Tag: Utah Code Section 30-3-10

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

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

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

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

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

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

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

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

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

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

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

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If somebody’s wife gets pregnant by another man will it be easy for the husband to gain custody of their children?

If somebody’s wife gets pregnant by another man will it be easy for the husband to gain custody of their children?

In my opinion, 9.5 times out of 10 the fact—standing alone—that the wife got pregnant in the course of an extramarital affair will have virtually no impact on which of the two spouses will get custody of the children of the marriage. So to answer your question: no, it will not be easy for the husband to gain custody of their children, if his wife gets pregnant by another man.

Why? Because the factors that affect the award of child custody do not place a great deal of importance on something like an extramarital affair. The factors that matter far, far more to a court are things like

Section 30–3–10 (Utah Code):

  • the past conduct and demonstrated moral standards of each of the parties;
  • which parent is most likely to act in the best interest of the child, including allowing the child frequent and continuing contact with the noncustodial parent;
  • the extent of bonding between the parent and child, meaning the depth, quality, and nature of the relationship between a parent and child;
  • whether the parent has intentionally exposed the child to pornography or material harmful to a minor;
  • whether there has been domestic violence in the home or in the presence of the child;
  • special physical or mental needs of a parent or child;
  • physical distance between the residences of the parents.

Section 30-3-10.2 (Utah Code):

  • the physical, psychological, and emotional needs and development of the child;
  • the ability of each parent to give first priority to the welfare of the child;
  • whether each parent is capable of encouraging and accepting a positive relationship between the child and the other parent, including the sharing of love, affection, and contact between the child and the other parent;
  • whether both parents participated in raising the child before the divorce;
  • the preference of the child if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to legal or physical custody;
  • the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents.

Utah Code of Judicial Administration, Rule 4–903

  • parenting skills;
  • co-parenting skills (including, but not limited to, the ability to facilitate the child’s relationship with the other parent, and to appropriately communicate with the other parent);
  • moral character;
  • emotional stability;
  • duration and depth of desire for custody and parent-time;
  • ability to provide personal rather than surrogate care;
  • significant impairment of ability to function as a parent through drug abuse, excessive drinking or other causes;
  • reasons for having relinquished custody or parent-time in the past;
  • religious compatibility with the child;
  • the child’s interaction and relationship with the child’s step-parent(s), extended family members, and/or any other person who may significantly affect the child’s best interest;
  • financial responsibility;
  • evidence of abuse of the subject child, another child, or spouse;
  • any history of, or potential for, child abuse, spouse abuse, or kidnaping; and
  • any other factors the court finds relevant.

As you can see, while moral character is one factor, it is clearly not the only factor, nor is it the most important factor in making a child custody award. To be sure, the court will take into account the wife’s moral failings and recklessness by her having engaged in an extramarital affair and getting pregnant, but this factor will not carry much weight in view of the other more pragmatic factors, such as parenting skills, bonding between parents and children, availability to care for children, what arrangement would be easiest on the kids and what custody arrangement will benefit them going forward, etc.

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

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