Tag: sole custody

Why Condemn Children to Sole Custody Awards When They Have Two Fit Parents?

One of the arguments that some fathers make when they encounter the double standard applied to mothers and fathers in child custody disputes (resulting in a denial of equal legal and physical custody to perfectly fit fathers in situations in which there is no way it could be shown that sole custody subserves the best interest of the child better than joint equal custody), they sometimes argue in utter (and utterly understandable) frustration, “Single mothers prove to be the worst parents time and time again!”

That’s an overstatement, a misleading claim. There are plenty of bad single mothers, sure, but single mothers don’t have a corner on the bad parent market.

Single parents (man or woman) have a hard time being the best parents (and being their best selves as a result) because parenthood was never meant to be a solo act. Single parents who try to marginalize and cut the other parent out of childrearing are doing not only the children a disservice, but themselves a disservice as well.

Utah Family Law, LC | | 801-466-9277

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Obstacles Fathers Face in Trying to Get Joint Custody of Their Children

I have been asked by a reader to answer two questions.

The first: whether I believe courts generally apply a double standard in the treatment of mothers and fathers when courts make their child custody and parent-time (visitation) orders. The answer is “yes”. Not just “yes,” but “unquestionably, yes.”

The second: What do fathers need to do to meet and overcome that double standard? This is not a polar or closed question, so it requires a prescriptive response.

Before I answer the second question in detail, we need to understand—really and fully understand—why courts generally apply a double standard in the treatment of mothers and fathers when courts make their child custody and parent-time orders. Several volumes could easily be dedicated to the reasons why, so understand what I provide here is not merely concise but rather terse and not exhaustive (though no less true). In no particular order, here are the reasons I’ve encountered:

  • Few will admit it, but most people—both men and women—harbor the belief that women are better parents than men generally.[1]Many judges (both men and women) literally find it impossible to conceive that a father can be as effective a parent as a mother. Consequently, many courts substitute scrutiny and analysis of each particular parent in each particular case for playing the odds by awarding sole primary custody of the children to the mothers.
  • For jurisdictions that base child custody and parent time decisions upon which parent is the “primary caregiver,” courts inexcusably apply a needlessly biased definition of “primary caregiver.” For example, in Utah, “primary caregiver” has been defined as:

We believe that the choice in competing child custody claims should instead be based on function-related factors. Prominent among these, though not exclusive, is the identity of the primary caretaker during the marriage. Other factors should include the identity of the parent with greater flexibility to provide personal care for the child and the identity of the parent with whom the child has spent most of his or her time pending custody determination if that period has been lengthy. Another important factor should be the stability of the environment provided by each parent.

(Pusey v. Pusey, 728 P.2d 117 (August 18, 1986 Supreme Court of Utah))

The Pusey standard is over 37 years old as of the date this post is written, but is still followed in Utah. The standard is outmoded and do for a change. I believe that change is coming soon and that when that day comes, sexual discrimination against father in the child custody and parent time awards will suffer a fatal or near-fatal blow, but that day is not here yet. Even so, the seeds of Pusey’s destruction are found in the decision itself:

“[T]he provisions of article IV, section 1 of the Utah Constitution and of the fourteenth amendment of the United States Constitution would preclude us from relying on gender as a determining factor.”

The primary caregiver standard is (as many of you have already surmised), in many respects, just another disguise for bias in favor of mothers and against fathers.

I would like to say that I do not understand why courts in Utah continue to overlook the obvious fact that most of these so-called primary caregiver parents’ status depends upon the other parent being the sole or primary breadwinner. Otherwise stated, the reason mom can stay home with the kids is because dad is the one working to put that roof over their heads and providing all of the other necessities of life without the mother having to work outside the home herself. And so the courts have these kinds of fathers on the heads, ostensibly thank them for their sacrifices and for being upstanding, responsible men, then turn around and hand over sole or primary custody of the children to the mother nonetheless.

o   The problem with this thinking is that divorce fundamentally changes family dynamics. The primary caregiver analysis often fails to acknowledge that the physical primary caregiver status will rarely remain static post-divorce.

She (or he, in rare instances) who was the primary caregiver when the family all resided under the same roof will rarely remain able to be a stay-at-home parent post-divorce. That stay-at-home parent may find herself having to work outside the home to provide financially both for herself and for the children.

Likewise, fathers who used to come home to their children every day but who now realize they will be lucky if they get to see their kids every other day, will often make sacrifices so that they can spend as much time caring for their kids as possible when they are not at work. Courts, however, largely act as though this fact of life isn’t real. Or they may ostensibly acknowledge the fact in their custody and parent time decisions, custody and parent time awards themselves– mom still ends up with sole or primary custody, and dad ends up with every other weekend, alternating holidays, and a few weeks in the summer.

In Utah, the law is:

“Determining which factors the court must address in a given case, and to what degree, presents a tricky task,” and that “courts are not required to render a global accounting of all evidence presented or to discuss all aspects of a case that might support a contrary ruling.” See Twitchell, 2022 UT App 49, ¶ 21, 509 P.3d 806

But “where significant evidence concerning a particular factor is presented to the district court,” especially where that factor is a critically important one, “findings that omit all discussion of that evidence” and of that factor “must be deemed inadequate.” Id.

(Twitchell v. Twitchell, 2022 UT App 49, ¶ 21, 509 P.3d 806)

But it doesn’t take a genius to find that courts can, if they so desire, overlook pretty much whatever evidence they want (to get to the ruling they want) by simply deeming/dismissing/discounting such evidence as “insignificant”.

So what can (or even must) fathers do to ensure that they (and their children’s relationships with them) are simply treated fairly and impartially in the child custody and parent-time awards? An exhaustive list of pointers could run into the hundreds, but here are the most important, in my estimation (again, in no particular order):

  1. Approach your case like a black man would back in the 1960s who was a defendant in a criminal case: to win, he had to prove his innocence, and he had do it with 10 times more evidence than a white defendant needed. Fathers need to prove their parental fitness. Rarely will a court presume fitness of a father (they presume a mother’s fitness all the time). Generally, fathers must have far more and far better evidence of their fitness compared to what the courts require of mothers. Otherwise stated, you need so much evidence, and so much high-quality evidence, that even the most biased/cynical judge cannot deny you without looking inept or corrupt.
  2. Prove that you satisfy every custody factor the court must consider. In Utah, those factors are found here:

Utah Code § 30-3-10.  Custody of a child—Custody factors.

Utah Code § 30-3-10.2.  Joint custody order—Factors for court determination—Public assistance.

30-3-32.  Parent-time—Definitions—Considerations for parent-time — Relocation.

Utah Code § 30-3-34.  Parent-time — Best interests — Rebuttable presumption.

Utah Code § 30-3-35.1.  Optional schedule for parent-time for a child five to 18 years old.

30-3-35.2.  Equal parent-time schedule.

  1. Document everything you possibly can to prove you are a fit parent who can and should exercise at least equal custody of your children (do not seek sole custody or primary custody out of spite—that is wrong).
  2. Do everything you reasonably, possibly can to show you are a fit parent in every way.
  3. If you and your wife are separated, make sure you live as close to your wife as you can, so that the children are in the same neighborhood near their same friends and familiar favorite places, same school district where the children attend school, and can attend the same church they have been historically attending, so that the court doesn’t say, “Dad, you live too far away to make awarding you equal custody good for the children.” Do you see why?
  4. If you live too far away from your kids, they will end up presenting spending any time with you, resent the travel back and forth between their parents’ homes, they won’t have any friends in your neighborhood, they will be too far away from school and extracurricular and church activities, and you risk them telling you that spending time with you is more trouble than it’s worth.
  5. Get your hands on all the latest rigorous research showing that children, whether boys or girls, fare better in an equal custody arrangement. You may even need to retain the services of an expert witness to testify to these things. If you simply dump scholarly articles on the court, they will likely not be admissible without an expert witness to verify that they are legitimate and valid.
  6.       Live a life beyond reproach, and document it in painstaking detail.
  7. You want to do everything to prove this beyond any reasonable doubt: “Your Honor, if what I have set up by way of where I live and what my work schedule is and how much time I can spend providing personal care and attention for the children doesn’t qualify me in every meaningful way to exercise equal physical custody of our children, then there is no other realistic situation that can.”
  8. Ensure that the court makes findings that you meet every factor (ensure that the court makes findings on every factor and points to the evidence supporting each and every finding).
  9. Don’t merely prove you are a good parent. To the extent you can, also DISPROVE all the claims that you are not a good parent.
  10. Be careful about admitting your wife is a good and fit parent if she’s claiming you are a bad and unfit parent.
  11. No, I’m not advising you to lie about your wife’s parental fitness, I’m warning you that I’ve seen courts make findings like this far too often: “Dad admits that Mom is a good parent, but Mom claims Dad is a bad parent, and so Mom wins the parental fitness argument.” It’s disgusting, but it happens.
  12. Don’t believe that “falling on your sword for your kids” will benefit you, or the kids for that matter. When you do that, you run the unnecessary risk of the court pulling a “no good deed goes unpunished” move like, “Dad said he’s willing to agree to less than equal custody to settle the case and put an end to the fighting; so be it.” That may have worked with Solomon, but it rarely works in court.
  13. Show that depriving a child of any care and love and companionship and tutelage that a parent is able and willing to give that child is inherently contrary to the best interest of the child. Show that “the best parent” is BOTH parents. Show that children have a right to loved and reared by both of their parents as much as possible.
  14. Blow the “primary caregiver” argument as meaning “woman” or even “the stay-at-home parent” to smithereens. It’s a pernicious lie. Read my other blog post for more on this and other bogus arguments against fathers and joint legal and physical custody of children: All Men Are Created Equal: A Proof for the Presumption of Joint Physical Custody – Divorce Utah

Utah Family Law, LC | | 801-466-9277

[1] I am nothing, if not frank. It is probably true that if you took a random sampling of parents and analyzed which of the two, among the mother and the father, is the more competent and attentive parent, a higher percentage of those parents would be mothers instead of fathers. But that doesn’t mean that every mother is presumptively a better parent than every father in a child custody dispute. It’s when courts indulge in such a presumption that they indulge in sexual discrimination, indulge in analytical laziness, and thus can (and often do) commit error.

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Does it not feel weird to anyone that a parent who does not get child custody has to pay child support to the other parent who is enjoying the kids?

I think I know why you think it’s weird. Why have the children live with one parent instead both parents on an equal custody basis? In other words, “I’ll bear the financial costs of taking care of the children when they are with me, and you bear the financial costs of taking care of the children when they are with you.” That makes, sense. But there is more than one way to view this situation. Most jurisdictions in the U.S.A. see it this way:

If the children spend more time in the care and custody of one parent than the other, then that parent will bear greater financial burden in the form of having to pay for at least the food the children eat, the laundry detergent they use in the washing of their clothes, the extra utilities expenses they represent (using more water and electricity than if the parent lived alone) and the soap, shampoo, and toilet paper the children use.

In Utah (where I practice divorce and family law), child support is intended to cover not only these expenses of the children, but their clothing and bedding, school fees, and extracurricular activities too.

This is why most jurisdictions order the parent who exercises less care and custody than the other parent (the noncustodial parent) to pay what is called “child support” to the custodial parent.

But what if the parents share equal physical custody of the children? Does that mean that neither parent will pay child support to the other? Not necessarily.

In Utah, even if the parents were awarded equal custody of the children, one parent can end up still paying child support to the other, if one parent has a higher income than the other. The reason for this is the idea that the children’s lifestyle should be the same regardless of which parent they are residing with at the time. To ensure the parent whose income is lower can afford to provide the same lifestyle for the children as their other parent, many courts (including Utah’s) will still order the richer parent to pay child support to the poorer parent for this purpose.

Utah Family Law, LC | | 801-466-9277

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I Am 14 and I Want to Live With My Dad. My Parents Have Shared Custody, but My Mom Wants to Keep Me Her Alone (And She’s Not a Good Person). How Do I Stay With My Father Full Time?

I will answer this question in the context of Utah law because I am licensed as an attorney and practice divorce and family law in the state of Utah.

For the typical child in your situation, i.e., one who wants to obtain a modified order from the court changes the award of child custody from one parent to another, there is precious little that the child can do to affect this kind of change.

In fairness, there are some good policy reasons for why this situation arises. For example:

  • Young children often have poor judgment and may not know whether residing primarily with the parent the children wants to reside is in the child’s best interest.

–   A 9-year-old child may say he/she wants to live with a particular parent not because that parent is a fit parent but just the opposite, i.e., doesn’t ensure the child completes homework, chores, doesn’t ensure the child practices good hygiene, feeds the child junk for meals, imposes no discipline, etc.

–   A tween-age or teen-age child may say he/she wants to live with a particular parent not because that parent is a fit parent but because that parent lets the child run wild, skip school, drink, smoke, take drugs, be sexually active, etc.

  • Many young children can be too easily manipulated and/or intimidated into saying that they want what they don’t really want by way of the custody and parent-time schedule.
  • Some feel that seeking the input of children on the subject of the child custody and parent-time awards “traumatizes” (this word is grossly overused in family law) children by placing them in a position where they must favor or choose one parent over another.

These are clearly factors worth carefully considering if and when a child objects to residing with a particular parent or objects to a particular custody or parent-time schedule. But too often courts invoke these factors as a reason to utterly silence and to completely ignore anything a child has to say on. Why?

Is it because all minor children are clearly unable to be taken seriously because of their status as minor children? Obviously not. While some children may be too young or too immature to have sound bases for, or to make sound arguments for, their custodial preferences, plenty of children are more than sufficiently intelligent and mature and responsible to be credible witnesses on their own behalf. And we’ll never know whether a child is a credible or an incredible witness if we don’t inquire with the child first. Courts reject the testimony of lying and incompetent witnesses all the time (as well they should), yet many courts reject a child’s testimony without giving the child a chance to speak on the grounds that they might lie, that they might be coached, and/or that they might be too stupid or naïve to be taken seriously. That’s no different than convicting a defendant without a fair trial because he “might be” guilty.

Is it because asking a child to express his/her opinions is inherently and irreparably harmful to all children, or even to most children? Obviously not. If a child tells his/her parents and the court, “Don’t ask me to talk about this,” then it may be that honoring that child’s wishes is best. By the same token, however, if a child tells his/her parents and the court something to the effect of:

  • “I have a greater stake in the child custody and parent-time awards than anyone else involved in this case.”
  • “I have experiences, observations, opinions, and desires that deserve to be considered before the court makes these decisions that will affect my life for years to come as a youth and throughout my life as an adult.”

So why do some (most, though not all) courts refuse to hear from children about their custodial preferences and the reasons for those preferences? Why do some courts muzzle the children from the outset? Why do they refuse to weigh the credibility and evidentiary value of what the children who want to be heard have to say? In my opinion, it’s laziness disguised as “prudence” and “compassion”.

So, what does a child who wants and deserves a change of custody do? This may sound radical, but it’s really not: get your own attorney to help you. That’s the legal way to do it. And it’s easier said than done. You’ll be excoriated and mocked for trying. You may even be threatened. Be prepared for all this. There are all kinds of extralegal “self-help” methods that are easier and cheap or free by comparison, but that has never been an excuse to break the rules (unless the rules are inherently unfair or administered unfairly). I encourage children in your situation to work through the system even when it’s organized and administered to work against you.

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

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Do Abusive Parents Get Custody of Their Children? Can Relatives Get Custody Instead?

Do abusive parents get sole custody of their children, even when their children don’t want them to have it? If the children want to stay with a relative who can take care of them instead, can the court award the relative custody of the children and only allow the abusive parents visitation rights?

Do abusive parents get sole custody even when their children don’t want that? Yes, that can happen. Just because it can happen does not mean it will always happen, but there are many times when abusive parents still get custody of their children. The reasons can vary, but usually they are (in no particular order):

  • the parents deny being abusive, and if there isn’t enough evidence to refute their denials, the court gets fooled into believing the parents.
  • the parents may be abusive, but not considered abusive enough to justify stripping them of their parental rights to child custody; in those situations, even though the court may not deprive the parents of child custody, the court can and often will condition the keeping of their custodial rights upon the parents refraining from future abuse and completing courses on good and proper parenting.

If children want to stay with a relative who can take care of them, can the court award the relative custody of the children and only allow the abusive parents visitation? Yes, that can happen too, but only if the court finds sufficiently compelling reasons to infringe upon the parents rights of custody in favor of someone else exercising custody of the children. a child merely expressing a preference for someone other than his or her parents is never enough to justify a change of custody from the parents to someone else. Interfering with the parents’ rights to custody of their own children is very difficult because those parental rights are considered some of the most basic of human and fundamental rights.

Utah Family Law, LC | | 801-466-9277

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If Parents Are Divorced or Separated, Can the Parent With Full Custody of the Child Prevent the Other Parent From Seeing the Child, Even if That Parent Is Paying Child Support?


  • there is a statute or court order that permits it; or
  • this kind of statute or court order could be the kind that permits the temporary denial of contact with the child on the grounds that it is necessary to protect a child from abuse or neglect;
  • this kind of statute or court order could be the kind that permits the temporary denial of contact with the child on the grounds that the other parent is suspected of engaging is engaging in activity that places the child at risk of harm (such as substance abuse, criminal behavior, severe mental illness, etc.);
  • the other parent was never (often referred to as the “noncustodial parent”) was never awarded any visitation (also know as “parent-time”) rights in the first place,

then no, the parent awarded sole (sometimes referred to colloquially as “full”) custody of the child cannot legally and lawfully prevent the other parent from contact with their minor child.

The fact that the noncustodial parent is paying child support likely makes it even harder to justify interfering with that parent’s visitation/parent-time, rights, if he/she has them.

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

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How Often Does One Parent Get Sole Custody of Their Children in a Custody Case?

Good question. 

A generation or two ago, it was all but unheard of for parents to be awarded joint physical custody of their children. It was literally unthinkable in the minds of most legislatures, judges, and lawyers. Back then, married couples consisted exclusively of a man and a woman, and most children of married couples had a stay at home parent (almost always their mother). It was believed back then that the children needed to reside with the parent who does not work outside the home. 

As a result, when a mother and father divorced, custody of the children was awarded to one parent, and that parent was the mother. Fathers were awarded what was known as “visitation” and what is still known as visitation in some jurisdictions and in others it is now known as “parent-time”. Visitation and parent-time were typically restricted to every other weekend with Dad (usually Friday evening to Sunday evening) and dividing holidays with Mom, so they each spent every other Christmas, Thanksgiving, Labor Day, etc. with their kids. 

Around the 1980s, however, a “radical” new idea was starting to attract attention and gain some momentum: joint physical custody, also known as “shared parenting”. This movement was started by loving fathers who were just as capable as parents as their children’s mothers who were fed up with being relegated to the status of a “visitor” of their own children. These fathers were tired of being treated as second-class parents and concerned by the adverse effects the minimal time they were “allowed” with their own children were having on the father-child relationship. More divorces and more women in the workplace helped facilitate the movement as well. 

It’s taken 40 years, but now the idea of joint custody and shared parenting is not only not considered weird or radical, it’s becoming the norm. I say “becoming” because there is still a surprisingly large number of lawyers and judges in the legal profession who oppose joint custody and shared parenting. Those who do are living in the past and cling to outmoded and debunked theories of what’s best for children. When children, even infant children, are reared as much as possible by both of their loving, capable parents, the evidence is clear that they do better than in a sole custody situation. 

Joint custody and shared parenting is not feasible in every child custody situation, no one can credibly argue anymore that the presumptively best thing for children of two fit and loving parents is sole custody. Still, many parents (again, mostly the fathers, but some mothers too) who can and want to exercise joint custody often find themselves having to fight for joint custody and shared parenting not because the facts don’t support them but because of the judge’s personal biases against joint custody and because of their beliefs that mothers are better, more necessary parents than fathers. The fight, unfortunately for many (too many), still goes on when it shouldn’t. 

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

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Should I get sole custody of my children if the dad does not want custody?

Should I get sole custody of my children if their dad does not want to be involved with them? Or try to talk it out before I go through with it?

Your children deserve a loving, salutary relationship with both of their parents, so it is morally right to urge and encourage the father in this situation to love and care for his children. Yes, have that talk with the father. It’s pointless, however, to nag or try to guilt a father into loving and caring for his children when he doesn’t want to love and care for his own children. And it’s plain irresponsible and wrong to try to involve a father in his children’s lives if that father is a danger to the children, whether physically or emotionally/psychologically.  

But where a father is not abusive, not a danger to the life or health of his own children, it’s not a bad idea to leave the door open. One day Dad might wake up and want to walk through it for the children’s benefit. Leaving open the possibility does not, of course, mean that the children will be receptive to repairing (or in some cases forming) their relationship with their father, but why slam that door and nail it shut if you must not? Do unto others as you would have them do for you. Don’t needlessly deprive the children of an opportunity to bond with their father.  

That stated, this does not mean that you must ask the court for a joint child custody award. “Leaving the door open” does not require you treat Dad like an involved parent when he’s not. If Dad’s not around, not interacting with the children, not playing with them, bathing, feeding them, etc., not financially supporting the children, then there’s no good reason to act as though he is when the child custody awards are made. There’s no reason to “leave the door open” in a way that sets the kids up to have their hopes dashed and their hearts broken. If an absentee parent (father or mother) says that he or she recognizes the error of that absentee parent’s ways and wants to make amends, there must needs be a price to be paid by that parent. There will be hard words to hear from the other parent and child. He or she should expect caution and hesitancy, even skepticism, from the children and the other parent. There will be hard work and sacrifice ahead as well (and not just for Dad). Easier said than done. I get it. But if the children are willing to give Dad a second chance and he’s proven he can and wants to make good, it would be tragic and frankly inexcusable to deny the children that. 

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

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What is the proper way to request a change of the child custody order?

What is the proper language to request a change of the child custody order in family law court?

What you want to accomplish is not the kind of thing that you have good odds of accomplishing successfully on your own, as a non-lawyer. Indeed, the odds are against you doing this correctly. 

Seeking a modification of a child custody order is a matter of much more than merely finding “the right words” (although being clear and accurate in one’s choice of words in legal documents is crucial). The “proper language” to use to seek a modification of an existing child custody order is not a matter of a few sentences or paragraphs, and there is no such thing as one and only one particular way to phrase a request for a modification of the child custody award and to phrase the arguments for why that should occur. 

My guess is that you either don’t have enough money to retain the services of an attorney to help you or don’t want to spend the money on an attorney’s help, but this is a situation in which not getting a good attorney’s assistance could be the difference between success and failure. 

Many people who are not experienced lawyers have somewhat strange, often incredibly oversimplified, and erroneous beliefs about the way the law and the courts function.  

Many people are afraid to consult with lawyers for fear that the lawyers will try to charge them extortionate amounts of money. I sympathize. There are many lawyers who do just that (I am a lawyer, so I know). But if you will shop around extensively, you can find a good lawyer who delivers value for what he or she charges you. When you find such a lawyer, it some of the best money you’ll ever spend. People who represent themselves in court and who don’t know what they’re doing don’t get do overs for the mistakes they make. 

Many people believe that if what they want makes all the sense in the world to them, then it will make all the sense in the world to the courts. In my experience, just the opposite is true. What often make sense to people unfamiliar with the legal system is not the way the legal system functions. This is not to say that everything in the legal system is nonsensical, but a lot of what people believe the law is or should be is not the way the law is or works. 

Bottom line, consult with an attorney. Find out what you need to do, find out how much it will cost, then find a way to afford it. It’s far less expensive in the long run than the risks you run in trying to do it yourself. 

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

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What are the chances of a mother getting full custody?

In my experienced opinion: 

If the fight is over which parent will be awarded sole (full) custody of the children, and if no other factors are considered: the chances of a mother winning full custody of the children are always better than the chances of a father winning full custody of the children. 

If the mother is seeking sole custody, but the father is seeking joint equal custody, and if no other factors are considered: then 1) unless you are in a jurisdiction in which it is the law that joint custody of children shall be presumptively awarded, 2) unless that presumption is (honestly) rebutted, and 3) the courts in such a jurisdiction actually follow that law and the facts, the odds still favor the mother, though not as much as when the parents are both seeking sole custody. The father has to work much harder than the mother to persuade the court to award joint equal custody than the mother does to persuade the court to award less than joint equal custody. 

If the mother is seeking sole custody and the father is seeking joint custody, but is not seeking joint equal custody (meaning that the father is not limited to the statutory minimal amount of visitation or parent time but is also not awarded the same amount of time with the children as is the mother) and if no other factors are considered: then the father may have a decent shot at winning a “more than minimum and less than equal” joint custody award. Why? Because I think that when a court is sexist it likes the “booby prize” look and sound of a child custody award that has the word “joint” in it. The thinking seems to be in the minds of such judges, “Hey, be grateful I awarded you something better than minimal time with your kids. It could’ve been worse.” 

Loving, fit fathers who want the children to have the benefit of being reared equally by both parents are often shocked and then heartbroken to learn that such a sentiment generally doesn’t get a very warm reception from the courts. There is an amazing and shameful amount of sexual discrimination against fit fathers in the child custody decisions of courts, even after giving the courts credit for a slow trend of decreasing discrimination. 

I am not exaggerating when I state—as a divorce and family lawyer who has fought these battles for fathers—that generally (except in the extremely “progressive” jurisdictions) 1) fathers have to work 20 times harder to win sole custody (when that is truly what is best for the children) than a mother does to win sole custody and 2) fathers have to work at least 10 times harder to win joint equal custody (when that is truly what is best for the children) than a mother does to win sole custody. 

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

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I’m 14 and my mom is making me live with my dad. How do I stop this?

I’m 14 and my mom is making me live with my dad and is giving him custody. What can I do to prevent this from happening? 

I’m a divorce and family lawyer, and I see this question arise frequently. 

If you don’t want to live with your father for the wrong reasons, give both your dad and yourself a break, and live with Dad. You know what I mean; if you don’t want to live with Dad because he has reasonable, sensible rules and expectations for your protection and benefit, you’re only hurting yourself if you try to avoid being held to high standards. 

If Mom is too permissive, too hands-off, lets you get away with murder, doesn’t hold you accountable, then living with her is likely going to ruin you. 

What Randy Pausch said has stuck with me ever since I heard it: “Your critics are the ones telling you they still love you and care. Worry when you do something badly and nobody bothers to tell you.” 

If you don’t want to live with your mom because she’s abusive and neglectful, I wouldn’t go tell Dad first. Instead, I would try to find a lawyer who would help me. Be prepared to spend a very long time trying to find such a lawyer. They exist, but they are few and are thus hard to find. 

Why not tell Dad about the abuse and/or neglect first? It’s a little complicated, but I’ll try to make it clear. 

First, with few exceptions, courts are biased against fathers when it comes to deciding which parent with whom a child will live. Fathers who try to get custody are often believed by many courts as motivated only by self-interest, not by the best interest of their child or children. 

Fathers who seek sole or even joint custody of their children are often portrayed as being motivated by anything but honest, virtuous objectives. Instead, they are often accused of/presumed as being motivated by a desire to avoid paying child support or a desire to hurt the mother emotionally by cutting the children off from her. 

It is hard for some judges to believe fathers seek custody to protect the child from an abusive or neglectful mother because it’s hard for the court to believe the mother is abusive or neglectful in the first place. It is hard for some judges to believe that awarding to fit parents the joint equal physical custody of their children is best for the children. Far too many judges perceive the “safe bet” when making the child custody award as being: award custody of the children to Mom. 

And so if your dad were to be the one to break the news to the court that you told Dad mom is abusive and/or neglectful, your dad’s claims would immediately be met with skepticism, if not scorn. Both your mother and the court would likely accuse your dad of lying for self-serving purposes, not for the purpose of protecting you and fostering your welfare. 

So you may ask why you should not simply call child protective services and the police by yourself. Why not make these reports directly to child protective services and the police by yourself? Why get a lawyer to help you with this? These are good questions. 

If you make abuse and/or neglect reports against your mother directly to child protective services and/or to the police, the risk is too great that child protective services and/or the police will 1) believe that Dad put you up to it anyway; and 2) write you off as not credible, regardless of whether they believe your dad put you up to making the abuse and/or neglect reports to them (after all, you’re “just a kid”). 

And so it is my opinion that if you can find an attorney to help you, it is better to get an attorney—someone who knows how child protective services, the police, and the courts function and “dysfunction”—to help you navigate the system successfully by helping you avoid making costly, even irreparable, mistakes in your interactions with the system. 

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

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How do we counteract the adverse effects of trusting custody evaluators?

The question was asked: In a study in 2012 proved many custody evaluators falsely believe most DV victims lied & alienated kids. So How do you prevent that evaluators report from poisoning all reports or evaluators after, since they always review historical reports? 

This is a great question, but not for the reasons you may believe.  

The problem isn’t the errors the evaluators make (as if to suggest that all that is needed is for the evaluators to get more accurate, as if that is even realistically possible). The problem lies in being so trusting of custody evaluators’ recommendations for child custody and visitation (also known as parent time) decisions. These so-called experts are little better than a coin toss when it comes to getting to the truth not only about spousal and/or child abuse allegations but about virtually any factor affecting the child custody and parent time award. 

It’s not really a matter of trust. It’s a matter of analytical and jurisprudential sloth, a matter of passing the buck to so-called experts who aren’t really experts, whose involvement helps get to truth and sound understanding no better than than does their absence in the custody and parent time analysis. 

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

(35) Eric Johnson’s answer to In a study in 2012 proved many custody evaluators falsely believe most DV victims lied & alienated kids. So How do you prevent that evaluators report from poisoning all reports or evaluators after, since they always review historical reports? – Quora 

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The way UT courts conduct custody evaluations nowadays is indefensible

The way courts in Utah conduct custody evaluations nowadays is indefensible.

  • There is nothing in UCJA rule 4-903 (the rule governing custody evaluations) that requires a custody evaluation to consist of little more than educated guesses. Yet the custody evaluation process in Utah currently consists of ordering the custody evaluator: 
    • to compare the actually implemented, so-called [1] “temporary” child custody and parent-time schedule against the other parent’s proposed schedule without ever having the other parent’s proposed schedule implemented too (if ever there were an example of an apples to oranges comparison, this is it); and then
    • make a recommendation as to what custody and parent-time schedule “is in the child’s best interest”. 
  • Otherwise stated, though rule 4-903 does not require that one and only one temporary custody and parent time schedule be imposed upon parents and children throughout the duration of the pendente lite/discovery phase of a pending child custody dispute, that’s how must custody evaluations are not just performed, but required by the court to be performed without exception. 
  • Custody evaluations 
    • needlessly cost thousands of dollars and often exceed $10,000; 
    • are supposed to take approximately four months to complete (and could easily be completed in four months or even less), but are never completed in anything close to that amount of time or less.  
    • Have a probative value that is, for the most part, not merely nil, but of negative probative value because they are more often than not incompetently conducted. 
  • It is hard to imagine: 
    • a worse, less probative way to conduct a custody evaluation than to require that one and only one temporary custody and parent time schedule be imposed throughout the duration of a custody evaluation; and 
    • a better, more probative way to conduct a custody evaluation than to implement and compare and analyze the parents’ respective competing child custody and parent time schedule proposals what ultimate custody and parent time schedule best serves the best interest of the child. 
  • Implementing, during the pendente lite/discovery phase of the case could, in many (likely most) cases eliminate any need for a custody evaluation, but even in cases where a custody evaluation is deemed necessary, the custody evaluator, parents, and child would only benefit from comparing and analyzing the parents’ respective child custody and parent time schedule proposals in real time for the purpose of obtaining actual, verifiable proof as to what ultimate custody and parent time schedule best serves the best interest of the child.

Implementing, testing, comparing, and analyzing the parents’ respective competing custody and parent time plans during the pendente lite/discovery phase of the case would not take any more time than already permitted under the rules of discovery and procedure. 

Parents could avoid the expense of time and money entailed by a custody evaluation by using the pendente lite/discovery period to examine and test the parties’ opposing proposed custody and parent-time awards. Why would anyone try to prevent obtaining any such evidence on the subject of child custody and parent-time? The answer is clear enough: the less evidence there is, the better for the party who benefits from the dearth of evidence. Usually, that’s the parent who is made—by judicial fiat issued following a proffer hearing—the custodial parent under the so-called “temporary custody order”.[1] That parent wants to ensure that the other parent has as little custodial and parent time awarded to (let’s call him “him”) him as possible. Given that the so-called “temporary order” so often awards one parent sole or primary physical custody of the parties’ child, that “temporary” custodial parent has everything to lose 1) if a joint physical custody schedule is ever implemented and tested during the custody evaluation and shown to be as good as or better than the statutory minimum; and 2) if a custody evaluator recommends a joint physical custody award. 

If neither 1) the parties’ competing proposed child custody and parent- time awards are implemented nor 2) a custody evaluation is conducted during the pendente lite/discovery phase of this case for the purpose of gathering evidence bearing upon the child custody and parent time award, then inertia favors the so-called “temporary” custodial parent.  

Yet nothing about testing competing proposed custody schedules and/or performing a custody evaluation prevents either parent from presenting any admissible evidence he/she could and would present in the absence of a custody evaluation. Parents who oppose testing competing proposed child custody and parent-time awards do so for one reason alone: to ensure the court has as little compelling real-world, reliable, probative evidence available to it as possible on the issue of child custody and parent time.[2] 

Trying and testing and comparing competing child custody award proposals are the best and least expensive means whereby the parties can gather factually verifiable evidence of the parties’ competing custody and parent time award proposals actually implemented. Leaving the question of what child custody and parent time schedule actually works to the guesswork of a custody evaluator (who, when a conventional child custody evaluation order is issued, is left to “compare” the implementation of sole custody schedule to nothing else, and then on that basis determine whether joint equal custody will work without actually seeing joint equal custody ever implemented for any evidentially adequate period of time) is patently absurd.   

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

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Do courts penalize working parents?

Why do the courts give full custody to a parent who refuses to work but yet reduces custody of the working parent, saying they work too much?

In the belief that a parent who does not work outside the home is in a better position to take care of the child(ren) because it is presumed (rarely, if ever, proven) that the stay-at-home parent does not neglect the children at home.

As you implied, the parent who was the sole or primary breadwinner is far too often penalized based on the presumption (rarely, if ever, proven) that having a job renders that parent unable to provide adequate personal care, attention, and supervision of the children for the amount of time that parent seeks with the child(ren).

But if a parent with a job works so many hours and/or works a schedule that is simply not conducive to exercising joint custody of the children, that parent can’t get upset if the court takes that into account when crafting child custody award that does not award joint custody.

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

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If a married couple divorces and neither one wants their child, what happens?

Great question. I have discussed this question with others. Their first reaction to the question is along the lines of “Oh, that’s terrible!,” but then we discuss the fact that there are those rare and exceptional families we’ve either known of or heard of in which the parents are good folks, but their children are, despite the parents’ best efforts, impossible to get along with (yet the kids aren’t bad enough to be arrested and locked away).  

I’ve never encountered such a situation as a divorce lawyer, but I wouldn’t be the least bit surprised if I do some day (there is an old joke about a couple who didn’t get a divorce because neither wanted custody of the kids). 

What I have encountered on occasion is a family in which some of the children hate (or at least don’t get along with) one of their parents, and love (or at least tolerate) the other parent, resulting in a split custody award; resulting in Connor and Madison living with Mom, while Jordan and Chloe live with Dad.  

Now back to your divorce scenario where neither Mom nor Dad can stand their kids and neither Mom nor Dad want custody of their kids. What makes your scenario so odd is that we don’t have a process for dealing with it. When parents are bad and the kids are innocent, we have a mechanism by which the state can take the kids from the bad parents and place the children in foster care. If the children are delinquent, we can take them out of Mom’s and Dad’s home and place them in juvenile detention.  

But if 1) the kids aren’t criminals or mentally ill to the point that Mom and Dad simply cannot or should care for them; and 2) Mom and Dad are both fit parents (i.e., law-abiding, non-violent, non-neglectful, able to take care of the children and to provide them with the necessities of life), then Mom and/or Dad would almost certainly be forced to continue to honor their obligation as parents at least to provide the children food, shelter, clothing, and education.  

Usually the court has to deal with parents who are fighting to get sole or joint custody of the kids, not to foist custody on the other parent. So some judges wouldn’t know what to do when each parent comes into court fighting tooth and nail to ensure that he/she doesn’t get “stuck” with custody of the children.  

Such a situation would give rise to a new twist on an old child custody litigation scam. Rather than each parent falsely (and ludicrously) accusing the other of being abusive and neglectful in an effort to “win” custody, each parent would be falsely accusing himself/herself, so that he/she is declared unworthy of being awarded child custody. I won’t lie; given the volume of false allegations parents selfishly make against each other without considering what that does to the kids, flipping the child custody fight script would be as hilarious as it is tragic.  

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

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What is being a single parent without joint custody like in your country?

If a loving, able parent (i.e., a fit parent who lives in close enough proximity to the child(ren)’s other parent such that joint legal and physical custody does not work a genuine hardship on the children) would like nothing more than to be as involved in the rearing of his/her children as the other parent is denied that opportunity, then being a single parent who has not been awarded joint equal custody of his/her child(ren) is inexcusably, unjustifiably sad. Period. This is an absolutely true statement that is not subject to any qualification.

Clearly, if one of the parents abuses and/or neglect the child, if that parent does not care for that child in the temporal or emotional sense, then that is a parent who is clearly not worthy of a joint equal physical custody award, and that is a child who doesn’t deserve to be in the care and custody of such a parent half the time, perhaps none of the time.

But it is tragically absurd to deny a child the benefits of—nay, the right to—being reared equally by two equally fit and loving parents.

If you are a fit and loving parent who wants to be as much a parent to your children as you want the other parent to be, and if you believe the court endorses your position, odds are you are incorrect, if you and your children reside in the United States of America (and I’m sure this is true for most jurisdictions as well, although I have no experience in other jurisdictions and base my opinion upon the reading I do about other jurisdictions on the subject of child custody awards).

While it is true that joint equal custody is being awarded more than ever, it is still extraordinarily difficult for parents to get in most states. If anyone tells you otherwise, take his or her comments with a grain of salt. Don’t let your hopes for joint equal custody lull you into a sense of complacency.

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

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I have custody of my child. He’s refusing to come home. What now?

I have custody of my child. He left to go to his mom’s last Friday for the weekend. He is refusing to come home because he wants to live there. What happens now?

I will answer this question in the context of my experience as a lawyer in the jurisdiction where I practice divorce and family law, which is Utah.

And that answer is: realistically speaking, probably nothing.

As a divorce and family law attorney, I have been on both sides of this issue, meaning I’ve represented the parent with custody of the child who won’t come back, and I’ve also represented the noncustodial parent to whose house the child has “fled” and won’t leave.

This is a weird area of Utah law because you’ll hear the legislature and the courts tell you that children don’t get to choose where they live, and then when children do that very thing (i.e., refuse to live where the court orders them to live), the courts find themselves essentially powerless to change anything. At least that’s my experience over the 24 years I’ve been in practice.

Briefly, if the children are old enough that they cannot be physically controlled by a parent and forced into a car from the noncustodial parents house back to the custodial parent’s house, then the courts are usually not going to intervene. This means that a court will, in fairness and realistically, tell the parents that pragmatically there’s really nothing that they ought to do to enforce the child custody order if the child himself or herself is old enough to put up a fight and/or call the police and/or DCFS and report you for child abuse if you try to force them into the car to go back to the custodial parent’s house. Besides, the child who is old enough to put up a fight is also likely old enough to run away from the noncustodial parents home if anyone tries to force him or her to reside with a parent with whom the child doesn’t want to live.

And so, you get in a situation where the child is disobeying the court’s custody order, but most courts either don’t have the cats to hold the child in contempt of court or don’t feel it is appropriate to sanction a child who won’t comply with the court’s child custody orders. Yet these same courts will also often refuse to modify the child custody award because they don’t want to acknowledge that children, of all people, have the de facto power to defy court orders with impunity.

Next, you need to be aware of the possibility that your custodial parent ex will try to blame you for your child refusing to return to the custodial parent’s home, regardless of whether that is true. Many times, a perfectly innocent noncustodial parent will tell his or her acts and the court, “Look, I’ve told the child what the court order is and that both our and I are expected to comply. But the child refuses to comply anyway. Now what you want me to do? Kick the child out and lock the door behind him?” Some courts sympathize with that predicament, others don’t buy it. Which means it is entirely possible that you would be held in contempt of court for doing absolutely nothing wrong, if the court believes you enticed or coheirs the child to say he or she wants to stay with you. So you need to keep that in mind.

So if you are a noncustodial parent of a child who refuses to reside with the court ordered custodial parent, then you must ask yourself a few questions:

First, if the child refusing to live with the custodial parent because the child is a spoiled brat who has no legitimate reason for refusing to live with the custodial parent? If the answer is yes, then you as the noncustodial parent have both a legal and moral obligation to talk the child into going back to the custodial parent’s home, or if persuasion doesn’t work, imposing limitations and restrictions and punishments upon the child so that the child won’t get the impression that he or she is in charge.

Second, if the child is refusing to reside with the custodial parent because the custodial parent is truly neglectful and/or abusive, and if you have independently verifiable proof of this, you have the option of petitioning the court to modify the child custody award, changing the custodial parent from your ex to you. While that petition is pending, your child may refuse to return to the custodial parent’s home, and for reasons at least you and the child know to be valid. Whether the court allows your child to stay with you depends upon how your court views the situation and what is best for the child.

If you find yourself in this kind of situation, whether you are the custodial parent or the noncustodial parent, this is one of those situations where you need to seek good legal advice immediately, to help ensure that neither you nor the child is victimized.

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

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

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

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

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

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

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

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

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

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Can a mother keeping the children from the father work against in custody litigation?

Can a mother not allowing the father to see his child without reason work against her in litigation for joint custody? Would the father having children from another relationship living in the home as well impact the decision for joint custody?

Oddly enough, when a mother does not “allow” the father to see the couple’s child without reason, it can work against her in litigation for joint custody, but rarely works against her nearly as much as you might imagine.

Even though societal and court bias against fathers in child custody cases is waning, there is in my experience still an unbelievable level of bias against fathers generally in child custody cases. The child custody award is, with surprisingly rare exception even nowadays, still the mother’s to lose.

There is often an unwritten but undeniable presumption that mothers:

  • are the children’s primary caregivers of, even when both parents have jobs outside the home and even when the mother works outside the home and the father does not! I’ve witnessed it personally myself as an attorney;
  • mothers are just generally better parents than fathers; and
  • fathers who seek sole or joint custody of their children do so only to avoid having to pay child support (yet virtually no one claims that mothers don’t seek sole custody for the purpose of receiving maximum child support)

This means essentially that for every “point” favoring an award of custody to the mother the father has to score 3 to 5 points of his own just to stay in the running for a joint custody award. It’s patently unfair and patently sexist.

If a father in a pending child custody case was in a previous case awarded custody of other children from another relationship can do nothing but have a positive impact on his efforts to seek joint custody of this other children, so long as the father can show that he is exercising custody properly and for the benefit of the children. It may not be enough to secure an award of joint custody, but it will help (unless the court engages in tortured logic—which I’ve seen before—and concludes that because the father has sole custody of his children from a previous relationship that he won’t have the time and resources and attention to care for his other children the same way).

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

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