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Tag: rights

Is this a first principle?

If you can get a no-fault divorce, meaning that you can just walk away from a marriage because you don’t want it anymore, why could that same person seek alimony?

You have a right to rescind the marriage contract. But with rights come responsibilities. The right to walk away from a marriage on no-fault grounds must entail the corresponding responsibility to take the bitter with the sweet. No more marriage means no more spouse, and no more obligation of your ex-spouse to support you financially. Isn’t rescinding the marriage contract on no-fault grounds and still demanding that the other party continue to perform as though nothing has changed just licentiousness?

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

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In re Adoption of J.E. – 2024 UT App 34 – termination of parental rights – adoption

In re Adoption of J.E. – 2024 UT App 34

THE UTAH COURT OF APPEALS

IN THE MATTER OF THE ADOPTION OF J.E., E.E., AND L.E.,

PERSONS UNDER EIGHTEEN YEARS OF AGE. K.E., Appellant, v. K.M.L. AND L.L.L., Appellees.

Opinion No. 20230162-CA, Filed March 14, 2024 Third District Court, West Jordan Department

The Honorable Matthew Bates No. 222900154

Julie J. Nelson and Alexandra Mareschal, Attorneys for Appellant

Bradley A. Schmidt, Attorney for Appellees

JUDGE DAVID N. MORTENSEN authored this Opinion, in which

JUDGES RYAN D. TENNEY and JOHN D. LUTHY concurred. MORTENSEN, Judge:

¶1        In connection with an adoption proceeding brought in district court, the rights of a biological father were terminated. The father now claims on appeal that the district court relied impermissibly on generalized concerns of his minor children’s need for permanence and that our recent decision in In re L.L.B., 2023 UT App 66, 532 P.3d 592, compels reversal here. We agree with the father and reverse.

BACKGROUND

¶2        KML[1] (Mother) and KE (Father) have two minor children,[2] who are the subject of this appeal—EE, age sixteen, and LE, age thirteen. For much of the children’s lives, Father has been incarcerated. As relevant here, from 2013 to 2018, Father was incarcerated. During that period, his time with EE and LE “consisted of, at most, a weekly visit” with them at the prison.

¶3        In 2018, Father was released from prison on parole. Sometime during this same period, Mother and Father divorced and Mother married LLL (Stepfather). According to Father, after the divorce, the parent-time arrangement allowed him visits every other weekend. But Father saw EE and LE only once in the summer of 2018. Beyond that visit, Father says he “tried to” exercise his parent-time four times, but that each time he went to Mother’s home for the exchange as required by the divorce decree, Stepfather told him the decree required Father to text Mother. Father disputes the texting requirement. The final time Father attempted to visit the children, he found that they had moved and the “house was empty.” Mother had not given him an updated address or contact information. Father notified the law enforcement officers whom Mother and Father used to communicate with one another.

¶4        In January 2020, Father returned to prison because of a parole violation, and he remained there until December of that same year. Following his release, he tried contacting Mother, but when he called the “last phone number [he] had with her[,] . . . there was nothing.” He asked his family to help him contact Mother, but they had no way to reach her either. Father returned to prison in November 2021 because of another parole violation. While incarcerated, he tried to call the children but still did not have updated contact information. Father says he also wrote letters for the children but did not send them because he did not have a current address for Mother.

¶5        In April 2022, Mother and Stepfather petitioned the district court for termination of Father’s parental rights and Stepfather’s adoption of the children. The court bifurcated the proceedings and, following a hearing in November 2022, determined that Father met the statutory ground of abandonment for termination of parental rights.

¶6        In January 2023, during a second evidentiary hearing, the district court determined that it was in the best interest of EE and LE to terminate Father’s parental rights. The court determined that the children presently had “no relationship” with Father. Both children testified that they had “no memory of him, and they would not recognize him if they saw him.” The court also determined that for the last four years, Stepfather had “assumed the role of natural father” to the children, including socializing with them, playing with them, attending their school and extracurricular activities, assisting with their schoolwork, and caring for them, such as by driving them places and making them meals. Both EE and LE “testified to the strong emotional bond” they had with Stepfather and their desire to be adopted by him, which the court gave some weight in consideration of their ages. The court also determined that the “destruction of the relationship between the children and [Father’s] extended family . . . [was] due to [Mother’s] failure to respond to efforts” made by the family to see the children. The court determined that Mother was “not supportive of the relationship between the children and [Father’s] family.” During the hearing, Father requested reconsideration of the court’s abandonment finding. The court took new evidence on the issue but ultimately did not alter its finding and terminated Father’s parental rights.

¶7          In February 2023, the district court held a hearing concerning Stepfather’s adoption of EE and LE, during which Father asked the court to stay the adoption pending appeal. Following arguments from each party, the district court proceeded with the adoption, determining that it was “in the best interests of the [children] that [the] adoption go forward.”

¶8          Father appeals.

ISSUE AND STANDARDS OF REVIEW

¶9          On appeal, Father argues that the district court erred by deciding that termination of Father’s parental rights was in the best interest of EE and LE. “Whether a parent’s rights should be terminated presents a mixed question of law and fact.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. “A lower court’s best-interest ruling is reviewed deferentially,” but we do not limit our review to considering whether any relevant facts have been left out; we also “assess whether the court’s determination that the clear and convincing standard had been met goes against the clear weight of the evidence.” In re L.L.B., 2023 UT App 66, ¶ 16, 532 P.3d 592 (cleaned up).

ANALYSIS

¶10        “The right of parents to raise their children is one of the most important rights any person enjoys.” In re D.S., 2023 UT App 98, ¶ 16, 535 P.3d 843 (cleaned up), cert. granted, Jan. 25, 2024 (No. 20230877). Before terminating parental rights, a district court must find that (1) “one or more of the statutory grounds for termination are present” and (2) “termination of the parent’s rights is in the best interests of the child.” In re L.L.B., 2023 UT App 66, ¶ 17, 532 P.3d 592 (cleaned up). A district court “must make both of these findings . . . by clear and convincing evidence and the burden of proof rests with the petitioner.” Id. (cleaned up). Father has not challenged the district court’s ruling that statutory grounds for termination existed, so we turn to the best-interest analysis.

¶11      Our supreme court recently determined that a “court must start the best interest analysis from the legislatively mandated position that wherever possible, family life should be strengthened and preserved.” In re B.T.B., 2020 UT 60, ¶ 66, 472 P.3d 827 (cleaned up).[3] Relying nearly entirely on In re L.L.B., 2023

UT App 66, 532 P.3d 592, a recent decision from our court in which we reversed the termination of a father’s parental rights, Father argues that the court erred when it determined that termination and adoption was in the best interest of EE and LE. Father does not claim that the court’s findings were erroneous; instead, he asserts that the facts taken together do not support the court’s ruling. “The best-interest inquiry is intended as a holistic examination of all of the relevant circumstances that might affect a child’s situation.” Id. ¶ 21 (cleaned up); see also In re D.S., 2023 UT App 98, ¶ 18 (“The best-interest inquiry is wide-ranging and asks a court to weigh the entirety of the circumstances of a child’s situation . . . .” (cleaned up)). A district court undertakes this analysis from the child’s perspective and must consider the child’s “physical, intellectual, social, moral, and educational training and general welfare and happiness.” In re L.L.B., 2023 UT App 66, ¶ 21 (cleaned up). To support his argument that the district court erred, Father argues that the “facts and legal analysis are almost identical” between his case and In re L.L.B. This is an overstatement of the cases’ factual parallels, and we are quick to point out where the two cases diverge; however, we still conclude that In re L.L.B. is factually similar enough to be helpful in reaching our ultimate conclusion that the district court did err.

¶12      In In re L.L.B., like the situation in the case before us, the district court terminated the father’s rights in order to allow a stepfather to adopt a child. Id. ¶ 15. Our court reversed. Id. ¶ 35.

¶13      In that case, less than a week after the birth of his child, the father left due to a drug relapse. Id. ¶ 2. Over the course of the next year, the father saw the child only twice. Id. A paternity agreement then granted the mother sole custody and awarded parent-time to the father. Id. ¶ 3. Three years later, the mother married the stepfather, with whom she and the child lived from that point on. Id. ¶ 4. For approximately five years, the father used his parent-time, but then the parents got into an argument. Id. Around that same time, the father and child were in a four-wheeling accident, which the mother suspected had been caused by the father’s alcohol use. Id. In the months that followed, the father’s parent-time was supervised because the mother was concerned that he was using drugs and alcohol around the child. Id.

¶14 About two years later, the mother and stepfather filed a petition in district court for termination of the father’s parental rights and the stepfather’s adoption of the child. Id. ¶ 5. At trial, the mother testified that in the nearly two-year period leading up to the proceedings, the father had attempted to contact the child only twice. Id. ¶ 7. She also testified that he was severely behind on child support payments, and he had never been involved in the child’s education. IdThe guardian ad litem testified that the child did not have a relationship with the father due to his absence and that, in contrast, the stepfather was “an excellent father” who had a “great bond” with the child. Id. ¶ 13 (cleaned up). Over the course of the case, the father relapsed, went to jail, and got sober. Id. ¶ 12. At the time of trial, he had a job and was again paying child support. Id.

¶15 The mother admitted that since filing the termination petition, she had not responded to the father’s requests to see the child. Id. ¶ 7. The father’s mother testified that she had tried “to stay in contact” with the child but had “difficulty getting responses” from the mother. Id. ¶ 9. After the termination petition had been filed, the father had seen the child once and had written letters to the mother, sent a gift, and emailed the child. Id. ¶ 11.

¶16 The district court concluded that the child deserved a “healthy, stable family relationship” with the stepfather, who was the child’s father figure, and that it was in the child’s best interest for the adoption to go forward. Id. ¶ 15 (cleaned up). Because the adoption could not occur without termination of the father’s parental rights, the district court determined “by clear and convincing evidence that it [was] ‘strictly necessary’” to terminate the father’s rights. Id. Our court reversed because the district court’s conclusion that termination was in the child’s best interest went “against the clear weight of the evidence.” Id. ¶ 34. We will discuss some of the applicable reasoning from In re L.L.B. in our ensuing analysis.

¶17      Here, the district court based its decision that termination was in the best interest of EE and LE primarily on two categorical concerns. First, the court stated that the children needed permanency by reasoning that it was “in the best interest of the children to have a normal family life and a permanent home and to have a positive nurturing family relationship with a mother and father.” Second, the court reasoned that Father’s absence while incarcerated required termination of his rights because “weekly visits at the prison . . . are not an adequate substitute to a father in the home and do little to maintain the bond between parent and child.” But categorical concerns such as these are not enough to overcome the legislative presumption that it is in the best interest of children to be raised by their natural parents. We now address why these concerns are insufficient grounds to terminate Father’s rights.

  1. Permanency

¶18 “As our supreme court has explained, categorical concerns about the lack of permanence of an option other than adoption are not enough, otherwise termination and adoption would be strictly necessary across the board.” In re L.L.B., 2023 UT App 66, ¶ 23, 532 P.3d 592 (cleaned up). Just as in In re L.L.B., while we understand the concern about what Stepfather’s legal rights may be regarding the children if Mother dies or Mother and Stepfather divorce,[4] this concern is present in many termination cases, and it does not lead us to the conclusion here “that termination of a parent’s rights is in the [children’s] best interest.” Id.

¶19      Relatedly, Father argues that the district court erred because it did not find that “the present quality of the [c]hildren’s relationship with Stepfather would be changed by adoption.” We agree and see no evidence on the record that—excluding a tragedy like Mother’s death—the adoption will change the living situation or custody of the children. The absence of such a change “is a factor that may weigh against termination in some cases.” In re B.T.B., 2018 UT App 157, ¶ 56, 436 P.3d 206 (cleaned up), aff’d, 2020 UT 60, 472 P.3d 827. Just as in In re L.L.B., we see no findings from the district court that EE and LE’s “current living situation [is] not healthy and stable” or that their living situation will change in any way if Stepfather does not adopt them. See 2023 UT App 66, ¶ 27. Indeed, we see no evidence, or even an assertion, that Stepfather’s love, care, or attachment would change in the absence of an adoption decree.

¶20      Thus, the categorical concern of stability and permanency does not support the court’s decision to terminate Father’s parental rights.

  1. Incarceration

¶21      Because Father has been in and out of prison for much of the children’s lives, the district court relied on the categorical concern of his incarceration to support its termination decision. While it is true that it is much harder for incarcerated parents to be engaged in their children’s lives, the legislature’s policy that we must begin with an assumption that it is in the best interest of children “to be raised under the care and supervision of [their] natural parents” does not support a categorical rule that incarcerated parents’ rights should be terminated. In re D.S., 2023 UT App 98, ¶ 18, 535 P.3d 843 (cleaned up), cert. granted, Jan. 25, 2024 (No. 20230877). In In re D.S., our court recently reversed a juvenile court’s termination of parental rights in the case of a father who was incarcerated at the time. Id. ¶ 33. The father there expressed “a desire to have a stronger relationship” with his children. Id. ¶ 11 (cleaned up). This court determined that “a parent’s desire to build and maintain—coupled with efforts to actually maintain—a meaningful relationship with a child is a factor that will often weigh in favor of . . . a determination that it is in the child’s best interest to keep the relationship intact.” Id. ¶ 27. Our court also explained that the father’s desire to have visitation with his children upon his release should also be “viewed positively” in the best-interest inquiry. Id.

¶22      Here, Father is currently incarcerated and has not, at the present, turned his life around like the father in In re L.L.B, 2023 UT App 66, ¶ 30, 532 P.3d 592However, Father has expressed that he misses the children and has a desire to “support them in their daily lives, their school, [and] their personal affairs.” Father said that he is “glad that they are living a decent” life, but he still wants to be a part of that life. We acknowledge and credit Father’s desire to build a relationship with the children despite his incarceration. Additionally, from 2013 to 2018, Father interacted with the children in the only avenue available to him as an incarcerated parent—through “at most, a weekly visit” at the prison. And though these visits did not continue during his subsequent periods of incarceration, it was at this point that Father had no means of contacting his children due to Mother’s actions.

¶23      Furthermore, there is no evidence that Father’s relationship with EE and LE is harmful to them—just as in In re L.L.B. where there was no finding that the father’s presence “affirmatively harmed” the child or that the father’s “attempts to exercise his parental rights” in any way “negatively affected or disrupted” the child’s life. 2023 UT App 66, ¶ 24; see also In re D.S., 2023 UT App 98, ¶ 24 (reversing termination of an incarcerated father’s parental rights in part because there was “no indication that [the father’s] continuing relationship” with the children was “harmful to them, rather than merely perhaps inconvenient”). Here, neither party has raised any concerns about Father ever

posing a threat to or endangering the children. This is important. Even in In re L.L.B., though the father had turned his life around, there were instances in the past of concern for the child’s safety, such as the four-wheeling accident and supervised visits over fear of the father’s substance abuse. See 2023 UT App 66, ¶ 4. We note that in In re L.L.B our court emphasized that courts must weigh parental conduct in the past against later conduct and that the father was a “presently fit and capable” parent. Id. ¶ 29 (cleaned up). We only point to this concern to emphasize that no such circumstance exists here.

¶24      Thus, not only is the district court’s reliance on the fact of Father’s incarceration unsupported in this case, but the creation of such a categorical rule goes against Utah’s statutes and caselaw.

III. Other Concerns

¶25      Mother and Stepfather, in an effort to distinguish In re L.L.B. from the present case, point to the fact that, unlike Father, the father in that case made “many” attempts to communicate with the children after his incarceration. 2023 UT App 66, ¶ 29, 532 P.3d 592. However, Father’s argument is well-taken that the district court determined this lack of communication was “largely the result of Mother and Stepfather’s interference.” Mother moved the children without telling Father or providing any means of contacting them. This lack of communication should not be held wholly against Father as it was the result of Mother’s actions; to do so would certainly encourage other parents to prevent communication in an effort to similarly strengthen their cases for termination of parental rights.

¶26      Relatedly, any lack of relationship—or as the court put it “destruction” of the relationship—between the children and Father’s extended family was due to Mother’s lack of support and her “failure to respond to [the extended family’s] efforts . . . to see the children.” Mother’s failure to respond to these efforts should likewise not be held against Father.

¶27      Thus, looking holistically at the evidence presented, as courts are required to do, see id. ¶ 21, we conclude that the evidence does not clearly and convincingly demonstrate that termination of Father’s parental rights was in EE’s and LE’s best interest. In our view, the primary bases for the district court’s decision were its categorical conclusions about the need for permanency and the insubstantial nature of a parent/child relationship when a parent is incarcerated. We view Utah precedent as precluding reliance on such categorical concerns. And we view the remainder of the district court’s findings to be insufficient to meet the required burden of proof once these bases are removed from the analysis. Given our legislature’s clear expression that, “as a matter of state policy, the default position is that it is in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents,” id. ¶ 31 (cleaned up), we must reverse.

¶28      The court’s order in the adoption decree relied on the termination of all Father’s “rights, duties and responsibilities, including residual parental rights.” Accordingly, with our reversal of the termination order, we also reverse the adoption decree. While this decision is final, it does not preclude the possibility of future termination and adoption proceedings if there is a material change in circumstances.

CONCLUSION

¶29      The district court’s conclusion that the termination of Father’s parental rights was in the best interest of EE and LE was against the clear weight of the evidence. As a consequence of this error, the court also erred when it granted Stepfather’s adoption of the children in reliance on termination of Father’s rights. We therefore reverse.

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


[1] Regarding this opinion’s omission of periods following initials, see A.W. v. Marelli, 2024 UT App 8, ¶ 1 n.1. This practice is consistent with The Chicago Manual of Style, which states that if “an entire name is abbreviated, spaces and periods can usually be omitted.” The Chicago Manual of Style Online ¶ 10.12 (17th ed. 2017).

[2] A third child, JE, was initially a part of these proceedings but has since turned eighteen and is no longer included.

[3] In the same case, our supreme court determined that a court may terminate parental rights only “when it concludes that a different option is in the child’s best interest and that termination is strictly necessary to facilitate that option.” In re B.T.B., 2020 UT 60, ¶ 66, 472 P.3d 827 (emphasis added). The district court here made the legal determination that the legislature intended a strictly necessary requirement to apply to the Utah Adoption Act (UAA) for district courts. Yet, the court did not make any subsidiary findings or give reasoned analysis as to whether termination was strictly necessary here; instead, it simply noted in the order’s conclusion that it was strictly necessary to terminate Father’s rights to allow the adoption to proceed. Both parties make arguments on appeal whether the district court erred in this conclusion but neither addresses whether the strictly necessary requirement is even appropriate to apply.

The UAA applies to district courts and reads as follows: “The district court may terminate an individual’s parental rights in a child if . . . the individual’s parental rights are terminated on grounds described in Title 80, Chapter 4, Termination and Restoration of Parental Rights, and termination is in the best interests of the child.” Utah Code § 78B-6-112(5)(e).

Comparatively, the Termination of Parental Rights Act applies to juvenile courts and reads as follows: “[I]f the juvenile court finds termination of parental rights, from the child’s point of view, is strictly necessary, the juvenile court may terminate all parental rights with respect to the parent if the juvenile court finds any one of the [listed grounds for termination].” Id. § 80-4-301(1) (emphasis added).

The case in which our supreme court stated that the best interest of the child analysis includes the strictly necessary requirement was an appeal from juvenile court. See In re B.T.B., 2020 UT 60, ¶ 1. The supreme court has not yet addressed whether this analysis also applies to appeals from a district court— particularly given the absence of the “strictly necessary” language in the UAA.

Our court recently acknowledged, but did not answer, this same question in In re L.L.B. when it determined that it did not need to address the issue because “even without considering the strictly necessary part of the best-interest analysis . . . there [was] not clear and convincing evidence supporting the district court’s conclusion that termination of Father’s parental rights was in [the child’s] best interest.” 2023 UT App 66, ¶ 18, 532 P.3d 592. We conclude the same and will not address the issue further.

[4] The legislature might wish to consider that our court frequently sees this issue raised by stepparents who are concerned over what their legal role will be in a child’s life if their spouse—the child’s natural parent—dies. A statute addresses this concern for grandparents, but no such legal protections exist for stepparents. See Utah Code § 30-5-2(4); see also In re S.T.T., 2006 UT 46, ¶ 30, 144 P.3d 1083 (upholding the statute recognizing that the death of one parent creates potential conflict between the surviving parent and the “in-law” grandparents and, accordingly, providing “an avenue for grandparents and grandchildren to maintain their relationship” through visitation rights).

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As a Joint Legal and Physical Custodial Parent, Can I Legally Prevent the Other Parent From Going on a Vacation (Either Out of State or Out of the Country) With Our Child or Children?

Unless a court were to order that a parent was barred from traveling out of state or out of the country with the children on vacation, a joint legal and custodial parent has an unfettered right to travel with the children out of state or out of the country on vacation, even if the other parent objects. Of course, if a parent wanted to travel somewhere that is clearly dangerous for anyone or clearly dangerous or deleterious to the children given their age or other relevant factors, a parent could object to traveling there with the children on that basis, but you’ll notice that the basis of the objection wouldn’t be “I don’t want the children traveling there with you” but an objection based upon placing the children in harm’s way. Otherwise stated, if the other parent simply doesn’t like the idea of you traveling out of state or out of the country with the children, that alone would not be a sufficient basis to prevent the children from traveling there.

Now at the beginning of this post I stated that unless a court were to order that a parent was barred from traveling out of state or out of the country with the children, a joint legal and custodial parent has an unfettered right to travel with the children out of state or out of the country, even if the other parent objects. Such an order would be very hard to come by.

Parents have a constitutional right to travel freely, and thus a constitutional right to travel freely with their children if they have sole or joint custody of those children. For a court’s order barring or restricting travel to survive and appeal and be legally enforceable, the court would have to have very good reasons for restricting a parent’s right to travel with the children, such as a parent having abducted or attempted to abduct the children in the past, that parent’s effort to abscond with and conceal the children from the other parent, whether the parent is a flight risk, the parent’s history of interfering with parent-time or visitation, and failure to provide required notices in advance of travel with the children.

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

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If One Parent Gets Primary Custody, Does This Mean That He/She Can Make All Decisions Regarding the Kids Without Any Input From the Other Parent?

There are two kinds of child custody, not just one. Those two different kinds are legal custody and physical custody.

Legal custody is the power of a parent to make decisions for a minor child regarding the child’s health and health care, education, moral and religious upbringing, and other matters pertaining to the child’s general welfare.

Physical custody of a child Is defined as that parent’s right to have the child reside physically with that parent.

You hear about the terms “sole custody” and “joint custody”. Parents can be awarded sole legal or joint legal custody of their children. They can be awarded sole physical or joint physical custody of their children. There is also what is known as a “split custody” award.

Another term that is often used for sole custody is primary custody. That is something of a misnomer.

Sole custody in the context of legal custody would mean that one parent and one parent alone has the power to make decisions for the child. Joint legal custody would mean that both parents share the right to make choices pertaining to the child. That stated, however, courts can and often do award parents the ostensible joint legal custody of their children, and yet give one parent the sole and exclusive right to decide in the event the parents cannot reach agreement. If you ask me, that can’t, in intellectual honesty, be joint legal custody, but I digress.

Sometimes Utah courts will divide legal custody between the parents such that one parent may have the right to make all decisions in a particular area. For example, the court could award the mother the right to make all healthcare decisions and award the father the right to make all education decisions for the children. That sort of arrangement would be known as a “split” legal custody award because neither parent has the sole and exclusive power to make all decisions regarding the child, the parents are not awarded joint legal custody such that they must make decisions jointly, but each parent has some soul and exclusive power to make some decisions, though not all decisions, pertaining to the child’s upbringing.

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

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The Father of My Child Has Visitation Rights Ordered by Court, Yet He Will Be in a Different State During His Visitation Time, but Wants His Aunt to Take Over. Do I Have to Allow His Aunt Visitation While He’s on Vacation?

This is a good question and one that arises frequently in one form or another; a parent either can’t or won’t provide personal care and supervision of the parties’ children his/her scheduled parent-time or custody yet does not want the other parent to care for the children in his/her absence.

Some parents try to pull this stunt because either 1) they are territorial about “my time” with the children and thus can’t stand the idea of the other parent caring for the children during “my time”; or 2) they maliciously want to deny the other parent the opportunity to provide this care for the children. Others try to pull this stunt because they are afraid they will lose the child custody or parent-time they were awarded if they allow the other parent the opportunity to provide care for the children (yet believe that if someone else provides the care that somehow makes retaining custody and parent-time more “secure”). This is wrong, and is something you can take to the court to complain about and seek new court orders to remedy.

But sometimes a parent occasionally wants to leave the children in the care of someone else for perfectly reasonable, even laudable reasons, such as wanting the kids to enjoy time with grandma and grandpa or with the cousins, a sleepover at a friend’s house, and things like that. Clearly, it’s not defensible if it is the rule and not the exception, but there is nothing wrong with this on occasion. Indeed, refusing to be flexible and to allow a parent to do this for your kids is unfair to your kids.

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

https://www.quora.com/The-father-of-my-child-has-visitation-rights-ordered-by-court-yet-he-will-be-in-a-different-state-during-his-visitation-time-but-wants-his-aunt-to-take-over-do-I-have-to-allow-his-aunt-visitation-while-he-s-on/answer/Eric-Johnson-311

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How does employment effect finances in divorce?

Are Couples in which the husband didn’t have a full-time job had a chance of divorcing the following year, compared to couples in which the husband did have a full-time job? 

In my opinion, given that generally husbands still earn substantially more than wives, the “best” time for a man to divorce, if he must, is—unless he’s incredibly altruistic toward his wife/soon-to-be-ex-wife—when he’s jobless and/or poor. But this principle applies just as well to a wage-earning wife too. Why? 

If ever there may be a silver lining to being jobless and/or poor, it could be when getting divorced. 

Another divorce attorney told me many times, “Good behavior in a marriage is bad behavior in a divorce, and vice versa.” And you’ve heard the phrase, “No good deed goes unpunished.” In many situations that’s all too true. Earning a living is a good example of these principles. 

In a successful, happy marriage, earning a good living helps keep things running like a well-oiled machine. It promotes optimism and good mental and physical health. It reduces stress and worry. It wins the admiration and affection of family members. 

In a dysfunctional, miserable marriage, earning a good living usually (not always, but usually) means, when the divorce dust settles, that the guy or gal who earns more pays more to the ex-spouse. Pays more of what? Marital debt, child support, and alimony. In divorce, earning a good living goes from being a blessing to a curse. It can feel essentially like involuntary servitude because you are ordered to pay whether you want to pay. And it’s not unusual for courts to order the paying spouse to pay more than he/she practicably can. This breeds consistent resentment, depression, discouragement, stress, and worry. But is there gratitude for the payor? Forget it. Child support and alimony are far too often treated as “rights” and entitlements. 

The poor spouse has less (if any) money to pay child support and alimony. And the poorer spouse of the couple has a great argument for receiving money in the form of child support and alimony. The poorer one is, the harder it is for the other spouse and the court to justify any—let alone big—child support and alimony awards. 

Now for those of you contemplating divorce who think this means, “Ah, so I should impoverish myself before I divorce,” shame on you. Many try to game the divorce process this way (and many get away with it), and it’s easy to see what makes it so tempting. Both A) the spouse who earns a lot of money and B) the other spouse who wants to get a lot of money (from child support, alimony, and debt relief), try to fake job loss, demotion, crushing debts and obligations, illness, injury, or disability. If you think this is a brilliant innovation, you’d be wrong. Divorce courts have seen this scheme tried time and again. They see it so often that they expect both spouses to make these claims. They see it so often that they sometimes conclude that one or both spouses is/are lying about income and expenses even when they are not. Can the courts be fooled? Sure, they get fooled a lot, but not always, not even usually. That stated, I know that there are tens (if not hundreds) of thousands of dishonest people who will file for divorce each year and who will try to con the court with the “I’m poor” play. 

Bottom line: being poor (truly poor, not fake poor) is, in many ways, a winning hand in divorce, if you can prove it in the course of your divorce action. Being poor often saves the spouse who would otherwise pay through the nose. Being poor often benefits the spouse who would receive child support, alimony, and debt relief. 

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

https://www.quora.com/Are-Couples-in-which-the-husband-didn-t-have-a-full-time-job-had-a-chance-of-divorcing-the-following-year-compared-to-couples-in-which-the-husband-did-have-a-full-time-job/answer/Eric-Johnson-311  

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What is the best and fastest way to switch judges in a family court?

I will answer this question as it applies in my jurisdiction (Utah).

First, no one has a right simply to choose your judge or choose to change the judge assigned to your case.

One way to get a change of judge is under Utah Rules of Civil Procedure, Rule 63A. Change of judge as a matter of right, “all parties joined in the action may, by unanimous agreement and without cause, change the judge assigned to the action by filing a notice of change of judge.” The process for doing so is articulated in more detail in Rule 63A.

Another way to disqualify your judge (and thus have a different judge assigned) is under Utah Code Rule 63. Disability or disqualification of a judge. Under Rule 63, a motion to disqualify a judge can be filed. The process for doing so is articulated in more detail in Rule 63.

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

https://www.quora.com/What-is-the-best-and-fastest-way-to-switch-judges-in-a-family-court/answer/Eric-Johnson-311?prompt_topic_bio=1

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How does the legal system protect the visitation rights of non-custodial parents?

How? Not very well, generally. 

But before I elaborate, let’s ask and answer this question first: is the legal system designed to protect the visitation (“visitation” is also known as “parent-time”) rights of noncustodial parents? 

The answer to that question is, ostensibly: yes. But as I stated above, regardless of how well the legal system may be designed or may intend to protect the parent-time/visitation rights of noncustodial parents, designs and intentions are meaningless without proper enforcement. 

And just how well are the designed/intended protections of noncustodial parent visitation/parent-time administered and enforced? Terribly, for the most part. 

How so? Some jurisdictions make interfering with the noncustodial parent’s visitation/parent-time a crime. Criminal statutes, however, are of no protection to a noncustodial parent or two that noncustodial parent’s relationship with his/her child if the police won’t issue citations or make arrests for violating the criminal statute and if prosecutors won’t prosecute violations of the criminal statute. 

Virtually all jurisdictions have provisions in their law for punishing violations of visitation/parent-time orders in decrees of divorce and degrees of child custody and parent time. If, however, you are the wronged noncustodial parent (meaning that the custodial parent has flouted the court’s orders and denied/interfered with visitation/parent-time), yet the court does not hold the offending parent accountable by holding him/her in contempt of court and sanctioning him/her for the contemptuous act(s), then contempt of court is not a deterrent. 

Many jurisdictions provide for a parent who has been denied court ordered visitation/parent-time to receive what is known as compensatory or “make-up” time with the children. And that’s sensible. If the other parent denies you a weekend or a holiday with your children, then the court has the power to award you a “make-up” weekend or holiday. Again, however, such concepts and provisions in the law are meaningless when courts don’t enforce them. And many courts won’t. 

Why won’t courts get tough on custodial parents who interfere with and/or deny noncustodial parents there visitation/parent-time? Two main reasons. One, some courts believe that because it’s hard enough on a child to be denied time with one parent, taking time away from the offending parent so that the parent who was denied visitation/parent-time can spend time with the child simply “solves” one problem (denial of time with one parent) by causing another (denial of time with the other parent). Two, some courts just don’t care enough to enforce the laws on the books, and the cost of trying to hold these disobedient judges accountable is usually far too expensive and far too risky (you don’t want to antagonize the judge). 

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

https://www.quora.com/How-does-the-legal-system-protect-the-visitation-rights-of-non-custodial-parents/answer/Eric-Johnson-311?prompt_topic_bio=1  

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How can you win with the abduction of your own children? I took my children to New Zealand without the permission of the father.

I don’t know the laws of New Zealand, but I can tell you this: morally, you have no right to do that, unless, perhaps, you absconded with the children to prevent their father from killing them or from causing serious and irreparable harm. Now even if you are morally justified in doing so, it may still be against the law in your jurisdiction for you to have acted in such a manner, so keep that in mind.

So if you absconded with the children out of an honest fear for their life or safety (and no, “safety” doesn’t mean your subjective definition created to justify self-serving acts) merely because that’s what you wanted or felt is best (as if the father has no voice in the matter):

  • find out if you had the legal right to do so;
    • even if you did have the legal right to do so, was it fair of you to do so? Fair to the kids? Fair to the father? Would you want to be treated the way you have treated the children and their father by running away with the children and cutting them off from their other parent and cutting their other parent off from them?
    • Is there a way to address your concerns without acting as a law unto yourself?
  • and if you find out that what you’ve done is a crime, don’t double down on your criminal behavior by trying to lie low. Yes, doing the right thing may mean you become a convicted criminal, you may serve time in prison, and if so, you will obviously lose custody of the children. But most courts should have some compassion for you if you admit you know you did wrong and are doing your best to right those wrongs immediately.

And if you absconded with the children merely because that’s what you wanted or felt is best (as if the father has no voice in the matter):

  • shame on you for depriving parent and child of contact and companionship;
  • shame on you for depriving the children of their right to be reared by both parents and to enjoy the love and influence of both of their parents;
  • you violated the Golden Rule. Now go do the right thing. Do as you would be done by.

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

https://www.quora.com/How-can-you-win-with-the-abduction-of-your-own-children-I-took-my-children-to-New-Zealand-without-the-permission-of-the-father/answer/Eric-Johnson-311

 

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Should a child whose rights are not protected be held accountable?

If one’s rights are not protected, then one’s rights are being denied. And one whose rights are not protected cannot, in one sense, be held accountable/responsible for his/her exercise of those rights, if for no other reason than that one cannot be held responsible for the wrongful exercise of rights that are denied, nor should one feel “irresponsible” for exercising or trying to exercise his/her rights that are being denied. On the other hand, just because one’s rights are not being protected and/or are being denied does not mean that one is free to try to exercise his/her rights irresponsibly. If the government is denying your rights or some of your rights or denying you of your rights sometimes, that doesn’t entitle you to exercise or try to exercise your rights in an irresponsible manner. It may, however, entitle you (perhaps even obligate you) to overthrow the bad government. 

https://en.wikipedia.org/wiki/Right_of_revolution  

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

https://www.quora.com/Should-a-child-whose-rights-are-not-protected-be-held-accountable/answer/Eric-Johnson-311?prompt_topic_bio=1  

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Can a divorced spouse claim rights to a previous primary residence?

Can a divorced spouse claim rights to a previous primary residence?

A court can, in exceptional circumstances, award a spouse some or all of your premarital and separate property that is clearly not a marital asset. In the jurisdiction where I practice family law (Utah), the rule in caselaw is:

Dunn v. Dunn, 802 P.2d 1314 (Utah Ct.App. 1990):

The general rule is that equity requires that each party retain the separate property he or she brought into the marriage, including any appreciation of the separate property. Burt v. Burt, 799 P.2d 1166, 1168 (Utah Ct.App.1990) (separate property, in this case inherited property, includes “its appreciated value” during the marriage). Exceptions to this general rule include whether the property has been commingled, whether the other spouse has by his or her efforts augmented, maintained, or protected the separate property, and whether the distribution achieves a fair, just, and equitable result. Id.; Noble v. Noble, 761 P.2d 1369, 1373 (Utah 1988).

Elman v. Elman, 245 P.3d 176 (Utah Ct.App. 2002):

In distributing property in divorce proceedings, trial courts are first required to properly categorize the parties’ property as marital or separate. See, e.g., Kelley v. Kelley, 2000 UT App 236,¶ 24, 9 P.3d 171. Generally, trial courts are also required to award premarital property, and appreciation on that property, to the spouse who brought the property into the marriage. See Dunn v. Dunn, 802 P.2d 1314, 1320 (Utah Ct.App.1990); see also Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988).

6¶ 19 However, separate property is not “totally beyond [a] court’s reach in an equitable property division.” Burt v. Burt, 799 P.2d 1166, 1169 (Utah Ct.App.1990). The court may award the separate property of one spouse to the other spouse in “ ‘extraordinary situations where equity so demands.’ ” Id. (quoting Mortensen, 760 P.2d at 308); see also Rappleye v. Rappleye, 855 P.2d 260, 263 (Utah Ct.App.1993) (“ ‘Exceptions to this general rule include whether … the distribution achieves a fair, just, and equitable result.’ ” (quoting Dunn, 802 P.2d at 1320)).

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

https://www.quora.com/Can-a-divorced-spouse-claim-rights-to-a-previous-primary-residence/answer/Eric-Johnson-311

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Can a divorced spouse claim rights to a premarital primary residence?

Can a divorced spouse claim rights to a premarital primary residence?

A court can, in exceptional circumstances, award a spouse some or all of your premarital and separate property that is clearly not a marital asset. In the jurisdiction where I practice family law (Utah), the rule in caselaw is:

Dunn v. Dunn, 802 P.2d 1314 (Utah Ct.App. 1990):

The general rule is that equity requires that each party retain the separate property he or she brought into the marriage, including any appreciation of the separate property. Burt v. Burt, 799 P.2d 1166, 1168 (Utah Ct.App.1990) (separate property, in this case inherited property, includes “its appreciated value” during the marriage). Exceptions to this general rule include whether the property has been commingled, whether the other spouse has by his or her efforts augmented, maintained, or protected the separate property, and whether the distribution achieves a fair, just, and equitable result. Id.; Noble v. Noble, 761 P.2d 1369, 1373 (Utah 1988).

Elman v. Elman, 245 P.3d 176 (Utah Ct.App. 2002):

In distributing property in divorce proceedings, trial courts are first required to properly categorize the parties’ property as marital or separate. See, e.g., Kelley v. Kelley, 2000 UT App 236,¶ 24, 9 P.3d 171. Generally, trial courts are also required to award premarital property, and appreciation on that property, to the spouse who brought the property into the marriage. See Dunn v. Dunn, 802 P.2d 1314, 1320 (Utah Ct.App.1990); see also Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988).

6¶ 19 However, separate property is not “totally beyond [a] court’s reach in an equitable property division.” Burt v. Burt, 799 P.2d 1166, 1169 (Utah Ct.App.1990). The court may award the separate property of one spouse to the other spouse in “ ‘extraordinary situations where equity so demands.’ ” Id. (quoting Mortensen, 760 P.2d at 308); see also Rappleye v. Rappleye, 855 P.2d 260, 263 (Utah Ct.App.1993) (“ ‘Exceptions to this general rule include whether … the distribution achieves a fair, just, and equitable result.’ ” (quoting Dunn, 802 P.2d at 1320)).

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

https://www.quora.com/Can-a-divorced-spouse-claim-rights-to-a-previous-primary-residence/answer/Eric-Johnson-311

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Married a short time. He demands discovery going back years. Can he?

Married a short time. He demands discovery going back years. Can he?

Married 16 months. He became abusive almost immediately after. I filed for divorce. He and his attorney is requesting bank statements and my previous divorce information -real estate sales, bankruptcy, etc. from my last marriage prior to this marriage. Can They? They may be well within their rights to seek this kind of information, if the reason he and his attorney are doing so because you are seeking alimony. Things like your bank statements, real estate sales, and bankruptcy documents provide information as to your earning capacity, how capable you are of supporting yourself, and lifestyle costs—that’s all highly relevant and thus clearly discoverable information on the issue of alimony. If you are concerned that your husband and his attorney are engaging in irrelevant, burdensome, harassing, abusive discovery tactics, get your own attorney to find out, and if your attorney honestly believes the discovery is inappropriate/unnecessary, your attorney can ask the court to review the matter to see if the court agrees. If the court agrees, it can bar your husband and attorney from engaging in that kind of thing.

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

https://www.quora.com/Married16-months-He-became-abusive-almost-immediately-after-I-filed-for-divorce-His-attorney-is-requesting-bank-statements-and-my-prior-divorce-information-real-estate-sales-bankruptcy-etc-from-my-last-marriage/answer/Eric-Johnson-311

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Why does someone need an attorney when they can just defend themselves in court?

Why does someone need an attorney when they can just defend themselves in court (pro se)?

Why does someone need an attorney when they can just defend themselves in court?

It really depends on how you define “need” here.

First, understand that no litigant (except a litigant in certain circumstances who is determined to be mentally incapacitated or disabled, in which case the court may appoint an attorney for such a litigant) is required or can be forced to have be represented by an attorney.

This means you cannot be forced to hire an attorney, you cannot be forced to have an attorney appointed for you in criminal cases, even if you qualify for an attorney to be appointed for you.

So, there is no legal mandate that you be represented by an attorney, no “need” to be represented by an attorney in that sense. You won’t be arrested or fined for not being represented by an attorney.

So, from the foregoing we see that you have the absolute right (with the exception of disability/incapacity) to represent yourself in court (that’s known as proceeding “pro se”, which is Latin for “for oneself”).

If, however, prevailing in the litigation is your sole or primary objective, and if you are not well-versed/skilled/confident regarding the law and court procedures, you may determine that you cannot win without an attorney. In that respect, you may determine that you “need” an attorney. In this sense, most people need an attorney. You may have heard the old saw, “A man who represents himself, has a fool for a client.” Abraham Lincoln is reputed to have put it this way: “He who serves as his own counsel has a fool for a lawyer and a jackass for a client.” The reason this is true is because the legal system is not as simple, as non-dysfunctional (sorry, I know that’s a clunky term, but I cannot think of a clearer way to make my point, or as fair as you believe or want to believe. A lawyer is not only helpful for his/her knowledge of the law and court procedures, but also for his/her experience and ability to guide you down the dark, twisted, uphill, rocky, often counterintuitive and dangerous path that is the legal system.

If the stakes are such that you don’t mind bearing the consequences of losing the case (in other words, you can afford to pay and don’t mind paying the fine(s) and/or don’t mind doing the time in jail/prison), then it’s likely you don’t “need” an attorney; otherwise, a prudent litigant needs an attorney.

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

https://www.quora.com/Why-does-someone-need-an-attorney-when-they-can-just-defend-themselves-in-court/answer/Eric-Johnson-311?prompt_topic_bio=1

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If a mother served 10 years in prison, what rights does she have on release?

If a mother who is sentenced to 10 years in prison leaves her children to be raised by their grandmother, has she a right to demand they live with her when she is released?

Can the mother demand the children return to live with her? Yes. She can make any demands she wants. That doesn’t mean that the grandparents will necessarily accede to those demands.

Does the mother have the right to demand the children return to live with her after her release from prison? Yes, she has “the right” to make such a demand. They are, as a matter of law, her children, not the grandparents’ children, after all. Unless the grandparents petition the court to be made the children’s legal guardians or petition the court to adopt the children (and thus terminate the mother’s parental rights), the mother has the right to the custody and care of her children. And in a situation where the mother has been away from the children, unable to provide them with personal care and attention for a period of 10 years, if the grandparents were to petition for guardianship or adoption, their odds of prevailing are quite high.

Now will the children submissively (let alone willingly) agree to leave the people who have cared for them and to whom they’ve likely formed a strong, loving bond to go live with a woman they might barely know, given that mother’s been out of the picture and literally out of their lives for 10 years? Probably not. So even though the mother has the legal right to custody of the children after being released from prison, if the children refused to leave their grandparents’ home to go live with their mother, there is little the police can do. The grandparents could not be arrested for kidnapping because they are not holding the children against their wills.

https://www.quora.com/If-a-mother-who-is-sentenced-to-10-years-in-prison-leaves-her-children-to-be-raised-by-their-grandmother-has-she-a-right-to-demand-they-live-with-her-when-she-is-released/answer/Eric-Johnson-311

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How does a “baby prenup” work and is it effective?

For others reading this answer to your question who do not know what a “baby prenup” is, let me first describe it:

What a “baby prenup” is not

A “baby prenup” is not, as the name might connote, a small or truncated prenuptial agreement. “Baby prenup” is something of a misnomer. A real prenuptial agreement is an agreement that an engaged couple enters into before marriage, or an agreement that a newly wed couple might consider preparing. Why? To anticipate and resolve in advance potential conflicts over property and other issues that could arise in the event of a divorce.

What “baby prenup” is

What “baby prenup” is is an agreement between a husband and his wife* (who may be pregnant or who, with her husband, hopes to have a baby in the future with her husband) that anticipates and resolves in advance potential conflicts over what the parent’s joint and individual parental duties and responsibilities of care for the future child will be. Obviously, the intent of a baby prenup is to 1) facilitate communication between the potential parents and thus avoid and prevent disputes between the husband and wife when they become parents; and 2) ensure that the potential parents make sufficient plans for the successful care and nurturing of their child, if and when one is born to them.

Is a “baby prenup” a good idea?

Not really. I feel that a “baby prenup” cheapens both the joys and the burdens of parenthood by treating pregnancy, childbirth, and parenthood in a legalistic manner.

A couple who wants to have a child can do everything that a baby prenup is designed to do without actually having to draft or sign a contract. If a couple is not mature enough to understand that once they have a baby they are both responsible for the care and rearing of the child (in different and complementary ways) they brought into the world, it is highly doubtful that a written contract would change or prevent anything for the better. Indeed, if you believe that the person with whom you would like to have a child cannot be trusted to do, and would not, in the absence of a written contractual obligation, do all he or she can reasonably be expected to do for that child, that is surely someone you should not have a child with and rear together.

——————-

*or a boyfriend and girlfriend, girlfriend and girlfriend, boyfriend and boyfriend, wife and her wife or a husband and his husband, as the case may be.

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

https://www.quora.com/How-does-a-baby-prenup-work-and-is-it-effective/answer/Eric-Johnson-311

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