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Tag: Utah Code § 30-3-10(1)(e)

My parents are unmarried. Can I choose which one I live with?

So my parents were unmarried and I’ve been in custody of my mother. I want to be with my dad however, how does everything work so I can live with him?

If you just tell Mom you want to live with Dad and she doesn’t object, you can do that. It’s perfectly legal. But living with Dad when your Dad has not been legally declared to be your father and has not been court-ordered to have you in his custody can lead to some inconveniences and legal impediments. No one really questions whether a woman is a mother of a child the woman claims as her own, but many people think a man who can’t “prove” he’s a child’s father might be a kidnapper. Some schools may not allow your father to enroll you unless he has a legal document officially showing him to be your father.

And if your mother and father fight over child custody, then the best thing to do (and by “best” I don’t mean easy or fun, but just the prudent course of action) may be filing a paternity action and getting court orders.

Assuming there is no current court order awarding custody of you to either or both of your parents, then (in Utah, where I practice law):

  1. Your mother, your father, or both of them need to file a petition with the court seeking orders that establish paternity (so that your father is legally recognized as your father), award custody (either to Mom, to Dad, or to Mom and Dad jointly), make awards of holiday and summer parent-time, and make awards of financial child support;
  2. get a court decree of paternity and awards of child custody, holiday and summer parent-time, and financial child support; and then
  3. comply with the decree of paternity and awards of child custody, holiday and summer parent-time, and financial child support.

For you to end up spending the majority of overnights in your father’s custody, he would need to be awarded sole or primary custody of you. To do that, he would have to petition for sole custody, get an order from the court awarding him full custody, and then, if your mother refused to comply with the court order, obtain the help of the court and police to enforce the court’s order.

When it comes to what kind of influence your preferences might have on the child custody award, this is the policy in Utah:

Utah Code § 30-3-10(1)(e):

The court may inquire of a child and take into consideration the child’s desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the child’s custody or parent-time otherwise. The desires of a child 14 years of age or older shall be given added weight, but is not the single controlling factor.

Click here to read about how the process works: Utah Uniform Parentage Act

https://www.quora.com/So-my-parents-were-unmarried-and-I-ve-been-in-custody-of-my-mother-I-want-to-be-with-my-dad-however-how-does-everything-work-so-I-can-live-with-him/answer/Eric-Johnson-311

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How can I call my 10-year-old as a witness to say where she would like to live?

QUESTION: How can I call my 10-year-old as a witness in family court to say where she would like to live, and why?

ANSWER: First, you may want to re-think your question. Do you really want your child to testify as a witness? Do you really want your child to be placed in the position of being made to choose which parent he/she prefers or “loves more”? That kind of thing could really scar some (I emphasize some, not all) children emotionally.

Let’s assume for the sake of this response, however, that you have legitimate and compelling reasons for the child to testify on the subject of the child custody and/or parent-time orders. By way of historical note, few people know that before 1969, the Utah Code provided that children ten years of age “shall have the privilege of selecting the parent to which they will attach themselves.” Not anymore.

Now the Utah Code provisions regarding child testimony on the subject of custody and parent-time (visitation) are found in Utah Code § 30–3–10(1) and read, in pertinent part, as follows:

(e) The court may inquire of a child and take into consideration the child’s desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the child’s custody or parent-time otherwise. The desires of a child 14 years of age or older shall be given added weight, but is not the single controlling factor.

(f) If an interview with a child is conducted by the court pursuant to Subsection (1)(e), the interview shall be conducted by the judge in camera. The prior consent of the parties may be obtained but is not necessary if the court finds that an interview with a child is the only method to ascertain the child’s desires regarding custody.

Now you may ask (and if you weren’t thinking of asking, you should), “So how frequently does a Utah court ‘find that an interview with a child is the only method to ascertain the child’s desires regarding custody’?”

The answer is: almost never, and for the reason I stated at the beginning of my response to your question, i.e., most judges believe (wrongly, in my opinion) that a child should never be questioned on the subject of his/her desires regarding future custody or parent-time schedules because of concern that placing the child in the position of having to choose could be emotionally agonizing.

While the desire to avoid traumatizing a child emotionally is valid, it is often too convenient an excuse not to question children under any circumstances, no matter how compelling (and thus saves time and allows the court greater discretion in deciding the issue, since the child’s testimony never gets heard).

Another valid concern, but one that is also often abused as a convenient excuse, is whether a child’s testimony is all that credible, given that a child may have been unduly influenced by a parent to say what the parent wants the child to say, rather than what the child honestly observed, feels and desires.

Some judges will avoid a child interview by claiming to be “unqualified” to question a child on the subject of custody and parent-time. That argument is lame; the legislature has clearly and expressly deemed the judge qualified to question a child by authorizing the judge by statute to interview the child. Thus, if a judge still feels unqualified, that judge either needs to read up and/or get trained up to the point of finally feeling qualified or resign from the bench for choosing to remain unqualified.

Some judges claim that they can avoid questioning children, yet still solicit their desires by having someone else (such as an attorney appointed for the child—who is called a “guardian ad litem”—or having a social worker or psychologist) interview them and then report that to to judge. This strikes me as unnecessary at the very least. Even with a GAL appointed, the child interview still takes place. The questions still get asked and answered, they just aren’t asked by or heard by the judge directly. Appointing a GAL for this purpose is just court-sponsored hearsay. There’s a reason we have witnesses testify in the presence of the judge: so that the judge can hear the testimony first-hand and without filtration or bias from a second-hand source, so that the judge can truly ascertain the witness’ credibility. When all a judge does is get testimony through a “child whisperer,” the integrity of the fact-finding process is needlessly undermined.

Additionally, the guardian ad litem and/or psychologist isn’t an expense the court bears; one or both parents have to pay for these people’s “services,” which ends up costing the parents a lot of money, wasting a lot of time, and needlessly raising hearsay concerns. I have no problem with an expert supplementing the evidence when warranted, but at bottom, wholesale delegation of the interview responsibility is passing the buck, pure and simple.

Personally, I don’t see why the overwhelming majority of Utah district court judges are so unwilling to question children on the record on the subject of custody and parent-time. First, children testify in all kinds of court settings without wrecking their lives. Second, it’s not as though the only way to solicit the children’s testimony is by subjecting them to the same kinds of brutal interrogation techniques used with hardened criminals or spies. It’s the children who will be affected most by the child custody and parent-time orders, so I cannot see how an intellectually honest judge could claim that a child’s observations, experiences, feelings, opinions, and desires on the subject are not key to reaching a custody and parent-time order that subserves that child’s best interest. Where there’s a will, there’s a way. Fortunately, judges in Utah appear to me to be coming around to my way of thinking in this regard, albeit slowly and reluctantly.

So if you were hoping to have the judge interview the child to inform the judge of the child’s custody and parent-time preferences, I wouldn’t count on it, at least not in Utah.

https://www.quora.com/How-can-I-call-my-10-year-old-as-a-witness-in-family-court-to-say-where-she-would-like-to-live-and-why/answer/Eric-Johnson-311

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

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