What can I legally do if my child’s mother picks up our child in an Uber without a car seat? She is 5 years old, about 50 lbs. She is also the custodial parent with full custody rights, so she feels she can do anything she wants. Can I call the cops?
I’m old enough to remember when it was not illegal to wear a seatbelt. I’m old enough to remember when it was not illegal to permit a child to ride in a car without a seatbelt. I remember when there were no laws that children under a certain weight or height must ride in car seats when riding in cars. Most jurisdictions now have laws that require children of a certain age, weight, or height be strapped into a car seat when riding in a car.
So, the first thing you will need to do is find out whether it is illegal for your ex-wife to have your five-year-old, 50 pound child ride in a car without a car seat. You’ve mentioned that your ex-wife will often have your child picked up by Uber (a ridesharing service), and so you will want to ensure that even if there are laws that require a child to ride in a car seat when writing in a car, there are no exceptions for ridesharing services, taxicabs, buses, etc.
If, after conducting your research, you learn that it is illegal for your ex-wife to have your child ride in a car or when using a ridesharing service without having the child strapped into a car seat, then you would be well within your rights to report this to the police. just because you could do this, however, does not mean that you should, at least without first notifying your ex-wife that what she is doing is illegal and places your child in danger, and that if she refuses to comply with the law you will then report her to the police and perhaps even take the matter up with the court to get an order that requires her to secure the child in a car seat when traveling by car under circumstances when the law requires a car seat be utilized.
What will happen if the court ruled in favor of a mother to have the custody of her child but the child refuses to go with her and she prefers to stay with the father?
This situation (and this question) comes up a lot. I will answer the question as it applies in my experience to the jurisdiction where I practice divorce and family law (Utah).
SHORT ANSWER: The general rule of thumb is that if the child is a teenager and has the guts and the will to defy the court’s custody orders, then that child is going to live with the parent with whom he or she wants to live because the court is essentially powerless to force the child to comply with the child custody order, i.e., the court finds it more trouble than it is worth to enforce a child custody order against a defiant teen.
LONGER ANSWER:
Technically, the child has no choice in the matter, once the court has issued its child custody ruling and resulting orders. In other words, just because somebody doesn’t want to follow court orders doesn’t mean that he or she is free to disregard them or to act as a law unto himself or herself. This proves to be true of court orders pertaining to adults. Child custody orders, and the children affected by them, however, are in reality a different matter.
In the law we have two terms that help to describe the situation: de jure and de facto. De jure means that which is which applies as a matter of law. For example, as a matter of law, your child is ordered to spend most of his/her time in the custody of mother, with the father spending time the child on alternating weekends and a few odd holidays. De facto means that which is or that which applies as a matter of fact (in reality, and not as the court may artificially require). So while as a matter of law your child is required to live with mother, if in reality (as a matter of “fact”—this is where the “facto” in “de facto” comes from) the child refuses to live with mother and stays at the father’s house, that is the de facto child custody situation.
When A) the de jure and de facto situations conflict in a child custody situation, and B) the child is old enough, strong enough, and willful enough to continue to the court’s custody orders, the court often (not always, but usually) feels that they are practicably powerless to force children to live with a parent with whom they do not wish to live.
Normally, when an adult will not comply with the court’s order, One of the tools a court can use to enforce compliance is its contempt powers. Those powers include finding and jailing the noncompliant person. But with children, that power is, for all intents and purposes, nonexistent. Children usually have no money with which to pay a fine, and Utah does not allow courts to jail minors for mere contempt of court.
Some courts try to get creative and impose sanctions on a noncompliant child by essentially ordering them “grounded”, but again, if the child chooses not to comply, there is little the court can do or feels is wise to do to the child. I’ve seen a court try to get a child to comply by ordering her barred from participating in her beloved dance classes and driver education courses (so that she can’t get her driver license unless she lives with the court ordered custodial parent) as long as the child refused to live with the court-ordered custodial parent. In that case, however, the child outlasted the court, i.e., she kept living with the noncustodial parent and stopped attending dance and driver’s ed. classes. Then the court found itself in the awkward position of preventing the child from getting exercise and driving to and from her job and other worthwhile, even necessary activities, so the court relented (both in the best interest of the child and to save face). This is a lesson that most courts learn when they try to use the coercive powers of the court against children to enforce child custody orders.
Courts don’t want to dedicate their own resources and law enforcement resources to 1) literally dragging a child out of one parent’s home and literally stuffing the child into some other home; and 2) doing so repeatedly when the child refuses to stay put. It’s a waste of law enforcement resources and the fear is the child will eventually run away (and act out in other self-destructive and dangerous ways), if not allowed to live with the parent of his/her choosing.
And courts don’t want to punish a parent for the misconduct of a child. Some courts have tried to punish noncustodial parent by holding them responsible for their children’s noncompliance with the court orders, but that doesn’t work when the noncustodial parent truly isn’t at fault. Courts realize that a noncustodial parent cannot simply, for example, 1) push the child out the door, lock it behind the child, and wish the child well in subzero degree weather; or 2) manhandle the child into the custodial parent’s car, then be charged with child abuse. And punishing the noncustodial parent often only serves to lead the child to be more determined to defy court orders.
As you can imagine, a child’s “power” to choose where he/she lives usually does not arise until the child is old enough and strong enough and willful enough to exercise some degree of autonomy over which parent with whom he/she lives. That doesn’t usually happen until children reach approximately the age of 12 or 14, although some children may start younger. Children under that age are typically unable or too afraid to exert their own preferences and wills.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Can I refuse visitation when a non-custodial parent refuses to take a child to school?
In the jurisdiction where I practice divorce and family law (Utah), the answer is:
Unless you have a court order that allows you to refuse visitation (or “parent-time” as it is now called in Utah) if the other parent refuses to take the child to school, then NO. Utah law is very clear that the parent in your position cannot withhold or interfere with parent-time as a means of controlling or punishing the other parent.
But clearly your concerns about school attendance are valid ones. So what can you do about that? In Utah, you could:
file a motion with the court seeking to have the other parent who is failing/refusing to get the child to school held in contempt IF there is a court order already in existence that directs that parent to ensure the child gets to school on time on the mornings the child is with that parent.
If there is no court order already in existence that directs that parent to ensure the child gets to school on time on the mornings the child is with that parent, then you could file a petition with the court seeking to modify the child custody and/or parent-time award(s), alleging that because the other parent is failing/refusing to get the child to school the child custody and/or parent-time award(s) need to be modified to address and remedy this problem.
What you cannot do is take the law into your own hands and withhold or interfere with parent-time in response to the other parent failing to get the child to school.
Utah Family Law, LC | divorceutah.com | 801-466-9277
What happens if you are served divorce papers yet don’t sign them?
I will answer this question as it applies in the jurisdiction where I practice divorce law (Utah):
If by “served divorce papers” you mean that you are served with a summons and complaint (or petition) for divorce, then if you do not take those documents (the “papers”) from the process server and/or do not sign acknowledging receipt, you are, unless the court orders otherwise (and I’ve never experienced the court order otherwise) still served with the summons and complaint. Otherwise stated, “refusing” to take the documents when the process server attempts to hand them to you does not mean you are not served and “refusing” to sign for the documents when the process server attempts to hand them to you does not mean you are not served either.
If you hide from the process server thinking you can’t be served if you can’t be found, that’s not true either. If you try to avoid service, your spouse may file a motion with the court asking to allow service by some other means, such as by publication in a newspaper, by mail, by email, or even by text message or instant messenger.
If by “served divorce papers” you mean that you are mailed or given a proposed divorce case settlement agreement, then whether you choose settle on those terms is your choice. But remember: just because you did not sign your spouse’s proposed settlement agreement does not mean you will prevent the divorce from occurring. If you and your spouse do not settle, then the case will go to trial and be decided by the court after a trial.
Utah Family Law, LC | divorceutah.com | 801-466-9277
In some jurisdictions, interference with or noncompliance with child custody orders issued by a court are not enforceable by police officers or sheriff’s deputies because there is no statute or statutes that authorize and empower the police to intervene. This is why law enforcement officers do not intervene in such jurisdictions. The only way that law enforcement officers can intervene in such jurisdictions is for a court to authorize and direct law enforcement officers to enforce child custody and parent time orders, and to do so by force if necessary. This is why, when a parent asking for the police to help with enforcement of a child custody or parent time order, will often receive this kind of response from the officer or officers called: “This is a civil matter. We do not have the authority to intervene to enforce your court orders.”
In other jurisdictions, such as Utah, where I practice divorce and family law, laws have been passed and are now on the books making interference with child custody and/or parent time orders a violation of statutory law. They are commonly referred to as “custodial interference laws”.
Do law enforcement officers in such jurisdictions enforce such statutes? Rarely.
Why?
Because being a law enforcement officer is a thankless job. Consequently, with rare exception, law enforcement officers hate enforcing custodial interference laws. Law enforcement officers generally dislike handling disputes between parents over enforcement of custody and parent time orders because it wastes their time and resources and interferes with their ability to prevent and solve serious crimes, such as aggravated assault, rape, burglary, etc. Some officers get lazy sometimes A) don’t enforce laws they consider not worth enforcing and/or B) don’t want to hassle with all the paperwork associated with responding to, reporting on, and enforcing custodial interference laws.
Instead, they will lie to your face and give you the “This is a civil matter. We do not have the authority to intervene to enforce your court orders” line in the hope that you will believe them when they tell you they cannot help you and thus stop asking them for help. [NOTE here: if you are someone who does not deal with law enforcement officers routinely, you would be pardoned for believing law enforcement officers do not lie and lie a lot. So fool you once, shame on them, fool you twice, shame on you. I know this may shock and sadden some readers—I felt that way when I discovered it and could no longer deny it.] Officers who don’t want to enforce custodial interference laws deal with parents who know of the laws on the books and aren’t fooled by the “this is a civil matter” dodge will simply threaten to arrest those parents who won’t back down for “disorderly conduct” and/or “disturbing the peace” (two favorite go to intimidation tactics that law enforcement officers frequently utilize to get people off their backs). Why? Because they can get away with it. More often than not, if you were to complain about law enforcement officers failing and refusing to enforce custodial interference laws, their superiors will nod their heads, thank you for “bringing this matter to my attention,” promise that action will be taken, wait for you to hang up the phone or leave the office, and then never give the matter a second thought.
Utah Family Law, LC | divorceutah.com | 801-466-9277
If one parent has bedbugs and the children will not sleep at the parents home, does the other parent have to make a motion for full custody? Can the parent without bedbugs be sanctioned for failure to coparent?
I am glad you asked this question because in reading it and thinking about it I finally conceived of a way to express in words the problem that most non-lawyers encounter when asked this type of question.
Your question, and many questions like it, is grounded in a belief that the court will see your case and the issues raised in your case purely from your perspective. You cannot take such a thing for granted. It’s an easy trap to fall into (frankly, we all do), and a trap that causes a lot of people tremendous disillusionment and frustration with the legal system. While I am no raving fan of the modern legal system, it would be unfair to fault the legal system when it confronts issues over which reasonable minds can differ.
Here’s the key:
1) When analyzing a potential legal issue and your likelihood of success on an argument over that issue, don’t assume the court sees the issue as you do; indeed, don’t even presume that the court sees an issue at all.
2) Try seeing the issue as best you can A) from as many different reasonable perspectives as possible and then ask yourself whether your perspective is the most readily understandable and acceptable; and B) from the perspective your judge would most likely see the issue, or claim to see the issue, in the real world.
3) Argue only those issues A) that you believe you have a better than even chance of prevailing upon or B) that you can argue in good faith on the basis of principle, win or lose (meaning: you won’t act shocked or surprised or outraged if you lose an argument over a close issue over which you know reasonable minds can differ, nor will you smugly claim, with the benefit of hindsight, “Oh, our success was never in doubt.”)
OK, let’s conduct this analysis using your bedbugs scenario:
Even if a parent knows, from having witnessed it first-hand, that there are bedbugs at his or her ex-spouse’s house, that does not mean that the court must believe it. If a parent knows that the children refuse to go to the other parent’s house or refuse to sleep there (regardless of the reason), that does not mean that the court will believe it. Why? Because the court does not know what you know. This is why, when you seek relief and orders from courts are required to meet their burdens of proof, so that the court has sufficient factual and legal basis to grant the relief you seek.
And so questions like yours need to be analyzed on at least two levels: 1) Will the court believe your allegations?, and 2) If so, will the court take the actions you wanted to take?
Using your questions as a model:
Bedbugs and the modification of custody or parent-time
If a parent were only to come into court with just a bare, unverifiable claim that there are bedbugs in the other parent’s home, in my mind that would not rise to the level of proof by a preponderance of the evidence, and so if I were the judge, I could not conclude as a matter of fact that the allegation is true. And where an argument/request for sole custody rests on the other parent having bedbugs in his/her house, if I were the judge I would have to rule against that argument/request.
If a parent were to come into court with verification of his/her claim that there are bedbugs in the other parent’s home, that fact alone would not determine that the children must be in the sole custody of the other parent. First, the question the court would have to ask and resolve is something to the effect of:
“Is the presence of bedbugs in the parent’s home a sufficiently compelling reason to deny that parent custody or parent time on that basis alone?”
“Are bedbugs a threat to the health or life of the children?” Or just a nuisance?
“If bedbugs are not a threat to the health or life of the children, can I, as the judge, conclude that having the children exposed to the mere nuisance of potential bedbug bites is still somehow a sufficiently compelling reason to reduce or eliminate the amount of time the children spend with parent whose home is infested with bedbugs?”
If the court were to conclude that the answer to that question is “no,” then the presence of bedbugs alone in the parent’s house would not be enough to win a motion or petition for sole custody.
If the court were to conclude that the answer to that question is “yes” (and it’s not a given that the answer will be “yes”[1]”), then the court could, on that basis alone, modify custody or parent time, IF the court could rationally explain why the mere presence of bedbugs is reason enough to reduce or eliminate the amount of time the children spend in the custody or care of the parent with bedbugs at his/her house.
But “yes” might also lead to an additional question or additional questions, such as: Can the parent with bedbugs at his/her house mitigate the problem so that there’s no need to modify custody or parent time? Is the parent with bedbugs at his/her house willing to take necessary and immediate measures to solve the problem? What if, until the bedbug problem is eliminated, we simply require the parent who has bedbugs at his/her house to exercise custody or parent time at a location other than the parent’s house?” So even if the court finds that bedbugs could be reason to modify custody or parent time that does not mean that the court necessarily must modify custody or parent time in response to the presence of bedbugs.
Will a Parent Be Sanctioned if the Kids Refuse to Spend Time at the Parent’s Home Where There are Bedbugs present?
I will analyze this question by starting with the presumption that the court has determined that there are bedbugs present in the other parent’s home.
The court might then ask, “Is the presence of bedbugs in that parent’s home justification for modifying the custody or parent time orders?” This could lead to:
“Are bedbugs a threat to the health or life of the children?” Or just a nuisance?
“If bedbugs are not a threat to the health or life of the children, can I, as the judge, conclude that having the children exposed to the mere nuisance of potential bedbug bites is still somehow a sufficiently compelling legal reason for the other parent to refuse to comply with the court’s custody and visitation orders as to the other parent?”
If the answer to the previous question is “no”, then the other parent likely will be sanctioned, BUT even then, it’s possible that the court good rule along the lines of something like this: “I do not find that the children’s exposure to bedbugs at this parent’s house constituted a justification for noncompliance with the custody and parent time orders, but I also find that the noncompliant parent was not noncompliant for malicious, self-serving, or bad faith purposes, but truly believed that the bedbugs posed a bigger problem in his/her mind than in the mind of the court. So I’m not going to sanction this parent in this instance because I don’t believe sanctions are appropriate. And I don’t believe sanctions are appropriate because I don’t believe sanctions are needed to motivate this parent to comply with court orders now that I have explained my analysis of the situation. As long as this parent understands that he/she cannot act as a law unto himself/herself, I’m willing to give the noncompliant parent the benefit of the doubt in this instance.”
If the answer to the previous question is “yes”, then the other parent cannot be sanctioned.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Why is it OK to allow a 14-year-old child to deny one parent access to him/her without any reason, but it is kidnapping if the child were to refuse to live with either parent and instead live with an adult that is not his/her parent?
Because your question contains a flawed premise.
It is not legal for a 14-year-old child to refuse to comply with a child custody or child visitation (also known as parent-time) order. The reason a 14-year-old child can to refuse to comply with a child custody or parent-time order and get away with it so often is because many courts don’t have the guts or a practicable way to force a child to comply.
The law does not give a minor child his/her autonomy. Minor children who are otherwise not legally emancipated are subject to the control of their parents. So if an unemancipated 14-year-old child wants to live with Person X, if a parent opposes that, and if Person X refuses either to return the child to the parent or to eject the child from Person X’s home, that constitutes kidnapping.
Utah Family Law, LC | divorceutah.com | 801-466-9277