I generally wouldn’t recommend trying to get the assistance of the court to remedy this problem. The legal system is not designed to address this problem well, if at all. And even when it can do something worthwhile, the legal system does not generally address this problem well, if at all.
Let’s assume that if you were just given the opportunity to prove that your ex-spouse (and I’m going to approach this question as applying to a manipulative father OR mother) is manipulating your children, you could prove it in spades. With that in mind:
If you ask the judge to interview the kids, odds are that the court will refuse to do so, coming up with all kinds of lame excuses as to why the judge “can’t” or “shouldn’t”. Most of these excuses stem from a belief that a judge interviewing the child will “traumatize” the children, yet these same judges seem to see nothing traumatizing about a guardian ad litem, custody evaluator, social worker, counselor, or therapist interviewing the children.
But even if the judge were to agree to interview the children, by the time the court gets around to conducting the interviews, weeks—even months—may have passed from the day you made the request of the judge to interview the children. In that time in between, the manipulative parent could coach, bribe, and/or coerce the children into saying to the judge anything but the truth. And if the manipulative parent is the one requesting that the judge interview the children, the coaching, bribing, and/or coercion of the children could have been going on for weeks, months, even years before. These are often two of the excuses judges will cite as their basis for refusing to interview children. There is some merit to these excuses, but the solution is not refusing to interview the children, the solution lies in mitigating child manipulation.
But even if you could somehow overcome the first two previously described obstacles and the judge eventually interviews the children, you may find the judge’s reception and analysis of the children’s testimony to be rather obtuse. Not always, but more often than you’d expect. Responses like, “The children tell me that Mom/Dad is regularly disparaging and telling the children lies about the other parent when the children are with Mom/Dad, but now that I’m aware of it, I trust that Mom/Dad will stop doing it, so I’m not going to make any changes” or “The children tell me that Mom/Dad is regularly disparaging and telling the children lies about the other parent when the children are with Mom/Dad, so I’m going to order Mom/Dad to stop doing it and take a parenting class. That ought to fix it.” I’m not sure judges who do this kind of thing believe it themselves but just do it to create the impression the matter has been addressed and “dealt with”.
If you are a parent with an ex-spouse who manipulates the children in an effort to alienate them from you, I have yet to find a quick, simple, easy, reliable way to combat and overcome parental alienation. If I did find it, I’d be a multimillionaire. There are many people out there who will tell you how to deal with and defeat alienation. A lot of this advice is appealing psychobabble. A lot of this advice is pandering to your fears, heartbreak, and anger. There must be some good advice out there as well. There are some common sense actions to be taken. There is value in meeting with a truly competent child psychologist to better understand the dynamics of parental alienation. But other than that, I’d be lying if I told you I could tell the difference between the wheat and the chaff.
What I can tell is that trying to beat parental alienation through the courts is, for the most part, a major waste of time, money, emotional energy, and effort. Sometimes the alienator’s behavior is so over the top that it can easily be identified and there are some remedies that the court can and should/must take in response. Otherwise, the best things you can do to mitigate and overcome parental alienation are those things within your legal, lawful, moral, and ethical control.
Utah Family Law, LC | divorceutah.com | 801-466-9277
If the case goes to trial: the judge. However, in Utah, the jurisdiction where I practice (which is the case in most other jurisdictions too), the parents, children, and lawyers all have the opportunity to provide their input in an effort to influence, though not control, the judge’s decision.
If the parents settle the case out of court: the parents. However, the parents’ settlement agreement is subject to the judge’s approval, but judges approve settlement agreements almost all the time, as long as the settlement complies with the laws, isn’t inequitable, and can reasonably be said to subserve the best interest of the children (if the divorcing couple has children).
The lawyers have no control and only as much influence as their clients will permit them to exert and as much as the judge finds persuasive.
The children, like the parents and the lawyers too, have no control over the child custody award and generally have the least amount of influence over the decision. One of the shameful reasons for this is that most courts don’t want to hear from the children. They’ll tell you one reason is to “spare the children being put in the middle of a dispute between their parents,” but that’s not the real (or perhaps it would be more accurate to state it’s not the ‘main”) reason; kids already know they’re in the middle, so the courts can’t spare them. The real reasons are that many courts think kids are often bad witnesses because they are too young and inarticulate to testify intelligently and coherently on the subject of the custody award. And often courts won’t let children testify, which results in courts having as much discretion as possible to make the custody award they desire to make, free of having to take into consideration any pesky testimony of a child.
Some will argue that children “need someone to stand in their shoes and give them a voice” in the child custody dispute. Perhaps, if the child’s an infant who doesn’t yet wear his/her own shoes and can’t talk; otherwise, kids can stand on their own and don’t need someone to speak for them when they have their own voice and are willing to talk. But courts inexplicably (I mean it—inexplicably—believe it’s better to appoint a middleman to provide second-hand, hearsay, summary “recommendations” to the court regarding the child custody award. This middleman is an attorney known as a guardian ad litem or GAL. I really would like to say that GALs add real evidentiary value to a case. They don’t. Milton Friedman said, “One of the great mistakes is to judge policies and programs by their intentions rather than their results” Just as many people believe that seat belt laws save lives (when it’s actually the use of seat belts, not the seat belt law itself, that saves lives), those who believe that a GAL will act in the best interest of a child believe—mistakenly—that a GAL will in fact act in the best interest of a child merely by virtue of that being the intention of appointing a GAL. GALs generally do not fulfill their intended mission. In some cases, they do a child more harm than good. This is why my experience with GALs has generally been a negative one (even when the GAL sides with my client).
The time frames described in this timeline set forth the general sequence of a simple and typical Utah divorce action that goes to trial.
Utah Divorce Timeline
Unique and special circumstances, rules, or situations could (and likely would) alter the time frames or steps shown here, in this timeline.
So this timeline does not reflect what happens in all cases, but does illustrate generally what you can expect, if you’re not dragging your feet through the process.
A Note on Mediation
Utah law (Utah Code § 30-3-39) requires that a divorcing couple participate in at least one session of mediation before the case can proceed to trial, although this mediation requirement can be waived for good cause, if the director of the dispute resolution program for the courts can be persuaded to conclude that mediation should be waived. Waiver of mediation rarely occurs, so you are typically better off giving mediation a try, even if it’s only for the purpose of ensuring you’ve met the requirement.
Mediation can last for several hours or over the course of several days, depending upon what the parties choose to do. If mediation results in you and your spouse reach an agreement and settling all of the issues, then it is not uncommon for your divorce action to be completed quickly; you and your spouse prepare and sign a settlement agreement, file that with the court, and then draft and file with the court the documents needed to dispose of your case. Once the court receives proof of your settlement and all the documents that the court needs to issue your decree of divorce, it is not uncommon for everything to be turned around in just a few weeks.
If you and your spouse do not agree upon the terms of your divorce, and one or both of you feels it necessary to go to trial and have the judge decide some or all of the issues in your divorce action, then this is how the process of preparing for and going to trial in your divorce case progresses:
Week 1:
Meet with your attorney, provide information needed to prepare your pleadings.
Week 2:
Prepare and file your complaint for divorce.
Service of process. Serve opposing party with a summons and a copy of complaint for divorce. Service of process usually takes about a week but can be longer if the opposing party evades service. You must serve the summons within 120 days of filing the complaint or your case can be dismissed.
Weeks 2 through 5:
Within 21 days of being served the summons and a copy of the complaint (30 days, if you serve the opposing party outside the state of Utah), the opposing party must respond to your complaint after being served with the summons and a copy of the complaint. Usually this response takes the form of what is known as an “answer” to the divorce complaint or, in most cases an answer and counterclaim. If the opposing party files a counterclaim against you, you have to respond within 21 days of being served with the counterclaim.
Week 6:
If a party fails to respond to a complaint for divorce (or to a counterclaim) within 21 days of being served (or within 30 days, if the opposing party was served outside the state of Utah), the opposing party is known as being “in default,” which means that the opposing party has failed to respond to your complaint for divorce within the time permitted, which allows you to seek judgment against the opposing party for failure to respond and participate in the action. This rarely happens, and even if you apply for default judgment and obtain it, if the opposing party moves to have your default judgment set aside in a timely manner, so that the case can be heard and decided on the merits rather than by forfeit, courts will often set aside the default on that basis. Still, don’t let that give you the idea that you can ignore court deadlines.
Week 6 through 8:
Prepare your Financial Declaration and Initial Disclosures and serve them upon the opposing party. The opposing party has 42 days after filing of the first answer to the complaint, or 28 days after the opposing party’s initial appearance in the action, which ever period is later.
Week 9:
This is the discovery period.
Discovery is the process by which the parties through the rules of civil procedure, can obtain evidence from each other and from other witnesses or other sources. Discovery tools include interrogatories, request for admissions, requests for production of documents, depositions, mental health examinations, custody evaluations, vocational assessments, and subpoenas, to name some.
Under the rules of civil procedure this period is 180 days long, unless the court modifies the time period for discovery. Rarely, if ever, is discovery shortened, although it can be. And frequently discovery is extended beyond the 180-day period.
Week 35:
At this point, the case should be ready to certify as ready to schedule for trial. If so, either party can file with the court a certificate of readiness for trial, and then ask the court to schedule a date for the judge and the parties to meet to preparations for the trial.
Week 43 to 47:
Trial is usually set about 3 months, give or take, after the pretrial scheduling conference.
Week 56:
Trial is held. Trials usually last 2 to 5 days, although they can take longer, depending upon how many issues there are to try and how complex the issues are.
Week 57 (or perhaps 61):
After the trial has been completed, the judge can take up to 60 days to decide the case, unless the judge obtains permission from the presiding judge of the court to take even more time to render a decision. Usually the court reaches a decision within several weeks, instead of 60 days, however.
Week 58:
After the judge decides the case, the judge will usually direct one of the parties to prepare a proposed draft of the Findings of Fact and Conclusions of Law and to prepare a proposed draft of the Decree of Divorce.
Week 59:
The party who the judge has the proposed Findings of Fact and Conclusions of Law and the proposed Decree of Divorce is required to send the opposing party the drafts for review. If the opposing party finds anything in the proposed Findings of Fact and Conclusions of Law and/or the proposed Decree of Divorce that does not comport with the trial judges decisions, the opposing party can file an objection to the proposed Findings of Fact and Conclusions of Law and/or to the proposed Decree of Divorce, and the opposing party has seven days in which to do so.
Week 60:
If the opposing party files an objection to the proposed Findings of Fact and Conclusions of Law and/or the proposed Decree of Divorce, the other party can respond to that objection within seven days. At that point the proposed Findings of Fact and Conclusions of Law and the proposed Decree of Divorce are submitted to the judge for the judge to decide what the ultimate form of the Findings of Fact and Conclusions of Law and of the Decree of Divorce will take.
Week 61:
Assuming that the court gets back to you within a week or two, the court will then issue the final Findings of Fact and Conclusions of Law and final Decree of Divorce.
If either party or both parties feel that the judge’s decision does not comply with the laws governing divorce, then either party or both parties may appeal the judge’s decision by filing a notice of appeal with the Utah Court of Appeals, which notice of appeal must be filed within 30 days after the date of the entry of the Decree of Divorce.
