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Tag: record

Why All Communications with Your Former Spouse Should be in Writing By Braxton Mounteer, Legal Assistant.

Even if you trust your former spouse to deal with you honestly and in good faith in any matter pertaining to your divorce, why should you communicate in writing with your ex?
Writing down or recapping your conversations in writing (text and/or email) with your spouse creates a verifiable record. If you later present this to your spouse refer back to the record and avoid confusion, refute false claims, and prove real claims.
So if your ex tries to claim you didn’t give him or her notice of the day, time, and place for Timmy’s baseball game, referring back to that text message or email message will vindicate you. If you need to prove you made a timely request for reimbursement for a child health care or daycare expense, written record is essential.
If there is no record, the event or the claim might as well never have existed. If you can’t prove it exists, it doesn’t in the world of law. Phone calls do not exist. Well, to be fair, you may be able to prove a phone call to place, but not what was discussed during the call. Likewise with in-person communications. All the other person would have to do is to claim that the conversation didn’t happen and then it is your word against another’s. To avoid that, create a written record.
Your former spouse may try to get you to discuss (or worse, to agree to) something “off the record,” as it were, and then use that opportunity to take advantage of you. Avoid the hassle; get it in writing.
Utah Family Law, LC | divorceutah.com | 801-466-9277
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2023 UT App 55 – In re F.C.G.

2023 UT App 55 – In re F.C.G.

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF F.C.G.,

A PERSON UNDER EIGHTEEN YEARS OF AGE.

L.C.G.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Per Curiam Opinion

No. 20221129-CA

Filed May 25, 2023

Third District Juvenile Court, Salt Lake Department

The Honorable Monica Diaz

No. 1205462

Julie J. Nelson Attorney for Appellant

Sean D. Reyes and John M. Peterson,

Attorneys for Appellee

Martha Pierce Guardian ad Litem

Before JUDGES GREGORY K. ORME,

MICHELE M. CHRISTIANSEN FORSTER, and AMY J. OLIVER.

PER CURIAM:

¶1        L.C.G. (Mother) appeals the juvenile court’s order terminating her parental rights. We affirm.

¶2        “To terminate parental rights, a juvenile court must make two separate findings.” In re C.T., 2018 UT App 233, ¶ 12, 438 P.3d 100 (quotation simplified). First, a court must find by clear and convincing evidence that there is at least one statutory ground for termination.” Id. (quotation simplified). “Second, “a court must find that termination of the parent’s rights is in the best interest of the child.” Id. Because a parent’s rights are constitutionally protected, a court may terminate parental rights only if it finds that termination is strictly necessary for the best interest of a child. See id.

¶3 Mother does not challenge the juvenile court’s determination that there were statutory grounds supporting the termination of her parental rights, or the court’s determination that doing so was strictly necessary and in F.C.G.’s (Child) best interest. However, the record supports the juvenile court’s determination that there were statutory grounds supporting the termination of Mother’s parental rights, that termination was strictly necessary, and that terminating Mother’s rights was in Child’s best interest.

¶4        Instead, Mother asserts that the juvenile court erred by determining that she waived her right to counsel, and by permitting counsel to withdraw at trial. Specifically, Mother asserts that the juvenile court violated rule 53(c) of the Utah Rules of Juvenile Procedure and her due process rights by permitting counsel’s withdrawal. “We review waiver of a statutory right to counsel for correctness but grant the trial court a reasonable measure of discretion when applying the law to the facts.” In re A.B., 2017 UT App 99, ¶ 5, 400 P.3d 1107 (quotation simplified). The “termination of parental rights involves a statutory right to counsel, not a constitutional right to counsel. See id. Accordingly, “waiver of a statutory right to counsel is proper as long as the record as a whole reflects the parent’s reasonable understanding of the proceedings and awareness of the right to counsel.” Id. (quotation simplified).

¶5        Rule 53(c) provides that a motion to withdraw may be made orally before the court, and counsel’s request to withdraw should demonstrate a parent’s familiarity with his or her right to counsel, the withdrawal of counsel, the right to appeal, and post-judgment motions. Utah R. Juv. P. 53(c)(1). The record demonstrates that Mother was aware of the rights identified in rule 53(c). On November 30, 2021, the juvenile court appointed counsel for Mother. Based on Mother’s lack of contact with counsel, and her failure to meaningfully participate in the proceeding, the court permitted counsel to withdraw.

¶6        On October 13, 2022, Mother appeared at the termination trial. Knowing that counsel had been permitted to withdraw, Mother once again requested the appointment of counsel. The juvenile court re-appointed Mother’s counsel and continued the trial until December 12, 2022, so that Mother could participate in trial preparations and trial. The court scheduled a pretrial hearing for November 7, 2022. Mother failed to appear at the pretrial hearing. Mother also failed to appear at the December 12, 2022 trial.

¶7        The court determined that Mother received notice of both the pretrial hearing and the continued trial when she appeared on October 13, 2022. Mother failed to communicate with counsel and assist in trial preparations. Mother’s counsel attempted to contact Mother at least twelve times prior to the continued trial. Mother’s counsel received only one email from Mother, but it was not substantive, and it did not address any of counsel’s “questions or advice or anything that I had given to her.” The court determined that based on Mother’s nonappearances in court, plus her lack of contact with counsel, Mother waived her right to counsel.

¶8        Mother next argues that the court violated her due process rights. Specifically, she argues that she had a constitutional right to counsel, beyond that of a statutory right to counsel. Mother asserts that “the Utah Supreme Court determined that, under certain factual circumstances, a parent facing termination of their parental rights has a right to counsel under the Due Process Clause of the Fourteenth Amendment of the federal constitution.” In re adoption of K.A.S., 2016 UT 55, ¶ 35, 390 P.3d 278. Mother argues that a constitutional right to counsel requires a heightened showing that a parent knowingly and voluntarily waived the right to counsel, rather than whether the “record as a whole reflects the parent’s reasonable understanding of the proceedings and awareness of the right to counsel.” In re A.B., 2017 UT App 99, ¶ 5.

¶9        Mother acknowledges that the Supreme Court did not hold that parents are always entitled to the constitutional right to counsel. The Supreme Court determined that “where, for example, the parent has not taken an interest in the proceedings and the weight of the evidence of the parent’s lack of interest is great—the presumption against the right to counsel will not be overcome.” In re adoption of K.A.S., 2016 UT 55, ¶ 38 (quotation simplified). Given the juvenile court’s determinations regarding Mother’s nonappearances in court, her lack of contact with counsel, and her lack of participation, the record supports the juvenile court’s determination that Mother did not take an interest in the proceedings, and the weight of the evidence of Mother’s lack of interest is great. The record does not support that Mother had a constitutional right to counsel, or that the court erred in its waiver determination and allowing counsel to withdraw.

¶10      Mother next asserts that she received ineffective assistance of counsel when counsel withdrew, rather than requesting another trial continuance or additional appointment of counsel. To prevail on an ineffective assistance of counsel claim, Appellant must show: (1) her counsel’s performance was deficient and (2) the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 669, 687 (1984); In re C.M.R., 2020 UT App 114, ¶ 19, 473 P.3d 184 (applying Strickland to an ineffective assistance of counsel claim in a child welfare proceeding). To demonstrate deficient performance, Mother must persuade this court that, considering the record as a whole, counsel’s performance was objectively unreasonable. State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350. To demonstrate prejudice, Mother must show that “there exists a reasonable probability that the case would have had a different outcome had trial counsel not performed deficiently.” State v. Florez, 2020 UT App 76, ¶ 43, 465 P.3d 307.

¶11      Mother asserts that counsel was deficient because he did not adequately comply with rule 53(c) of the Utah Rules of Juvenile Procedure. However, as addressed above, it was apparent from the record that Mother was familiar with her rights identified in rule 53(c). See Utah R. Juv. P. 53(c)(1)(iii). Counsel had been appointed twice in Mother’s proceeding, and the court permitted counsel’s withdrawal due to Mother’s refusal to communicate with counsel, participate, and to attend court. Counsel’s decision to withdraw, rather than request yet another continuance or additional counsel was not deficient. “Because the decision not to pursue a futile motion is almost always a sound trial strategy, counsel’s failure to make a motion that would be futile if raised does not constitute deficient performance.” State v. Powell, 2020 UT App 63, ¶ 20, 463 P.3d 705. Given the required short time frames in child welfare cases, Mother’s nonappearances, lack of communication with counsel, and her lack of participation, the record does not support Mother’s claim that counsel was ineffective for declining to request yet another continuance or requesting that the court appoint another attorney.

¶12      Mother next argues that the doctrine of structural prejudice suggests that she was prejudiced when counsel withdrew at trial. See State v. Bond, 2015 UT 88, ¶ 40, 361 P.3d 104. To satisfy this part of Strickland’s test, Mother must demonstrate particularized prejudice in her specific case. See State v. Juarez, 2021 UT App 53, ¶ 27, 489 P.3d 231. “Allegations of structural prejudice, or prejudice per se, are generally insufficient in the context of an ineffective assistance claim.” Id. (quotation simplified). However, we need not address both components of the Strickland inquiry if we determine that Mother made an insufficient showing on either prong. See id. ¶ 26. Because the record does not support Mother’s claim that counsel was deficient, we need not address this claim. See id.

¶13      The juvenile court’s order terminating Mother’s parental rights is affirmed.

 

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

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Is it possible to get court transcripts for custody hearings?

Every jurisdiction is different regarding which court hearings are open to the public and whether recordings of their proceedings are available to the public or even to the parties’ themselves. 

Every jurisdiction is different regarding how court proceedings are recorded too. 

Not every jurisdiction makes a written transcript of court proceedings. 

Most jurisdictions make audio or video recordings of court proceedings at a certain level, and divorce and family law proceedings are on that level. 

In the jurisdiction where I practice divorce and family law (Utah), the court makes its own audio recordings of divorce another family law court proceedings. These proceedings are open to the court, and thus the audio records of the court proceedings are public record, meaning that they are available to the public. Utah courts do not, at the trial court level, make written transcriptions of court proceedings. 

If you wanted to obtain a transcript of Utah family law court proceedings, you would need to take the audio recording of those proceedings and have them transcribed. If you wanted to use the transcription for appeals purposes, you would have to have the record transcribed by a stenographer approved by the court. It might also be possible to make your own transcript and to utilize that, if the opposing party agreed that your transcript was a true and complete and accurate transcription of the proceedings. 

Generally speaking, if all you want is a written transcription of the recordings of court proceedings for your own personal use, there’s nothing to stop you from doing so. And with advances in transcription technology, the cost of transcription have plummeted from what they were just 10 or 20 years ago. There are online transcription services such as http://Rev.com or Otter.ai – Voice Meeting Notes & Real-time Transcription that don’t do a perfect job of transcription, but do a very good job of transcribing for very little money. These types of services make obtaining transcriptions of court proceedings easier and less expensive than ever before. 

Transcripts can be very useful in establishing certain facts that may have otherwise escaped the court’s attention had they not been recorded and transcribed. Judges hate listening to audio recordings, but are much more receptive to reading a transcript of the very same recording because it’s much easier to isolate those portions of the recording in the transcript that are relevant to the issues before the court.  

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

https://www.quora.com/Is-it-possible-to-get-court-transcripts-for-custody-hearings/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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I’ve never seen a GAL or custody evaluator add value equal to the fees they charge

I’ve never seen a GAL or custody evaluator add value equal to the fees they charge

This post is the fourteenth 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.

I’ve never seen a guardian ad litem or custody evaluator add value to the child custody analysis that is equal to what the GAL and/or custody evaluator charged in fees, and here is why:

First and most glaring of all, there is no way to know if the guardian ad litem has done anything (let alone done anything well or poorly) because the guardian ad litem does not have to make a record and is not subject to discovery. The guardian ad litem could literally do nothing and lie through his or her teeth to the court and there is be no way discover and expose it except by dumb luck. Custody evaluators, as opposed to guardians ad litem, can be subject to some discovery, but rarely is a custody evaluator willing to part with his or her file contents in response to a discovery request. It is often very difficult to get a custody evaluator to comply with the discovery request, if a discovery request is made.

Back to the problems of guardians ad litem specifically. Because the guardian ad litem is not required to furnish the court with any proof in support of any alleged facts that underlie the GAL’s assertions and recommendations, the guardian ad litem’s assertions, analysis, and recommendations literally have the same evidentiary value as any other person’s bald claims.

If there are devoted guardians ad litem out there becoming intimately and accurately acquainted with their child clients’ circumstances and feelings AND providing verifiably accurate and credible factual information to the court, as well as sound analysis based upon and citing to such evidence, I have yet to witness that personally. If anyone viewing this has had a different experience that can be documented and verified, I plead with you to share it with me. I must warn you: even if you were to produce such of guardian ad litem, I would ask whether what the guardian ad litem charged for such a thing justify the expense when the child could have been interviewed directly by the judge instead.

Third, even if we were to grant that a guardian ad litem somehow furnished accurate evidence and analysis—without the basis of that evidence and analysis being subject to discovery and verification and without having to make a record of what the children are asked and what they say in response—the amount and quality of such evidence and analysis still does not justify the time and money consumed by the appointment of a guardian ad litem compared to the much lower cost, much shorter consumption of time, and greater accuracy of a judge’s on the record interview of the child.

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

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What’s the benefit of having no record of the child’s interview?

What’s the benefit of having no record of the child’s interview?

This post is the eleventh 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 private guardians ad litem work diligently and find a lot of useful information, there is no way to know that because they are not required to furnish any proof to verify the quality of their work and opinions. And so, when guardians ad litem say that they don’t tell us much, if anything, about what the child said, and refuse to provide of the evidence upon which they base their recommendations, but instead merely make a recommendation as to what is in the child’s best interest, the evidentiary basis for those recommendations, the factual basis in the record, is literally non-existent. What verifiable proof of anything pertaining to a child’s best interest when it comes to custody and parent time does a GAL bring to the table? Literally nothing.

Why should we take the unsubstantiated word of the GAL over the word of the child directly stated to the judge in an on the record interview with the judge? I do not see how a GAL can represent a child when there is no way to tell whether the GAL has done good/adequate/preponderance of evidence work or any work at all. The GAL’s work and the child’s interview(s) are not made on the record, so we have no idea what was asked of the child or what the child said in response. The GAL is not subject to discovery, so any ostensible evidence upon which the GAL claims to have based her analysis and recommendations will not exist as a matter of court record. The court literally takes on faith what the GAL recommends, if the court decides to believe anything the GAL says. I ask you: why I go through any of this rigmarole when the judge can interview the children directly, without any second or third hand intermediaries, far more quickly, accurately, particularly, and inexpensively than a GAL or custody evaluator?

I have never witnessed a private guardian ad litem meet or speak with the children for multiple times or for significant periods of time (nor am I aware of the need for this). Even if they did so, how would we ever know? None of their conversation(s) is/are made part of the court’s record. And even if a guardian ad litem and/or custody evaluator were to spend hours speaking with the child, attending the child’s activities, becoming intimately acquainted with the child circumstances, feelings and needs, neither the parents nor the court will ever know this because A) neither the guardian ad litem nor the custody evaluator is required to record interviews with the children, will never really know what they were asked or what they said in response and B) the judge will never speak with the child to verify whether what the guardian ad litem and/or custody evaluator reports is true. I do not know why anybody believes this is an acceptable way to engage in fact-finding, especially in court proceedings. No one has yet convincingly explained why to me, and I’ve asked around a lot.

I’ve heard guardians ad litem claim to have spoken to collateral sources, but how would we know if they ever did or what they asked or what they were told? No record is made of any of their alleged actions, no discovery can be conducted into who these alleged collateral contacts were or what they actually said to the guardian ad litem. In most cases, the guardian ad litem doesn’t even identify specially who he or she spoke with, and even if these collateral sources were specifically identified, we have no record of the conversation between the GAL and the collateral sources. And by the time you learn who the collateral sources are, the guardian ad litem is already made his or her report to the court, so you can’t cross-examine any of the alleged collateral sources the Guardian ad litem claims to have interviewed.

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

 

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What does a judge ask a child in a custody case?

In Utah (where I practice divorce and child custody law) the answer is: it’s almost impossible to say. Why?

  1. For reasons that I assert I can demonstrate are not highly rational*, the majority of judges are extremely reluctant to question children on the subject of the child custody award.
  2. Case files for child custody cases are classified as private and not accessible to the public, so unless the child is questioned in a public court proceeding (which happens so rarely one could honestly state that, statistically speaking, it never happens), we will never know (we can never know) what the child was asked or what the child said in response. Those judges who are willing to question children—as they are authorized by the Utah Code to do—almost never question children in public court proceedings but instead question them in chambers, although the questioning is conducted on the record and not covertly.
  3. The law gives judges the opportunity to avoid hearing directly from a child by instead appointing an attorney for the children known as a “guardian ad litem” and thus avoid ever actually hearing any testimony from the child’s own mouth by having the GAL claim to have spoken to the child, albeit not on the record (and thus there is no objectively verifiable way to confirm this), to have elicited from the child his/her experiences, observations, feelings, opinions, and desires (again, without there being any objectively verifiable way to confirm this) and then, based upon literally nothing that is objectively verifiable, make recommendations to the judge as to how the judge should rule on the issue of the child custody award.

*The ostensible reasons that most judges give for refusing to question children or allow children to be questioned by an attorney or attorneys are that they:

  1. A) fear that if parents find out what the child says, then the child may feel guilty for expressing a preference or preferences for one parent over another on particular subjects of parental abilities and fitness;
  2. B) fear that once parents discover what the child had to say the child may be punished or retaliated against if what the child said upsets or offends one or both parents; and/or
  3. C) conclude, without first questioning the child, that children in general are incompetent witnesses and that their testimony would be of little help to resolving child custody questions.

Here is why I assert that such reasons are not rational:

1) First, parents are going to find out what a child thinks, feels, and wants with regard to child custody irrespective of whether the judge questions the child in court proceedings. Parents are going to learn of this (whether directly from the child or from his/her siblings, extended family members, friends, neighbors, teachers, counselors, coaches, ministers, etc.) before the child custody case is filed, during the pendency of the child custody case in court, at trial, and after the trial. It’s unavoidable. It’s inevitable. I submit that i) the belief that not questioning a child about his/her opinions and preferences regarding child custody will prevent the child’s parents from discovering those opinions and preferences, and ii) the believe that the only time and place in which the child will express such things is when questioned by the judge, is rather naive; it’s impossible to prevent parents from learning this information from and about the children.

Second, the value that many judges place on preventing children from feeling guilty or uncomfortable is misplaced. For two reasons. One, children who are going to feel guilty and uncomfortable about their child custody preferences, who are going to feel as though they are betraying a parent by expressing a preference for one over the other. are going to feel that way regardless of whether they express those preferences to the judge or a custody evaluator or a guardian ad litem (GAL). Two, getting to the truth about how children feel and why—when it comes to their child custody preferences—is far more important than sparing them from feeling guilty (especially when we already know they’re going to feel guilty regardless of whether they testify). Otherwise stated, preventing child testimony does no good: it protects the children from nothing, while denying the judge the clearest, purest sources of information about the children’s experiences, observations, feelings, opinions, and preferences as they relate to the child custody award.

2) If the judge believes that children will not be punished for expressing a preference for one parent over another, so long as those preferences are not expressed to the judge, again, that’s not rational either. It is impossible for a judge to prevent parents from learning a child’s feelings, opinions, and preferences regarding child custody. Thus it is impossible for a judge to prevent a parent who gets upset by those feelings, opinions and preferences from learning about them and from punishing and retaliating against his/her child once he/she learns of them. A judge can’t even mitigate the amount and severity of the retaliation and punishment because the judge is powerless to prevent the child’s feelings, opinions, and preferences from being discovered. And so once again, we find the court depriving itself of one of the clearest and purest sources of information and guidance on the subject of thee child custody award based upon a fear and a belief that has no rational basis. Closing one’s ears and eyes to what a child can say on the subject displays, frankly, a shocking disregard for the best interest of the child.

3) Concluding, without first questioning the child, that children in general are incompetent witnesses and that their testimony would be of little help to resolving child custody questions. See self-fulfilling prophecy. While it is certainly true that some children may be, for various reasons (such as being too young to talk, too young to have a consistent and reliable understanding of right and wrong and truth and falsity, placed in circumstances that call the veracity or credibility of the child’s testimony into question from the outset, etc.), one sure way to guarantee that we never determine how informative, probative, and reliable a child’s testimony may be and what weight to give such testimony is to dispense with allowing the child to testify in the first place.

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

https://www.quora.com/What-does-a-judge-ask-a-child-in-a-custody-case/answer/Eric-Johnson-311

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