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A.W. v. Marelli – 2024 UT App 8 – infliction of emotional distress

A.W. v. Marelli – 2024 UT App 8

THE UTAH COURT OF APPEALS

A.W., Appellant, v.  MILLIE MARELLI, Appellee.

Opinion

No. 20220207-CA

Filed January 19, 2024

Third District Court, Salt Lake Department

The Honorable Andrew H. Stone

No. 190902075

Michael W. Young, Alan S. Mouritsen, and

Adam Bondy, Attorneys for Appellant

Emily Adams, Freyja Johnson,

Hannah K. Leavitt-Howell, and James I. Watts,

Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which

JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1 AW[1] alleges that when, as a teenager, she accused her stepfather of sexual abuse, her mother, Millie Marelli, maintained the abuse did not occur and told AW to never speak of it again. But speak of it AW did—to her biological father, who reported the abuse to authorities. Ultimately, AW was removed from Marelli’s home, and not long thereafter she cut off all contact with Marelli. When Marelli allegedly persisted over a number of years in making unwelcome contact, AW sued Marelli, claiming negligent and intentional infliction of emotional distress as well as negligent sexual abuse. Marelli moved for summary judgment on all claims, which the district court granted on the basis that AW failed to establish the required quantum of proof on each claim. AW appeals, and we affirm.

BACKGROUND[2]

¶2        AW alleges that in late 2008 or early 2009—when she was twelve years old—her stepfather (Stepfather) sexually abused her. When Marelli was hospitalized for several days while undergoing a medical procedure, she left AW in the care of Stepfather. According to AW, she became scared of the dark and Stepfather invited her to sleep in his bed. Once in the bed, Stepfather put his hand inside her underwear and began touching her genitals.

¶3        Shortly thereafter, AW disclosed the incident to Marelli. Marelli asked Stepfather what had happened, and he said that he awoke with his hand on AW and immediately withdrew it. He explained to AW that it was an accident and apologized. AW says Marelli and Stepfather told her the abuse never occurred and not to speak of it again. Marelli did not report the incident to authorities. Approximately one week later, AW told her father (Father) about the incident. Father immediately filed a complaint with the Division of Child and Family Services (DCFS) and sought a protective order against Stepfather. DCFS made a supported finding that Stepfather presented a credible threat to AW’s safety, but DCFS did not find evidence to support a finding that Marelli failed to protect AW. Father was eventually awarded sole legal custody of AW.

¶4        In a sworn declaration, Marelli’s neighbor (Neighbor) stated that in late 2007 or early 2008, prior to the abuse AW alleged, she informed Marelli of an incident between her young daughter and Stepfather. Neighbor explained that her daughter came home from playing at Marelli’s house with writing and pictures on her buttocks in the handwriting of an adult. When she asked her daughter about it, her daughter said that she and Stepfather were playing a game where the winner wrote on the other person. Neighbor spoke with Marelli about it, and Marelli “became defensive,” denying Stepfather had “anything to do with it.” Marelli blamed Neighbor’s daughter for it, saying she had “offered herself” to Stepfather. Neighbor said her instincts told her to stop allowing her daughter to play at Marelli’s house.

¶5        Since losing custody of AW in 2009, Marelli and AW have not seen one another outside of some initial court-ordered therapy sessions and a few brief encounters. AW claims that Marelli’s alleged “denial [of the abuse] and victim blaming behavior are significant sources of [her] psychological disorders.” Over the past decade, Marelli has continued to contact AW by sending letters, birthday gifts, and Facebook messages. AW claims she has repeatedly expressed her wishes not to have any contact at all. In Facebook messages from 2011, AW responded to Marelli with “STOP TALKING TO ME UNTIL U GET RID OF [STEPFATHER]!!!!!!!” and “STOP IT I WILL BLOCK THIS I AM NOT AFRAID TO SO STOP!!”

¶6        AW submitted many examples of communication she received from Marelli over the course of more than ten years. Those communications included handwritten letters and some photos with messages written on them, such as the following, which we present unedited for grammatical errors:

  • [AW] give your mom a call with [heart drawing] always mom.
  • I am sorry that you have forgotten the moments when you had with [Stepfather] to be your dad. I hope someday you will remember with all my heart and soul I loved you and will always love you because you are my girly for eternity.
  • We all make mistakes in life, it is what we learn from them is the most important. Forgive yourself, forgive me I am truly sorry for all the many tears & fears you went through without your mothers warmest embrace . . . with love mom.
  • [Stepfather] sure misses being your dad [heart drawing] be kind be forgiving be of great courage.
  • Oh I miss my little girl that is all grown up. I love every min every hour every dam week month & year of your life. I hope to enjoy and embrace my lovely daughter again to look into your loving eyes and find you again. With love Mom.
  • All my children was mislead away from the true. I have been told recently that I am not in reality but you see Reality isn’t the truth.

¶7        Some of the photos sent to AW included pictures of both Marelli and Stepfather. Marelli also sent several publications and transcripts of public addresses from her religious leaders covering a wide range of topics.

¶8        AW also asserted that Marelli made two unwanted visits to her. The first occurred on AW’s sixteenth birthday, when Marelli went to her school. The second was on her seventeenth birthday, when Marelli went to AW’s house.

¶9        In 2019, AW commenced the present action against Marelli, claiming intentional infliction of emotional distress (IIED), negligent infliction of emotional distress (NIED), and negligent sexual abuse. Marelli moved for summary judgment on the three claims. Shortly after filing the summary judgment motion, Marelli sent AW a second box of letters, religious publications, and some of AW’s old toys. AW argues that even though service of the complaint put Marelli on notice that her conduct caused AW distress, she nonetheless sent AW the box full of additional communication. AW filed a supplemental opposition to the motion, arguing that Marelli sent the communication with knowledge that AW did not want any contact with her. Marelli moved to strike the supplemental opposition, arguing that the Utah Rules of Civil Procedure allow for only supplemental authority not supplemental facts.

¶10      The district court allowed the supplemental opposition “in the interest of justice” and considered it in its decision. The district court granted Marelli’s motion for summary judgment on all three of AW’s claims. On the IIED claim, the court concluded that Marelli’s conduct was not objectively outrageous. The court concluded that the NIED claim failed because AW did not show that Marelli’s conduct objectively amounted to the “type of conduct ‘especially likely’ to cause severe and unmanageable emotional distress.” Finally, on the negligent sexual abuse claim, the court concluded there was no support in the record that Stepfather had a history of inappropriate sexual behavior with children of which Marelli was aware or that Marelli’s failure to report the alleged abuse harmed AW. AW appeals.

ISSUE AND STANDARD OF REVIEW

¶11 On appeal, AW contends that the district court erred in granting Marelli’s summary judgment motion with respect to each of her three claims. We review a grant of summary judgment for correctness, giving “no deference to the district court’s legal conclusions.” Ipsen v. Diamond Tree Experts, Inc., 2020 UT 30, ¶ 7, 466 P.3d 190 (cleaned up).

ANALYSIS

¶12 Summary judgment is appropriate where the moving party shows that “there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Utah R. Civ. P. 56(a). We conclude that the district court properly granted summary judgment disposing of all three of AW’s claims against Marelli. We address the IIED, NIED, and negligent sexual abuse claims in turn.

  1. IIED

¶13      The district court concluded that Marelli’s conduct was not outrageous as a matter of law because all Marelli’s “voluminous” communications with AW “plainly represent attempts by [Marelli] to reconcile with her daughter.” AW contends that the district court erred because it (1) stepped into the role of the jury when determining that all the communications were an attempt to reconcile, (2) failed to consider other evidence of Marelli’s outrageous behavior, and (3) applied an unnecessarily restrictive test for outrageous behavior. But we agree with the district court.

¶14      In addition to elements not at issue here,[3] to succeed on a claim for IIED, a plaintiff must show that the defendant’s conduct “was outrageous and intolerable in that it offended generally accepted standards of decency and morality.” Prince v. Bear River Mutual Ins. Co., 2002 UT 68, ¶ 37, 56 P.3d 524 (cleaned up). Our supreme court in Retherford v. AT&T Communications of Mountain States, Inc., 844 P.2d 949 (Utah 1992), explained that “the standard Utah has adopted for determining whether the conduct of a defendant is sufficiently offensive to permit recovery is whether the defendant’s actions offend against the generally accepted standards of decency and morality.” Id. at 977 (cleaned up). The court clarified that this standard does not “weaken” that adopted by the Restatement (Second) of Torts, which uses the language “beyond all possible bounds of decency.” Id. at 977 n.19; see also Restatement (Second) of Torts § 46 cmt. d (Am. L. Inst. 1965). The court made clear that the use of the language “generally accepted standards of decency” was not a change in the standard but only an acknowledgment that “all possible bounds” is difficult for any court to determine. Retherford, 844 P.2d at 977 n.19The court emphasized that it “in no way softened the Restatement’s requirement of extraordinarily vile conduct, conduct that is atrocious, and utterly intolerable in a civilized community.” Id. (cleaned up). As made explicitly clear by the court, this standard still applies and is appropriate to apply in this case.

Conduct is not necessarily outrageous merely because it is tortious, injurious, or malicious, or because it would give rise to punitive damages, or because it is illegal. To be considered outrageous, the conduct must evoke outrage or revulsion; it must be more than unreasonable, unkind, or unfair. Indeed, in order to prevail on a claim for IIED, a plaintiff must be able to prove that the defendant engaged in extraordinarily vile conduct, conduct that is atrocious, and utterly intolerable in a civilized community.

Chard v. Chard, 2019 UT App 209, ¶ 57, 456 P.3d 776 (cleaned up).

¶15      On a claim for IIED, “it is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” Id. (cleaned up). “However, where reasonable [minds] may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.” Cabaness v. Thomas, 2010 UT 23, ¶ 36, 232 P.3d 486 (cleaned up), abrogated on other grounds by Gregory & Swapp, PLLC v. Kranendonk, 2018 UT 36, 424 P.3d 897. “[A] district court is not required to draw every possible inference of fact, no matter how remote or improbable, in favor of the nonmoving party. Instead, it is required to draw all reasonable inferences in favor of the nonmoving party.” IHC Health Services, Inc. v. D&K Mgmt., Inc., 2008 UT 73, ¶ 19, 196 P.3d 588. “An inference is unreasonable if there is no underlying evidence to support the conclusion.” Medina v. Jeff Dumas Concrete Constr. LLC, 2020 UT App 166, ¶ 21, 479 P.3d 1116 (cleaned up).

¶16      Looking at the “voluminous” examples of communication from Marelli to AW, we agree with the district court that the communications represent attempts—though at times poorly executed—of a mother to reconcile with her daughter. While statements such as “[Stepfather] sure misses being your dad” may not be the most sensitive way for Marelli to rebuild a relationship with her daughter, we cannot conclude that this and all the other communications can be reasonably said to violate “generally accepted standards of decency and morality.” See Prince, 2002 UT 68, ¶ 37 (cleaned up). It is well within the court’s authority to ascertain Marelli’s intent when reasonable minds could not differ, as is the case here.

¶17 When a claim for IIED involves allegedly “ongoing and continuous conduct,” the plaintiff “may recover for the entire course of [the] defendant’s conduct.” See Cabaness, 2010 UT 23, ¶ 27. Considering the whole of Marelli’s conduct—including the facts that the correspondence was unwanted, that Marelli made a couple of unwelcome visits to AW over the last decade, and that Marelli sent AW correspondence after the present lawsuit commenced—does not change our determination that Marelli’s conduct cannot be reasonably found to evoke the outrage or revulsion required to succeed on a claim for IIED.

¶18 The communications and even visits by Marelli to AW represent a mother’s attempt to build a relationship with her estranged daughter and, though insensitive at times, do not rise to the level of extraordinarily vile conduct required. Therefore, we affirm the district court’s grant of summary judgment against AW’s claim of IIED.

  1. NIED

¶19      AW also asserts that the district court erred in dismissing her NIED claim, arguing the court applied the wrong standard and overlooked contrary evidence.

¶20      Prior to 2018 in Utah, plaintiffs outside the “zone-of-danger”[4] had no means to recover for NIED. Mower v. Baird, 2018 UT 29, ¶¶ 75–85, 422 P.3d 837. Mower expanded “recovery for [NIED] in very limited circumstances” where “certain types of relationships, activities, and undertakings” exist that go to “the core of another person’s emotional well-being and security.” Id. ¶ 76. Because the case before us does not involve a zone-of-danger scenario, we apply the principles set forth in Mower. Under the Mower analysis, a plaintiff must establish that (1) the defendant owed a “traditional duty of reasonable care to the plaintiff” and (2) the “relationship, activity, or undertaking [is] of the type that warrants a special, limited duty to refrain from causing severe emotional distress.” Id. ¶ 78.

¶21 The second step requires an additional three-prong analysis asking the following:

(1) Does the relationship, activity, or undertaking necessarily implicate the plaintiff’s emotional well-being?; (2) Is there an especially likely risk that the defendant’s negligence in the course of performing obligations pursuant to such relationship, activity, or undertaking will result in severe emotional distress?; and (3) Do general public policy considerations warrant rejecting a limited emotional distress duty where prongs one and two would otherwise find one to exist?

Id. ¶ 80 (cleaned up).[5]

¶22 The district court considered solely the second prong of this analysis; however, we find that analysis unnecessary as AW’s claim fails on the first prong. The first prong is meant to ensure that the relationship, activity, or undertaking complained of is one “fraught with the risk of emotional harm to the plaintiff.” Id. ¶ 81 (cleaned up). The Utah Supreme Court has made clear that “this prong can be met only in those very limited situations where the emotional well-being of others is at the core of, or is necessarily implicated by, the relationship, activity, or undertaking.” Id. (cleaned up). The court did not delineate all possible relationships, activities, or undertakings that meet this requirement but instead indicated that courts should make this determination on a case-by-case basis with the recognition that this high threshold will be met in very few instances. Id.

¶23 As pointed out by AW, the court in Mower found that a nonpatient parent’s claim against the therapist who caused the parent’s child to develop false memories while treating the child for potential sexual abuse met this threshold as both an activity and relationship that implicates the parent’s emotional well­being. See id. ¶ 97. The Restatement (Third) of Tortsupon which our supreme court based this rule and upon which courts in other jurisdictions have relied—identifies NIED as actions such as the mishandling of a corpse, an erroneous announcement of a death or illness, a physician negligently diagnosing a patient with a serious disease, a hospital losing a newborn infant, an employer mistreating an employee, and a spouse mentally abusing the other spouse. See Restatement (Third) of Torts: Liability for Physical & Emotional Harm § 47 cmt. f (Am. L. Inst. 2012); see also Mower, 2018 UT 29, ¶ 70; see, e.g.Hedgepeth v. Witman Walker Clinic, 22 A.3d 789, 819–20 (D.C. 2011) (applying NIED to a patient receiving a false HIV diagnosis); Doe Parents No. 1 v. State, 58 P.3d 545, 580–82 (Haw. 2002) (applying NIED to a school reinstating a teacher accused of child molestation without sufficient investigation of the claim); Boorman v. Nevada Mem’l Cremation Society, 236 P.3d 4, 7–8 (Nev. 2010) (en banc) (applying NIED to mortuary’s negligent handling of a loved one’s corpse).

¶24      Such a relationship, activity, or undertaking is not present here. While sexual abuse, particularly within one’s own home, is a serious and clearly harmful occurrence for a child, the activity that AW argues supports her NIED claim is Marelli’s continued communications with her, including two brief visits, over the decade following the alleged abuse. While this activity, which we view as attempts by a mother to reconcile with her daughter, may evoke strong emotions, as the district court pointed out, it is not “fraught with the risk of emotional harm.” Mower, 2018 UT 29, ¶ 81 (cleaned up). The expansion of NIED in Mower was extremely limited to the narrow circumstances explained above, and allowing recovery here would expand that rule exponentially. An estranged relationship with a parent is too ubiquitous to meet the specific requirement set out by our supreme court that this rule will be met in very few instances. See id. Applying NIED to the facts before us would open the door to a seemingly endless number of possible circumstances where communication between a parent and child is strained, hurtful, or unwanted. Thus, the activity here does not rise to the level of those “very limited situations where the emotional well-being of others” lies “at the core.” Id. (cleaned up). We therefore affirm the district court’s grant of summary judgment against AW’s claim of NIED.

III. Negligent Sexual Abuse

¶25 AW argues that Marelli was negligent in preventing the alleged sexual abuse AW suffered because Marelli had previous warning about Stepfather’s “inappropriate behavior around children.”[6] The district court found legally insufficient support in the record for this contention—a conclusion with which we agree. To support this claim, AW relies on Neighbor’s declaration that Stepfather wrote on her daughter’s buttocks. AW argues that the district court inappropriately weighed and discounted the declaration, particularly by calling the declaration “one somewhat vague report of inappropriate conduct.”

¶26 In addition to other factors, a negligence claim requires foreseeable injury to establish whether a defendant had a duty “to conform to a particular standard of conduct toward another.” Normandeau v. Hanson Equip., Inc., 2009 UT 44, ¶ 19, 215 P.3d 152 (cleaned up). “What is necessary to meet the test of negligence . . . is that [the harm] be reasonably foreseeable, not that the particular accident would occur, but only that there is a likelihood of an occurrence of the same general nature.” Steffensen v. Smith’s Mgmt. Corp., 862 P.2d 1342, 1346 (Utah 1993) (cleaned up); accord Normandeau, 2009 UT 44, ¶ 20. Duty—which includes the issue of foreseeability—is “a purely legal issue for the court to decide.” Normandeau, 2009 UT 44, ¶ 17.

¶27 While summary judgment is appropriate only “when, viewing all facts and reasonable inferences therefrom in the light most favorable to the nonmoving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law,” a plaintiff “is not entitled to build a case on the gossamer threads of whimsy, speculation and conjecture.” Kranendonk v. Gregory & Swapp, PLLC, 2014 UT App 36, ¶ 15, 320 P.3d 689 (cleaned up), cert. denied, 329 P.3d 36 (Utah 2014). “When the facts are so tenuous, vague, or insufficiently established that determining an issue of fact becomes completely speculative, the claim fails as a matter of law, and summary judgment is appropriate.” Hardy v. Sagacious Grace LC, 2021 UT App 23, ¶ 21, 483 P.3d 1275 (cleaned up); see also Nelson v. Target Corp., 2014 UT App 205, ¶ 25, 334 P.3d 1010 (“A plaintiff cannot avoid summary judgment based on doubtful, vague, speculative or inconclusive evidence.” (cleaned up)).

¶28 Although certainly disconcerting, the singular incident described in Neighbor’s declaration is not enough to make it reasonably foreseeable to Marelli that Stepfather would sexually abuse AW and thereby leaves AW’s claim in the realm of vague speculation, which is appropriate for summary judgment. First, the evidence AW points to suggests that the incident with Neighbor’s child was an isolated event. Second, writing on a child’s buttocks during a game, though deplorable and entirely inappropriate, is markedly different than lying in bed with and touching a child’s genitals under her clothing. See McGuire v.Cooper, 952 F.3d 918, 922–23 (8th Cir. 2020) (concluding that summary judgment was appropriate in a case involving a sexual assault as “the prior instances of sexual misconduct [were] not similar in kind or sufficiently egregious in nature to demonstrate a pattern of sexual assault”); Bjerke v. Johnson, 727 N.W.2d 183, 190 (Minn. Ct. App. 2007) (“The foreseeability of a sexual assault often hinges on whether the defendant was aware of prior similar behavior by the third party. Indeed, sexual assault will rarely be deemed foreseeable in the absence of prior similar incidents.” (cleaned up)), aff’d, 742 N.W.2d 660 (Minn. 2007).[7] Finally, AW points to no evidence that Stepfather had taken any liberties with or made any inappropriate advances toward her prior to the incident at issue here. See Doe v. Franklin, 930 S.W.2d 921, 924–29 (Tex. App. 1996) (concluding that summary judgment was not appropriate on a negligence claim where a grandmother left her granddaughter alone with the grandfather after the granddaughter told the grandmother he had sexually abused her).[8] Therefore, seeing insufficient evidence in the record that Marelli should have reasonably foreseen the threat of Stepfather sexually abusing AW, we affirm the district court’s grant of summary judgment on AW’s claim of negligent sexual abuse.

CONCLUSION

¶29 We conclude that the district court correctly granted Marelli’s motion for summary judgment, thereby disposing of all three of AW’s claims against her.

¶30 Affirmed.

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


[1] Dear Reader: Judge Mortensen recognizes that you may be accustomed to the use of periods after each letter when we use initials in place of a party or witness name. However, he chooses to depart from that practice now and in the future. Removing the periods is both space saving and easier on the eyes.

[2] We recite the facts of the case and draw all reasonable inferences in the light most favorable to AW as the nonmoving party. See USA Power, LLC v. PacifiCorp, 2010 UT 31, ¶ 33, 235 P.3d 749 (“[I]n a summary judgment proceeding, all facts and the reasonable inferences to be made therefrom should be construed in a light favorable to the non-moving party.”).

[3]  “In Utah, a claim for IIED is actionable if: (i) the defendant’s conduct is outrageous and intolerable; (ii) the defendant intends to cause emotional distress; (iii) the plaintiff suffers severe emotional distress; and (iv) the defendant’s conduct proximately causes the plaintiff’s emotional distress.” Chard v. Chard, 2019 UT App 209, ¶ 57, 456 P.3d 776 (cleaned up).

[4] The zone-of-danger rule set forth in section 313 of the Restatement (Second) of Torts allows a plaintiff within the physical zone of danger resulting from a defendant’s actions “to recover for emotional distress caused by fear for personal safety even though the plaintiff suffered no physical harm as a result of the defendant’s breach of duty.” Mower v. Baird, 2018 UT 29, ¶¶ 51–52, 422 P.3d 837 (cleaned up); see also Restatement (Second) of Torts § 313 (Am. L. Inst. 1965).

[5] The district court and parties have assumed a duty existed by moving directly to step two of the Mower analysis. Therefore, for purposes of this appeal, we do the same and move directly to the three prongs under step two. However, this is not an indication of whether a duty did in fact exist under step one of the Mower analysis in this case.

[6] In her complaint, AW asserted that Marelli’s failure to report Stepfather’s sexual abuse to the proper authorities also constituted negligence—a claim which the district court determined failed. AW does not raise this issue on appeal; therefore, we will not address it.

[7] To support her argument that Marelli should have foreseen the threat that Stepfather posed, AW cites O.L. v. R.L., 62 S.W.3d 469 (Mo. Ct. App. 2001), which states that “[a]s the gravity of possible harm from sexual molestation of a young child is high, we recognize that it may require a lesser showing of likelihood than with other types of injuries.” Id. at 477. However, in O.L., the court concluded that summary judgment was appropriate as the harm was not foreseeable where a grandmother left her grandchild with the grandfather, who then sexually abused the child. Id. at 481. The evidence presented included the fact that the grandfather physically abused the grandmother decades previously and broke her nose, which the child’s father knew about and considered “so remote in time that he had no qualms” with leaving his child in the grandfather’s care. Id. at 478–79. The parents additionally presented evidence that fifteen years prior to the abuse of the child, the grandfather subscribed to Playboy magazine for one year. Id. at 479. Finally, the parents relied on speculative evidence that the grandfather sought extramarital sexual liaisons through advertisements and at a social gathering. Id. The court concluded that the evidence presented was “so tenuous that it [could not] give rise to a genuine dispute as to whether a reasonable person knew or should have known that [the] grandfather might pose a danger to [the grandchild] if she was left unsupervised in his care, thereby breaching a duty of care.” Id. at 481. While the evidence here, namely the incident involving Neighbor’s daughter, is much more related in time and conduct to the abuse AW suffered, it is still tenuous as we have discussed and does not meet even a requirement of a “lesser showing of likelihood,” id. at 477, if that standard were to apply in Utah.

[8] 8. AW cites Doe ex rel. Pike v. Pike, 424 F. Supp. 3d 170 (D. Mass. 2019), to support her argument that a reasonable jury could conclude the harm of sexual abuse was reasonably foreseeable. The case is unpersuasive. In Pike, a granddaughter in the care of her grandparents suffered sexual abuse from her grandfather. Id. at 172. The court concluded that summary judgment was inappropriate because, viewing the evidence in the light most favorable to the nonmoving party, a jury could find that “a reasonable person in [the grandmother’s] position would have or should have known that [the grandfather] was abusing [the granddaughter].” Id. at 182. As AW points out in her brief, the court based this determination on such evidence as “[the grandmother’s] own observations of [the grandfather’s] conduct toward [the granddaughter] and their other grandchildren, including observing him playing the radio game [which involved twisting the children’s nipples], engaging in the tickle game to excess, being in the vicinity when the abuse occurred and ‘locking eyes’ with [the granddaughter] while she sat next to [the grandfather] on the couch and his hands were under the blanket hidden from view.” Id. This evidence involved multiple incidents and red flags that the grandmother chose to ignore, unlike the singular incident here when Stepfather allegedly wrote on Neighbor’s daughter. Furthermore, the Pike court additionally based its decision on the evidence, which AW fails to note, that the grandmother knew the grandfather had been accused of sexual assault previously. Id. With all this evidence taken into account, we do not view Pike as analogous or persuasive.

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How Long Does a Child Custody Court Hearing Take?

rprise that it usually takes much less time and effort to prepare for a proffer hearing than preparing for a full evidentiary hearing. In a proffer hearing the client won’t do much, if anything, during the actual hearing, with the exception of perhaps providing the occasional clarifying answer if the court asks them. No witnesses are called to testify in hearing conducted by proffer; instead, their testimony is provided by affidavit or verified declaration.

If you are unsure if your upcoming hearing will be a proffer or evidentiary hearing, ask your attorney. It could be catastrophic for your case if you show up at court believing the hearing is a proffer hearing when it’s a full-blown evidentiary hearing.

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

https://www.quora.com/How-long-does-a-child-custody-court-hearing-take/answer/Eric-Johnson-311

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Artificial Fraudulence

Seth Godin stated it well when he wrote, “The ease with which someone can invent and spread lies [with advancing technology] is going to take most of us by surprise. It’s going to require an entirely new posture for understanding the world around us.”

This is especially true in family law.

We will soon reach the point (some are there already) in family law where a spouse or parent can create fake email, text, and audio and visual “records” of spousal and child abuse, substance abuse, infidelity, assets and debt, property damage, diminution and dissipation of assets, scientific data, etc. that is all but indistinguishable from the genuine article. The level and volume of fakery will be impossible for all but the wealthiest of litigants to discern (and even then, if a duped judge is too proud or to biased to acknowledge and remedy the fraud, all the proof in the world won’t protect the innocent). When truth is practicably impossible to verify in the legal process, truth becomes meaningless to the process.

I don’t know how best to address this problem (it may already be too late). Unless the profession takes immediate and wise action, the liars will make such a mockery of the legal process so fast and so pervasively that trust in the system will be irreparably destroyed (and with good reason). We may reach a point where society at large gives up on the notion of justice being a function of truth (reality).

One concern I have is members of the profession (both opposing counsel and judges) acting “offended” for outraged or “concerned” if somebody claims that deepfakes and other similar tactics are being engaged. I’m concerned that someone who may in the utmost sincerity raise legitimate concerns about the authenticity and veracity of certain evidence being ridiculed as paranoid, a vexatious litigator, unprofessional, etc. Not out of a genuine belief, but in the hopes that shaming or even persecuting the whistleblower will result in the claims being retracted so that the hard work of getting to the truth can be avoided and or so that the desired outcome is not impeded by the facts. When that happens, then who will judge the judges, and by what standard?

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

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What Should I Do When a Family Court Judge Refuses to Look at My Evidence?

What should I do when a family court judge refuses to look at my evidence of abuse because my ex’s lawyer lied about me bringing it to him when I had a witness with me?

What you can or should do depends upon why the judge would not consider your evidence.

You say that the judge refused to review your evidence because the judge believed a lie that your ex’s lawyer told him (I presume) something along the lines of “Objection, Your Honor, I was never given a copy of these documents/photographs/recordings. I’m not prepared to address them.”

You claim that you can prove that your ex’s lawyer is lying because you had a witness with me when you delivered the evidence to your ex’s lawyer (I presume) well in advance of the hearing.

It appears that either the judge did not believe you, or, if you did not bring the witness with you to court, that the judge ruled that without the witness’s testimony the judge would not believe that you served your ex’s lawyer with the evidence, and thus would not allow you to present that evidence to the judge.

The lesson learned here?: when you deliver or serve documents/photographs/recordings to someone and need proof that you did so, use a method of delivery or service that provides an objective means of proving it. Have the lawyer or someone at his/her office sign for the documents/photographs/recordings when you or someone from the post office deliver(s) them.  Or you could email the documents/photographs/recordings to the lawyer, which would another way of proving that you delivered/served them. Another thing you could do is file a copy with the court which, though it does not objectively prove you delivered/served the documents on the lawyer, the point is that if you went to the trouble of filing them with the court, then it’s more than likely you also delivered/served them on the lawyer too. Another thing you or your lawyer should do is file a certificate of service with the court that you or your lawyer served/delivered them.

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

https://www.quora.com/What-should-I-do-when-a-family-court-judge-refuses-to-look-at-my-evidence-of-abuse-because-my-exs-lawyer-lied-about-me-bringing-it-to-him-when-I-had-a-witness-with-me

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How can I make my abusive husband divorce me?

Short of holding the proverbial gun to his head (i.e., forcing him to do so against his will), you can’t.  

While you might contrive to motivate your husband to file for divorce against you by committing marital fault yourself, that might cause the court to disfavor you when making the rulings and judgments in the divorce, so you don’t want to go that route.  

If you want your husband to be the one to file for divorce so that you can claim aggrieved/martyr status, you may have to wait a long time, if he ever does in fact file for divorce.  

The good news is that if you want a divorce in the United States you do not have to wait for your husband to file for divorce to obtain a divorce. You can file for divorce yourself, and you can do so without having to blame him for anything (this is what a “no-fault divorce is; obtaining a divorce without having to allege you or your husband is at fault). 

If you are afraid that you won’t be awarded alimony or child custody or some other thing or benefit in the divorce action if you file for divorce, that’s likely not the case (I can’t speak for divorce law in all jurisdictions, but I am not aware of any U.S. jurisdiction that “punishes” a spouse merely for being the one to file for divorce).  

Besides, if your husband is abusing you—AND YOU CAN PROVE THAT (as opposed to merely asserting it in a “your word against mine” situation)—then you’re not only well within your rights to be the one to file for divorce, you are clearly justified in filing for divorce. No decent court is going to fault you for filing for divorce to escape abuse.  

Go meet with an attorney. Find out more about how the law governing divorce works in your jurisdiction. Determine what your options are, balance the risks against the benefits. Learn what you can and should do to prepare for divorce as fairly and successfully as possible.  

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

https://emotionalabusesurvivor.quora.com/How-to-make-my-abusive-husband-divorce-me?__nsrc__=4  

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Has anyone ever been able to prove narcissistic abuse in divorce court?

Yes, it happens quite frequently.*  

What people don’t understand is that finding a spouse is a jerk usually doesn’t amount to much in the divorce action.  

Most people believe—falsely—that if they can show the court that their spouses are narcissists (or some other type of insufferable personality) that this will result in the court bringing the wrath of God down on the narcissist and showering the other spouse with sympathy and riches for his/her trouble. Not so. 

Literally hundreds of thousands of people going through a divorce whose spouses suffer from (or who are suspected of suffering from) personality disorders believe that “if I can prove to the court that my spouse suffers from [antisocial personality disorder, avoidant personality disorder, borderline personality disorder, dependent personality disorder, histrionic personality disorder, narcissistic personality disorder, obsessive-compulsive personality disorder, paranoid personality disorder, schizoid personality disorder, schizotypal personality disorder], I’ll win everything my heart desires in the divorce case.” No, you won’t.  

It’s not narcissistic personality disorder or borderline personality disorder that matters, but actions (or a failure to act) that matters, first and foremost. If your spouse is physically or emotionally abusing you or the kids (and please accept that your when your spouse occasionally disagrees with or criticizes you or your children that does not make him or her emotionally abusive), it doesn’t matter why. If your spouse has a drug or alcohol problem, or a gambling habit, or your able-bodied spouse is lazy and won’t earn a living, it doesn’t matter why. There’s no excuse. An abusive or grossly irresponsible spouse is bad regardless of whether he or she has a personality disorder. See?  

——————– 

*Now that does not mean that a judge necessarily makes the specific finding of “Husband/Wife is a narcissist who abused his/her spouse,” but many divorce courts find, in making or denying awards of marital property and assets, alimony, child custody, and parent-time, and protective or restraining orders that a spouse and/or parent engaged in lying, cheating, manipulative, exploitative, abusive, neglectful, irresponsible, and/or parental alienating behavior. 

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

https://www.quora.com/Has-anyone-ever-been-able-to-prove-narc-abuse-in-divorce-court/answer/Eric-Johnson-311  

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I paid my ex in cash for child support. Will the court give me credit for it?

I paid my ex in cash for child support. Will the court give me credit for it?

In Utah (where I practice family law), the answer is: yes. And while I cannot speak for all jurisdictions, I would presume that most other jurisdictions have similar laws or rules in place.

For those of you wondering why this is an important question, this is why: if you don’t have independently verifiable, documented proof that you have paid child support, and the child support payee/recipient claims that you have not paid, the burden is on you and you alone to prove you paid. And if the only evidence of payment that you have is your word against your ex’s, you will lose the argument every single time.

So, before I finish my answer to your question, a word to the wise: never, ever pay child support in cash, if you can avoid it. If you must, for some reason, pay in cash, get a receipt from your ex acknowledging payment (amount paid, date paid). pay child support by check, money order, direct deposit, or through the child support collection agency (in Utah, this state agency’s name is the Utah Department of Human Services Office of Recover Services (known as Office of Recovery Services or just “ORS” for short).

Indeed, in my professional opinion, the best way to pay child support and to have proof you have paid child support, is to have your states child support collection agency garnish your wages (also known as “income withholding”) or to pay child support directly to the child support collection agency. Whether you are garnished or pay child support to the collection agency, the result is the same: the agency will make a record of your payment and forward payment to the child support payee. This way, you cannot ever be accused of not paying child support because the collection agency is responsible for collecting that payment and/or keeps a record of you making payment to the agency, and so it would be virtually impossible for the child support payee to accuse you, successfully, of nonpayment. Just remember that if you don’t let the collection agency garnish or paychecks, and if you pay child support directly to the collection agency, you will still want to keep independent documentation of those payments, in the event the collection agency fails to give you credit.

So, if you have been paying child support in cash to your ex, and your ex is willing to sign a statement (usually in the form of a sworn affidavit, but if your jurisdiction requires that you use a particular form and/or follow a particular procedure, make sure you do exactly as required) and submit that statement to the court acknowledging that you have paid in cash and stating how much you have paid, you are an extraordinarily fortunate person. And while it’s only right for someone who has received child support to acknowledge it and to give credit where credit is due, there are far too many child support payees who get paid in cash, then deny ever having been paid, and end up double dipping on child support by getting a judgment against you for child support falsely claimed to have been “unpaid”.

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

https://www.quora.com/I-paid-my-ex-in-cash-for-child-support-If-she-wrote-a-letter-to-the-court-acknowledging-this-would-the-court-give-me-credit-for-it/answer/Eric-Johnson-311?prompt_topic_bio=1

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Father has 50/50 custody. Now ex is trying to take it away. What to do?

I am a father who has exercised at least 50/50 custody with my ex. Now she’s trying to take me to court for full custody and me getting every other weekend visits. How can I avoid losing 50/50 custody?

First, thank your lucky stars you are a father who currently has 50/50 custody of his children. Far, far too many fit and loving fathers who could easily exercise joint equal physical custody of their children and whose children would do nothing but benefit from the exercise of joint equal custody are needlessly and unjustifiably denied a joint equal child custody award by courts who simply cannot bring themselves to believe, much less conceive of, the idea that children being reared by both parents equally is better than relegating one parent to second class visitor status in his child’s life.

Second, the fact that you have been exercising at least 50–50 custody of your children for the past few years helps to make it much harder for your ex to build a case against you for modifying the child custody award in a manner that deprives both father and children of a 50–50 custody schedule. Again, be grateful this is the case, because if you were trying to win 50–50 custody of your children on the first go around during your divorce or other child custody legal action, the odds are grossly stacked against fit and loving fathers.

Third, if you are afraid that your judge is going to discriminate against you on the basis of sex, you need to understand this principle: “if it isn’t close, there cheating won’t matter.” Otherwise stated, you need to ensure that you win six ways from Sunday. you have to bring overwhelming amounts of evidence and proof into court, so that you leave the judge no option but to rule in your favor. Easier said than done, certainly, but now is not the time to become complacent or substitute hope for effort. Spare no expense to preserve your joint equal physical custody award. A necessary component of a winning case is that you are living a life beyond reproach. Get your house in order. If there is anything remotely amiss in your life, correct course immediately, clearly, and permanently.

Fourth, make sure you understand and that your attorney understands what statutory and case law factors and criteria govern the original child custody award and a petition to modify the original child custody award. It may be that your ex does not have sufficient grounds for a petition to modify child custody to survive a motion to dismiss.

Fifth and finally, do not take on a petition to modify child custody alone, without a vigilant and skilled attorneys assistance. There is an undeniable culture of bias and discrimination and prejudice against fathers when it comes to courts making child custody awards. This doesn’t mean that every judge in every court indulges in sexual discrimination against father, but it’s virtually impossible to tell the difference between an impartial judge and a biased one, and so you need an attorney who will not suffer fools gladly, who will defend the joint equal custody award.

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

https://www.quora.com/As-a-father-I-have-50-50-split-custody-with-my-ex-and-then-some-now-shes-trying-to-take-me-to-court-for-full-custody-every-other-weekend-visits-how-can-I-avoid-loosing-ny-kids/answer/Eric-Johnson-311?prompt_topic_bio=1

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Why is child support and alimony rooted in revenge, power, and humiliation?

Why is child support and alimony rooted in revenge, power, and humiliation?

The full question was actually: “Why is child support and alimony rooted in revenge, power, control, and humiliation over the father instead of support for the child?”

This is a good question, but not because your question is based upon accurate information; your presumption that child support and alimony are rooted in revenge, power, control, and humiliation is not universally true in all cases.

There are certainly divorce and child custody cases that arise where a spouse’s request for alimony or a spouse’s or parent’s request for child support are unreasonably, even outrageously high and often based upon false claims of need and ability to pay.

But to suggest that the purposes of alimony are nothing other than revenge, control, and humiliation is simply not true. There are some situations where an ex-spouse (and men can receive alimony, not just women, even though the majority of alimony recipients are women) clearly needs and deserves some financial support from the ex-spouse. The purpose of alimony is to ensure that the ex-spouse awarded alimony in such a situation does not become a public charge, a welfare recipient.

Child support is an interesting subject because there is no one right way to set and implement child support policy. In some jurisdictions, child support is a fixed amount regardless of the number of overnights the children spend with each parent. In other jurisdictions, child support is based upon the child support payor’s income. Other jurisdictions calculate child support based upon the number of overnights the children spend with each parent and/or upon the income of both parents. Still other jurisdictions will consider a host of other factors. Regardless of what factors determine child support, the purpose of child support is essentially the same: to ensure the child’s needs and lifestyle are maintained as much as reasonably possible. Again, the purpose of child support, as is the case with alimony, is to provide support, not to punish or unduly burden or humiliate the payor.

That doesn’t mean that spouses, parents, and courts can’t run amok, with the results being crushingly unfair alimony and child support awards, even awards that are punitive in nature. It can and does happen on occasion, but it is, fortunately, the exception.

What arises more often than you might imagine, however, are alimony and/or child support awards that are based upon a belief that the payor’s ability to pay is far, far greater than it actually is. These poor (literally) payor’s find themselves burdened with a spousal support and/or child support obligation that leaves them with literally just a few hundred dollars per month to live on, after they have met their alimony and/or child support obligations. Such circumstances are grossly unfair but do arise sometimes. The best way to ensure that this does not happen to you is to provide the court with sufficient proof of your real income and/or your true income earning potential, so that it’s not left to the court’s imagination to determine. For some people proving one’s true income or ability to earn is easier said than done, but it is well worth the effort if it means that the court does not stick you with an alimony and/or child support obligation you cannot bear.

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

https://www.quora.com/Why-is-child-support-and-alimony-rooted-in-revenge-power-control-and-humiliation-over-the-father-instead-of-support-for-the-child/answer/Eric-Johnson-311

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What would you do if your child’s father who is only entitled to supervised visitation filed for a modification of a court order so a family member you don’t approve of could supervise visits?

What would you do if your child’s father who is only entitled to supervised visitation filed for a modification of a court order so a family member you don’t approve of could supervise visits?

Here’s what I would do:

First, remember that merely claiming that the proposed visitation supervisor poses a clear and serious danger to the child’s mental or emotional health without having proof or some highly credible evidence does not simply make for a weak argument, it could call your credibility into question.

  • I would first ask: if you have proof or highly credible evidence that there anything about this proposed visitation supervisor that poses a clear and factual (or at least credible) danger to the child’s life, safety, or health.
    • If the answer is “yes,” then you probably have at least one very good argument against having this person approved as a visitation supervisor.
  • If the answer is “no,” then I would ask if there anything about this proposed visitation supervisor that poses a clear and factual (or at least credible) danger to the life, safety, or health of the other parent or of anyone else?
    • If the answer is “yes,” then you probably have at least one very good argument against having this person approved as a visitation supervisor.
  • If the answer is “no,” then I would ask: if there anything about this proposed visitation supervisor that poses a clear and factual (or at least credible) danger to the child’s mental or emotional health?
    • If the answer is “yes,” then you probably have at least one very good argument against having this person approved as a visitation supervisor.
  • If the answer is “no,” then I would ask if there is anything about this proposed visitation supervisor that poses a clear and factual (or at least credible) danger to the mental or emotional health of the other parent or of anyone else?
    • If the answer is “yes,” then you probably have at least one very good argument against having this person approved as a visitation supervisor.
  • If the answer is “no,” then I would ask if there is anything about the proposed supervisor that indicates he/she is not available to provide supervision as needed and/or cannot provide supervision responsibly and reliably.
    • If the answer is “yes,” then you probably have at least one very good argument against having this person approved as a visitation supervisor.
  • If the answer is “no,” then I would likely see no point to objecting to the proposed supervisor because I would have no valid argument against the appointment of this supervisor.

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

https://www.quora.com/What-would-you-do-if-your-childs-father-who-is-only-entitled-to-supervised-visitation-filed-for-a-modification-of-a-court-order-so-a-family-member-you-dont-approve-of-could-supervise-visits/answer/Eric-Johnson-311

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Can the other parent send someone I’ve never met to pickups and drop-offs for our child?

Can the other parent send someone I’ve never met to pickups and drop-offs for our child?

Can the other parent send someone I’ve never met to pickups and drop-offs for our child when custody order only lists the parents? What would I file with the court to contest this? Would the court just add that person to the order?

Before I address your questions, I suggest you honestly examine the bases for your concerns. Are you honestly worried about this situation, or do you see an opportunity to denigrate your ex and make trouble for your ex in court?

So you’re asking at least three questions here.

First, can the other parent send someone you have never met to pick up or drop off your child when the court’s order states identifies no one other than the parents as the ones who pick up and drop off the child for custody and parent-time exchanges? The answer: If the order can be interpreted or construed to provide that the parents certainly can pick up and drop off, but that permission or authorization to pick up or drop off the child is not limited solely to the parents, then a parent can have someone else to pick up or drop off the child. On the other hand, if the order can be interpreted or construed to provide that permission or authorization to pick up or drop off the child is restricted solely to the parents, then you could argue that if one of the parents fails to pick up or drop off the child personally and instead sends someone else to pick up or drop off the child, that parent is violating the court’s order.

Your next question was: what would I file with the court to contest this? Well, obviously if the court order allows for persons other than the parents to pick up or drop off the child, there would be little point to complaining to the court about it unless you could demonstrate that the person or people the other parent is designating to pick up or drop off the child is harming, attempting to harm, or threatening to harm the child in some significant way.

If the court order prohibits persons other than the parents to pick up or drop off the child, you are wise to ask whether it’s worth the time, effort, hassle, risk, and money to do so if all the other parent is likely to do is file a motion or petition to authorize people other than the parents to pick up or drop off the child. If there is no statute in your jurisdiction that prohibits persons other than parents to facilitate custody or parent-time pickups and drop-offs, if the parent can show that he or she has a legitimate need for the help with pickups and drop offs, and if the person or persons who are not parents but who are picking up or dropping off the child is or are responsible adults who are doing a good job with pickups and drop-offs and doing neither the child nor the parent any harm, you need to ask yourself whether complaining to the court is fair and reasonable for you to do. If the only reason you want to complain is because you like to stir the pot and/or try to cause your ex trouble with the court, you should re-think that position.

https://www.quora.com/Can-parent-send-someone-Ive-never-met-to-custody-drop-off-and-pick-ups-of-our-child-when-custody-order-only-lists-the-parents-What-would-I-file-with-the-court-to-contest-this-Would-the-court-just-add-that-person-to/answer/Eric-Johnson-311?prompt_topic_bio=1

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

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I was divorced and lied to during my divorce and I am disabled can I take my ex back to court for spousal support?

I was divorced and lied to during my divorce and I am disabled can I take my ex back to court for spousal support?

Can you try? Yes. Will you succeed? Probably not. Unless you can prove (not persuade, but demonstrate by objectively, independently verifiable proof) that your ex-husband defrauded the court, you’re likely stuck with the decree and court orders you’ve got. This is extremely difficult in its own right. This is also extremely expensive and most people don’t have that kind of money.

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

https://www.quora.com/I-was-divorced-and-lied-to-during-my-divorce-and-I-am-disabled-can-I-take-my-ex-back-to-court-for-spousal-support/answer/Eric-Johnson-311

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I was divorced and lied to during my divorce and I am disabled can I take my ex back to court for spousal support?

I was divorced and lied to during my divorce and I am disabled can I take my ex back to court for spousal support?

Can you try? Yes.

Will you succeed? Probably not.

Unless you can prove (not persuade, but demonstrate by objectively, independently verifiable proof) that your ex-husband defrauded the court, you’re likely stuck with the decree and court orders you’ve got. This is extremely difficult in its own right. This is also extremely expensive and most people don’t have that kind of money.

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

https://www.quora.com/I-was-divorced-and-lied-to-during-my-divorce-and-I-am-disabled-can-I-take-my-ex-back-to-court-for-spousal-support/answer/Eric-Johnson-311

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GALs/custody evaluators waste money/time compared to judge interview

GALs and custody evaluators waste too much money and time, and can never provide the same accuracy as a judge’s direct interview of the child.

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

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

Even if guardians ad litem and custody evaluators always tell the truth (and there’s no way for us to know that, especially when they are not required to back their claims with independently verifiable evidence), how would that have any impact on whether children tell the truth to guardians ad litem and/or to custody evaluators? And is there any proof that children would lie more or less to judges than to guardians ad litem and/or custody evaluators? If so, I’m not aware of any such proof. It would be a cheap shot to call my critiques of the use of guardians ad litem and custody evaluators as being “skeptical” of their use when there is no basis for presuming that the use of guardians ad litem and/or custody evaluators is an obvious good or obviously better than having the judge speak directly to the children. Guardians ad litem and custody evaluators are way too expensive, waste too much time, and can never provide the same degree of accuracy as a judge’s interview directly with the child. That’s indisputable. Those who try to claim otherwise usually do so by relying on fallacious ad hominem and appeals to authority arguments, as well as outright lies.

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

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

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

Great question. 

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

Argument from parents: 

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

Judge’s decision:  

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

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

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The biological father of my child filed to establish paternity. He’s unfit and I haven’t been served yet. How can I handle this?

The biological father of my child filed to establish paternity. He’s unfit and I haven’t been served yet. How can I handle this? 

My answer applies to both mothers and fathers in this situation: 

  1. Start preparing for the showdown now. Don’t wait for trouble to find you. 
  2. Don’t try to handle this without a good lawyer (not just any lawyer, not an “affordable” lawyer, but a good lawyer, a lawyer who is skilled in the area of child custody litigation, of good character (someone who is honest and trustworthy), and diligent (works hard to get the job done right and without wasting your time and money)). If you fail to comply with the law and court rules and lose as a result, saying “I had no lawyer” is no excuse and “I had a bad lawyer” is almost never a winning argument. 
  3. The best way to win your case is with independently verifiable proof. The next best way to win is with highly persuasive evidence. The difference between proof and evidence. Proof is objective, absolute. Not in doubt. Evidence weighs on the balance of probabilities. Sometimes the evidence can be of such a nature that it is highly persuasive and convincing, but it always leaves the door open. 
  4. The riskiest way to win your case is on a “your word against mine” basis (and I would be dishonest if I did not mention that in my experience most courts tend to find the testimony of mothers far more credible than the testimony of fathers—it’s not fair, it’s sexist, but it happens nevertheless, and more often than not, in my experience). 
  5. Understand and accept that this process can take a long time and cost a lot of money and take a terrible toll on you emotionally and psychologically. Budget accordingly. Stay grounded. Watch you drug and alcohol intake. See a therapist and/or a minister for help with coping skills and a check on whether your emotions are clouding your judgment. Get some exercise, even it’s just a brisk walk each day. Don’t be afraid to lean on willing friends and family for moral support. 

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

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“It’s pretty awful, but do you have a better alternative?”

“It’s pretty awful, but do you have a better alternative?”

I was asked the following question in response to this answer I gave to a question on Quora.com:

https://www.quora.com/What-are-some-dirty-secrets-a-lawyer-wishes-they-could-tell-us-but-can-t/answer/Eric-Johnson-311

Here is my response to that question:

First, do not engage in dirty tricks. it’s tempting, but wrong. Very few people are able to make false allegations stick. They may get a momentary advantage from them, but few enjoy long-term benefits from lying and deceiving. Now I’m not going to claim that some dirty tricks are easy and effective, but that doesn’t make them any more right or justifiable to engage.

Second, live an upstanding life, ESPECIALLY once you become convinced your marriage is headed toward divorce.

Third (and very important, even though easier said than done), to the extent you reasonably can, ensure that you have independently verifiable proof that you are not any of the things of which you could be falsely accused in divorce.

Fourth (and very important, even though easier said than done), fight false accusations with everything you have. Some courts seem to believe a false allegation more the more the false allegation is made and/or the worse the false allegations are.

Fifth, regardless of whether you are falsely accused or not, when you or your spouse file(s) for divorce, get the best attorney you can afford. Divorce law and procedure and the legal system are not what you think they are, and if you don’t know what you’re doing, they can and likely will ruin you before you’re even aware of it or can do anything about it.

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

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Can you get a restraining order against a minor if you’re an adult?

Certainly.

Restraining orders are for the protection of the person needing the protection, and if a child is a threat to your life or safety and you can prove that to the satisfaction of the court, you can get a restraining order against that child.

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

https://www.quora.com/Can-you-get-a-restraining-order-against-a-minor-when-youre-of-age-yourself/answer/Eric-Johnson-311

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Proving Parental Alienation Is Only Half the Battle

Many parents in a child custody dispute being tried in court are the target of a parental alienation campaign. For some parents, the alienation started long before the court case. For other parents, it’s the court case that leads the other parent to commence the parental alienation campaign.

Historically, courts have not been receptive to claims of parental alienation.

Too often this stems from courts writing off parental alienation claims as self-serving and motivated by one spouse’s animus for another. And clearly, a certain degree of skepticism is a wise approach to parental alienation claims. A judge should neither be inclined to believe or disbelieve a claim on its face. It should be (but sadly always isn’t) the case that the substance of the evidence, not the seriousness of the allegation, decides the issue.

The good news is that as courts are becoming more aware of what parental alienation is they are becoming more willing keep an open mind as they consider a parent’s efforts to make a case for parental alienation.

The bad news is that proving parental alienation is only half the battle. Even courts that find parental alienation exists often feel they are ill-equipped to remedy the situation. This article by Dr. J Michael bone explains how this arises:

Parental Alienation in Court: Dealing with Judicial Anxiety, 8/31/2017
Dr. J Michael Bone, Parental Alienation Consultant
http://www.jmichaelbone.com/blog1/parental-alienation-in-court-dealing-with-judicial-anxiety

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

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