Tag: protective orders

2024 UT App 52 – In re A.S. – child neglect, photographing genitals

2024 UT App 52 – In re A.S.





Opinion No. 20230338-CA Filed April 11, 2024 Third District Juvenile Court, Summit Department

The Honorable Elizabeth M. Knight No. 1214949

Julie J. Nelson and Alexandra Mareschal, Attorneys for Appellant

Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

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

TENNEY, Judge:

¶1        On the basis of a set of stipulated facts, the juvenile court adjudicated A.S. and J.S. as being neglected as to V.S. (Mother). Mother now challenges that adjudication on appeal, arguing that the stipulated facts did not support the neglect adjudication. For the reasons set forth below, we affirm.

Initial Proceedings

¶2        This is a child welfare case concerning two children: A.S., who was 16 years old at the time of this appeal, and J.S., who was 9 years old. A.S. and J.S. (collectively, the Children) are the biological children of Mother and J.S. (Father).[1] Mother and Father divorced in March 2018, and they’ve had an “ongoing” and “contentious” custody dispute in district court ever since.

¶3        In August 2022, the Department of Child and Family Services (DCFS) filed a petition for protective supervision services, alleging that the Children were “abused, neglected, or dependent children” pursuant to Utah Code section 80-1-102. The petition alleged a range of conduct to support this—most of it by Mother, though with one allegation relating to Father. This appeal is brought by Mother, so we’ll focus on the allegations, proceedings, and rulings relating to her.[2]

¶4        On March 10, 2023, DCFS filed an amended petition relating to Mother, and the amended petition realleged some (but not all) of the allegations from the original petition. Based on the amended set of allegations, DCFS again alleged that the Children were abused, neglected, or dependent. That same day, the juvenile court held a “merged pretrial and adjudication hearing” relating to Mother, and Mother was represented by counsel at that hearing. Mother acknowledged under oath that she understood that she had a right to a trial, that DCFS bore the burden of proving the allegations against her by clear and convincing evidence, and that she had the right to present evidence in her defense. Mother then waived her right to a trial, affirmatively admitted to a specified list of the allegations from the amended petition, and, pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure, “neither admitted nor denied” certain other specified allegations from the amended petition.

¶5        On the basis of Mother’s affirmative admissions and the allegations deemed to be true by virtue of her rule 34(e) response, the juvenile court later issued a ruling that found a list of facts to be “true by clear and convincing evidence.” We now recount those facts here, with any quotations being drawn directly from the court’s precise verbiage.[3]

The Stipulated Facts

¶6        Since filing for divorce, Mother has sought four protective orders against Father: one in 2016, one in 2020, and two in 2022. Also, Child Protective Services (CPS) has received twelve reports accusing Father of neglect, physical abuse, sexual abuse, domestic violence-related child abuse, and other miscellaneous complaints which were not child welfare related. “All but one of these reports were either unaccepted because they did not meet CPS minimum requirements for investigation or unsupported because there was inadequate evidence to support the allegation after the matter was investigated.” Only two of the twelve reports affirmatively identified Mother as the person who made the report, and though a touch unclear, a third suggested that she was likely the reporter.

¶7        Sometime in 2020, certain pictures were taken of J.S. at Wasatch Pediatrics. These pictures showed “mild inflammation” of J.S.’s “inner labia,” “mild peri-anal erythema,” and a “superficial linear abrasion in the crease of [her] right thigh and perineum.” In August 2020 and again in April 2022, Mother shared medical records with DCFS that included those photographs, and she did so in both instances “as part of an abuse investigation.” In April 2022, Mother “forwarded all communications with DCFS to the Ombudsmen’s office at [its] request,” again including these photographs.

¶8        In June 2022, Mother also “began documenting pictures of [J.S.’s] stool under the medical advice of” a gastroenterology specialist (Specialist) who was treating J.S. “for a chronic gastrointestinal issue.”

¶9        On June 28, 2022, Mother took photographs of “bruises on [J.S.’s] knee, leg, and abdomen.” One of these photographs was “taken in the bathtub when [J.S.] was naked,” but J.S.’s “genitalia were not visible in the picture,” and the other photographs taken on this occasion “were taken when [J.S.] was clothed.”

¶10      Based on Mother’s concerns about these bruises and about “additional vaginal redness,” Mother took J.S. to the Redstone Clinic on June 30, 2022. A medical professional at the clinic “took pictures of the bruises and vaginal and anal redness” and then instructed Mother to take J.S. to the Emergency Department at Primary Children’s Hospital. In an effort to avoid a further genital exam, a doctor at the hospital accessed and viewed the photographs that had been taken at the Redstone Clinic. While at the hospital, Mother also spoke to the Safe and Healthy Families Clinic over the phone. Mother was advised to call the clinic back during normal clinic hours.

¶11 The next day, a doctor (Doctor) at the Safe and Healthy Families Clinic “indicated that the pattern of bruising [was] unusual and that in the absence of a history of accidental injury, inflicted injury, or physical abuse, the bruises would be a reasonable concern,” but Doctor further opined “that sexual abuse of a child is most often recognized when a child makes a disclosure.” Doctor also said that “constipation . . . is a common manifestation of childhood stress and only rarely associated with sexual abuse.” As to the vaginal redness in question, Doctor said that it was “not an indicator of sexual contact,” “particularly with swimming and warm weather.” Doctor saw “no reason to have specific concern for sexual abuse in this case,” and Doctor did not believe that J.S.’s symptoms met “the threshold for suspected abuse or neglect.” Doctor therefore “did not make a report to either DCFS or law enforcement,” and she saw “no need for follow up in the Safe and Healthy Families Clinic based on” the information that had been provided to her.

¶12 That same day, Mother spoke with an officer from the Summit County Sheriff’s Office, again “reporting the bruises and vaginal and anal redness.” When the officer offered to come to the home and take “pictures of the bruising,” Mother declined. Instead, she sent him the pictures that she had taken of the bruising on J.S.’s knee, leg, and abdomen.

¶13 Sometime later that day, Mother called the Safe and Healthy Families Clinic. A nurse (Nurse) received a page regarding the call. Before calling Mother back, Nurse contacted DCFS and was informed “that there had been several calls over the last few years, but all of them were closed unsupported.” DCFS also informed Nurse that Mother had texted photos to DCFS and a detective. After receiving this information, Nurse called Mother. During that conversation, Mother “requested that Safe and Healthy Families conduct a forensic examination and take photographs of [J.S.’s] genitals due to a request from law enforcement.” The juvenile court’s subsequent finding recounts the following about what happened next:

According to [Nurse], the mother told her that she had taken photographs of [J.S.’s] genitals before and after she went to see her father on the advice of a pelvic floor physical therapist. [Nurse] asked the mother three times for the name of the physician that advised her to take photographs and the mother refused to provide it. [Nurse] states that the mother eventually reported that she was documenting what [J.S.’s] genitals looked like before and after parent-time with her father. The mother indicates that she felt pressured and interrogated and was unable to provide the name of [Specialist] to [Nurse]. Mother states that she had trouble communicating with [Nurse] and was unable to explain everything.

The court’s findings also note that “[n]o one has received” the “before and after” photographs described in the conversation Mother had with Nurse.

¶14      Doctor later shared her professional opinion that “she would have substantial concerns about repeated photography” of a child’s genitals. In Doctor’s view, children are “told repeatedly that these are private parts of our body,” but because children would understand that photographs are “usually show[n] to all sorts of people,” repeated photographing of genitals would undermine this messaging. Doctor also expressed her view that subjecting a child to “multiple forensic exams” would improperly “normalize[] certain amounts of touching and manipulation of the genital region.”

¶15 With respect to Mother, “[m]ultiple police reports and DCFS records indicate that [Mother] may be difficult to understand.” It is “documented” that Mother has “POTS (post orthostatic tachycardia syndrome) which causes forgetfulness and trouble focusing (brain fog) making it difficult for [Mother] to think and speak clearly under stress.”[4]

The Neglect Adjudication

¶16      Based on the stipulated facts, the juvenile court found that the Children “are neglected as to [Mother], as it is lack of proper parental care to subject a child to having her genitals photographed before and after visits with [Father], as well as sending other photographs to various agencies.” The juvenile court then ordered that “[c]ustody and guardianship shall continue with the parents with protective supervision services with DCFS,” and Mother was also ordered to “comply with the requirements of the DCFS service plan.” Mother now appeals that ruling.


¶17 The juvenile court ruled that Mother neglected the Children by (i) taking “before and after” photographs of J.S.’s genitals, as well as (ii) “sending other photographs” to various agencies. As explained below, we need consider only the court’s conclusions relating to the “before and after” photographs. With respect to those, Mother raises two challenges: first, Mother challenges the finding that she actually took the photographs; and second, Mother argues that even if she did, this did not constitute neglect. Although Mother’s first challenge is to a factual finding, that finding was based on stipulated facts. When “the facts are stipulated, we review the conclusions drawn by the juvenile court for correctness.” In re K.T., 2023 UT App 5, ¶ 7, 524 P.3d 1003 (quotation simplified), cert. denied, 528 P.3d 327 (Utah 2023). We also review the court’s interpretation of the neglect statute for correctness. See In re M.S., 2023 UT App 74, ¶ 23, 533 P.3d 859 (holding that the determination of “whether the statutory criteria for neglect have been met” is “primarily a law-like endeavor” that is accordingly reviewed for correctness) (quotation simplified).


¶18      The juvenile court concluded the Children are neglected as to Mother because “it is a lack of proper parental care to subject a child to having her genitals photographed before and after visits with [Father], as well as sending other photographs to various agencies.” Because we determine that the “before and after” photographs alone are enough to support the neglect adjudication, we need not consider whether Mother also neglected the Children by sending the photographs to “various agencies.”[5]

¶19      Mother makes two arguments relating to the “before and after” photographs: first, she argues that there was not clear and convincing evidence that she actually took them; and second, she argues that even if she did take the photographs, this did not constitute neglect.

I. There Was Sufficient Evidence to Support the Court’s
Conclusion that Mother Took These Photographs.

¶20 Mother first argues that there was not “clear and convincing evidence that Mother took photos of [J.S.’s] genitals before and after visits with Father.” We disagree.[6]

¶21 At an adjudication trial, the juvenile court must determine whether “the allegations contained in the abuse, neglect, or dependency petition are true” by “clear and convincing evidence.” Utah Code § 80-3-402(1). “Clear and convincing evidence is an intermediate standard of proof that implies something more than the usual requirement” of a preponderance of the evidence and “something less than proof beyond a reasonable doubt.” In re K.K., 2023 UT App 13, ¶ 22, 525 P.3d 519 (quotation simplified), cert. denied, 531 P.3d 731 (Utah 2023). As noted, because the juvenile court made this finding on the basis of stipulated facts, we afford no deference to its conclusion that DCFS had satisfied the clear and convincing evidence standard. But even so, we conclude that this standard was satisfied.

¶22      The clearest indication that Mother took these photographs is the stipulated finding that Mother told Nurse that she took these photographs. The law has of course long recognized that admissions from a party can carry substantial evidentiary weight. As a result, once Mother told Nurse that she took these photographs, the court had a solid evidentiary basis for concluding that she had indeed taken them.

¶23      In a footnote of her brief, Mother nevertheless argues that the court should not have credited this admission. As an initial matter, Mother points out that “[n]o one has received” these particular photographs. And this seems to be true. But again, Mother told Nurse that she had taken them. From this, even without the actual photographs, the juvenile court could take Mother at her word and find that she had taken them.

¶24 More significantly, Mother suggests that her seeming admission was actually the product of a misunderstanding. As noted, the stipulated facts include that “Mother state[d] that she had trouble communicating with [Nurse] and was unable to explain everything.” They also include that “[m]ultiple police reports and DCFS records indicate that [Mother] may be difficult to understand,” and that it is “documented” that Mother has “POTS (post orthostatic tachycardia syndrome),” a condition that “causes forgetfulness and trouble focusing (brain fog) making it difficult for [Mother] to think and speak clearly under stress.” But even accounting for these facts, the juvenile court could still take Mother’s admissions to Nurse at face value. This is so for several reasons.

¶25      The first is the specificity of Nurse’s account. Nurse didn’t say that Mother had made a passing or unclear comment to this effect. Rather, Nurse recalled Mother telling her that “she had taken photographs of [J.S.’s] genitals before and after she went to see [Father] on the advice of a pelvic floor physical therapist.” On its own, the specificity of Nurse’s account belies the suggestion that Nurse had simply misunderstood Mother.

¶26 Second, Mother seems to have reiterated her initial admission as the conversation with Nurse continued. According to Nurse, after Mother made her initial comment about taking these photographs, Nurse “asked [Mother] three times for the name of the physician” who had recommended taking them, but Mother “refused to provide it.” If Mother had not meant to say that she was taking “before and after” photographs of J.S.’s genitals (or, instead, if she hadn’t said it at all and Nurse had misheard her), Nurse’s repeated questioning about which doctor had asked for the photographs would have given Mother the opportunity to clarify that she had misspoken (or that she had been misunderstood) and that she hadn’t actually taken these photographs. But this wasn’t Mother’s response.

¶27      Instead, Nurse claimed that as the conversation continued, Mother “eventually reported that she was documenting what [J.S.’s] genitals looked like before and after parent-time with [Father].” Nurse’s statement that Mother “eventually” told Nurse that she was “documenting” the condition of her daughter’s genitals indicates that Mother reiterated that she had indeed taken them. And the fact that Mother then added the detail that she was “documenting” the “before and after” look of her daughter’s genitals functioned as her explanation for why she thought this was appropriate to do.

¶28      Finally, there’s no place in either the court’s ruling or even in the record as a whole where Mother has ever denied taking these photographs. Even when confronted with a specific allegation from DCFS about an instance in which a witness said that Mother admitted to taking them, Mother chose to respond with a non-admission/non-denial pursuant to rule 34(e).

¶29 Thus, the evidence before the juvenile court was that Mother had told Nurse that she had taken these photographs, that even with the benefits of further conversation and even subsequent litigation, Mother never retracted that admission, and that Mother had instead chosen to justify taking them. In light of all this, we see no basis for overturning the court’s implicit finding that Mother personally took these photographs.

II. The “Before and After” Photographs Were Enough to Establish Neglect.

¶30      “Neglect is statutorily defined,” and it “can be proved in any one of several ways.” In re G.H., 2023 UT App 132, ¶ 28, 540 P.3d 631; see also Utah Code § 80-1-102(58)(a). The juvenile court here concluded that Mother’s actions constituted neglect because “it is a lack of proper parental care to subject a child to having her genitals photographed before and after visits with [Father].” This was an apparent reference to Utah Code section 80-1-102(58)(a)(ii), which defines neglect as “action or inaction causing . . . lack of proper parental care of a child by reason of the fault or habits of the parent.”

¶31      In her brief, Mother points out that the legislature has not further defined the phrase “lack of proper parental care.” Drawing on various textual, structural, and even constitutional sources, Mother now asks us to take the opportunity to fill in the gap and provide further definition of what this phrase means. While we need not create a definitive one-size-fits all definition, we do agree with Mother on a few broad points that inform our analysis below.

¶32      First, the word “proper” is commonly understood to refer to something that is “marked by suitability, rightness, or appropriateness.”[7] Second and similarly, we think the phrase “proper parental care” would naturally incorporate notions of reasonableness. (After all, conduct that’s appropriate would likely be reasonable, and the converse would also be true.) In this vein, we note that Black’s Law Dictionary links the term “proper care” to notions of “reasonable care” that are commonly used in negligence cases, and Black’s defines “reasonable care” as “the degree of care that a prudent and competent person engaged in the same line of business or endeavor would exercise under similar circumstances.” Care, Black’s Law Dictionary (11th ed. 2019). Third, because the statutory phrase at issue turns on notions of “proper parental care,” the relevant inquiry is appropriately focused on what would be proper (with all that the word entails) “under similar circumstances”—meaning, in the particular parenting circumstance at issue. And finally, we agree with Mother that, in light of the fundamental and constitutional rights that are associated with parenting, the neglect standard should not be applied to conduct that falls within an ordinary range of permissible parenting.

¶33      With those principles in mind, we think the contours of this phrase can then capably be fleshed out in the same way that most other phrases from constitutions or statutes are fleshed out— through the ordinary process of common law development. And while there doesn’t appear to be a Utah case that has comprehensively defined this phrase, the parameters of what constitutes neglect have been explored and applied in a number of cases. Among others, we note the following:

·         In In re G.H., we held that the neglect standard was satisfied where the mother “did not attend to the children’s basic health and welfare needs, such as feeding and bathing them, changing their diapers regularly, and obtaining medical care for them when they were sick,” where the mother “did not behave in a manner consistent with parenting a child,” and where the mother “would refuse to care for them when asked by the family members with whom she was living.” 2023 UT App 132, ¶¶ 29–31, 540 P.3d 631 (quotation simplified).

·         In In re K.K., we held that the neglect standard was satisfied based on the mother’s “inaction in failing to protect the children from exposure to domestic violence and prioritizing her toxic relationship” with the father. 2023 UT App 14, ¶ 12, 525 P.3d 526 (quotation simplified).

·         In In re K.D.N., we upheld a neglect determination that was based on “the lack of food,” the “profound lack of parenting skills,” and the presence of “violence” and “chaos” within the home. 2013 UT App 298, ¶ 11, 318 P.3d 768 (quotation simplified).

·         In In re D.T., we held that the neglect standard was satisfied based on the mother’s “admitted relapse” on illegal drugs, “her frequent absences, inconsistent housing, lack of stability, and other behaviors.” 2013 UT App 169, ¶ 5, 309 P.3d 248 (quotation simplified).

·         And in In re N.M., we held that “sufficient evidence support[ed] the juvenile court’s determination that the father “neglected [his child] by engaging in domestic violence.” 2013 UT App 151, ¶ 3, 305 P.3d 194.

In these and other cases, we held that the neglect standard was satisfied, not because of a failure of best-practices parenting, but instead because the behavior in question fell outside acceptable norms of proper parenting. To again use the phrase that we recently used in In re G.H., such cases involve a parent who simply “did not behave in a manner consistent with parenting a child.” 2023 UT App 132, ¶ 30.

¶34      So viewed, we agree with the juvenile court’s conclusion here that Mother’s behavior likewise reflected a “lack of proper parental care.” Utah Code § 80-1-102(58)(a)(ii). Again, while DCFS alleged that Mother had neglected the Children based on a number of things (including her excessive reporting of abuse, as well as her decision to submit the photographs taken by doctors to law enforcement and medical professionals), the conduct at issue in the court’s ruling was Mother taking photographs of a minor’s genitals “before and after parent-time” with Father, as well as Mother’s explanation that she was doing so to “document[] what” J.S.’s “genitals looked like before and after parent-time with” him.

¶35      The juvenile court had before it a statement from Doctor that she had “substantial concerns” about the “repeated photography” of a child’s genitals. Doctor opined that such behavior can be damaging to a child, in part, because it can undermine the messaging that children receive about the privacy relating to their genitals. Doctor’s concerns seem well-founded.

¶36 Moreover, we also note that the photographs in question here were taken by a parent who was in the midst of an “ongoing” and “contentious” custody dispute. By taking photographs of her young child’s genitals “before and after” that child’s visits with her father, Mother wasn’t just potentially desensitizing her daughter to photography of her genitals, but Mother was also communicating to her daughter that she should be concerned that Father was sexually abusing her or at least was likely to do so. This, too, carries obvious potential for harm, both to the child and to her relationship with Father.

¶37      We recognize, of course, that contextual questions such as the ones presented here can and often do turn on even small factual differences. And to be very clear, we don’t mean to suggest that a parent (even one who is involved in a contentious custody dispute) must sit idly by if the parent has a good-faith basis for suspecting that a child is being abused. As illustrated by our survey of the relevant cases above, children should always be protected, and on that front, their parents are indeed the first line of defense.

¶38 If a parent has suspicions that a child is being sexually abused, the parent should of course do something to protect the child, and as indicated, a failure to do anything may well constitute neglect in its own right. Among other things, a parent might respond by reaching out to medical, law enforcement, or other trained professionals, and such professionals may well be involved in documenting any observed abuse. But unlike some of the other photographs at issue in this case, the particular photographs in question here weren’t taken by professionals or in response to their recommendation, nor were they taken by Mother to document visible genital trauma.[8] Rather, according to the explanation that Mother “eventually” gave to Nurse during their conversation, Mother was trying to “document[] what [J.S.’s] genitals looked like before and after parent-time with her father.” It was on this basis that the juvenile court concluded that the neglect standard had been satisfied.

¶39      We have no need to determine whether it would ever be within the bounds of “proper parental care” for a parent to take photographs of a young child’s genitals without first involving trained professionals. And we note here too that, in addition to the suspected abuse scenario, there may be situations where such photography is in response to something more benign (such as diaper rash on an infant), and such contextual differences would likely place such photographs on different analytical footing. For purposes of this appeal, however, we simply conclude that it falls outside the realm of “proper parental care” for a parent to take photographs of a child’s genitals “before and after” visits with the other parent for “documentation” purposes. On this basis, we affirm the juvenile court’s conclusion that Mother neglected the Children.[9]


¶40      We agree with the juvenile court’s conclusion that, without something more, it constitutes a “lack of proper parental care,” Utah Code § 80-1-102(58)(a)(ii), for a parent to take photographs of a child’s genitals “before and after” visits with the other parent for “documentation” purposes. We affirm the adjudication of the juvenile court on that basis.

Utah Family Law, LC | | 801-466-9277

[1] Mother and Father also have another child who was not a minor during the proceedings in question.

[2] For background purposes only, we note that the juvenile court held a “merged pretrial, adjudication, and partial disposition hearing” relating to the one allegation made against Father. At the close of that hearing, the court concluded that the Children were “dependent children . . . in that they were without proper care through no fault of [Father].” Father was ordered to comply with protective supervision services through DCFS as a result. Father has not appealed that ruling.

[3] The parties in this case have all referred to these facts as “stipulated facts.” As indicated, however, Mother affirmatively admitted to certain facts, but for others, she invoked rule 34(e) of the Utah Rules of Juvenile Procedure and neither admitted nor denied them. Under that rule, when a party “declin[es] to admit or deny the allegations,” the “[a]llegations not specifically denied . . . shall be deemed true.” Id. Thus, in a technical sense, the facts the court relied on pursuant to rule 34(e) might not actually be “stipulated” (because Mother didn’t affirmatively agree to all of them), but by force of law, they might as well be. For ease of reference, we’ll follow the lead of the parties and refer to the court’s findings collectively as “stipulated facts.”

[4] Though the findings at issue don’t specifically draw the link, DCFS’s original petition in this case alleged that Mother has a “traumatic brain injury because a car hit her in December 2020,” and the juvenile court also included this finding in an order that it entered with respect to Father elsewhere in this litigation.

[5] The court found that Mother took photographs of J.S.’s genitals, but there’s no finding that she took similar photographs of A.S.’s genitals. Even so, the court found that both the Children are neglected. On appeal, Mother has not argued that this potential distinction provides a basis for reversing the adjudication as to A.S., and we therefore do not consider whether this is so.

[6] The juvenile court did not explicitly find that Mother personally took these photographs. Rather, in this portion of the ruling, the court stated that it is a “lack of proper parental care to subject a child to having her genitals photographed before and after visits with [Father].” “Unstated findings can be implied,” however, “if it is reasonable to assume that the trial court actually considered the controverted evidence and necessarily made a finding to resolve the controversy, but simply failed to record the factual determination it made.” Fish v. Fish, 2016 UT App 125, ¶ 22, 379 P.3d 882 (quotation simplified). Here, we conclude that the juvenile court did make an unstated finding that Mother took these photographs. As discussed in more detail below, Nurse claimed that Mother admitted to taking them. And of note, no one has claimed that anyone else took these particular photographs. Thus, when the court ruled that Mother had “subject[ed] a child to having her genitals photographed before and after visits with [Father],” the clear (and, indeed, only) implication that can be reasonably drawn from this record and the court’s ruling is that the court implicitly found that Mother took these photographs.

[7] Proper, Merriam-Webster Dictionary, [].

[8] In contrast, the juvenile court noted that the photographs taken in 2020 showed “inflammation” of the labia and a small “abrasion” near the groin, while the 2022 photographs showed “vaginal and anal redness.”

[9] Mother also makes some allusion to the stipulated facts relating to certain photographs that she was taking on the advice of Specialist. It’s unclear from the briefing whether Mother means to assert this as something of an “advice of doctor” defense to this neglect allegation. See Utah Code § 80-1-102(58)(b)(ii) (stating that neglect “does not include . . . a health care decision made for a child by the child’s parent or guardian, unless the state or other party to a proceeding shows, by clear and convincing evidence, that the health care decision is not reasonable and informed”). In any event, those stipulated findings reflect that Specialist worked at a gastroenterology clinic, that Specialist was treating J.S. for “a chronic gastrointestinal issue,” and that Mother had been “documenting pictures of [J.S.’s] stool” in conjunction with that treatment. Mother has not specifically asserted that, in conjunction with this gastroenterology treatment, Specialist also told her to take photographs of her daughter’s genitals, much less that Specialist instructed her to “document[] what [J.S.’s] genitals looked like before and after parent-time with [Father].” We accordingly see no basis from this record to overturn the neglect finding on this potential ground.

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New Laws Affecting Utah Divorce and Family Law in 2022

Here is a summary of new law affecting divorce and family law that was created by the Utah State Legislature in 2022: 

HB (House Bill) 122 1st Substitute, entitled “Family Terminology Amendments.” This bill amended language regarding marriage and legitimacy. That means terms like “legitimate” or “illegitimate” in the context of children born out of wedlock have been replaced with “legally recognized relationship.” As I’ve always said, why use one word when you can use three? And as I’ve also always said, “I know how to prevent stigmas attached to words: change the word!” Look how well that’s worked in the past! Your tax dollars at work.  

HB 175, entitled Protection of Animals Amendments. This bill modified the definition of “emotional distress” related to the offense of stalking to include significant mental or psychological suffering resulting from harm to a household pet. But wait, there’s more: it also provides that protection of an animal can be requested certain protective order request forms and protective orders, and it permits the court, when issuing certain protective orders, to enjoin the respondent from injuring, threatening to injure, or taking possession of certain animals.  

HB 231 1st Substitute, entitled “Fishing and Hunting Restrictions for Nonpayment of Child Support.” This bill: amended the restrictions for a license, permit, or tag related to fishing or hunting when an individual is delinquent in child support and makes certain accommodations for obtaining a hunting or fishing license if a child support payor is temporarily unable to pay child support due to transition to new employment. 

SB 74 3rd Substitute, entitled “Alimony Modifications”. This bill defined the term, “length of the marriage” to mean the  number of years from the day on which the parties are legally married to the day on which the petition  for divorce is filed with the court; it provides that if a party is ordered to pay temporary alimony during the pendency of the divorce action, the period of time that the party pays temporary alimony shall be counted towards the period of time for which the party is ordered to pay alimony. It also provides that if a party establishes that a current spouse cohabits with another individual during the pendency of the divorce action, the court: may not order the party to pay temporary alimony to the current spouse; and shall terminate any order that the party pay temporary alimony to the current spouse. 

SB 85 4th Sub, entitled “Protective Order and Civil Stalking Injunction Expungement”. This bill defined terms relating to the expungement of protective orders and stalking injunctions; makes statutory provisions for the expungement of protective orders and stalking injunctions retroactive; allows for the expungement of certain protective orders and stalking injunctions; provides the requirements for expunging certain protective orders and stalking injunctions; and addresses the distribution and effect of an order for expungement of certain protective orders and stalking injunctions. It’s about time. If the courts are going to hand out protective orders like stale candy, consistently flout the preponderance of evidence standard in favor of a “ 

SB 164, entitled “Marriage Solemnization Amendments”. This bill amended the list of individuals authorized to solemnize a marriage to include the state attorney general, the state treasurer, the state auditor, and members of the state’s congressional delegation. After all, haven’t we all felt it just plain common sense that the state treasurer, the state auditor, and members of the state’s congressional delegation ought to have the power to perform wedding ceremonies? I mean, how did we get along without this to this point? 

SB 217, entitled “Protective Order Revisions”. This bill clarifies that a protective order or civil stalking injunction may be filed in the county where a party is temporarily domiciled. 

SB 242, 1st Sub, entitled “Child Support Amendments”. This bill modifies the child support tables; provides the effective dates of the child support tables. 

SB 243 1st Sub, entitled “Parent-Time Amendments”. This bill: defines terms; modifies and clarifies parent-time schedules. More particularly, it specifies transfer time for Christmas holiday on December 27th at 7 p.m. Creates summer parent-time notice dates of May 1st and May 15th. 

Utah Family Law, LC | | 801-466-9277 

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What do husbands do when they are served with a restraining order?

What do husbands usually do when they are served with a restraining order?

The innocent ones:

  1. “What the he— is this?”
  2. “She can’t legally do this, can she?”
  3. “Oh my gosh, do you see all the B.S. claims she’s making here?”
  4. “Does this mean I have a criminal record now?”
  5. “Am I going to lose my job over this?”
  6. Weeping
  7. Rage
  8. Despair
  9. Paralysis
  10. “Hi, I’m _________. I’m calling your law office because I was just served with a temporary restraining order and I need your help.”

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

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


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 | | 801-466-9277

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Domestic Violence and Protective Orders: What do I Need to Know?

This blog post answers the following questions:

  • Do I qualify to get a protective order?
  • How do I obtain a protective order:
    • against an abusive partner, spouse or ex-spouse?
    • for a child?
    • against someone I’m dating or dated in the past?
  • How do I defend myself against a protective order?

Are protective orders criminal proceedings?

No. A victim of domestic violence petitions a court civilly for a protective order. Filing for a protective order does not create a criminal action.

A criminal charge does not need to be brought in order to seek a civil protective order, although often a victim of domestic violence may find that the police charged the alleged violent partner with a crime.

What do protective orders do?

A protective order is a court order that prohibits the perpetrator from committing violence against the victim, attempting violence against the victim, or threatening the victim with violence.

The protective order can also include protective provisions for the victim’s children, if there are children and the victim requests protection for them.

A protective order can also include, and usually includes, additional provisions that the perpetrator must not contact the other person at their home or place of business and must not harass them in any way.

In addition, a protective order can also:

  • direct that there be no further violent actions by the perpetrator;
  • no contact between the parties;
  • award temporary possession of the parties’ residence, vehicles, and other personal property to the protective order applicant;
  • award temporary custody of children to the applicant and parent-time (visitation) to the respondent; and
  • order the respondent to pay child support, if the parties’ have children and the court deems it appropriate to order that child support be paid,

if the court deems such additional orders appropriate.

Who Can Get a Protective Order?

How an adult can obtain a protective order.

Adults can obtain protective orders under the provisions of the Utah Cohabitant Abuse Act. Under the Cohabitant Abuse Act you may seek a protective order if you have been a victim of domestic violence at the hands of a “cohabitant”. Oddly enough, you don’t have to be living currently with someone to be considered a cohabitant for the purpose of obtaining a protective order. In some cases, you don’t have to have ever lived with someone to be considered a cohabitant for the purpose of obtaining a protective order. “Cohabitant” means a person who is 18 years of age or older who:

  • is or was a spouse of the other party;
  • is or was living as if a spouse of the other party;
  • is related by blood or marriage to the other party as the person’s parent, grandparent, sibling, or a mother- or father-in-law or daughter- or son-in-law
    • Note: whether step relationships (step-brother, step-father, etc.) are considered to be the same as blood relationships is not a question the Utah courts appear to have addressed or answered yet;
  • has or had one or more children in common with the other party;
  • is the biological parent of the other party’s unborn child;
  • resides or has resided in the same residence as the other party; or
  • is or was in a consensual sexual relationship with the other party.

“Cohabitant” does not include the relationship of natural parent, adoptive parent, or step-parent to a minor; or the relationship between natural, adoptive, step, or foster siblings who are under 18 years of age.

How a protective order can be obtained if you are seeking protection only for a child.

While an adult cohabitant can ask that his/her minor child(ren) be included when seeking a protective order against an adult cohabitant, if the only victim is a child or children, then then the protective order for the child has to be sought under the Title 78B, Chapter 7, Part 2 of the Utah Code, but not under the Cohabitant Abuse Act.

How to obtain a protective order against someone you’re dating or dated in the past.

If you are a victim of violence at the hands of someone you are dating, but are not living with, married to, or have children with, you can seek a “dating violence protective order” under Title 78B, Chapter 7, Part 4 of the Utah Code, the “Dating Violence Protection Act”.

The Process: Seeking or Defending Against a Protective Order

To obtain a protective order, you must first file a Request for a Protective Order with the court., and you must use the request forms the court provides.

If the Request for a Protective Order convinces the judge that immediate protection is needed, the judge will immediately issue a Temporary Protective Order.

The Temporary Protective Order takes effect as soon as a copy is served on the other party (the party against whom the protective order is sought is known as the Respondent) and will remain in place until there is a court hearing to determine whether the protective order should remain in place as a Final Protective Order.

A protective order hearing is intended to be held within 20 days of filing the request for protective order with the court.

The Hearing

At the protective order hearing, both parties will have an opportunity to present their respective sides of the story.

The Petitioner (the person seeking the protective order) has the opportunity to present evidence that domestic violence was committed, or that the Petitioner is in reasonable fear of domestic violence at the hands of the other party, the Respondent (the person defending against the request for a protective order).

The Respondent will have the opportunity to present evidence in his/her defense to show that domestic violence did not occur and that there is no reason for the Petitioner to fear for his/her safety.

The Effects of a Protective Order

Benefits to the Petitioner

If you are the victim of domestic violence, a protective order can be a major help in your efforts to free yourself from abuse. A protective order can help ensure your abuser stays away from you, your family, your home, workplace, church, and school. After the petitioner obtains a protective order, if the Respondent violates the order in any way, the respondent can be charged criminally.

Remember, however, that a piece of paper can’t stop bullets, knives, or fists. If the person against whom you have requested a protective order has no respect for the law, then a protective order may not be enough protection and you may need to get out of town and hide.

Detriments to the Respondent

The stakes are high for the Respondent in protective order proceedings for two main reasons.

First, if a protective order is entered, it can have lasting effects one one’s reputation and standing in the community. If protective order is issued against you, it can lead to you losing your employment and/or to having difficulty finding employment (nobody wants a violent person on the payroll). A protective order can cause your family members, friends, neighbors, and fellow church members to shun you. It can lead to you being barred from your child’s school, church, athletic events, and even from the doctor’s office or hospital where your child is being treated.

A protective order can have lasting adverse effects on the Respondent including, but not limited to:

  • forcing you to move out of your home (if you previously shared a home with the Petitioner);
  • separating from your children and being relegated to seeing your children just a few times a month, perhaps even under third-party supervision that you are ordered to pay for;
  • putting you at a disadvantage in any ongoing or future divorce or child custody proceeding with the Petitioner by being branded as the abusive “bad guy”;
  • losing your job or having a harder time getting a job—having a protective order entered against you is information that can be accessed by current and future landlords and employers;
  • risk for deportation, if you are an immigrant in this country;
  • depriving you of the right to own, possess, purchase, or even use a firearm; and
  • appearing in the State’s domestic violence database.

Second, a protective order cannot be changed or dismissed without the court’s approval. Even if the Petitioner is willing to have the protective order dismissed, the protective order cannot be dismissed unless the court feels it safely can be dismissed. And final protective orders last forever, unless and until dismissed by the court.

How Do I Defend Myself Against a Wrongfully Sought Protective Order?

The first step in defending against a protective order that is wrongly sought against you is to ensure that you know the date, time, and place of the hearing on the application for protective order. This hearing is your opportunity to explain your side of the story, present your defenses, and make the case as to why a protective order should not be entered against you. If you fail to attend the hearing, it is all but certain that the protective order will be granted.

In preparing for the protective order hearing, you won’t be given much notice or time to prepare.

Gather any evidence you can that might aid in your defense.  This might include pictures, emails, text and phone records, letters, recordings or GPS records.  Anything that will help prove your defense can be valuable in this hearing.

Finally, the protective order hearing is incredibly important, and may be your only opportunity to defend against a protective order before it is entered, it is a good idea to consider hiring a good attorney to present your best case at this hearing.

How Do I Get a Protective Order Dismissed, or Modified?

Once the court enters a protective order, your options are to (1) request that a protective order be changed, or (2) request that a protective order be dismissed.

To modify the protective order, you must submit a Request to Modify Protective Order.  You may want to change a protective order to adjust parent-time (which is sometimes included in the order), or adjust some of the terms of the order for good cause.

If you would like to have a protective order dismissed, you must submit a Request to Dismiss Protective Order.  This request will be followed by another hearing, in which the parties and the Commissioner will meet again to determine whether the order is still necessary. If the Petitioner no longer indicates that he/she fears for his/her safety, the order may be dismissed.

If you have questions about seeking or defending against a protective order, contact a skilled and experienced attorney; it’s worth the effort and worth the money.

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

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How do I make sure my ex stays away with the protective order in place?

How do I make sure my ex stays away with the protective order placed by the DA (district attorney) from DV (domestic violence) on his part?

Stay away from him. Look over your shoulder. Sleep with one eye open.

In some towns, the police or sheriff may enforce the protective order vigilantly and arrest him for violating the protective order. In others, the police/sheriff may take a lax approach to enforcement. But even if the police/sheriff really want to help you, you know what they say: when seconds count the police are just minutes away.

The courts are similar. Some courts will enforce harshly enough that your ex may conclude that it’s better to comply with the protective order than to violate it. Other courts take the “If you violate the protective order a dozen more times, there’ll be hell to pay!” approach, and your ex will quickly realize that that particular court is either powerless or afraid to exercise it’s power of enforcement.

You have to protect yourself. How? 1) Hide; and 2) and get and learn how to use a gun, so that if he does hunt you down and tries to hurt you again, you can shoot him in self-defense.

Not fair to have to hide when you’ve done nothing to deserve it? True. But that’s life. Not fair to have to get a gun when you’re opposed to violence/guns? Yes. But that’s life too. If you refuse to hide and defend yourself, you leave your safety in someone else’s hands, and leaving your safety in someone else’s hands is a risk I would not choose to take, if I had the choice.

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

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Using Smart Home Devices to Stalk and Harass

Lawyers consider restraining orders to stop abusers from using smart home devices to harass – but you can protect yourself

Some domestic abusers are using smart home devices to intimidate, harass, watch and listen to their victims.
Lawyers are grappling with the issue as they seek to cover smart home technology in restraining orders, the New York Times reports. Its story is based on more than 30 interviews with victims, their lawyers, shelter workers and emergency responders. (click here to read the rest of the article from the ABA Law Journal)

And click here (forms for applying for a protective order in Utah) and here (Utah Code Title 78B, Chapter 7 (Protective Orders)) if you want to learn more about how Utah protective orders can, among other protections,

  • Not to interfere with or change my phone, utility or other services.
  • To maintain existing wireless phone contracts or accounts.

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

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What’s up with restraining orders? How can she keep calling and texting me?

Why can someone get a restraining order but still see the person she put in on and have videos, texts, and calls? Can they get in trouble or arrested for being around the person she put the restraining order on?

There is clearly a need for restraining order (also known as “protective order”) statutes. There are vulnerable people out there who would be victimized by crazy and/or evil people without the protection of the law.

But some jurisdictions take “better safe than sorry” to ridiculous, unfair lengths.

In Utah, where I practice law, the law is, inexplicably and inconsistently, that one can obtain a protective order (“protective order” is the term we use in Utah) yet not be restrained from initiating all kinds of contact and/or communication with the person against whom he/she obtained the protective order.

By way of example: “She” (yes, yes, men can apply for protective orders, but 1) women are the overwhelming number of protective applicants, whether they are genuine victims or maliciously wielding the protective order statute as a weapon; and 2) men are both discouraged from applying for protective orders, and when they do, they are, in a stunning display of sexism, frequently not believed, so we’ll refer to the applicant as a woman for the purposes of this discussion) can apply for an obtain a protective order against “Him” that contains prohibitions like these:

  • prohibit Him from harassing, telephoning, contacting, or otherwise communicating with Her, directly or indirectly;
  • order that He is excluded from Her residence and its premises, and order Him to stay away from Her residence, school, or place of employment , or any specified place frequented by Her and any designated family or household member of Hers.

Yet there is nothing in Utah law to prevent Her, after obtaining the protective order against Him, from:

  • telephoning, contacting, or otherwise communicating with Him, directly or indirectly;
  • from coming to His residence, school, or place of employment , or any specified place frequented by Him and any designated family or household member of His.

Under these circumstances, the problem that thus can arise (and all too often does arise) is that She will call or text or visit Him suggesting they talk or meet to “make up”. The poor guy thinks, “Great, She wants to put this behind us. So do I. Of course I’ll talk and/or meet with her. After all, it’s her idea, so if she wants to talk and/or meet (or have sex, etc.) with me, I can’t be blamed for accepting the invitation, right?”


It happens all the time in Utah: if She invites him to come over and talk (or have sex, etc.), so He cheerfully obliges, only to have his actions constitute a “violation” of the prohibitions against “contacting, or otherwise communicating with Her, even though it was her idea, her invitation, her enticements.

For years there have been efforts to include in Utah’s protective order statutes a provision that would make situations like this a defense to charges of violating a protective order, but they get shot down with the argument that such provisions would “expose the victim to unnecessary risk” or (my favorite) “have a chilling effect on applying for protective orders”. It’s  nonsense, but that’s the reason why.

Things are slowly getting better. One recent change to the protective order law now protects Him from being barred from his job, school, or church if She works at the same place or works at the same place or worships at the same place He does.

Eventually I believe Utah’s law will be amended to include the defense of “I was enticed” and will also punish Her if she entices Him for the purpose of setting him up (framing him) for a “violation” of the protective order.

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

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

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Defending Yourself Against a Protective Order

My friend is a good man. His wife is crazy. She put a protection order against him, to help manipulate the court proceedings. What should he do?

Defend himself with all he has because:

  • (regardless of how much the legal system will deny it) the prevailing presumption is that a man accused of domestic violence is guilty;
  • the unwritten, unseen even unwitting policies of the system are set up to ensure that presumption is affirmed; and
  • many (not all) courts grant protective orders routinely, without really making a considered determination of whether the standard of proof has been met to merit one.


One, no judge wants to deny a request for protective order, then have the woman wind up hospitalized or dead, and then be blamed for “failing to protect” the victim. So to ensure that never happens judges often grant any request for a protective order. That way they can never be blamed for “failing” to protect victims. The fact that “generous” issuance of protective orders victimizes innocent men just doesn’t get enough attention to give some judges pause.

Two, the job of a judge is very demanding, very difficult, and often thankless. These are the reasons why judges can become jaded and apathetic, especially on the subject of domestic violence.

The tragic results are often:

  • the accused’s reputation is irreparably damaged; and
  • he proceeds at a permanent disadvantage and under a cloud of public shame and loathing, if the “victim” follows the protective order request with a complaint for divorce (and that’s usually exactly what happens)

Your friend needs to:

  • Hire the best lawyer he can find to help defend him. If he tries to defend himself, the legal system can chew him up (strip him of his money, job, home, family, and good name) and spit him out.
  • You may assert, “But if he gets a lawyer, won’t that make him look guilty?” NO!
    • Indeed, I’d contend that not getting a lawyer makes him look like someone who’s so poor and stupid that he’s the kind of arrogant lout who probably beats his wife. Lawyer up.
    • There is plenty of empirical and anecdotal evidence that people who represent themselves in legal proceedings without an attorney get treated worse by the courts than people who hire lawyers. It’s not fair, but it’s reality. Lawyer up. Pay for a good lawyer. You simply can’t afford not to.
    • Although you may believe otherwise, you have no idea how the legal system works, and you will almost surely make numerous serious and irreparable mistakes if you try to navigate the system on your own.
    • Lawyer up. Do it as fast as you can. The legal system does not work the way you think it does. If you believe that all you have to do is go into court and tell your side of the story for a fair shake, you’re mistaken.
    • Don’t get me wrong: there are some judges out there who will care, who do understand the law, and you are not afraid of holding protective order applicants to the proper standards of evidence and burdens of proof. But why leave it to chance?
    • DO NOT speak to the police (without counsel). The police can lie to you and try to misreport or misconstrue your words. They are allowed to do that in the course of their investigations. They will avail themselves of this tool. So if they tell you that “you are not a suspect,” or “we just want to get your side of the story,” or even “this will go a lot easier for you if you cooperate,” they almost never mean a word of it.

When the police want to talk to you in this setting, it’s usually because they want to bury you, not vindicate you. You can’t afford to take the risk.

If you are approached by Child Protective Services, the Division of Family Services, or whatever such an organization is called in your jurisdiction, do not agree to speak with them without your lawyer present, and without you recording the interview from start to finish. You may ask why I do not advise you simply to refuse to speak with these agencies. The reason for this is a little unclear in many people’s minds: while you have a constitutional right to remain silent if you are questioned by the police, in most jurisdictions (although you’ll want to confirm this in your own jurisdiction) you do not have such a right if you are questioned by officials of child welfare agencies. In the course of my career and my dealings with child welfare agencies in the protective order context, this loophole is often exploited, and here’s how:

1) the child welfare agency official invokes the right to question you;

2) (and if you refuse to answer those questions, then the child welfare agency official will report this to the court, and your refusal to answer questions may, and likely will, be construed as evidence of guilt. The problem is that if you speak with the child welfare agency officials, they will frequently misstate and misinterpret your answers. This is why they rarely, if ever, make an audio recording of your interview: that way it becomes a matter of your word against theirs, and since they work for the state, the court typically places more stock in the word of a government agency than in the word of the accused);

3) then the child welfare agency official goes to the police and tells the police a slanted version of what you just told the child welfare agency officials (because you had to answer their questions), and on the basis of what you said to the child welfare agency officials, the police charge you with a crime.

Now you see how important it is for you not to speak with the child welfare agency official before you have lawyered up, submitted to questioning only with your lawyer present, and have made it clear that you will be making an audio recording of the entire interview with the child welfare agency officials.

The majority of the public believes (although this belief is slowly giving way in the face of some highly public rail-roadings) that whenever there is an allegation of domestic violence, it must be true, and it must’ve been the man who was the aggressor. With these stereotypes in mind, many people are falsely/wrongfull charged and convicted. If you don’t know how to defend yourself properly, and if you do not actually defend yourself properly, you will likely be failed and victimized by a system that does not care about you or the truth.

If you are innocent:

  • lawyer up now, now, now;
  • don’t speak to anyone without consulting with a lawyer first. Don’t speak to anyone without your lawyer’s advice, without your lawyer present, and without making a recording of the interview;
  • passionately profess your innocence. Vehemently deny wrongdoing;
  • gather every scrap of exculpatory evidence that you can possibly find. You’re going to need it. All of it. You need so much exculpatory evidence that you can win six ways from Sunday. The playing field is not level. Do everything you can to ensure that you have control over your fate. Do not entrust your fate to the legal system.
  • Prepare and file with the court–with the assistance of a very good lawyer–as soon as you possibly can a document asserting your innocence and the categorical denial of all wrongdoing. Do not wait until you appear in court to state your case.
  • Do not merely defend yourself. Go on the offensive. Don’t simply oppose the request for protective order and ask that it be denied. If your jurisdiction allows, moved to have the protective order action vacated as frivolous and without merit.
  • Make sure your lawyer 1) informs the court of the applicable legal and evidentiary standards and 2) holds the court to them. Don’t allow your judge to issue a protective order against you carelessly or out of bias.

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

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