated amount” that seemed more consistent with the part of the house where Jazmin was living.

¶11 The court issued findings of fact and conclusions of law in April 2020.[2] While it awarded the parties joint legal custody of Child, it also found that it was in Child’s “best interest” that Jazmin be awarded primary physical custody. In support, the court cited the following findings: Jazmin had primary physical custody of Child since the parties separated, and the parties had been “following” the parent-time schedule imposed by the court in its temporary orders, consisting of “alternating weekends, with [Joseph] being awarded overnight every Thursday”; Child was “happy and well[-]adjusted and [was] progressing well developmentally”; Child was “closely bonded to [Jazmin] as she ha[d] been the primary custodial parent since birth, while [Joseph] was the primary bread winner in the family”; it was in Child’s “best interest . . . to maintain a close relationship with her half sister,” of whom Jazmin has primary physical custody; Jazmin had “exhibited good parenting skills” and was “of good moral character, and emotionally stable”; Jazmin had “exhibited a depth and desire for custody of [Child] since . . . birth”; Jazmin had “a flexible work and school schedule and she ha[d] the ability to provide personal care rather than surrogate care”; Jazmin had experience in early childhood education; and Jazmin “exhibited sound financial responsibility” whereas the court was “concerned about [Joseph’s] lack of financial responsibility” based on his debt accumulations. In the findings, the court also expressed its “concern[] about the alleged physical abuse between the parties during the marriage” and therefore found it “appropriate” for the exchanges of Child to occur at a police department safe zone located roughly halfway between the parties’ homes.

¶12 The court additionally noted its consideration of the factors outlined in section 30-3-10.2 of the Utah Code, finding in particular that Child’s “physical, psychological, emotional and development needs will benefit from the parties sharing joint legal custody.” But the court listed several reasons under these factors why joint physical custody would not be appropriate, finding that the “parties do not effectively communicate with each other”; they lived “approximately 60 miles” apart; Joseph “participated in raising [Child] but not to the extent that [Jazmin] did”; “[t]o date there ha[d] not been . . . opportunities for either parent to protect [Child] from any conflict that may arise between the parties, due to [Child’s] age”; and “the parties’ relationship ha[d] stabilized and once these divorce proceedings have concluded it is anticipated the parties will be able to cooperate with each other and make appropriate joint decisions regarding [Child].”

¶13 As to parent-time, the court concluded that Joseph’s parent-time “shall be, until [Child] starts Kindergarten, every Thursday overnight and every other weekend from Friday (after school) to Sunday evening at 6 p.m.” And on weeks that ended with Jazmin’s designated weekend, Joseph “shall return [Child] to [Jazmin] by Friday at noon, after his Thursday overnight visit.” The court also concluded that “[t]he parties shall follow the holiday parent time pursuant to Utah Code Ann. § 30-3-35” but that Joseph “shall be awarded six[ ]weeks of extended summer vacation instead of four[ ]weeks, consistent with Utah Code Ann. § 30-3-35 and by stipulation of [Jazmin] at closing arguments.”

¶14 Regarding child support, the court found that Jazmin “earn[ed] $980 per month gross wage from her house parent job” and “approximately $780 per month” from substitute teaching. It therefore calculated her gross monthly income at $1,760 for child support purposes. The court then found that Joseph’s average gross income is $5,011 per month, and therefore his “child support obligation is $582 per month.”

¶15 The court entered a decree of divorce in June 2020, in which it largely echoed the parent-time findings, ordering that Joseph’s parent-time “shall be every Thursday overnight and every other weekend from Friday (after school) to Sunday evening at 6 p.m. On [Jazmin’s] weekend with the parties’ child, [Joseph] shall return [Child] to [Jazmin] by Friday at noon following his Thursday overnight parent time.” And once Child “commences Kindergarten [Joseph’s] parent time shall change[] to every other weekend from Friday (after school) to Sunday at 6 p.m., and a mid-week from after school until 7 p.m.” The decree did not mention a schedule for holidays or extended/vacation parent-time. The decree also reiterated what the court found to be the parties’ respective incomes, and accordingly it memorialized its decision ordering Joseph to pay $582 per month in child support.

¶16 Joseph promptly appealed the findings of fact and conclusions of law, as well as the divorce decree.

ISSUES AND STANDARDS OF REVIEW

¶17 On appeal, Joseph presents two main issues for our consideration. First, he attacks the district court’s custody determination on two bases, arguing that the court’s custody conclusion and the underlying factual findings are deficient because it failed to consider certain relevant factors and that the court erred in awarding him less than the minimum time provided by statute without explaining a reason to depart from the statutory minimum. “[W]e review the district court’s custody and parent-time determination for abuse of discretion.” T.W. v. S.A., 2021 UT App 132, ¶ 15, 504 P.3d 163. “This discretion is broad; indeed, as long as the court exercises it within the confines of the legal standards we have set, and the facts and reasons for the decision are set forth fully in appropriate findings and conclusions, we will not disturb the resulting award.” Id. (quotation simplified).

¶18 Second, Joseph challenges the district court’s child support determination, asserting that it made errors in calculating Jazmin’s income, resulting in an inaccurate child support obligation.[3] “In reviewing child support proceedings, we accord substantial deference to the [district] court’s findings and give it considerable latitude in fashioning the appropriate relief. We will not disturb that court’s actions unless the evidence clearly preponderates to the contrary or there has been an abuse of discretion.” Hibbens v. Hibbens, 2015 UT App 278, ¶ 17, 363 P.3d 524 (quotation simplified).

ANALYSIS

I. Custody and Parent-Time

A. Consideration of the Relevant Factors

¶19 Joseph first asserts that the district court erred by failing to adequately consider certain statutory factors in formulating its custody determination. Specifically, he asserts that two factors did not receive the attention he feels they deserved by the district court, namely, any “evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the parent, or a household member of the parent” and “the past conduct and demonstrated moral character of the parent.” See Utah Code Ann. § 30-3-10(2)(a), (d) (LexisNexis 2019). We agree with Joseph that it is not clear from the district court’s findings that it considered evidence regarding abusive behavior by Jazmin, neglect and injuries to Child, or Jazmin’s moral character. Accordingly, we remand for the court to fully evaluate that evidence through supplemented or additional findings.

¶20 “In all custody determinations, the district court’s primary focus must be on the best interests of the child.” Pingree v. Pingree, 2015 UT App 302, ¶ 7, 365 P.3d 713 (quotation simplified). Furthermore, when “determining any form of custody and parent-time” arrangement, the district court “shall consider the best interest of the child and may consider [any] factors the court finds relevant” to that end, including certain factors that are specifically articulated in the Utah Code. See Utah Code Ann. § 30-3-10(2). Importantly, not all these factors are “on equal footing”; instead, the district court generally has “discretion to determine, based on the facts before it and within the confines set by the appellate courts, where a particular factor falls within the spectrum of relative importance and to accord each factor its appropriate weight.” T.W. v. S.A., 2021 UT App 132, ¶ 16, 504 P.3d 163 (quotation simplified).

¶21 Determining which factors the court must address in a given case, and to what degree, presents a tricky task. Inevitably, some factors will loom larger in a given case than other factors, and “[t]here is no definitive checklist of factors to be used for determining custody.” Sukin v. Sukin, 842 P.2d 922, 924 (Utah Ct. App. 1992). Consequently, “courts are not required to render a global accounting of all evidence presented or to discuss all aspects of a case that might support a contrary ruling.” Shuman v. Shuman, 2017 UT App 192, ¶ 6, 406 P.3d 258. On the other hand, a “court’s factual findings are adequate only if they are sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.” Lay v. Lay, 2018 UT App 137, ¶ 19, 427 P.3d 1221 (quotation simplified). And where significant evidence concerning a particular factor is presented to the district court, findings that omit all discussion of that evidence must be deemed inadequate. See Barnes v. Barnes, 857 P.2d 257, 261 (Utah Ct. App. 1993) (“The record is replete with highly disputed evidence relevant to the custody issue which is not dealt with at all in the findings. The findings do not show whether the court considered the moral conduct or emotional stability of the parties and what evidence the court found determinative in deciding the best interests of the children.”); Sukin, 842 P.2d at 925 (“Whenever custody is contested and evidence presents several possible interpretations, a bare conclusory recitation of factors and statutory terms will not suffice. We must have the necessary supporting factual findings linking those factors to the children’s best interests and each parent’s abilities to meet the children’s needs.” (quotation simplified)).

¶22 Joseph asserts that the district court failed to consider evidence presented at trial of domestic violence Jazmin had perpetrated against him as well as neglectful behavior Jazmin had purportedly inflicted on Child. Specifically, Joseph points to his own testimony at trial that Jazmin had slapped him in the face hard enough to leave red marks, had attempted to stab him with a pocket knife, and had bitten him. Joseph also presented photographic exhibits purporting to show his injuries from these incidents. Joseph also points to testimony at trial and an exhibit he introduced into evidence tending to show injuries that Child sustained while she was in Jazmin’s care. One witness testified that when Joseph received Child from Jazmin, Child often had “severe diaper rashes” with blistering, “yeast infections,” and “bite marks on her feet,” and that she was “really dehydrated” to the point of not “even having a bowel movement for a day or two after.” Another witness also confirmed that Child had severe diaper rashes when she came to Joseph, such that Joseph had to seek care from a pediatrician, and testified that Child often “had bite marks on both her hands . . . and her feet.” Finally, Joseph asserts that the court did “not analyze or even mention . . . multiple incidents” in which Jazmin supposedly “engaged in deceitful tactics” during the litigation. Specifically, Joseph asserts that Jazmin instructed a witness on what to testify regarding Jazmin’s income from her houseparent job, that Jazmin and another witness mischaracterized the events that precipitated an incident when the police were called around the time of the parties’ separation, that Jazmin claimed that the parties were married on a date different from that indicated on their marriage certificate, and that Jazmin supposedly attempted to manipulate the testimony of her ex-husband in the case.

¶23 With respect to “evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the parent, or a household member of the parent” and “the past conduct and demonstrated moral character of the parent,” see Utah Code Ann. § 30-3-10(2)(a), (d), the court made only the following finding: “[Jazmin] has exhibited good parenting skills, is of good moral character, and emotionally stable.” It then proceeded to emphasize the facts it believed supported Jazmin’s bid for custody: that Jazmin had been Child’s primary caretaker; that Child had a bond with Jazmin’s other child, her half-sister; that Jazmin had made sure Joseph received his parent-time in accordance with the temporary orders; that Jazmin had “a depth and desire for custody”; that Jazmin had a flexible schedule that would allow her to provide personal care for Child; that Jazmin had taken Child to her medical appointments; and that Jazmin was financially responsible, “industrious,” and “goal oriented.” The court made no findings regarding Joseph’s parenting abilities, past conduct, bond with Child, etc., except to express concern that he was in debt.[4] Finally, the court stated that it was “concerned about the alleged physical abuse between the parties” and concluded it was therefore appropriate for them to exchange Child at a police department safe zone.

¶24 “To ensure that the trial court’s custody determination, discretionary as it is, is rationally based, it is essential that the court set forth in its findings of fact not only that it finds one parent to be the better person to care for the child, but also the basic facts which show why that ultimate conclusion is justified.” Sukin, 842 P.2d at 924 (quotation simplified). The court’s finding that Jazmin “has exhibited good parenting skills, is of good moral character, and emotionally stable” is inadequate for us to determine whether the court exceeded its discretion in assessing the abuse/neglect and moral character factors or how those factors impacted Child’s best interests. Likewise, the court’s expression of “concern[] about the alleged physical abuse between the parties during the marriage” tells us nothing about how or even if the court weighed the abuse allegations in its custody evaluation. Indeed, it is not clear to us that the court considered this factor at all in assessing which parent should be awarded custody, as it mentioned the factor only in the context of concluding that it would be “appropriate” for the exchanges of Child to occur at a police department safe zone. Without at least some discussion of the evidence the court relied on in assessing the factors and how the court related the factors to Child’s best interests, the court’s findings regarding the custody factors are inadequate. See, e.g.K.P.S. v. E.J.P., 2018 UT App 5, ¶¶ 30–42, 414 P.3d 933 (determining that the court’s factual findings were inadequate where it made factual conclusions but did not discuss the evidence underlying those conclusions and rejected the guardian ad litem’s recommendation without explanation); Bartlett v. Bartlett, 2015 UT App 2, ¶ 6, 342 P.3d 296 (rejecting the court’s conclusory finding that the mother was “better able and equipped to support and sustain a positive relationship between the children and their father” where the “court identified no subsidiary facts supporting this finding” and had, in fact, “admonished Mother for denying Father court-ordered access to the children” (quotation simplified)); Barnes, 857 P.2d at 261 (rejecting as inadequate the court’s finding that “[t]he Plaintiff’s level of commitment to her children during the course of this separation has exceeded that of the Defendant and that’s been established by their actions during the course of their separation” because “[t]he findings do not show whether the court considered the moral conduct or emotional stability of the parties and what evidence the court found determinative in deciding the best interests of the children”); Roberts v. Roberts, 835 P.2d 193, 196–97 (Utah Ct. App. 1992) (deeming inadequate findings that “Husband has physically abused Wife during the marriage” and that “both parties have participated in acts that bear on their moral character,” accompanied by a recitation of examples of each party’s bad behavior because the recitation did not give any “guidance regarding how those acts bear on the parties’ parenting abilities or affect the children’s best interests” (quotation simplified)); Cummings v. Cummings, 821 P.2d 472, 478–79 (Utah Ct. App. 1991) (reversing the district court’s custody determination based on its failure to make findings regarding evidence relating to important custody factors); Paryzek v. Paryzek, 776 P.2d 78, 83 (Utah Ct. App. 1989) (holding that it was an abuse of discretion for the court’s findings to “omit any reference” to a custody evaluation and evidence relating to the bond between father and son, the father’s status as primary caretaker pending trial, the fact that the child thrived while in the father’s care, and the son’s preference for living with his father).

¶25 Thus, we conclude that the district court exceeded its discretion by failing to include in its findings any discussion of the evidence relating to the abuse allegations against Jazmin, her alleged neglect of Child, and her moral character, as well as the effect that evidence had on its best-interest analysis. Accordingly, we vacate the district court’s custody and parent-time order and remand for the court to revisit that evidence and enter additional or supplemented findings, as necessary.

B. Deviation from Statutory Minimum Parent-Time Schedule

¶26 Joseph next argues that the district court committed reversible error by awarding him less than the minimum parent-time he is guaranteed by statute. Because we agree that the court’s custody award indeed creates a situation in which Joseph is guaranteed less than the statutory minimum, without explaining its reasoning in adequate factual findings, we conclude that this is an additional reason to vacate the court’s parent-time order.

¶27 In the event that the parents of a minor child litigating that child’s custody are unable to agree to a parent-time schedule, our legislature has codified a “minimum parent-time [schedule] to which the noncustodial parent and the child shall be entitled.” See Utah Code Ann. §§ 30-3-35(2), 30-3-35.5(3) (LexisNexis 2019 & Supp. 2021). In fashioning its parent-time order, the court may either “incorporate[] a parent-time schedule provided in Section 30-3-35 or 30-3-35.5; or . . . provide[] more or less parent-time” than outlined in those sections, but in either case “[t]he court shall enter the reasons underlying the court’s order for parent-time.” Id. § 30-3-34(4) (Supp. 2021). The court’s reasoning must be outlined in adequate factual findings, which must “contain sufficient detail to permit appellate review to ensure that the district court’s discretionary determination was rationally based.” Lay v. Lay, 2018 UT App 137, ¶ 19, 427 P.3d 1221 (quotation simplified). Thus, the statutory minimum “provides [the court with] a presumptive minimum, but the district court still retains discretion to award more [or less] time” to the noncustodial parent, so long as it identifies “the reasons underlying its order” in sufficiently detailed factual findings. See T.W. v. S.A., 2021 UT App 132, ¶ 30, 504 P.3d 163 (quotation simplified).

¶28 There is a separate section dealing with the minimum schedule for children who are under five years of age, see Utah Code Ann. § 30-3-35.5 (2019), and those who are between five and eighteen years of age, see id. § 30-3-35 (Supp. 2021). As Child was born in May 2017, she is still currently younger than five, so section 30-3-35.5 applies. Under that section, Joseph is entitled to “one weekday evening between 5:30 p.m. and 8:30 p.m.,” “alternative weekends . . . from 6 p.m. on Friday until 7 p.m. on Sunday,” certain holidays, and “two two-week periods, separated by at least four weeks, at the option of the noncustodial parent.” See id. § 30-3-35.5(3)(f) (2019).

¶29      Under the court’s findings and the divorce decree, Joseph receives parent-time “every Thursday overnight and every other weekend from Friday (after school) to Sunday evening at 6 p.m.,” and when it is Jazmin’s weekend, he returns Child to Jazmin “by Friday at noon following his Thursday overnight parent time.” Although Joseph correctly points out that the parent-time order requires him to return Child one hour earlier on Sundays than provided for in the statutory minimum schedule, Joseph ultimately receives more than the minimum parent-time required by statute while Child is under five, because he receives an additional weekday overnight, whereas the statute requires only a weekday evening visit. See id. Thus, for the time being, Joseph receives more than the statutory minimum.

¶30 But the situation changes when Child starts school. The district court ordered that once Child “commences Kindergarten,” Joseph’s parent-time “shall change[] to every other weekend from Friday (after school) to Sunday at 6 p.m., and a mid-week from after school until 7 p.m.” This schedule deviates from the statutory minimum, under which Joseph is entitled to “[a]lternating weekends . . . from 6 p.m. on Friday until Sunday at 7 p.m.,” and one weekday evening from either “5:30 p.m. until 8:30 p.m.” or, “at the election of the noncustodial parent, one weekday from the time the child’s school is regularly dismissed until 8:30 p.m.” Id. § 30-3-35(2)(a)(i), (2)(b)(i)(A) (Supp. 2021) (emphases added). Thus, under the court’s parent-time order, once Child begins kindergarten Joseph is required to return her to Jazmin one hour early on his weekends and one-and-a-half hours early during his weekday evenings.

¶31 As Joseph convincingly points out, while these discrepancies “may seem minor” to a casual observer, for “the non-custodial parent on a minimum visitation schedule, hours matter.” And, more importantly, the court did not explain—or even acknowledge—that it was departing from the statutory minimum. While section 30-3-35 is referenced in the findings of fact with respect to Joseph’s parent-time for holidays and summer vacation, the court made no other mention of the statutory minimum schedule.[5] As noted, when making its custody decision the court must give the “reasons underlying” its decision. See id. § 30-3-34(4); T.W., 2021 UT App 132, ¶ 30. The court did depart from the statutory minimum in this case, and it gave no reason for doing so in its findings.

¶32 As a result, we are prevented from conducting meaningful “appellate review to ensure that the district court’s discretionary determination was rationally based.” See Lay, 2018 UT App 137, ¶ 19 (quotation simplified). Accordingly, the findings in support of the district court’s parent-time order are insufficient, leaving us with no choice but to remand the matter for the court to adopt the statutory minimum schedule or otherwise explain its reasoning for departing from the minimum through adequate factual findings. See id.

II. Child Support

¶33 Joseph next challenges the district court’s child support determination, arguing that its determination of Jazmin’s income was entirely unsupported by the evidence and insufficiently explained. Because we agree that the court did not sufficiently explain how it reached the number it did in calculating Jazmin’s monthly income, we remand for entry of additional findings.

¶34 “A noncustodial parent’s child support obligation is calculated using each parent’s adjusted gross income.” Barrani v. Barrani, 2014 UT App 204, ¶ 11, 334 P.3d 994. Each parent’s “gross income” for purposes of child support “includes prospective income from any source, including earned and nonearned income sources which may include salaries, wages, . . . [and] rents.” Utah Code Ann. § 78B-12-203(1) (LexisNexis 2018). “Income from earned income sources is limited to the equivalent of one full-time 40-hour job.” Id. § 78B-12-203(2). “[C]hild support is appropriately calculated based on earnings at the time of trial,” but district courts also “have broad discretion to select an appropriate method” of calculating each parent’s income. Griffith v. Griffith, 959 P.2d 1015, 1019 (Utah Ct. App. 1998).

¶35      In this case, there were a number of potential bases for the court to assess Jazmin’s income. First, it could have accepted the declared full-time income in her financial declaration of $2,100, which she initially reaffirmed at trial. Second, it could have used her part-time substitute teaching income of approximately $813 per month combined with her in-kind income of $980 per month to reach a monthly income of $1,793. Third, it could have imputed her full-time income based on her substitute teaching salary of $75 per day for a total of $1,625 per month. There may, perhaps, have been other methods the court could have employed as well, had it adequately explained its reasoning.

¶36 Generally, “so long as the steps by which the ultimate conclusion on each factual issue was reached are apparent, a trial court may make findings, credibility determinations, or other assessments without detailing its justification for finding particular evidence more credible or persuasive than other evidence supporting a different outcome.” Shuman v. Shuman, 2017 UT App 192, ¶ 6, 406 P.3d 258 (quotation simplified). And had the court taken one of the approaches outlined above, or another approach for which its reasoning was apparent, we would be inclined to affirm the court’s decision.[6] However, here the district court’s finding that Jazmin earned “approximately $780 per month” from substitute teaching does not align with any evidence submitted at trial, nor, so far as we can tell, can it be extrapolated from that evidence.[7] As Joseph observes, this number “do[es] not appear to come from the documentary or testimonial evidence at all.” Jazmin testified that she earned $75 per day working as a substitute teacher but that she worked only two to three days a week. Using these numbers, she reached a “guesstimate” of her monthly income of $813 per month ($75 per day x 2.5 days per week x 52 weeks per year / 12 months). While Jazmin was admittedly unsure about the amount she would be able to earn, the $780 figure adopted by the court appears to not be supported by the evidence presented at trial. While we are reluctant to reverse a district court’s child support order on this basis considering the small discrepancy between the $813 and $780 figures, the fact remains that we are unable to identify the “steps by which the ultimate conclusion on [this] factual issue was reached.” See id. (quotation simplified).

¶37 In such situations, “without the benefit of the reasoning and additional findings by the [district] court,” we must remand the child support decision to the district court to detail its full reasoning, through adequate findings, for why it chose the income amount for Jazmin that it did. See Bell v. Bell, 2013 UT App 248, ¶ 19, 312 P.3d 951.

CONCLUSION

¶38 This appeal compels us to remand the case because the district court’s findings and conclusions were infirm in several respects. First, the court failed to address disputed evidence that was highly relevant to the court’s custody determination. Second, the court’s order awards Joseph less than the statutory minimum parent-time once Child starts kindergarten, without explaining why or recognizing that it did so. And third, the court’s findings regarding Jazmin’s income contain insufficient detail for us to adequately review its reasoning.


[1] Because the parties share the same surname, we follow our oft-used practice of referring to them by their first names, with no disrespect intended by the apparent informality.

[2] Other than mentioning that “both parent[s] can step up and be good parents and both parents in large part have been good parents,” the court did not announce a ruling from the bench at the conclusion of the trial. Instead, it asked both parties to prepare proposed findings of fact and conclusions of law and heard closing arguments at a subsequent hearing. Ultimately, with only a few minor alterations, the court adopted Jazmin’s findings of fact and conclusions of law in their entirety.

While we would not go so far as to say that it is inappropriate for the court to fully adopt one party’s proposed findings, before signing off the court should confirm that those findings conform to the evidence presented at trial and that the findings sufficiently explain the court’s reasoning for the decision. In this case, it appears that the court adopted Jazmin’s version of the evidence without confirmation of that evidence and without disclosing the steps by which the ultimate conclusion on each factual issue was reached.

[3] As part of his broader challenge to the district court’s child support determination, Joseph purports to include another argument: that the court erred in dividing the parties’ debts. However, Jazmin points out that while Joseph included this argument in his articulation of the issues on appeal, he “did not [substantively] address the debt issue in his brief.” Indeed, we find a dearth of any argument regarding the debt distribution in Joseph’s brief; accordingly, Joseph has failed to properly raise such an argument for our consideration.

[4] We are troubled by the manner in which the district court’s findings focused exclusively on Jazmin rather than comparing hers and Joseph’s relative character, skills, and abilities. See Woodward v. LaFranca, 2013 UT App 147, ¶¶ 22, 26–28, 305 P.3d 181 (explaining that a court’s findings must “compare the parenting skills, character, and abilities of both parents” and reversing a finding that the emotional stability factor weighed in favor of mother because it was based solely on the determination that mother was emotionally stable without any findings regarding father’s emotional stability; “the question for the court was not whether Mother was emotionally stable, but whether Mother was more emotionally stable than Father” (quotation simplified)), abrogated on other grounds by Zavala v. Zavala, 2016 UT App 6, 366 P.3d 422. We urge the court on remand to make the appropriate comparisons in revising its findings.

[5] Furthermore, section 30-3-35.5 is not referenced at all, which would have been the operative section from the time the decree was entered until Child turns five.

[6] While a finding that aligned with the various numbers presented at trial would have met the bare minimum threshold for sufficiency, we note that this case would substantially benefit from further analysis. First, the court did not address the inconsistencies in Jazmin’s trial testimony regarding her income. Jazmin first agreed that the $2,111 monthly income in her financial declaration was accurate but then went on to testify that she made only $75 per day substitute teaching and worked only two to three days per week. But the court did not address or explain the reasoning behind its resolution of this inconsistency. Second, Joseph presented evidence that Jazmin’s housing and utilities had been undervalued. The court’s decision included no discussion of the conflicting evidence regarding the value of Jazmin’s in-kind earnings or its assessment of that conflicting evidence. On remand, the court’s findings could benefit from a more thorough discussion of the evidence and explanation for its resolution of these conflicts.

[7] In Jazmin’s post-trial brief, she stated, without any supporting evidence, that she earned $72 per day, for a total of $780 per month. This appears to be the source of the court’s number. As assertions in the post-trial brief are not evidence, the court could not rely on this number to calculate child support.

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

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Widdison v. Widdison – 2022 UT App 46 – custody modification

Widdison v. Widdison – 2022 UT App 46
 

THE UTAH COURT OF APPEALS 

NICOLE WIDDISON,
Appellant, 

LEON BRYANT WIDDISON, 

Appellee. 

Opinion 

No. 20200484-CA 

Filed April 7, 2022 

Third District Court, Salt Lake Department 

The Honorable Robert P. Faust 

No. 144906018 

Julie J. Nelson and Alexandra Mareschal, Attorneys
for Appellant 

Todd R. Sheeran, Attorney for Appellee 

JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred. 

TENNEY, Judge: 

¶1 By statute, a district court must ordinarily find that a material and substantial change in circumstances occurred before modifying the custody provisions in a divorce decree. In this appeal, we’re asked to answer two main questions about this statute. 

¶2 First, if a decree is silent about whether one of the parents has legal custody of a child, is the district court later required to find that there was a material and substantial change in circumstances before determining whether that parent has legal custody in the first instance? We conclude that a material and substantial change in circumstances is not required in such a scenario. 

¶3 Second, in situations where the custody modification statute is applicable, can a custodial parent’s attempt to sever a years-long relationship between the noncustodial parent and a child legally qualify as a material and substantial change? We conclude that it can. 

¶4 Based on these two conclusions, we affirm the modifications at issue. 

BACKGROUND [10]
The Divorce Decree 

¶5 Nicole and Bryant Widdison were married in June 2004. They had two children during their marriage, Daughter and Son. Bryant is Daughter’s biological father, but Nicole conceived Son with another man during a brief separation from Bryant. Nicole and Bryant reconciled before Son’s birth, however, and Bryant was in the delivery room when Nicole gave birth to Son. Bryant is listed on Son’s birth certificate, and Son bears Bryant’s surname. 

¶6 Nicole and Bryant divorced in July 2015. Daughter was ten years old at the time, and Son was about three and a half. The divorce decree (the Decree) was largely based on a stipulation between Nicole and Bryant. 

¶7 In the portions relevant to this appeal, the Decree provided: 

  1. Physical Custody: Nicole shall have physical custody of both said minor children. Bryant will remain on Son’s birth certificate unless or until he is challenged by some other legitimate party who prevails in a court of law.

. . . . 

  1. Legal Custody: The parties shall have “joint legal custody” of Daughter.

. . . . 

  1. Parent-Time/Visitation: Bryant shall be entitled to reasonable parent-time with Daughter. Reasonable parent-time shall be defined as the parties may agree. However, if the parties are not able to agree, Bryant shall be entitled to the following parent-time:

. . . . 

2) . . . Bryant may have two (2) overnights each week to coincide with the days that he is off work with the parties’ oldest child, Daughter[,] during the school year. . . . During the Summer months Bryant may have three overnights every other week and two overnights on the alternating weeks. . . . As for the youngest child, Son, parent-time will be at Nicole’s sole discretion . . . . 

3) Bryant shall also be entitled to holidays and summer parent-time as articulated in U.C.A. § 30-335 . . . . 

. . . . 

  1. Child Support: . . . Based on [the parties’] incomes, and a sole custody worksheet (even though the parties have a different parent-time arrangement and with the benefit and consent of counsel after being informed and involved), Bryant shall pay Nicole child support in the amount of $450.00 each month for the one female child (Daughter). . . . Any reference to a financial obligation[] or child support in this document shall be interpreted as applying only to the older child (Daughter).

(Emphases added.) 

¶8 As noted, the Decree gave Nicole “sole discretion” over whether Bryant could spend parent-time with Son. During the first three years after the divorce, Nicole “regularly and consistently allowed Son to exercise time with Bryant.” Her usual practice was to allow Son to accompany Daughter whenever Daughter visited Bryant. Since the Decree entitled Bryant to spend a little over 30 percent of the time with Daughter, this meant that Bryant spent a little over 30 percent of the time with Son during those years too. 

The Modification Petitions 

¶9 In November 2016, the State filed a petition to modify the Decree to require Bryant to pay child support for Son. The State’s petition noted that Son was born during Nicole and Bryant’s marriage, and it asserted that Bryant was Son’s presumptive legal father under Utah Code § 78B-15-204(1)(a) (LexisNexis 2018)11, which states that a “man is presumed to be the father of a child if,” among others, “he and the mother of the child are married to each other and the child is born during the marriage.” The State noted that “[n]o child support has been ordered for this child.” It accordingly asked the court to “find[] Bryant to be the legal father of Son” and order him to pay child support for Son. 

¶10 In his answer to the State’s petition, Bryant agreed that he “is the presumptive father” of Son and expressed his “desire[]” to “be treated as the natural father of Son” “for all intents and purposes.” Bryant also asked the court for an order granting him joint legal and physical custody of Son, as well as a “clarification of his rights and duties, namely parent-time with Son.”12  

¶11 In September 2018, Bryant filed his own petition to modify the Decree. There, Bryant asserted that he “has been the only father figure that Son has known,” and he argued that he “should be presumed and considered the legal father of Son.” Bryant also argued that “[t]here has been a significant, substantial and material change in circumstances that has occurred since the parties’ Decree of Divorce concerning custody, parent-time, and child support, such that modification of the Decree of Divorce is in the best interests of the minor children.”13  

Motion for Temporary Relief 

¶12 About two months after Bryant filed his petition to modify, Nicole suddenly cut off Bryant’s parent-time with Son. After she did, Bryant filed a motion for temporary relief, asking the court to award him “his historical/status quo parent time with both the minor children” until his petition to modify was resolved. 

¶13 The matter went before a court commissioner, and a hearing was held in which Bryant and Nicole and their respective attorneys were present. During the hearing, the commissioner heard how often Son accompanied Daughter during her visits with Bryant. At the close of the hearing, the commissioner ordered Nicole to “immediately resume Bryant’s historical/status quo parent time with both minor children” and to “allow Son to follow the parent-time schedule of Daughter, consistent with the historical parent-time exercised by Bryant.” 

¶14 Nicole objected to the commissioner’s recommendation, but the district court overruled that objection. The court instead agreed to temporarily “modify the stipulation to reflect what the parties themselves were actually doing regarding parent time.” The court surmised that “reducing the visitation the parties themselves were doing” might “be harmful to the child.” The court continued that it “could also be argued that such visitation is helpful and beneficial to the child, especially since both children will be doing visitation together and parents have the right of visitation with their children.” Nicole was thus ordered to give Bryant “the same parent-time with Son, consistent with Bryant’s parent time with Daughter,” while Bryant’s petition to modify was pending. 

The Relocation Proceedings 

¶15 A short time later, Nicole requested an expedited phone conference with the court, explaining that the company she worked for was requiring her to relocate to California. After a hearing, the commissioner recommended that “[t]he children . . . remain in Utah until the Court changes the Order regarding custody and parent time.” 

¶16 During the hearing, the commissioner further noted that “[c]onspicuously absent from Nicole’s argument [was] anything—from this Court’s perspective—showing she’s considering the child’s perspective.” In particular, the commissioner explained that 

Son has shared time with the older sibling going to Bryant’s home. Nicole has regularly and consistently allowed this child to exercise time with Bryant. In [November] of 2018, Nicole disagreed. And I agree, she does have the discretion to make decisions with regard to Son. From the child’s perspective, however, one child goes with Dad and the other doesn’t, because Bryant stepped on Nicole’s toes. She says, I’m establishing boundaries; you don’t get to see this child. That’s fine if this child is a car or a refrigerator. Son [is] a person who has Bryant’s surname, who has been exercising time—from what I can see—[a] full seven years. 

The commissioner further explained that “there’s been enough of a change, enough consistency for this younger child, that he has followed the older child, has the same surname [as Bryant], [Bryant’s] name’s on the birth certificate that has not been changed, to follow [Daughter’s parent-time] schedule.” 

¶17 Nicole did not object to the commissioner’s recommendation, and she hasn’t relocated in the meantime. 

The District Court’s Ruling on Bryant’s Petition to Modify 

¶18 A bench trial was held in November 2019 to settle the issues raised in Bryant’s petition to modify and Nicole’s request to relocate. The district court later entered an order titled “Amended Findings of Fact and Conclusions of Law on Petitioner’s Relocation Request,” which addressed both the relocation request and the broader issues regarding Bryant’s legal and physical custody. 

¶19 In its order, the court first concluded that the petition to modify was “appropriate in that there have been material changes in circumstances warranting modification of the parties’ Decree in the children’s best interests, which have not previously been adjudicated.” The court did not, however, more specifically identify what those “changes in circumstances” were. 

¶20 Second, the court concluded that Nicole had “failed to rebut the presumption of paternity that exists in this case.” In the court’s view, Nicole had not shown by a “preponderance of the evidence that it would be in the best interest of Son to disestablish the parent-child relationship that has been created and substantiated by both of the parties over many years.” The court then “enter[ed] an adjudication that Bryant is the father of Son” and modified the Decree to “impose as to Son parental obligations” on Bryant, “including the obligation to pay child support for Son.” 

¶21 Third, the court “award[ed] Bryant joint legal custody of Son on the same terms as the Decree provide[d] for Daughter.” 

¶22 And finally, the court ruled that Nicole was “free to relocate.” If she did, the court awarded Bryant parent-time with both children under the terms set forth in Utah Code section 303-37(6) (Supp. 2021). If Nicole stayed in Utah, however, the court awarded Bryant “parent time with Son on the same terms as was occurring with Daughter.” 

¶23 That same day, the court issued a separate “Order Modifying Decree of Divorce.” This order reiterated that Bryant is “adjudicated to be the legal father of both Daughter and Son,” that Bryant now bore “all parental obligations in accordance with Utah law,” including the “obligation to pay child support” for both children, and that Bryant had “joint legal custody of both children on the same terms set forth in the [original] Decree with respect to Daughter.” The court further repeated the parent-time schedule that was set forth in its ruling on the relocation request—i.e., it awarded Bryant parent-time with Son on the same terms that he had with Daughter. It then declared that, “[e]xcept as modified by this Order, the parties’ Decree remains in full force and effect.” 

ISSUES AND STANDARDS OF REVIEW 

¶24 Nicole challenges the district court’s decisions to give Bryant (1) legal custody of Son and (2) parent-time with Son. We review a district court’s decision to modify a divorce decree, as well as a court’s parent-time determination and custody award, for abuse of discretion. See Stephens v. Stephens, 2018 UT App 196, ¶¶ 20–21, 437 P.3d 445; MacDonald v. MacDonald, 2017 UT App 136, ¶ 7, 402 P.3d 178. 

¶25 As discussed below, we regard one portion of the ruling in question as a determination of custody in the first instance. “A district court’s award of custody is reviewed for abuse of discretion.” Taylor v. Elison, 2011 UT App 272, ¶ 8, 263 P.3d 448. As also discussed below, another portion of Nicole’s argument turns on whether the circumstances at issue can legally qualify as a change in circumstances. We review that decision for correctness. See Toone v. Toone, 952 P.2d 112, 114 (Utah Ct. App. 1998) (“[I]n this case, we are presented with a question of law regarding what constitutes a substantial change of circumstances, which is reviewed for correctness.”). 

ANALYSIS 

¶26 “While there are several tools that can generally be used to modify final judgments, one tool that is specific to family law cases is the petition to modify.” McFarland v. McFarland, 2021 UT App 58, ¶ 25, 493 P.3d 1146 (quotation simplified); see also Ross v. Ross, 2019 UT App 104, ¶ 11, 447 P.3d 104 (“[R]ule 106 establishes a general rule . . . that any changes to divorce decrees must be brought about by the filing of a petition to modify.”). “Parties in family law cases may use this tool, in accordance with applicable statutes and rules, to seek modification of various provisions of decrees.” McFarland, 2021 UT App 58, ¶ 25. 

¶27 “On the petition of one or both of the parents,” the governing statute allows a court to “modify or terminate an order that established joint legal custody or joint physical custody” if “the circumstances of the child or one or both parents . . . have materially and substantially changed since the entry of the order to be modified” and the modification “would be an improvement for and in the best interest of the child.” Utah Code Ann. § 30-3-10.4(1) (LexisNexis 2019). This is a “bifurcated procedure,” Hogge v. Hogge, 649 P.2d 51, 53 (Utah 1982), and Utah courts have consistently referred to it as a “two-step” process, Doyle v. Doyle, 2011 UT 42, ¶ 24, 258 P.3d 553. See also Becker v. Becker, 694 P.2d 608, 610–11 (Utah 1984). Notably, it’s also a sequential process, in that a court cannot “reopen[] the custody question until it has first made a threshold finding of substantially changed circumstances.” Doyle, 2011 UT 42, ¶ 25 (quotation simplified).14  

¶28 As explained above, the district court made a number of changes to the Decree, and Nicole now challenges two of them on appeal: the decision to award Bryant legal custody of Son and the decision to grant Bryant parent-time with Son. We address each in turn.

I. Legal Custody

¶29 Nicole first challenges the district court’s decision to award Bryant joint legal custody of Son. Nicole claims that, “[u]nder the decree, [she] had sole . . . legal custody of Son,” and she then argues that under the two-step process described above, the district court erred by granting legal custody to Bryant without first providing any “analysis regarding a change in circumstances.” In her view, “[t]he district court disregarded the custody . . . arrangements from the decree and awarded joint [legal] custody of Son as if the decree had never been entered.” 

¶30 Nicole’s argument, however, is based on a false premise— namely, that the Decree had awarded her sole legal custody of Son. But it hadn’t. The Decree had a separately enumerated “Legal Custody” subsection. That subsection stated that “[t]he parties shall have ‘joint legal custody’ of Daughter.” (Emphasis added.) This provision said nothing about Son, and no other provision in the Decree purported to establish whether Nicole had legal custody of Son (let alone sole legal custody), or instead whether Bryant did (or didn’t) have any form of legal custody of Son himself. Instead, on this, the Decree was silent.15  

¶31 But the court was legally required to make a legal custody determination for Son. The Utah Code states that courts “shall enter . . . an order of custody”—both legal and physical—when a “married couple’s marriage is declared void or dissolved.” Utah Code Ann. § 30-3-10(1) (2019) (emphasis added). The term “shall,” of course, has long been regarded as a command. See, e.g., Lay v. Lay, 2018 UT App 137, ¶ 12, 427 P.3d 1221.16  

¶32 The Decree’s silence impacts how we view Nicole’s arguments on appeal. Again, the Decree is silent about whether Bryant (or any other putative father) had legal custody of Son, and it likewise said nothing about whether Nicole (or any other mother) had legal custody of Son. So the question here is whether the court could correct this oversight without having to first determine that there had been a sufficient change in circumstances to warrant modification. 

¶33 We conclude that a change in circumstances was not required for the court to correct the Decree in this manner. As noted, the change-in-circumstances requirement is set forth in Utah Code section 30-3-10.4. This requirement “serves multiple interests.” Doyle, 2011 UT 42, ¶ 25. “First, because a custody decree is predicated on a particular set of facts, that decree is res judicata,” so “the changed-circumstances requirement prevents an unnecessary drain on judicial resources by repetitive litigation of the same issue when the result would not be altered.” Miller v. Miller, 2020 UT App 171, ¶ 17, 480 P.3d 341 (quotation simplified). “Second, the changed-circumstances requirement protects the custodial parent from harassment by repeated litigation.” Id. (quotation simplified). And third, “the requirement protects the child from ‘ping-pong’ custody awards,” id. (quotation simplified), thus emphasizing “the importance of a stable and secure homelife for children who are shifted from one parent figure to another” and ensuring that custody issues are not frivolously or infinitely “reopen[ed],” Hogge, 649 P.2d at 53–54 (quotation simplified). 

¶34 None of these concerns are implicated here. To the contrary, since the question of whether Bryant had legal custody of Son was unaddressed in the Decree, there was nothing for the court to “reopen” or change. Id. at 53. Thus, properly understood, Nicole isn’t really challenging a decision to modify a prior determination that Bryant should (or shouldn’t) have legal custody of Son. Rather, what Nicole is actually challenging is a decision that, in effect, decided legal custody in the first instance. Because of this, we conclude that no change in circumstances could reasonably be required. After all, if it were true that a court couldn’t correct an omission of a required determination without pointing to a change in circumstances, divorce decrees like this one would be left indeterminate about key issues such as who had legal custody of a child. And the effect of such omissions would be felt by both the children and the parents, all of whom would be left without the guidance and certainty that custody determinations are intended and required to provide. We decline to create, let alone endorse, such an approach. 

¶35 Our determination thus leaves the remaining question of whether the court exceeded its discretion when it awarded joint legal custody of Son to Bryant in the first instance. We conclude that it didn’t. 

¶36 “Under both the United States Constitution and the constitution of [Utah], a parent possesses a fundamental liberty interest in the care, custody, and management of the parent’s child.” Utah Code Ann. § 80-4-104(1) (Supp. 2021). Because of this, legal custody is linked to the fact of parentage. Our supreme court, for example, has held that a father has “legal custody of [his] [c]hild by virtue of his paternity,” In re adoption of B.B., 2017 UT 59, ¶ 81, 417 P.3d 1, and the same would of course be true for mothers by virtue of their maternity. Indeed, by statute, Utah law “presume[s] that a parent automatically enjoys legal custody” of his or her child, and this is so because of “the fundamental liberty interest of a parent concerning the care, custody, and management of the parent’s child.” Id. (quotation simplified). The legislature has also established “a rebuttable presumption that joint legal custody” “is in the best interest of the child.” Utah Code Ann. § 30-3-10(3) (2019). 

¶37 Here, Son was born during Nicole and Bryant’s marriage, so Bryant was legally “presumed to be” Son’s father. Id. § 78B15-204(1)(a) (2018). And while this presumption of paternity can be overcome, the district court concluded that it was not. Instead, in the same ruling at issue on appeal, the court declared Bryant to be Son’s legal father, and Nicole has not challenged that paternity decision on appeal. 

¶38 As also noted, however, Bryant’s now-established paternity of Son presumptively gave him joint legal custody of Son too, based in part on Bryant’s own constitutional interests in the care and raising of Son, who is his child. See In re adoption of B.B., 2017 UT 59, ¶ 81. In her arguments to us, the only reason that Nicole gives for overcoming this presumption is the fact that the initial Decree was silent about whether Bryant had legal custody of Son. But as we’ve explained, that omission was a legal error. And when the district court was alerted to that error, it appropriately fixed it. Once the court did, the result was that Bryant—who was present at Son’s birth, was listed on Son’s birth certificate, and has acted as Son’s father since birth—was now Son’s legal father, which meant that he was presumptively entitled to legal custody of Son too. 

¶39 In short, under these circumstances, no change in circumstances was required, and we see no abuse of discretion in the court awarding legal custody of Son to Bryant in the first instance.

II. Physical Custody

¶40 Nicole next challenges the district court’s decision to modify the Decree’s provisions regarding parent-time with Son. As set forth below, we first clarify (A) the nature of the modification, (B) the district court’s reasons for it, and (C) the standard of review applicable to Nicole’s particular challenge. We then hold that (D) the change in circumstance at issue can legally support a modification of custody. 

A. The Nature of the Modification

¶41 The Decree was silent about legal custody of Son, but it wasn’t silent about physical custody. Instead, it affirmatively gave Nicole “physical custody of both said minor children”—i.e., both Daughter and Son. And while the Decree then set forth a delineated parent-time schedule for Daughter, it left Bryant’s parent-time with Son to “Nicole’s sole discretion.” 

¶42 In the ruling at issue, the district court modified this. The court removed Nicole’s “sole discretion” over parent-time for Son and set forth two alternative parent-time schedules. If Nicole remained in Utah, Bryant would have parent-time with Son “on the same terms as was occurring with Daughter.” If she moved to California, however, Bryant would have one weekend per month with both children as well as additional time with them during the summer. See Utah Code Ann. § 30-3-37(6) (2019). 

¶43 Although this ruling was couched in terms of parent-time, the parties have both suggested in their briefing that this amounted to a modification of physical custody of Son. We agree. 

¶44 Physical custody and parent-time “are conceptually distinct.” Ross, 2019 UT App 104, ¶ 14 n.3. “Physical custody has long been understood to involve much more than actual possession and care of a child,” instead implicating the right and “legal responsibility to provide supervision and control” of a child. Hansen v. Hansen, 2012 UT 9, ¶ 15, 270 P.3d 531. By contrast, the term “parent-time” more narrowly refers to the amount of time that a parent is entitled to spend with the child. See generally Utah Code Ann. §§ 30-3-34 to -36 (2019 & Supp. 2021) (setting forth minimum, optional, and equal parent-time schedules as well as parent-time considerations for special circumstances). 

¶45 That said, the terms are intertwined because, “[b]y statutory definition, there are two kinds of physical custody— sole physical custody and joint physical custody,” and “the dividing line” between the two is largely “based on the number of overnight visits enjoyed by each parent.” McFarland, 2021 UT App 58, ¶ 36. When a child “stays with each” of his or her “parent[s] overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support,” each of the parents has joint physical custody of the child. Utah Code Ann. § 30-3-10.1(3)(a) (2019). But when a child stays with one parent overnight for less than 30% of the year, the parent who has over 70% of the overnights is considered to have sole physical custody of the child. See id.; Utah Code Ann. § 78B-12-102(15) (Supp. 2021); McFarland, 2021 UT App 58, ¶ 36. 

¶46 Here, the Decree did not specifically determine whether Nicole had “sole” or “joint” physical custody of either of the children. But at least with regard to Son, the Decree effectively awarded Nicole sole physical custody because it gave her “sole discretion” whether Son would spend any parent-time with Bryant at all. And, critically for this appeal, the Decree also awarded Bryant what amounted to joint physical custody of Daughter. After all, the dividing line is 30% of the overnights, and 30% of the 365 days in a year is roughly 110. In the proceedings below, the commissioner reviewed the Decree and determined that the parent-time schedule gave Bryant more “than the 110 overnights,” which accordingly meant that Bryant had “joint physical custody” of Daughter. Thus, when the district court later equalized Bryant’s parent-time with Son to match the parent-time he had with Daughter, it in effect modified the Decree to give Bryant joint physical custody of Son too.17  

B. The Basis for the District Court’s Change-in-Circumstance

Determination 

¶47 As noted, the district court determined that “there have been material changes in circumstances warranting modification of the parties’ Decree in the children’s best interests, which have not previously been adjudicated.” But the court did not specifically delineate what those changes were. Because of this, Nicole initially asks us to reverse the modification based on the court’s failure to provide any “analysis as to why a custody modification was justified” under the required change-in-circumstances test. 

¶48 We acknowledge that the district court’s ruling on this could have been more clear. But even so, “a trial court’s failure to make explicit findings supporting its decision does not, alone, warrant reversal so long as the basis for the trial court’s ruling is readily apparent from the record.” In re A.S., 2014 UT App 226, ¶ 7, 336 P.3d 582; cf. State v. Pecht, 2002 UT 41, ¶ 34, 48 P.3d 931 (explaining that “where the record as a whole sufficiently” indicates the basis for the court’s ruling, “an absence of written findings will not invalidate the trial court’s conclusions”). 

¶49 Here, the court expressly concluded that there had been a change in circumstances, so the court was plainly cognizant of the requirement and believed that it had been met. And from our review of the record, we believe that the basis for the court’s determination is sufficiently apparent. In its ruling regarding the temporary orders, the court temporarily “modif[ied] the stipulation to reflect what the parties themselves were actually doing regarding parent time.” The court surmised that “reducing the visitation the parties themselves were doing” might “be harmful to the child” and that “visitation is helpful and beneficial to the child, especially since both children will be doing visitation together and parents have the right of visitation with their children.” It thus ordered Nicole to give Bryant “the same parent-time with Son, consistent with Bryant’s parent time with Daughter,” while Bryant’s petition to modify was pending. This initial decision demonstrated two key things: (1) the court intended to equalize Bryant’s parent-time with Daughter and Son, and (2) it more specifically intended to prevent Nicole from “reducing” Bryant’s parent-time with Son. 

¶50 The court’s ruling on Nicole’s relocation request (which, again, accompanied the modification ruling) was consistent with these goals. There, the court ruled that Bryant should be declared Son’s father—a determination that, again, Nicole has not challenged on appeal. Notably, in doing so, the court expressed its intention to not allow Nicole to “disestablish the parent child relationship” between Bryant and Son “that has been created and substantiated by both of the parties over many years.” 

¶51 Together, these orders reflect the court’s intention to formally recognize and now protect Bryant’s relationship with Son. From all this, we believe it is “readily apparent from the record,” In re A.S., 2014 UT App 226, ¶ 7, that the change in circumstances found by the court to support modification included: (i) the changes in Bryant’s relationship with Son (namely, the three years of additional parent-time bonding, as well as Bryant’s new status as Son’s legally recognized father), and (ii) Nicole’s recent attempts to cut off Bryant’s access to Son. 

C. Standard of Review

¶52 Nicole next argues that Bryant’s further-developed relationship with Son and her decision to cut off parent-time between the two could not legally qualify as a change in circumstances under the custody modification statute. As noted in the Standard of Review section above, supra ¶ 25, we regard this as a legal question that is reviewed for correctness. In light of our past caselaw, this warrants some explanation. 

¶53 This court has previously held that a district court’s “determination regarding whether a substantial change of circumstances has occurred is presumptively valid, and our review is therefore limited to considering whether the [district] court abused its discretion.” Nave-Free v. Free, 2019 UT App 83, ¶ 8, 444 P.3d 3 (quotation simplified); accord Christensen v. Christensen, 2017 UT App 120, ¶ 10, 400 P.3d 1219; Doyle v. Doyle, 2009 UT App 306, ¶ 7, 221 P.3d 888, aff’d, 2011 UT 42, 258 P.3d 553. We reaffirm our adherence to this general rule here. 

¶54 On occasion, however, we have held that the abuse-of-discretion standard applies to a district court’s “ultimate determination regarding the presence or absence of a substantial change in circumstances.” Peeples v. Peeples, 2019 UT App 207, ¶ 11, 456 P.3d 1159 (emphasis added); accord Harper v. Harper, 2021 UT App 5, ¶ 11, 480 P.3d 1097. But when we have been presented with an argument that didn’t challenge the court’s “ultimate determination” of whether certain facts constituted a material and substantial change in circumstances, but instead contended that particular facts or developments simply couldn’t be legally considered as part of the court’s analysis, we have treated those questions as questions of law for which we give the district court’s ruling no appellate deference. 

¶55 Our decision in Toone v. Toone, 952 P.2d 112 (Utah Ct. App. 1998), is illustrative. There, after a divorce had been finalized, federal laws regarding military pensions changed; and if those new laws were applied to the parties’ divorce, they would have allowed the ex-wife a larger share of her ex-husband’s military pension. See id. at 113–14. The ex-wife accordingly filed a petition to modify, asserting that the change in laws amounted to a change in circumstances that justified modification of the divorce decree. Id. We disagreed. See id. at 114. Notably, while reaffirming the rule that a district court’s “modification determination” is reviewed “for an abuse of discretion,” we regarded the particular question before us as being “a question of law regarding what constitutes a substantial change of circumstances, which is reviewed for correctness.” Id. 

¶56 Another case proceeded similarly. In Davis v. Davis, 2011 UT App 311, ¶ 6, 263 P.3d 520, we construed a party’s argument that certain events “could not be used as evidence” in the change-in-circumstances analysis as a legal question that we reviewed for correctness. 

¶57 This distinction, though perhaps subtle, is important, and it accords with how standards of review operate. The “primary function of a standard of review is to apportion power and, consequently, responsibility between trial and appellate courts for determining an issue.” State v. Levin, 2006 UT 50, ¶ 19, 144 P.3d 1096 (quotation simplified). In this sense, the standard of review determination “allocate[s] discretion between the trial and appellate courts” based on an assessment of “the relative capabilities of each level of the court system.” Id. (quotation simplified). 

¶58 Again, the statute in question here requires a court to determine whether there was a material and substantial change in circumstances. See Utah Code Ann. § 30-3-10.4(2)(b)(i) (2019). The evaluation of whether a particular change was material or substantial enough calls for a weighing of facts and circumstances. District courts are in a better position than we are to do such weighing, which is why those ultimate determinations receive discretionary deference. But if a party instead makes a threshold argument that a particular kind of fact or development can’t legally be used in the weighing at all, that argument essentially asks us to establish the permissible boundaries of the district court’s discretionary decision-making authority. Such a question is legal in nature, which is why that aspect of the ruling is reviewed for correctness. 

¶59 In her opening brief, Nicole argues that the change in circumstances identified by the district court “is not the sort of ‘change’ that justifies modification under Utah law.” (Emphasis added.) In her reply brief, Nicole similarly asserts that the district court “did not find[] changed circumstances that qualify under Utah law.” (Emphasis added.) She accordingly asks us to review the district court’s decision for correctness, rather than an abuse of discretion. So viewed, we don’t understand Nicole to be challenging the court’s weighing of the permissible facts. Rather, we understand Nicole to be making a legal argument about whether the court could even consider the change in relationship between Son and Bryant in the intervening years and Nicole’s subsequent, unilateral decision to cut off their parent-time as a material change in circumstances. Because her argument is legal in nature, we review this aspect of the ruling for correctness. 

D. The Change in Circumstances

¶60 Properly understood, the question, then, is whether the change in circumstances identified above can legally qualify as a change in circumstances under Utah law. We conclude that it can.18  

¶61 As noted, the statute requires a determination that “a material and substantial change in circumstance has occurred.” Utah Code Ann. § 30-3-10.4(2)(b)(i) (2019). A chief “goal” of this required determination is to give children “some measure of certainty and stability” after their parents or guardians have separated. In re E.H., 2006 UT 36, ¶ 2, 137 P.3d 809. Indeed, the supreme court has suggested that children are “entitled” to “permanence and stability” moving forward. Id. ¶ 16. 

¶62 For good reason. The “emotional, intellectual, and moral development of a child depends upon a reasonable degree of stability in the child’s relationships to important people and to its environment.” Elmer v. Elmer, 776 P.2d 599, 602 (Utah 1989). Both the supreme court and this court have recognized that stability is paramount with respect to “custody arrangements.” Hogge, 649 P.2d at 54; see also Kramer v. Kramer, 738 P.2d 624, 626 (Utah 1987) (recognizing that “stable custody arrangements are of critical importance to the child’s proper development”); Taylor v. Elison, 2011 UT App 272, ¶ 22, 263 P.3d 448 (recognizing the “general policy of maintaining custodial stability to the extent it is reasonable and wise to do so while [a child’s] parents seek to resolve their differences” and that “it is generally in the best interests of the child to remain with his or her existing custodial parent”). 

¶63 This stability interest is one of the driving forces behind the change-in-circumstances requirement, which “provide[s] stability to children by protecting them from ‘ping-pong’ custody awards.” Chaparro v. Torero, 2018 UT App 181, ¶ 39, 436 P.3d 339 (quotation simplified). “Absent such a requirement, a decree of divorce would be subject to ad infinitum appellate review and readjustment.” Foulger v. Foulger, 626 P.2d 412, 414 (Utah 1981). Thus, the understood “rationale” for this requirement is “that custody placements, once made, should be as stable as possible unless the factual basis for them has completely changed.” Kramer, 738 P.2d at 627 (quotation simplified). 

¶64 But this leads to the problem that the district court was confronted with here. Again, the parent-child relationship between Bryant and Son had existed since birth, had solidified in the several-year period after the divorce, and had just now been officially recognized as a matter of law. Despite this, Nicole had recently invoked her authority under the Decree to cut off Bryant’s access to Son entirely, thus amounting to something akin to complete custodial interference. 

¶65 The legislature, however, has recognized that “each divorcing, separating, or adjudicated parent is entitled to . . . frequent, meaningful, and continuing access with the parent’s child consistent with the child’s best interest,” Utah Code Ann. § 30-3-32(2)(b)(ii) (Supp. 2021) (emphases added), and that, absent evidence of abuse or harm to the child, “it is in the best interests of the child to have both parents actively involved in parenting the child,” id. § 30-3-32(2)(b)(iii) (emphasis added). True, such relationships can be altered or even severed by operation of law. But here, the Decree was the product of a stipulation, not a court determination, and no court has ever determined that it was not in the best interests of Son to have a relationship with Bryant. 

¶66 Given that Bryant has now been adjudicated to be Son’s father, we believe that the court could legally conclude that this change, coupled with Nicole’s concomitant attempt to undermine their ability to have any relationship at all, warranted a modification of the Decree to protect the father-son relationship moving forward. 

¶67 Nicole, however, resists this conclusion. She argues that her decision “to allow (or not allow) parent-time” is not “the type of change in circumstances that justifies modification under Utah law.” We disagree. 

¶68 As a starting point, we note that Nicole’s argument has no support in the controlling statutory text. Section 30-3-10.4(2)(b)(i) requires a court to find that “a material and substantial change of circumstance has occurred.” There is nothing in the text of this statute that creates the limit suggested by Nicole—i.e., the statute doesn’t prevent a district court from concluding that a custodial parent’s efforts to cut off a years-developed relationship between a child and the noncustodial parent qualifies as such a change. 

¶69 Nicole nevertheless points to two cases that, in her view, support her proposed limitation. But we don’t find either case to require a different result here. 

¶70 First, Nicole relies on a passage from Doyle in which the supreme court “adopted a general rule” under which “the asserted change” in circumstances must be related to the “parenting ability or the functioning of the presently existing custodial relationship,” rather than the “parenting of the noncustodial parent.” 2011 UT 42, ¶ 41 (quotation simplified). 

¶71 But while Doyle referred to this as a “general rule,” it never said it was an “exclusive” one. Indeed, in the very next sentence, Doyle recognized “an exception to the general rule” that was based on a prior Utah case. Id. Doyle itself thus shows that this “general rule” is subject to judicially recognized exceptions. 

¶72 Moreover, section 30-3-10.4(1)(a) itself provides that, in a petition to modify, the petition or affidavit must “allege[] that admissible evidence will show that the circumstances of the child or one or both parents . . . have materially and substantially changed since the entry of the order to be modified.” (Emphasis added.) By allowing a modification to be based on a change in the circumstances of “the child or one or both parents,” the legislature directly contemplated that a change in circumstances of any of the parties—the child or either parent—can provide the basis for a modification. So while Doyle’s statement provides some guidance, we do not understand it to be an inviolable limitation of the sort proposed by Nicole. 

¶73 Second, Nicole claims that in Crouse v. Crouse, 817 P.2d 836 (Utah Ct. App. 1991), we adopted a rule under which a noncustodial parent’s strengthened relationship with a child cannot qualify as a change in circumstances for purposes of a subsequent modification request. We disagree with Nicole’s interpretation of Crouse. 

¶74 In Crouse, the mother had been given primary physical custody of the children after the divorce, but she had then allowed the children to “spen[d] almost equal time” with their father in the ensuing years. Id. at 837. Based in part on this allowance of extra time, the father later requested a modification of the decree to give him “primary physical custody” over the children. Id. The district court denied his modification request, and we affirmed that decision. Id. at 837, 840. 

¶75 Nicole points to a passage from our affirmance in which we recognized that the “fact that Mrs. Crouse has been generous in sharing physical custody with Mr. Crouse is not a ground to change physical custody; if anything, it supports leaving primary physical custody with Mrs. Crouse, as it shows that she has lived up to the responsibilities of a custodial parent.” Id. at 839. 

¶76 In contrast to Nicole, however, we don’t read this passage as having determined that, as a matter of law, a district court cannot consider such facts in its analysis. It’s significant that we were affirming the district court’s denial of a petition to modify in Crouse. It’s also significant that the same section of the opinion began with a reminder that a “trial court’s decision concerning modification of a divorce decree will not be disturbed absent an abuse of discretion,” id. at 838, and that we then referred to the court’s “discretion” three more times in that section, id. at 838– 39. Thus, properly understood, Crouse was not establishing rules about the facts that a court could legally consider. Rather, Crouse was giving deference to the district court’s determination that the facts before it were not enough to satisfy the requisite standard. 

¶77 Moreover, we also note that the district court’s use of its discretion in Crouse was consistent with the understood purpose behind the change-in-circumstances requirement. The mother there had originally been awarded primary physical custody, and after she let the children “spen[d] almost equal time” with their father over a period of a few years, the father asked the court to grant him “primary physical custody” as a result. Id. at 837. In this sense, the father’s request, if granted, would have created instability in the children’s lives by changing their primary caregiver. 

¶78 The opposite is true here. Again, Bryant had acted as Son’s father since birth. After Nicole then allowed Son to continue developing this relationship with Bryant over the course of several post-divorce years, Nicole changed her mind and decided to cut off their relationship, thus essentially leaving Son fatherless. Put simply, the effect of our decision here is consistent with Crouse, not inconsistent with it. There, we affirmed a district court decision that preserved stability in the children’s lives. And here, we’re likewise affirming a district court decision that preserved stability in the affected child’s life. 

¶79 In sum, the statute does not impose the limitation proposed by Nicole, and we think that doing so ourselves would be inconsistent with Utah caselaw, the importance of parent-child relationships, the protections given to those relationships by constitution and statute alike, and the modification statute’s recognized goal of promoting stability in children’s lives. We therefore conclude that a district court can legally determine that a unilateral attempt by a custodial parent to sever a child’s years-developed relationship with his or her noncustodial parent can constitute a substantial and material change in circumstances, thereby allowing the court to proceed to the best interests step of the modification analysis. We accordingly affirm the district court’s conclusion that a change in circumstances occurred here. 

¶80 Having done so, we add two cautionary notes to this decision. First, Nicole suggests that a ruling like this one will essentially penalize a custodial parent for being generous with the noncustodial parent’s ability to exercise parent-time. We’re sensitive to this concern. But again, a district court can’t proceed to the best-interests step of the analysis based on just any change in circumstances. Rather, the court must first determine that the change is “material and substantial.” Utah Code Ann. § 30-3-10.4(2)(b)(i). Whether a particular increase or decrease in parent-time is enough to qualify will be circumstance-dependent, and we have no need to more specifically cabin the district courts’ discretionary authority here. But in light of Nicole’s concern, we do note that the change in question in this case was from something akin to 30% of the time to 0%. We’re simply holding that a court can regard such a dramatic alteration of the existing parent-child relationship to be a material and substantial change in circumstances. 

¶81 Second, we again note that, even when a district court concludes that a change in circumstances has occurred, this does not mean that the court must modify the decree. Again, this is a two-step analysis, and under the second step, a court can only modify a decree if it finds that the modification “would be an improvement for and in the best interest of the child.” Id. § 30-3-10.4(2)(b)(ii). Thus, even in a circumstance like this one, a district court could still determine that modification is not appropriate if it concludes that the proposed modification would not be in the best interests of the child. 

¶82 In this sense, our decision today does not restrict the district courts’ options. Rather, it keeps them open. We simply hold that, in a case like this one, a district court can determine that a material and substantial change in circumstances has occurred—not that it must, and not that it must then make any particular ruling regarding the best interests of the child.19  

CONCLUSION 

¶83 For the foregoing reasons, we affirm the district court’s decision to give Bryant joint legal and physical custody of [decision ends here inexplicably]. 

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

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The way UT courts conduct custody evaluations nowadays is indefensible

The way courts in Utah conduct custody evaluations nowadays is indefensible.

  • There is nothing in UCJA rule 4-903 (the rule governing custody evaluations) that requires a custody evaluation to consist of little more than educated guesses. Yet the custody evaluation process in Utah currently consists of ordering the custody evaluator: 
    • to compare the actually implemented, so-called [1] “temporary” child custody and parent-time schedule against the other parent’s proposed schedule without ever having the other parent’s proposed schedule implemented too (if ever there were an example of an apples to oranges comparison, this is it); and then
    • make a recommendation as to what custody and parent-time schedule “is in the child’s best interest”. 
  • Otherwise stated, though rule 4-903 does not require that one and only one temporary custody and parent time schedule be imposed upon parents and children throughout the duration of the pendente lite/discovery phase of a pending child custody dispute, that’s how must custody evaluations are not just performed, but required by the court to be performed without exception. 
  • Custody evaluations 
    • needlessly cost thousands of dollars and often exceed $10,000; 
    • are supposed to take approximately four months to complete (and could easily be completed in four months or even less), but are never completed in anything close to that amount of time or less.  
    • Have a probative value that is, for the most part, not merely nil, but of negative probative value because they are more often than not incompetently conducted. 
  • It is hard to imagine: 
    • a worse, less probative way to conduct a custody evaluation than to require that one and only one temporary custody and parent time schedule be imposed throughout the duration of a custody evaluation; and 
    • a better, more probative way to conduct a custody evaluation than to implement and compare and analyze the parents’ respective competing child custody and parent time schedule proposals what ultimate custody and parent time schedule best serves the best interest of the child. 
  • Implementing, during the pendente lite/discovery phase of the case could, in many (likely most) cases eliminate any need for a custody evaluation, but even in cases where a custody evaluation is deemed necessary, the custody evaluator, parents, and child would only benefit from comparing and analyzing the parents’ respective child custody and parent time schedule proposals in real time for the purpose of obtaining actual, verifiable proof as to what ultimate custody and parent time schedule best serves the best interest of the child.

Implementing, testing, comparing, and analyzing the parents’ respective competing custody and parent time plans during the pendente lite/discovery phase of the case would not take any more time than already permitted under the rules of discovery and procedure. 

Parents could avoid the expense of time and money entailed by a custody evaluation by using the pendente lite/discovery period to examine and test the parties’ opposing proposed custody and parent-time awards. Why would anyone try to prevent obtaining any such evidence on the subject of child custody and parent-time? The answer is clear enough: the less evidence there is, the better for the party who benefits from the dearth of evidence. Usually, that’s the parent who is made—by judicial fiat issued following a proffer hearing—the custodial parent under the so-called “temporary custody order”.[1] That parent wants to ensure that the other parent has as little custodial and parent time awarded to (let’s call him “him”) him as possible. Given that the so-called “temporary order” so often awards one parent sole or primary physical custody of the parties’ child, that “temporary” custodial parent has everything to lose 1) if a joint physical custody schedule is ever implemented and tested during the custody evaluation and shown to be as good as or better than the statutory minimum; and 2) if a custody evaluator recommends a joint physical custody award. 

If neither 1) the parties’ competing proposed child custody and parent- time awards are implemented nor 2) a custody evaluation is conducted during the pendente lite/discovery phase of this case for the purpose of gathering evidence bearing upon the child custody and parent time award, then inertia favors the so-called “temporary” custodial parent.  

Yet nothing about testing competing proposed custody schedules and/or performing a custody evaluation prevents either parent from presenting any admissible evidence he/she could and would present in the absence of a custody evaluation. Parents who oppose testing competing proposed child custody and parent-time awards do so for one reason alone: to ensure the court has as little compelling real-world, reliable, probative evidence available to it as possible on the issue of child custody and parent time.[2] 

Trying and testing and comparing competing child custody award proposals are the best and least expensive means whereby the parties can gather factually verifiable evidence of the parties’ competing custody and parent time award proposals actually implemented. Leaving the question of what child custody and parent time schedule actually works to the guesswork of a custody evaluator (who, when a conventional child custody evaluation order is issued, is left to “compare” the implementation of sole custody schedule to nothing else, and then on that basis determine whether joint equal custody will work without actually seeing joint equal custody ever implemented for any evidentially adequate period of time) is patently absurd.   

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MacFarland v. MacFarland – 2021 UT App 58

021 UT App 58 

THE UTAH COURT OF APPEALS 

BRUCE RAY MCFARLAND, Appellant and Cross-appellee, 
v. 
NICOLE S. MCFARLAND, Appellee and Cross-appellant. 

Opinion 

No. 20190541-CA 
Filed June 4, 2021 

Second District Court, Farmington Department 

The Honorable David J. Williams 

No. 084701533 

Jacob K. Cowdin and A. Douglas Anderson, Attorneys for Appellant and Cross-appellee 

Angilee K. Dakic and Ryan C. Gregerson Attorneys for Appellee and Cross-appellant 

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N. MORTENSEN concurred. 

HARRIS, Judge: 

¶1 Bruce Ray McFarland (Bruce) and Nicole S. McFarland (Nicole)1 divorced in 2009 pursuant to a stipulated divorce decree, but soon thereafter began to ignore many of the decree’s important provisions. However, neither party brought any matter to the attention of the district court for some eight years, until Bruce filed a petition to modify in 2017, and Nicole followed up with a request that the court hold Bruce in contempt. Both parties now appeal the court’s ruling on those requests and, for the reasons discussed herein, we affirm in part, reverse in part, and remand for further proceedings. 

BACKGROUND 
The Divorce Decree 

¶2 In 2008, after almost sixteen years of marriage, Bruce and Nicole separated, and Bruce filed a petition for divorce. Soon thereafter, the parties negotiated a resolution to the divorce proceedings, and filed papers memorializing their agreement. In February 2009, the court entered a decree of divorce (the Decree) that incorporated the parties’ stipulated agreement. With regard to alimony and the house in which they lived while they were married (the Home), the parties’ agreement was straightforward: Bruce was ordered to pay $1,700 per month in alimony to Nicole, beginning in November 2008 and continuing until Nicole “remarries, cohabits, dies, for a term equal to their marriage, or further order of the Court,” and Nicole was awarded the Home, including the obligation to make the mortgage payments. 

¶3 But the parties’ agreement regarding custody and child support was unusual. Bruce was to have overnight custody of the parties’ four children every week from Sunday evening until Friday morning, with the parties each enjoying weekend overnight custody on an alternating basis. During the modification proceedings at issue here, Nicole acknowledged that the arrangement entitled her to fewer than 30% of the overnights; indeed, the district court found that this arrangement resulted in Bruce having “24 overnights per month with the children,” leaving Nicole with just six, and neither party takes issue with that finding. But despite the fact that Bruce was awarded more than 70% of the overnights, see Utah Code Ann. § 30-3-10.1(2)(a) (LexisNexis 2009) (defining “joint physical custody” as any arrangement in which “the child stays with each parent overnight for more than 30% of the year”), the parties labeled their arrangement “joint . . . physical custody,” perhaps because the arrangement contemplated that Nicole would pick the children up from school every day and care for them until eight o’clock p.m., at which point Bruce was to retrieve the children so that they could “stay with him overnight.” 

¶4 With regard to child support, the parties agreed to calculate the amount using the sole custody worksheet, even though they labeled their arrangement as joint custody, and agreed that Bruce—and not Nicole, notwithstanding the fact that Bruce had the lion’s share of the overnights—would be considered the “Obligor Parent” on the worksheet. Using these parameters, the parties agreed that Bruce would pay Nicole monthly child support equating to one-half of what the worksheet said Bruce would owe if he were the Obligor Parent, an amount the parties computed to be $739.73 per month at the time the Decree was entered, when all four children were still minors.2  

Post-Divorce Events and Conduct 

¶5 Soon after the court entered the Decree, both parties began to ignore many of its provisions. For instance, Nicole made no mortgage payments on the Home. And Bruce made only one alimony payment (in January 2009) and three child support payments (in December 2008, and January and February 2009), but after that made no payments of either kind. 

¶6 In addition, with Nicole’s permission, Bruce moved back into the Home in April 2009. After that point, although Bruce made no payments denominated as alimony or child support, he did resume paying the mortgage on the Home, a payment that happened to be $1,728 per month, only slightly more than Bruce’s alimony obligation. When Bruce first moved back in, he and Nicole lived separately for a time, but beginning in September 2009, and lasting until April 2010, Bruce and Nicole resumed cohabiting as a couple, which included sharing familial expenses and reinitiating sexual relations. It is not a matter of dispute in this case that, during that seven-month period, the parties were cohabiting, as that term is used in relevant statutes and case law. See Myers v. Myers, 2011 UT 65, ¶ 17, 266 P.3d 806 (identifying the “hallmarks of cohabitation, including participation in a relatively permanent sexual relationship akin to that generally existing between husband and wife and the sharing of the financial obligations surrounding the maintenance of the household” (quotation simplified)); see generally Utah Code Ann. § 30-3-5(10) (LexisNexis 2017) (stating that alimony “terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person”). 

¶7 In April 2010, Nicole enlisted in the military, and left Utah for basic training. Over the next seven years, Bruce resided in the Home with the children, and provided all necessary childcare and financial support, including making the monthly mortgage payments on the Home. Nicole served two tours of duty overseas with the military, and visited the children or took them on vacation periodically while on leave. But other than these short visits, Nicole exercised no custody or parent-time, and provided no significant financial support to the children. Eventually, in 2015, Nicole remarried. 

¶8 For the seven years following Nicole’s enlistment, both parties seemed content with their arrangement and, even though both were materially violating the terms of the Decree, neither filed so much as a single document with the court. In particular, neither party sought to modify the terms of the Decree, and neither party sought contempt sanctions against the other. 

The Post-Divorce Filings 

¶9 The parties’ tacit arrangement came to an end in 2017 when Bruce sought to refinance the Home. Because Nicole had been awarded the Home in the Decree, Bruce asked Nicole to deed him the Home to facilitate the refinance. Nicole refused to authorize the refinance unless Bruce paid her half the equity, asserting that she owned the Home and that any mortgage payments made by Bruce constituted “either rent or alimony payments” that he owed her. Then, in June 2017, Bruce filed a petition to modify, followed by a motion for temporary orders in February 2018, bringing three separate provisions of the Decree to the court’s attention. First, Bruce requested that alimony be terminated, dating back to 2009. Second, Bruce asked the court to modify the Decree to award him sole physical and legal custody of the two remaining minor children, and asked that he be awarded child support payments from Nicole going forward. And finally, Bruce asked the court to modify the Decree to award him the Home, alleging that he assumed the mortgage to avoid foreclosure because Nicole had “abandoned the property when she joined the military.” While the petition and motion for temporary orders were pending, Bruce completed a refinance of the Home, apparently finding a way to close the transaction without Nicole’s authorization. 

¶10 Nicole responded by filing two orders to show cause, asking the court to hold Bruce in contempt in three respects: 

(1) for failing to make alimony payments; (2) for failing to make child support payments; and (3) for occupying the Home and for refinancing it without her authorization. Nicole asked the court to enter judgment in her favor for alimony and child support arrears, as well as for “the amount that [Bruce] cashed out when he refinanced” the Home, and asked the court to order that she obtain immediate “use and possession” of the Home. 

¶11 After a hearing, a domestic relations commissioner certified a number of issues as ripe for an evidentiary hearing before the district court, including the following: (1) whether Bruce should be held in contempt for failing to pay alimony and, if so, the amount of arrears at issue; (2) whether Bruce should be held in contempt for failing to pay child support and, if so, the amount of arrears at issue; (3) whether Bruce should be held in contempt for refinancing the Home without Nicole’s consent; and (4) whether Bruce should be held in contempt for occupying and refusing to vacate the Home. All of the issues certified by the commissioner were framed as contempt or temporary order issues; the commissioner apparently did not envision that the hearing would be a final dispositive hearing on Bruce’s petition to modify. 

¶12 In anticipation of the evidentiary hearing before the district court, both parties filed papers outlining their positions. Citing section 30-3-5(10) of the then-applicable Utah Code, Bruce argued that he did not owe any alimony arrears because his obligation to pay alimony terminated in 2009 due to “the cohabitation relationship” that the two established when they moved back into the Home together. Citing Scott v. Scott, 2017 UT 66, ¶¶ 10, 26–27, 26 n.7, 423 P.3d 1275, Nicole argued in response that, under the applicable statute as interpreted by our supreme court, a party attempting to terminate alimony for cohabitation must file a motion or petition “during [the] alleged co-habitation.” 

¶13 Regarding child support, Bruce asserted that he should not be required to pay Nicole for any point after 2009, because the children had been almost entirely in his care since then. In particular, Bruce argued for the applicability of section 78B-12108 of the Utah Code, which provides that child support payments generally “follow the child,” and that changes in child support obligations can, under certain circumstances, occur “without the need to modify” the governing decree. See Utah Code Ann. § 78B-12-108(1), (2) (LexisNexis 2017). Bruce’s arguments in the pretrial briefing were entirely defensive—that is, he asserted that he should not be required to make child support payments to Nicole after 2009, but at no point did he assert an entitlement to child support arrears from Nicole regarding any time period prior to the filing of his petition to modify. 

The Hearing and Subsequent Ruling 

¶14 At the ensuing evidentiary hearing, the court heard live testimony from Bruce, Nicole, Bruce’s father, and the parties’ adult daughter. At the conclusion of the evidence, the court took the matter under advisement, and asked the parties to submit written closing arguments in the form of post-trial briefs. 

¶15 In her closing brief, Nicole attempted to rebut Bruce’s cohabitation claim with two arguments. First, Nicole asserted that the governing statute, as interpreted in Scott, required Bruce to have requested termination of alimony during the period of cohabitation. Second, Nicole argued that, even if Bruce’s request was timely, no cohabitation occurred because Bruce, the payor spouse, did not qualify as “another person” within the meaning of the governing statute. See Utah Code Ann§ 30-3-5(10) (LexisNexis 2017) (stating that alimony terminates if “the former spouse is cohabitating with another person”). For his part, while he attempted to rebut all of Nicole’s claims, Bruce again made no affirmative claim to child support arrears running in his direction. 

¶16 A few weeks later, the court issued a written ruling. With regard to alimony, the court found Bruce in contempt for failing to make payments. First, the court concluded that the mortgage payments Bruce made were just that—mortgage payments on a house Bruce lived in—and could not be considered alimony, and it found that Bruce had not paid any alimony since 2009. Second, the court determined that, even if all of the hallmarks of cohabitation were present between September 2009 and April 2010, cohabitation had not occurred because “‘cohabitation’ does not include meeting the elements of cohabitation with the ex-spouse.” Accordingly, the court concluded that Bruce’s alimony obligation had not terminated in 2009 when the parties moved back in together, and that Bruce was in contempt for not paying alimony between 2009 and Nicole’s remarriage in 2015. Based on those findings, the court computed the alimony arrearage amount to be “$150,744.50 plus post-judgment interest,” and ordered Bruce to pay that amount. 

¶17 With regard to child support, the court found that Bruce was not in contempt. The court accepted Bruce’s argument that, pursuant to section 78B-12-108 of the Utah Code, the child support obligation was to follow the children, and concluded that, pursuant to subsection (2) of that statute, which the court found applicable, Bruce was relieved of his child support obligation dating back to 2009, even though he did not file a petition to modify until 2017. In addition, the court offered its view that, even if section 78B-12-108 were inapplicable, “it would not be equitable to require” Bruce to pay child support to Nicole for time periods in which he cared for the children. On those bases, the court determined that Bruce had no obligation to pay child support to Nicole after 2009. But the court did “not find that [Nicole] was required to pay child support payments to [Bruce] after leaving for military service,” noting that, in its view, Bruce had not made any such affirmative claim, and instead had raised only defensive claims regarding any obligations he might have to Nicole. 

¶18 With regard to the Home, the court declined to find Bruce in contempt for not vacating the Home, refusing to quitclaim it to Nicole, or refinancing it. However, the court made no ruling on altering the Decree’s provision that originally awarded the Home to Nicole, stating simply that Bruce “shall be allowed, on a temporary basis, to remain” in the Home “until the matter is brought forth and certified” by the commissioner as ripe for an evidentiary hearing. 

ISSUES AND STANDARDS OF REVIEW 

¶19  Both parties appeal the district court’s ruling, raising two main issues for our review. First, Bruce challenges the court’s determination that his alimony obligation was not terminated by cohabitation. In advancing this argument, Bruce relies entirely on Utah’s alimony statute, and asserts that the court’s interpretation of that statute was incorrect. See Utah Code Ann. § 30-3-5(10) (LexisNexis 2017) (stating that a payor spouse’s obligation “terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person”).3 “The proper interpretation and application of a statute is a question of law which we review for correctness . . . .” Veysey v. Veysey, 2014 UT App 264, ¶ 7, 339 P.3d 131 (quotation simplified). 

¶20 Next, both parties challenge the court’s child support rulings. Nicole takes issue with the court’s determination that Bruce did not owe her child support payments, pursuant to the terms of the Decree, after 2009. And Bruce asserts that the court erred by declining to order Nicole to pay child support arrears to him. Because the parties’ arguments center on interpretation and application of section 78B-12-108 of the Utah Code (Section 108), we review the district court’s decision for correctness. See Veysey, 2014 UT App 264, ¶ 7.4 

ANALYSIS 
I. Alimony 

¶21 We first address Bruce’s claim that his alimony obligation terminated by operation of statute when the parties cohabited in 2009 and 2010. Because Bruce’s position is directly foreclosed by our supreme court’s decision in Scott v. Scott, 2017 UT 66, 423 P.3d 1275, we reject his challenge to the district court’s ruling. 

¶22 At all relevant times during the events precipitating this appeal, Utah’s alimony statute provided that alimony obligations “to a former spouse terminate[] upon establishment by the party paying alimony that the former spouse is cohabitating with another person.” Utah Code Ann. § 30-3-5(10) (LexisNexis 2017) (emphasis added).5 In Scott, our supreme court was asked to interpret the same version of this statute. See 2017 UT 66, ¶ 3. After noting the statute’s use of present tense language—“is cohabitating”—the court interpreted the statute as requiring “the paying spouse to establish that the former spouse is cohabiting at the time the paying spouse files the motion to terminate alimony.” See id. ¶¶ 23, 33. While the Scott opinion was not published until 2017, the statutory language the court was interpreting in that case had been in effect at all times relevant to this case. See supra note 5. That is, Scott did not introduce a new rule that was effective only prospectively; rather, it provided an interpretation of statutory text that had already been in effect for several years. See DIRECTV, Inc. v. Imburgia, 577 U.S. 47, 56 (2015) (“[J]udicial construction of a statute ordinarily applies retroactively.”); see also Rivers v. Roadway Express, Inc., 511 U.S. 298, 311–12 (1994) (stating that “the principle that statutes operate only prospectively, while judicial decisions operate retrospectively, is familiar to every law student” (quotation simplified)). 

¶23 Under the circumstances presented in this case, any cohabitation between Bruce and Nicole ceased sometime in early 2010. But Bruce did not file his petition to modify until 2017. It is therefore undisputed that the cohabitation to which Bruce points had long since ceased by the time he filed his petition to modify. Thus, under the statute then in effect (as interpreted by Scott), that petition was filed some seven years too late. Accordingly, Bruce cannot now complain that his alimony obligation should be terminated, by operation of statute, due to the parties’ long-since-concluded cohabitation. Bruce has therefore not carried his burden of demonstrating error in the district court’s ruling that Bruce’s alimony obligation lasted until Nicole’s 2015 remarriage,6 or in the court’s rulings holding Bruce in contempt for failing to pay alimony from 2009 through 2015 and ordering him to pay past-due alimony.7 

  1. Child Support

¶24 Next, we address the parties’ respective challenges to the district court’s child support rulings. As noted, Nicole takes issue with the court’s ruling that Bruce’s child support obligations to her, as set forth in the Decree, ended in 2009, and that therefore Bruce could not be held in contempt for not meeting those obligations. Building on that same ruling, Bruce takes issue with the court’s reluctance to go a step further and order Nicole to pay him child support arrearages dating to 2009. We begin our analysis by discussing some of the broad overarching principles governing modification of child support orders, including a discussion of Section 108 in particular. We then address the parties’ respective challenges, in turn, beginning with Nicole’s. 

A 

¶25 In general, decrees in domestic relations cases are binding final judgments that may be modified “only under certain conditions.” Kielkowski v. Kielkowski, 2015 UT App 59, ¶ 21, 346 P.3d 690; see also Robertson v. Stevens, 2020 UT App 29, ¶¶ 6–7, 461 P.3d 323 (explaining that once “judgment is entered” in a divorce case, “the court’s power to modify the judgment is limited” (quotation simplified)). While there are several tools that can generally be used to modify final judgments, see, e.g., Utah R. Civ. P. 60(b), one tool that is specific to family law cases is the petition to modify, see id. R. 106(a) (stating that, in most cases, “proceedings to modify a divorce decree . . . shall be commenced by filing a petition to modify”); see also Ross v. Ross, 2019 UT App 104, ¶ 11, 447 P.3d 104 (“[R]ule 106 establishes a general rule . . . that any changes to divorce decrees must be brought about by the filing of a petition to modify.”). Parties in family law cases may use this tool, in accordance with applicable statutes and rules, to seek modification of various provisions of decrees, including child support provisions. See Utah Code Ann. § 78B-12-210(9)(a) (LexisNexis 2017) (“A parent . . . may at any time petition the court to adjust the amount of a child support order if there has been a substantial change in circumstances.”); see also id. § 30-3-5(3) (“The court has continuing jurisdiction to make subsequent changes or new orders for the custody of a child and the child’s support, maintenance, health, and dental care, and for distribution of the property and obligations for debts as is reasonable and necessary.”); id. § 30-3-5(8)(i)(i) (“The court has continuing jurisdiction to make substantive changes and new orders regarding alimony based on a substantial material change in circumstances . . . .”). 

¶26 But in general, modifications to a decree’s provisions regarding child support payments may date back only to “the month following service” of the petition to modify “on the parent whose support is affected.” See id. § 78B-12-112(4); see also McPherson v. McPherson, 2011 UT App 382, ¶ 17, 265 P.3d 839 (stating that “the statute does limit the time period during which retroactive modification is available”). That is, as concerns child support provisions, parties are generally barred from obtaining modifications that date back further than the first day of the month after the month in which the petition to modify was served on the opposing party. 

¶27 One potential exception to this general rule appears in Section 108, a statutory provision entitled “Support Follows the Child.” See Utah Code Ann. § 78B-12-108 (LexisNexis 2017). That section, in relevant part, reads as follows: 

 Obligations ordered for child support and medical expenses are for the use and benefit of the child and shall follow the child. 

 Except in cases of joint physical custody and split custody as defined in Section 78B-12-102, when physical custody changes from that assumed in the original order, the parent without physical custody of a child shall be required to pay the amount of support determined in accordance with [calculation guidelines found in other code sections] without the need to modify the order for . . . the parent who has physical custody of the child. 

Id. (emphasis added). Thus, Section 108 contains an overarching mandate that child support payments “shall follow the child,” and provides that, under certain limited circumstances, child support obligations can change “without the need to modify” the child support provisions in the governing decree. Id.see also Hansen v. Hansen, 2012 UT 9, ¶ 13, 270 P.3d 531 (stating that, under certain circumstances, Section 108 “allows redirection of child support [payments] without modification of the support order”). In this way, Section 108 constitutes an exception to the general rule that modifications to child support provisions may date back only to the month following service of the petition to modify on the opposing party: where Section 108 applies, it may allow modification of child support awards even further back in time. 

¶28 But this exception comes with distinct statutory limits. Indeed, our supreme court has noted that Section 108 “contains two provisions: (1) a general statement that support shall follow the child and (2) a specific provision providing guidelines for redirection of child support to a new physical custodian.” Hansen, 2012 UT 9, ¶ 7. And the court has already foreclosed any argument that subsection (1)’s general statement—that child support “shall follow the child”—operates by itself “to redirect support payments any time anyone provides any shelter or sustenance to a child.” See id. ¶ 10. Instead, the specific requirements of subsection (2) operate to “modif[y] the general statement in subsection (1),” and those specific requirements serve as the prerequisites for entitlement to a retroactive change in child support that dates back further than the date of a duly served petition to modify. See id. ¶ 11. 

¶29 Under the provisions of subsection (2), a litigant can obtain a change in a child support provision even “without the need to modify the order” itself, but only if two conditions are met: (a) there must be a change in “physical custody . . . from that assumed in the original order,” and (b) the case must not be one involving “joint physical custody.” See Utah Code Ann. § 78B-12-108(2). 

B 

¶30 Bruce asserts that Section 108 applies here, and allows him to obtain retroactive modification, dating all the way back to 2009, of the Decree’s child support provisions, even though he did not seek modification of either the custody provisions or the child support provisions until 2017. The district court agreed with Bruce’s interpretation of Section 108, and determined that Bruce was not in contempt for failure to pay Nicole child support between 2009 and 2017 because he had been caring for the children during that time and because child support should “follow the children.” (Citing Utah Code Ann. § 78B-12-108.) 

¶31 Nicole challenges the court’s interpretation of Section 108. We agree with Nicole because, for two independent reasons, Section 108 is inapplicable here. First, this is not a case in which physical custody ever legally changed “from that assumed in the original order.” See Utah Code Ann. § 78B-12-108(2) (LexisNexis 2017). And second, even assuming that some sort of de facto change of parent-time occurred in 2010 when Nicole joined the military, that change did not constitute a change in physical custody under the operative definition of that term. See id. §§ 30-3-10.1(3)(a), 78B-12-102(15) (each defining “joint physical custody” for its respective chapter). 

1 

¶32 In order for Section 108’s exception to apply, the situation must involve a change in “physical custody . . . from that assumed in the original order.” See id. § 78B-12-108(2). The term “physical custody,” as used in this statute, is a “legal term of art” that “involve[s] much more than actual possession and care of a child.” See Hansen, 2012 UT 9, ¶¶ 12, 15, 19. “A physical custodian also has a legal responsibility to provide supervision and control.” Id. ¶ 15 (emphasis added). 

¶33 Given this definition, a change in “physical custody” cannot occur without some sort of “formal legal process[].” Id. ¶¶ 19, 24. In most cases, this occurs by court order following the filing of a petition to modify. See id. ¶¶ 21, 25. In other “rare circumstances,” this can occur “by statute without the need for a hearing or court order.” Id. ¶ 25. But in any event, 

child support should be redirected only to those persons or entities who acquire the rights and responsibilities of the child’s new “physical custodian” under the law. Usually that will happen only after adjudication and a formal order, but in all cases it requires fulfillment of the statutory procedures and standards for a change in physical custody. The actual provision of sustenance and support is insufficient. 

Id. 

¶34 In this case, no one disputes that Bruce assumed all responsibility for “sustenance and support” of the children after April 2010. See id. But in this context, provision of additional sustenance and support to the children beyond that anticipated in the Decree is not enough to effectuate an actual, legal change in physical custody. See id. Bruce took no steps—at least not until 2017—to follow the “formal legal processes” typically used to effectuate an actual change of physical custody. See id. ¶ 24. And Bruce makes no argument that this case presents any “rare circumstances” in which custody can change by operation of statute, even in the absence of a petition to modify. See id. 

¶35 Thus, no change in “physical custody”—in an actual legal sense, as required by the “term of art” definition of the statutory phrase, see id. ¶ 12 (quotation simplified)—occurred in April 2010, or at any time prior to the filing of Bruce’s petition to modify. Because physical custody did not change, Section 108’s narrow exception to the usual retroactivity rules governing modification of child support orders does not apply here, and therefore it does not enable Bruce to seek changes to the Decree’s child support obligations dating any further back than 2017. 

2 

¶36 Moreover, even if we were to assume, for purposes of argument, that a change in “physical custody” could theoretically be effectuated merely by a parent’s provision of additional sustenance and support beyond that required by the governing child support order, no such change occurred on the facts of this case. We have previously stated that “[c]ustody and parent-time are conceptually distinct.” See Ross v. Ross, 2019 UT App 104, ¶ 14 n.3, 447 P.3d 104. By statutory definition, there are two kinds of physical custody—sole physical custody and joint physical custody—with the dividing line based on the number of overnight visits enjoyed by each parent. See Utah Code Ann. §§ 30-3-10.1(3)(a), 78B-12-102(15) (both stating that “joint physical custody means the child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support” (quotation simplified)). Because either parent, in any given case, could be awarded sole physical custody— defined as having at least 70% of the overnights—there are three possible physical custody arrangements: (a) Parent 1 has sole custody; (b) Parent 2 has sole custody; and (c) the parents share joint custody. When a change occurs that causes one parent to obtain enough additional overnights to move from one category to another (e.g., from 25% of overnights to 35%, or from 65% to 75%), there has been a change in physical custodySee Ross, 2019 UT App 104, ¶¶ 16–17, 17 n.5. But when a change occurs in which one parent obtains a few additional overnights but not enough to move from one category to another, the change constitutes only a change in parent-time, and not a change in physical custody, as that term is statutorily definedSee id. ¶ 16 (noting that, in relocation cases, a parent need not file a petition to modify if scheduling changes necessitated by the proposed relocation would not change the statutory custody designation, and would change only parent-time). 

¶37 In this case, the parties started out with an arrangement, under the Decree, in which Bruce had twenty-four overnights each month and Nicole had only six. Although the parties described that arrangement, in the Decree, as a joint custody arrangement, the label the parties assigned to the arrangement is inconsequentialSee Stephens v. Stephens, 2018 UT App 196, ¶ 29, 437 P.3d 445 (stating that the “designation of ‘joint physical custody’ or ‘sole physical custody’” used in a decree “is not as important as whether the custody arrangement [actually] exceeds the statutory threshold for joint physical custody” (quotation simplified)). And here, despite the parties’ label, their arrangement was actually a sole custody arrangementSee Utah Code Ann. § 78B-12-102(15). As noted, the district court made a specific (and unchallenged) finding on this point, and correctly concluded that, because the Decree awarded Nicole only “approximately 20% of the overnights,” it described a sole custody arrangement. 

¶38 Thus, the more recent arrangement, following Nicole’s departure into the military, did not result in a change of custody. After Nicole left, Bruce went from about 80% of the overnights to nearly 100% of the overnights. Thus, Bruce had sole physical custody of the children under the original arrangement, and he maintained sole physical custody of the children after Nicole left. See id. In this situation, while Nicole’s departure did result in practical (if not official) changes to the parties’ division of parent-time, it did not effectuate any change in physical custody, under the statutory definition of that term. 

¶39 Section 108 applies only in instances where “physical custody changes.” See id. § 78B-12-108(2). For both of the reasons just discussed, no change in physical custody occurred here, and therefore Section 108 cannot provide Bruce an escape from the usual rule that modifications to a domestic decree’s child support provisions cannot date back any further than the month following service of the petition to modify. See id. § 78B-12112(4). We therefore sustain Nicole’s challenge to the district court’s interpretation of the relevant statutes. 

3 

¶40 The district court’s ruling also included an alternative basis for declining Nicole’s request that Bruce pay child support arrearages. Specifically, the court stated as follows: 

Finally, and regardless [of] whether [Section 108] applies here, it would not be equitable to require [Bruce] to pay child support arrearages to [Nicole] in this case. Even if that statute does not apply directly, subsection (1) is instructive of the legislature’s intent that child support “is for the use and benefit of the children.” . . . It would not be equitable to acknowledge that [Bruce] was the sole provider after moving back into the [Home] and especially after [Nicole] entered the military, acknowledge that [Nicole] provided very little, if any, support to the children since that time, but nonetheless require [Bruce] to pay the alleged child support arrearages requested by [Nicole]. 

¶41 We do not necessarily disagree with the court’s sentiment (although we note that, in a big-picture sense at least, there are equities on the other side of the equation too: we can see wisdom in a bright-line rule requiring parties to file petitions to modify child support provisions, and in limiting parties’ ability to obtain changes to decrees that date back any further than the month following service of the relevant petition to modify). Looking just at the facts of this case, there does seem to be something intuitively inequitable about requiring Bruce to pay child support arrearages to Nicole. And we acknowledge that district courts are often given wide discretion to apply equitable principles in family law cases. See Harmon v. Harmon, 491 P.2d 231, 232 (Utah 1971) (“In order to carry out the important responsibility of safeguarding the interests and welfare of children, it has always been deemed that the courts have broad equitable powers.”). 

¶42 But our legislature has enacted a number of statutes that govern certain aspects of family law cases, and we are aware of no principle of law that allows courts to override statutes, in particular cases, simply out of generalized equitable concerns. See Martin v. Kristensen, 2021 UT 17, ¶ 53 (stating that courts have “no equitable power to override” statutory mandates due to generalized concerns of “public policy and equity”). At a minimum, the district court has not adequately explained how its equitable concerns, in this situation, allow it to supersede statutory mandates or interpretations of those statutes by our supreme court. For instance, the district court’s reliance on subsection (1) of Section 108 as being “instructive of the legislature’s intent” that child support obligations shall “follow the child[ren]” appears misplaced, given our supreme court’s explanation, in Hansen v. Hansen, that “[s]ubsection (1)’s general directive cannot possibly be interpreted unqualifiedly . . . to redirect support payments any time anyone provides any shelter or sustenance to a child,” and that subsection (1) is “modifie[d]” by the “specific limitation[s]” found in subsection (2). See 2012 UT 9, ¶¶ 10–11, 270 P.3d 531. And as we have noted, supra ¶¶ 30–39, the prerequisites of subsection (2) are not satisfied here. Apart from the language in subsection (1), the court does not otherwise explain how generalized equitable considerations, no matter how weighty, can justify modification of a child support order back beyond the month following service of the petition to modify, given our legislature’s clear directive that such orders may be modified “only from the date of service of the pleading on the obligee.” See Utah Code Ann. § 78B-12112(4). 

¶43 We observe that there may well be specific doctrines of equity or discretion that could apply in this situation to temper Nicole’s requests. Nicole presented her request in the context of an order to show cause seeking contempt, a legal doctrine that has its own elements and requirements, see Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988) (setting forth the required showing for a contempt finding), in which courts are afforded discretion in selecting an appropriate sanction once contempt is found, see Utah Code Ann. § 78B-6-310(1) (LexisNexis 2018) (stating that, “[i]f the court finds the person is guilty of the contempt, the court may impose a fine” or other punishment (emphasis added)); id. § 78B-6-311(1) (stating that a court “may order” the contemnor to pay the aggrieved party “a sum of money sufficient to indemnify and satisfy the aggrieved party’s costs and expenses” (emphasis added)). Alternatively, various equitable doctrines may apply in situations like this, depending on the circumstances. See, e.g.Soter’s, Inc. v. Deseret Fed. Sav. & Loan Ass’n, 857 P.2d 935, 939–40 (Utah 1993) (discussing the doctrine of waiver and its elements); Veysey v. Veysey, 2014 UT App 264, ¶ 16, 339 P.3d 131 (discussing the doctrine of laches and its elements); Bahr v. Imus, 2009 UT App 155, ¶ 6, 211 P.3d 987 (discussing the doctrine of equitable estoppel and its elements). We express no opinion as to the applicability of any such doctrine to the facts of this case. But the district court did not ground its child support ruling—that Bruce should not be required to make child support payments—in its post-contempt sentencing discretion or in any specific equitable doctrine; instead, as we interpret its order, it concluded that, due to unspecified equitable considerations, Bruce should be relieved from any obligation to make payments in the first place. In our view, the court has not adequately explained how equitable considerations can override statutory commands in this case. 

¶44 Accordingly, we reverse the district court’s determination that Bruce was not “required to pay child support payments to [Nicole] after [Nicole left] for military service,” and we remand the matter for further proceedings on Nicole’s request that Bruce be held in contempt for failing to make child support payments. 

C 

¶45 Finally, given our conclusion regarding Nicole’s challenge to the district court’s child support ruling, we can readily dispose of Bruce’s challenge to that same ruling. As an initial matter, we agree with the district court’s conclusion that Bruce made no affirmative claim, before the district court, to any child support arrears dating back further than the service of his petition to modify. On that basis alone, the district court was justified in not awarding him any. But more substantively, for the reasons already explained, we find no merit in Bruce’s argument that Section 108 operates to allow him to look all the way back to 2009 for modification of the Decree’s child support provisions. 

CONCLUSION 

¶46 The district court correctly determined that Bruce’s alimony obligation was not terminated—at least not under the alimony statute—by the parties’ cohabitation in 2009 and 2010, because the statute required Bruce to file a petition seeking termination while the cohabitation was still occurring, and he did not do so. Accordingly, the district court did not err by holding Bruce in contempt for failing to pay alimony after 2009, and in ordering Bruce to pay past-due alimony through 2015, and we affirm those orders. 

¶47 However, the district court erred in its interpretation of Section 108, and erred in concluding that Section 108 operated to relieve Bruce of his obligation, under the Decree, to continue to pay Nicole child support after 2010. In this case, neither Section 108, nor generalized equitable concerns, operates to relieve Bruce of that obligation, and neither allows Bruce to obtain a modification of his child support obligations dating back any further than the month following service of his petition to modify. Accordingly, we reverse the district court’s determination to the contrary, and remand the case for further proceedings, consistent with this opinion, on Nicole’s request for contempt relating to child support and on Bruce’s petition to modify. 

 

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

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Can I legally stop talking to my dad if he has custody (I live with my mom full time, but he’s still legally my parent as well)?

This is a good question because it deals with an issue that the law either has not addressed or cannot effectively address. 

First, is there any legally permissible and practicable way to force a child to talk with a parent? I don’t see how a parent whose child refuses to speak to him/her could compel that child through the legal process to speak with or otherwise communicate with that parent. Now, of course, if a parent and his/her lawyer wanted to get really creative about this problem, I can imagine that the parent and lawyer might dream up some kind of civil lawsuit against the child for the negligent or intentional infliction of emotional distress or some other such nonsense, but in the end, I don’t see how one could use the legal system to compel a child to speak with or communicate with a parent if that child refuses to do so. 

This does not mean, however, that a parent is powerless in dealing with a recalcitrant child. While a parent cannot neglect or physically or emotionally abuse a child in an effort to compel the child to speak with or otherwise communicate with that parent, there’s certainly nothing wrong with taking legal and reasonable disciplinary action against the child. Grounding, privilege restrictions and removal, even corporal punishment (yes, it’s legal in many jurisdictions) are options available to a parent, and they may work. For a parent to stride every other option, these are measures a parent can try and they may be worth trying under appropriate circumstances. 

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

https://www.quora.com/Can-I-legally-stop-talking-to-my-dad-if-he-has-custody-I-live-with-my-mom-full-time-but-he-s-still-legally-my-parent-as-well/answer/Eric-Johnson-311  

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What is being a single parent without joint custody like in your country?

If a loving, able parent (i.e., a fit parent who lives in close enough proximity to the child(ren)’s other parent such that joint legal and physical custody does not work a genuine hardship on the children) would like nothing more than to be as involved in the rearing of his/her children as the other parent is denied that opportunity, then being a single parent who has not been awarded joint equal custody of his/her child(ren) is inexcusably, unjustifiably sad. Period. This is an absolutely true statement that is not subject to any qualification.

Clearly, if one of the parents abuses and/or neglect the child, if that parent does not care for that child in the temporal or emotional sense, then that is a parent who is clearly not worthy of a joint equal physical custody award, and that is a child who doesn’t deserve to be in the care and custody of such a parent half the time, perhaps none of the time.

But it is tragically absurd to deny a child the benefits of—nay, the right to—being reared equally by two equally fit and loving parents.

If you are a fit and loving parent who wants to be as much a parent to your children as you want the other parent to be, and if you believe the court endorses your position, odds are you are incorrect, if you and your children reside in the United States of America (and I’m sure this is true for most jurisdictions as well, although I have no experience in other jurisdictions and base my opinion upon the reading I do about other jurisdictions on the subject of child custody awards).

While it is true that joint equal custody is being awarded more than ever, it is still extraordinarily difficult for parents to get in most states. If anyone tells you otherwise, take his or her comments with a grain of salt. Don’t let your hopes for joint equal custody lull you into a sense of complacency.

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

https://www.quora.com/What-is-being-a-single-parent-without-joint-custody-like-in-your-country/answer/Eric-Johnson-311?prompt_topic_bio=1

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I have custody of my child. He’s refusing to come home. What now?

I have custody of my child. He left to go to his mom’s last Friday for the weekend. He is refusing to come home because he wants to live there. What happens now?

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

And that answer is: realistically speaking, probably nothing.

As a divorce and family law attorney, I have been on both sides of this issue, meaning I’ve represented the parent with custody of the child who won’t come back, and I’ve also represented the noncustodial parent to whose house the child has “fled” and won’t leave.

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

Briefly, if the children are old enough that they cannot be physically controlled by a parent and forced into a car from the noncustodial parents house back to the custodial parent’s house, then the courts are usually not going to intervene. This means that a court will, in fairness and realistically, tell the parents that pragmatically there’s really nothing that they ought to do to enforce the child custody order if the child himself or herself is old enough to put up a fight and/or call the police and/or DCFS and report you for child abuse if you try to force them into the car to go back to the custodial parent’s house. Besides, the child who is old enough to put up a fight is also likely old enough to run away from the noncustodial parents home if anyone tries to force him or her to reside with a parent with whom the child doesn’t want to live.

And so, you get in a situation where the child is disobeying the court’s custody order, but most courts either don’t have the cats to hold the child in contempt of court or don’t feel it is appropriate to sanction a child who won’t comply with the court’s child custody orders. Yet these same courts will also often refuse to modify the child custody award because they don’t want to acknowledge that children, of all people, have the de facto power to defy court orders with impunity.

Next, you need to be aware of the possibility that your custodial parent ex will try to blame you for your child refusing to return to the custodial parent’s home, regardless of whether that is true. Many times, a perfectly innocent noncustodial parent will tell his or her acts and the court, “Look, I’ve told the child what the court order is and that both our and I are expected to comply. But the child refuses to comply anyway. Now what you want me to do? Kick the child out and lock the door behind him?” Some courts sympathize with that predicament, others don’t buy it. Which means it is entirely possible that you would be held in contempt of court for doing absolutely nothing wrong, if the court believes you enticed or coheirs the child to say he or she wants to stay with you. So you need to keep that in mind.

So if you are a noncustodial parent of a child who refuses to reside with the court ordered custodial parent, then you must ask yourself a few questions:

First, if the child refusing to live with the custodial parent because the child is a spoiled brat who has no legitimate reason for refusing to live with the custodial parent? If the answer is yes, then you as the noncustodial parent have both a legal and moral obligation to talk the child into going back to the custodial parent’s home, or if persuasion doesn’t work, imposing limitations and restrictions and punishments upon the child so that the child won’t get the impression that he or she is in charge.

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

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

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

https://www.quora.com/I-have-custody-of-my-child-He-left-to-go-to-his-moms-last-Friday-for-the-weekend-He-is-refusing-to-come-home-because-he-wants-to-live-there-What-happens-now/answer/Eric-Johnson-311?prompt_topic_bio=1

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

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

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

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

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

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

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

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

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

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

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

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

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How can a mother leave the father of her baby and get full custody, when she does not trust him to look after the baby by himself?

How can a mother leave the father of her baby and get full custody, when she does not trust him to look after the baby by himself? The mother (or any parent in such a situation) would need to prove, by a preponderance of evidence, to the court that the father (or other parent) is sufficiently unfit to be entrusted with the child. Simply telling the court “I don’t trust the other parent” is not enough, not even close to enough to persuade the court.

The mother would need to provide the court independently verifiable facts that show the father is either unable or unwilling to provide adequate care and attention and supervision of the child. A court cannot award a parent sole legal and/or sole physical custody of a child without first finding there is sufficient evidence to justify such an award (or at least cannot do its job properly without first finding there is sufficient evidence to justify such an award).

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

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How can I choose which of my parents gets custody of me?

How can I choose which of my parents gets custody of me?

In Utah, a child can’t choose. At least not anymore. Under current Utah law, children do not get to choose which parent will be awarded custody or what kind of custody or parent-time schedule the parents and child will follow. This is the law currently:

Utah Code §30-3-10(5):

(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 of age 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.

This was not always the case, however.

Up until 1969, the law in Utah was 180 degrees different. The Utah Code formerly provided (and I’m not kidding):

‘When a decree of divorce is made the court may make such orders in relation to the children, property and parties, and the maintenance of the parties and children, as may be equitable; provided, that if any of the children have attained the age of ten years and are of sound mind, such children shall have the privilege of selecting the parent to which they will attach themselves. Such subsequent changes or new orders may be made by the court with respect to the disposal of the children or the distribution of property as shall be reasonable and proper.’ (Utah Code Section 40-3-5).

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

https://www.quora.com/How-can-I-choose-which-of-my-parents-gets-custody-of-me/answer/Eric-Johnson-311?prompt_topic_bio=1

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What does it take to get the court to award custody to the father?

What does it take to get the court to award custody to the father?

Either:

A) a miracle

or

B) the mother has to be so clearly an unfit parent that the court cannot both i) award her custody and ii) be taken seriously.

Now first, I exaggerate, but only a bit.

While fathers are being increasingly (albeit slowly) treated more fairly in child custody awards, there is an obvious bias against awarding fathers sole, much less joint, physical custody of children. Culturally, the courts (and society at large) has been duped into believing that mothers “make better parents.” Courts frequently cite to the fact that the mother was “the primary caregiver” as a reason for awarding custody solely or primarily to mothers. That might actually be a valid argument if a child is a nursing infant dependent upon a parent for 24/7 care. Yet even when the children are in school and Mom now has a job, the “mom was the primary caregiver” argument is often made. That’s silly and grossly unfair to fathers and children alike. That’s like saying Kareem Abdul Jabar should be paid tens of millions of dollars to play in the NBA again because he was such a great player before he turned 73 years old.

Second, no parent—whether father or mother—should seek sole legal or physical custody of children if both parents are at least minimally fit and their geographic proximity, job schedules, and other such material factors enable them to exercise joint physical and legal custody of the the children. The children love both of their parents and want to spend as much time as possible with each of them. Unless joint physical custody is a practicable impossibility, the “best parent” is both parents.

“We cannot expect men to be active, engaged fathers when they have been told since birth that they are the lesser parent, that they should defer to the mothers, and that once they no longer live in the same home as their children, they are relegated to a visitor and a paycheck.”

Emma Johnson

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

https://www.quora.com/What-does-it-take-to-get-the-court-to-award-custody-to-the-father/answer/Eric-Johnson-311

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Do I have a chance in divorce court without a lawyer? Do I really need one?

A chance? Sure. You have a chance. And you have a chance of winning the lottery, just not a very good chance of it.

You may not want to read the rest of my answer because I am a lawyer, so you can’t be faulted if you were to believe that my answer derives from self-interest. For what my assurances are worth, however, I assure you it does not. I am not only a lawyer but I have been a client of a lawyer as well. So here it is, it’s all you need to know, and you can confirm it’s true without having to take it on faith:

  • If people could regularly succeed in child custody battles in court without the assistance of an attorney, then people would not utilize the services of attorneys.

Otherwise stated: people do not regularly succeed in child custody battles in court without the assistance of an attorney. Frankly, even with the assistance of attorney people can often fail, but they usually fail far more often and more spectacularly.

I know that no one ever wants to hire an attorney. Very few people hire attorneys because they want one. The overwhelming majority of people who hire attorneys do so because they need one[1].

Here are some other facts that you may find helpful:

  • the legal system is a mess
  • if you are to have any real hope of succeeding with in this mess of a system, you need the guidance of someone with intimate knowledge of how the sausage is made;
  • it is not enough to know the rules, the law, and the lingo of the legal system; even if you were to read all the laws and all the rules that govern the legal system (and you can’t do that without quitting your job and spending all your weekends on the project), you would not understand them;
    • even if you did remember and understand all the laws and rules this would not help you function well within the legal system because:
      • the legal system does not follow its own rules fully and consistently;
      • the legal system is not wholly welcoming to or tolerant of those who are not lawyers

Attorneys may thus be necessary for many, many wrong reasons, but necessary nonetheless.

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

———————

[1] and when you need one, please get a good one. The first and very best thing you can do is get a good attorney. ‘Sounds too simple, I know, but it’s the truth and simply the best advice there is. What is a “good attorney”?: one who is honorable, honest, reasonable, skilled, nobody’s fool, industrious, provides value for the money, and courageous. Not all divorce lawyers are these things, but a some who embody all of these traits do exist. Find one of them. It won’t be easy or quick (or cheap), but it’s worth the time, the effort, and yes, the money too.

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How many states favor mothers in child custody proceedings?

How many states favor giving the child to its mother in a custody hearing?

You’re asking a good question, but it’s not the question you think you’re asking.

The question is not whether a particular “state” favors awarding custody of children to mothers over fathers, but whether particular judges favor awarding custody of children to mothers over fathers.

First, we need to understand a few things about the way the law governing the award of child custody has evolved.

I am not aware of any state in the United States with a law that expressly discriminates against men for child custody purposes; if any such law existed, it would likely be challenged and easily struck down as sexually discriminatory and thus unconstitutional. There may still be a few states with laws on the books that surreptitiously favor mothers over fathers. By employing language and stating tests and elements that favor to women and mothers over men and fathers without overt references to men or women, such laws still manage to discriminate in favor of mothers over fathers without appearing to be indulging in blatant sexual discrimination. A good example of this in my jurisdiction (Utah) is favoring the “primary caregiver” of the child. Many judges simply presume that a child’s primary caregiver is its mother, particularly when the child is an infant or very young, even if there is insufficient evidence or even no evidence to support such a presumption.

And that’s a good segue into the next topic of this discussion. When it comes to child custody, laws are usually not your biggest impediment to a fair child custody award. While it is true that in the past there were child custody laws that were blatantly and grossly discriminatory against men and fathers, those laws are disappearing fast (thank goodness). Now the problem lies primarily not in the law but in those who administer the law: the judges.

Many of the current/outgoing generation of judges came from nuclear families (i.e., a family consisting of a married mother and father of their children) in which the mother seldom worked outside the home, if at all. In families like these, it was clear that the mother usually did, in the majority of divorce cases involving such families, the majority of the child care taking. Reasonable arguments could be made in these circumstances for why the mother would be awarded primary physical custody of the couple’s children. Many of these judges have so many cultural biases in favor of awarding custody of children to mothers that they are incapable of even conceiving of the idea of a father being awarded primary custody or even having both parents share physical custody of their children equally. Not all of the current generation of judges are this way, but many are.

But the new/incoming generation of judges are as likely to be children of divorce as to have come from a traditional nuclear family, and many of the current generation of judges also have children who have divorced. These judges remember how awful it felt to be limited to time with their fathers on alternating weekends and holidays. These judges see their own adult divorce children no longer treated as co-equal parents and instead being marginalized as “visitors” of their own children. Many of these judges are far more sympathetic to men and fathers than the previous generation of judges are and have been. Not all of the new generation of judges are this way, but many are, and their ranks are growing.

So if you have a judge who is over the age of 60 years, and you are a fit and loving father who wants to be as involved in your children’s lives as you want their mother to be, odds are you have an uphill battle before you. If it becomes clear that your judge is culturally biased and/or discriminates on the basis of sex, you need to expose this on the record, and you need to acquire and present so much evidence showing your parental fitness and that the best interest of the children benefit from joint custody that it leaves the judge no other rational, justifiable choice but to award you (and the kids) joint custody. It can be done, but it’s extraordinarily difficult these days, so be prepared to work very hard (yes, even unfairly hard) for it.

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

https://www.quora.com/How-many-states-favor-giving-the-child-to-its-mother-in-a-custody-hearing/answer/Eric-Johnson-311

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