Your question is too vague to understand and answer. You need to consult with an attorney in your jurisdiction to get the correct answers to your questions (both the questions you have asked and the questions you should be asking).
This is a good question and one that arises frequently in one form or another; a parent either can’t or won’t provide personal care and supervision of the parties’ children his/her scheduled parent-time or custody yet does not want the other parent to care for the children in his/her absence.
Some parents try to pull this stunt because either 1) they are territorial about “my time” with the children and thus can’t stand the idea of the other parent caring for the children during “my time”; or 2) they maliciously want to deny the other parent the opportunity to provide this care for the children. Others try to pull this stunt because they are afraid they will lose the child custody or parent-time they were awarded if they allow the other parent the opportunity to provide care for the children (yet believe that if someone else provides the care that somehow makes retaining custody and parent-time more “secure”). This is wrong, and is something you can take to the court to complain about and seek new court orders to remedy.
But sometimes a parent occasionally wants to leave the children in the care of someone else for perfectly reasonable, even laudable reasons, such as wanting the kids to enjoy time with grandma and grandpa or with the cousins, a sleepover at a friend’s house, and things like that. Clearly, it’s not defensible if it is the rule and not the exception, but there is nothing wrong with this on occasion. Indeed, refusing to be flexible and to allow a parent to do this for your kids is unfair to your kids.
Why? To get a judge/court to order that the child spends six consecutive months with one parent, then six consecutive months with the other parent, you would have to convince the court that such a schedule is a custody award that subserves the best interest of the child. It might be a good fit for some kids, but I believe that most courts would feel such a schedule would make it difficult for the child to forge strong bonds with both parents. The child might bond well with one parent in six months, but then feel as though the parent he/she has to spend the next six months with to be a stranger. And then the whole process repeats itself six months later. Most courts would likely favor a schedule whereby the child spends a few days at a time with each parent on a rotating basis. But if the parents lived a significant distance apart, so as to make going back and forth between the parents’ respective residences financially burdensome on one or both parents or physically and/or emotionally burdensome on the child, there are circumstances in which a “six months with Mom, six months with Dad” schedule would either be tolerable to the court at worst or make good sense to the court at best.
Side note: a schedule consisting of the child spending equal periods of time in the care and custody of each parent would not be a schedule that would designate one parent the “custodial” parent and the other parent the “non-custodial” parent or the parent exercising mere “parent-time”; it would be more accurately described as a joint equal legal custody (sometimes also known as simply an equal custody) award/schedule.
I cannot speak to what the law is and how it is applied in every jurisdiction, but I can answer this question on this topic as it applies to the jurisdiction where I practice divorce and family law (Utah).
We all know that there are many stepparents who are often the only parental figure many children have ever known (in situations where the stepparent married the child’s parent when the child was an infant or very young, and in other situations where the children may be older but never knew their biological mother or father, so that the step mother or stepfather is the only kind of father or mother figure they have had in their lives). We know of minor children and of people who are now adults who become as close, or even closer, to their stepparents as they were with their biological parents. We know situations where a stepchild who is cut off from that loving and positive relationship with the stepparent has been nothing short of devastating to that stepchild.
At the same time, we know of many examples (more than you might imagine) in which a stepparent involved in a divorce with his or her stepchildren’s biological parent does not have a particularly good relationship with his/her stepchildren, but claims a desire to want visitation or parent time with his/her stepchildren or even might seek custody of his/her stepchildren as a means of gaining leverage in the divorce action and/or just plain being malicious toward the soon to be ex-spouse.
And so there are many interests that need to be considered and balanced if and when a stepparent tries to seek visitation rights with or even custody of his/her stepchildren.
Note: if a husband and wife (one or both of whom are stepparents) agree that a stepparent is important to the children and that the children should maintain a close relationship and frequent contact with the stepparent, there is nothing to prevent these divorcing spouses from agreeing to rights of parent-time or even shared custody (as long as the biological or adoptive parent or parents of the children—whose parental rights have not been terminated—or guardian or guardian at litem
are not opposed to it).
Here is how Utah currently handles such a situation (see below, effective September 1, 2022). As you will see, there is a high bar set for a stepparent who seeks an award of visitation or custody of stepchildren.
Utah Code Title 30. Husband and Wife
Chapter 5a. Custody and Visitation for Persons Other than Parents Act
(a) In accordance with Section 80-2a-201, it is the public policy of this state that a parent retain the fundamental right and duty to exercise primary control over the care, supervision, upbringing, and education of the parent’s children.
(b) There is a rebuttable presumption that a parent’s decisions are in the child’s best interests.
(2) A court may find the presumption in Subsection (1) rebutted and grant custodial or visitation rights to an individual other than a parent who, by clear and convincing evidence, establishes that:
(a) the individual has intentionally assumed the role and obligations of a parent;
(b) the individual and the child have formed a substantial emotional bond and created a parent-child type relationship;
(c) the individual substantially contributed emotionally or financially to the child’s well being;
(d) the assumption of the parental role is not the result of a financially compensated surrogate care arrangement;
(e) the continuation of the relationship between the individual and the child is in the child’s best interest;
(f) the loss or cessation of the relationship between the individual and the child would substantially harm the child; and
(g) the parent:
(i) is absent; or
(ii) is found by a court to have abused or neglected the child.
(3) A proceeding under this chapter may be commenced by filing a verified petition, or petition supported by an affidavit, in the juvenile court if a matter is pending, or in the district court in the county where the child:
(a) currently resides; or
(b) lived with a parent or an individual other than a parent who acted as a parent within six months before the commencement of the action.
(4) A proceeding under this chapter may be filed in a pending divorce, parentage action, or other proceeding, including a proceeding in the juvenile court involving custody of or visitation with a child.
(5) The petition shall include detailed facts supporting the petitioner’s right to file the petition including the criteria set forth in Subsection (2) and residency information as set forth in Section 78B-13-209.
(6) A proceeding under this chapter may not be filed against a parent who is actively serving outside the state in any branch of the military.
(7) Notice of a petition filed pursuant to this chapter shall be served in accordance with the rules of civil procedure on all of the following:
(a) the child’s biological, adopted, presumed, declarant, and adjudicated parents;
(b) any individual who has court-ordered custody or visitation rights;
(c) the child’s guardian;
(d) the guardian ad litem, if one has been appointed;
(e) an individual or agency that has physical custody of the child or that claims to have custody or visitation rights; and
(f) any other individual or agency that has previously appeared in any action regarding custody of or visitation with the child.
(8) The court may order a custody evaluation to be conducted in any action brought under this chapter.
(9) The court may enter temporary orders in an action brought under this chapter pending the entry of final orders.
(10) Except as provided in Subsection (11), a court may not grant custody of a child under this section to an individual who is not the parent of the child and who, before a custody order is issued, is convicted, pleads guilty, or pleads no contest to a felony or attempted felony involving conduct that constitutes any of the following:
(a) child abuse, as described in Sections 76-5-109, 76-5-109.2, 76-5-109.3, and 76-5-114;
(b) child abuse homicide, as described in Section 76-5-208;
(c) child kidnapping, as described in Section 76-5-301.1;
(d) human trafficking of a child, as described in Section 76-5-308.5;
(e) sexual abuse of a minor, as described in Section 76-5-401.1;
(f) rape of a child, as described in Section 76-5-402.1;
(g) object rape of a child, as described in Section 76-5-402.3;
(h) sodomy on a child, as described in Section 76-5-403.1;
(i) sexual abuse of a child, as described in Section 76-5-404.1, or aggravated sexual abuse of a child, as described in Section 76-5-404.3;
(j) sexual exploitation of a minor, as described in Section 76-5b-201;
(k) aggravated sexual exploitation of a minor, as described in Section 76-5b-201.1; or
(l) an offense in another state that, if committed in this state, would constitute an offense described in this Subsection (10).
(11)
(a) As used in this Subsection (11), “disqualifying offense” means an offense listed in Subsection (10) that prevents a court from granting custody except as provided in this Subsection (11).
(b) An individual described in Subsection (10) may only be considered for custody of a child if the following criteria are met by clear and convincing evidence:
(i) the individual is a relative, as defined in Section 80-3-102, of the child;
(ii) at least 10 years have elapsed from the day on which the individual is successfully released from prison, jail, parole, or probation related to a disqualifying offense;
(iii) during the 10 years before the day on which the individual files a petition with the court seeking custody the individual has not been convicted, plead guilty, or plead no contest to an offense greater than an infraction or traffic violation that would likely impact the health, safety, or well-being of the child;
(iv) the individual can provide evidence of successful treatment or rehabilitation directly related to the disqualifying offense;
(v) the court determines that the risk related to the disqualifying offense is unlikely to cause harm, as defined in Section 80-1-102, or potential harm to the child currently or at any time in the future when considering all of the following:
(A) the child’s age;
(B) the child’s gender;
(C) the child’s development;
(D) the nature and seriousness of the disqualifying offense;
(E) the preferences of a child 12 years old or older;
(F) any available assessments, including custody evaluations, parenting assessments, psychological or mental health assessments, and bonding assessments; and
(G) any other relevant information;
(vi) the individual can provide evidence of the following:
(A) the relationship with the child is of long duration;
(B) that an emotional bond exists with the child; and
(C) that custody by the individual who has committed the disqualifying offense ensures the best interests of the child are met;
(vii)
(A) there is no other responsible relative known to the court who has or likely could develop an emotional bond with the child and does not have a disqualifying offense; or
(B) if there is a responsible relative known to the court that does not have a disqualifying offense, Subsection (11)(d) applies; and
(viii) that the continuation of the relationship between the individual with the disqualifying offense and the child could not be sufficiently maintained through any type of visitation if custody were given to the relative with no disqualifying offense described in Subsection (11)(d).
(c) The individual with the disqualifying offense bears the burden of proof regarding why placement with that individual is in the best interest of the child over another responsible relative or equally situated individual who does not have a disqualifying offense.
(d) If, as provided in Subsection (11)(b)(vii)(B), there is a responsible relative known to the court who does not have a disqualifying offense:
(i) preference for custody is given to a relative who does not have a disqualifying offense; and
(ii) before the court may place custody with the individual who has the disqualifying offense over another responsible, willing, and able relative:
(A) an impartial custody evaluation shall be completed; and
(B) a guardian ad litem shall be assigned.
(12) Subsections (10) and (11) apply to a case pending on March 25, 2017, for which a final decision on custody has not been made and to a case filed on or after March 25, 2017.
This chapter may not be used to seek, obtain, maintain or continue custody of, or visitation with, a child who has been relinquished for adoption, or adopted pursuant to an order of a court of competent jurisdiction.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Are financial interrogatories relevant in my contempt case against my sister for violating my visitation order?
While I’m sure something seeming like an argument could be made for their relevance, it’s hard to imagine such an argument or to imagine that such an argument would hold any water.
A fact is relevant if it: (a) has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.
Unless your sister can show that your income, financial obligations, and business and/or personal expenses are somehow more or less likely to prove the allegations that you violated a visitation order, inquiries into your facts pertaining to your finances are clearly not relevant.
Utah Family Law, LC | divorceutah.com | 801-466-9277
My husband cheated on me and we’re getting a divorce. He begged me not to take his children away, but I want him to suffer. How can I make sure that he won’t gain custody or even visitation rights?
Surely you jest. Right?
Utah Family Law, LC | divorceutah.com | 801-466-9277
Can a parent with full custody refuse to allow visitation due to unsanitary living conditions?
Good question.
I will answer this question in the context of some applicable law for the jurisdiction where I practice divorce and family law (Utah).
There are many ways to approach this question, but briefly one thing you need to be aware of are the custodial interference laws.
Under the custodial interference laws (76-5-303. Custodial interference), A parent can refuse to comply with a child custody and/or parent time order under certain circumstances:
(a) the action is consented to by the person whose custody or visitation of the child was interfered with; or
(b)
(i) the action is based on a reasonable belief that the action is necessary to protect a child from abuse, including sexual abuse; and
(ii) before engaging in the action, the person reports the person’s intention to engage in the action, and the basis for the belief described in Subsection (6)(b)(i), to the Division of Child and Family Services or law enforcement.
See also 76-5-305. Defenses:
(a) the actor was acting under a reasonable belief that:
(i) the conduct was necessary to protect any person from imminent bodily injury or death; or
(ii) the detention or restraint was authorized by law; or
(b) the alleged victim is younger than 18 years of age or is mentally incompetent, and the actor was acting under a reasonable belief that the custodian, guardian, legal guardian, custodial parent, or person acting in loco parentis to the victim would, if present, have consented to the actor’s conduct.
There is no hard and fast rule you could apply in this situation, of course, but I think it’s reasonable to say that if the living conditions that the other parent’s house were so unsanitary as to pose a serious risk of harm to the child’s life or health, refusing to comply with parent time on that basis might not result in criminal guilt.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Technically, a minor child (even a child of 16 years of age) does not have the legal right to choose whether he or she will comply with the parent time “visitation” scheduling orders that a court issues in a divorce or child custody case. But the courts find it difficult to enforce these parent time schedule orders as to the children. In other words, if a child won’t comply with the court’s parent time orders, usually courts do one of two things. Some courts “find” that they don’t have the power to compel a child to comply. This is not true, but by making such a finding that it has no power to coerce and compel a child to comply, the court is able to wash its hands of dealing with the enforcement question. More honestly, other courts find that using the powers of the state, such as arrest and incarceration, to coerce and compel a child to comply with its parent time orders does more harm than good, is more trouble than it’s worth. And it’s not like the parents have any realistic options to enforce parent time orders either. If a parent were to bar the door to his or her home to a child to compel that child to go spend parent time with the other parent, that child could simply dial 911 and report the parent for child abuse and neglect. So in short, if a 16-year-old child doesn’t want to comply with the court’s parent time schedule orders, that child will probably get his or her wish.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Christmas/Winter Break for Parents Under Utah Code § 30-3-35 or (§ 30-3-35.5 for a child 18 months and older)
If your Christmas/Winter break starts December 17, 2021 and ends January 2, 2022 (i.e., school starts back up on Monday, January 3, 2022), then that means the period between December 17 and January 2 and 17 days (an odd number of days in the holiday break parent-time period). This is how the holiday would be divided:
§ 30-3-35(2)(f)(viii): the first portion of the Christmas school vacation as defined in Subsection 30-3-32(3)(b), including Christmas Eve and Christmas Day, continuing until 1 p.m. on the day halfway through the holiday period, if there are an odd number of days for the holiday period or until 7 p.m. if there are an even number of days for the holiday period, so long as the entire holiday period is equally divided.
The day halfway through the period between December 17 and January 2 would be 1:00 p.m. December 25.
The best way to phrase this question is as follows, “How do I get an order awarding custody of our child to me, if I assert as the basis for my petition that the custodial parent is not keeping the child safe?”
As an attorney who gets ask this question frequently, the first things I tell people who ask me such a question are:
1. Is the noncustodial parent in fact not adequately protecting the child in keeping the child safe, as you assert? Could reasonable minds differ as to whether the custodial parent truly is not taking at least a minimal action to keep the child adequately safe? Or are the bases for your assertion—even if you could prove as a matter of fact the bases for your assertion—not reasonable?
a. For example parents have come to me asking if they could seek a change of custody or visitation (also known as parent-time) because:
i. the other parent started drinking alcoholic beverages (when previously, before the divorce, neither parent drank alcohol as a matter of religious beliefs or health consciousness). Not that the parent has become a drunk, but just drinks. That’s not a winning argument for a change of custody. That’s not enough to prove the child is in danger;
ii. the other parent is dating or living with a convicted felon. As long as that convicted felon is behaving himself/herself, conducting himself/herself in compliance with law, and not barred from being around minor children as a condition of his/her parole or release from prison, another parent dating or living with a convicted felon is almost certainly not going to be a sufficient basis for seeking a change of custody on the grounds that the child is in danger/not safe.
Granted, if the convicted felon is a multiple murderer or a snitch shoes being hunted down by the mob, that may be enough for a court to determine the risks are too great, but parents who come to me with the felon concern are usually faced with a situation where the new boyfriend or girlfriend was convicted of fraud, or the new boyfriend’s/girlfriend’s felony conviction took place so long ago that nobody believes the new boyfriend/girlfriend is the same person he/she was back then;
iii. parents have come to me asking if they could seek a change of custody or parent-time because the other parent lives in a dangerous part of town and/or in messy or small apartment. No sale. Unless you can prove that the conditions are so dangerous that it’s just a matter of time until a child is harmed, or at least show that the risks or dangers to which the child is exposed as a result of where that parent lives, the court’s just not going to make a change on that basis;
iv. What about a parent who has a dog as a pet, and your child is allergic to dogs? That would depend upon how bad the allergy is. I found out in my late 40s that I am allergic to cats. That was news to me. We had a cat in the house I grew up in. I had friends whose cats I played with as a child. I never noticed and still never notice any harm come to me from being around cats or in houses where there are cats. So if I were a child and my parents were divorced and Dad was the primary custodial parent and he owned a cat or two, would Mom be able to get a change of custody because I technically tested allergic to cats? I doubt it;
v. What about a parent who doesn’t have the children bathe as often as you would like, or who doesn’t have them brush their teeth at his/her house? Yeeeaaaah, probably not enough to get a change of custody. Maybe, if your judge is really into hygiene, but odds are against you.
2. Even if it’s true that the custodial parent is a danger to the child or exposes the child to unreasonably dangerous situations, if you can’t amass enough evidence to prove it to the satisfaction of the judge, then mere truth doesn’t matter. Many times I’ve encountered cases where the parent and I knew the truth, but didn’t have enough to prove it. This happens a lot in situations of substance abuse and physical abuse that can be explained away as being caused by something other than the abusive parent.
Bottom line: unless you have a legally sufficient argument that the child is suffering serious harm or that the child is in real danger of serious harm AND have sufficient evidence to prove it, you will likely lose a petition to modify custody on the grounds the custodial parent is not keeping the child adequately safe.
Utah Family Law, LC | divorceutah.com | 801-466-9277
But before I elaborate, let’s ask and answer this question first: is the legal system designed to protect the visitation (“visitation” is also known as “parent-time”) rights of noncustodial parents?
The answer to that question is, ostensibly: yes. But as I stated above, regardless of how well the legal system may be designed or may intend to protect the parent-time/visitation rights of noncustodial parents, designs and intentions are meaningless without proper enforcement.
And just how well are the designed/intended protections of noncustodial parent visitation/parent-time administered and enforced? Terribly, for the most part.
How so? Some jurisdictions make interfering with the noncustodial parent’s visitation/parent-time a crime. Criminal statutes, however, are of no protection to a noncustodial parent or two that noncustodial parent’s relationship with his/her child if the police won’t issue citations or make arrests for violating the criminal statute and if prosecutors won’t prosecute violations of the criminal statute.
Virtually all jurisdictions have provisions in their law for punishing violations of visitation/parent-time orders in decrees of divorce and degrees of child custody and parent time. If, however, you are the wronged noncustodial parent (meaning that the custodial parent has flouted the court’s orders and denied/interfered with visitation/parent-time), yet the court does not hold the offending parent accountable by holding him/her in contempt of court and sanctioning him/her for the contemptuous act(s), then contempt of court is not a deterrent.
Many jurisdictions provide for a parent who has been denied court ordered visitation/parent-time to receive what is known as compensatory or “make-up” time with the children. And that’s sensible. If the other parent denies you a weekend or a holiday with your children, then the court has the power to award you a “make-up” weekend or holiday. Again, however, such concepts and provisions in the law are meaningless when courts don’t enforce them. And many courts won’t.
Why won’t courts get tough on custodial parents who interfere with and/or deny noncustodial parents there visitation/parent-time? Two main reasons. One, some courts believe that because it’s hard enough on a child to be denied time with one parent, taking time away from the offending parent so that the parent who was denied visitation/parent-time can spend time with the child simply “solves” one problem (denial of time with one parent) by causing another (denial of time with the other parent). Two, some courts just don’t care enough to enforce the laws on the books, and the cost of trying to hold these disobedient judges accountable is usually far too expensive and far too risky (you don’t want to antagonize the judge).
Utah Family Law, LC | divorceutah.com | 801-466-9277
I am the noncustodial parent. Our child came to my house for parent-time and now refuses to leave because he wants to live with me. 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.
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.
Now before some of you start licking your lips and scheming, thinking, “I’m the noncustodial parent, but I can change that by simply telling our child to choose to refuse to return to the custodial parent’s house,” you need to be aware of the realities.
If you’re the noncustodial parent and your child or children are under the age of 14 or so, and they claim that they don’t want to live with the custodial parent, there’s a very good chance that the court is going to believe that you are a puppet master who coached the children or otherwise induced or coerced them into claiming they want to live with you. That may not be true, but you’re going to be met with that kind of skeptical presumption. So if you are the noncustodial parent with young children who you assert claim they don’t want to live with the custodial parent, you have an uphill battle ahead of you. If you are the noncustodial parent and a father, you have an almost impossibly uphill battle ahead of you.
If, however, your children are 14 years or older, and you are the noncustodial parent with whom your children say they want to live, it will be harder for your ex and/or the court to presume that the children are lying and/or don’t have good reasons for wanting to live with you. Again, if you are the father making this claim, your claim will be met with more skepticism than if you were the noncustodial mother making such a claim. Why is this? Because there is a pernicious belief in the legal system that fathers are generally worse parents than our mothers, that fathers don’t want custody of their children, and that the only reason fathers would seek custody of their children is to avoid paying child support. As a result of these beliefs, fathers who seek custody of their children are met with not just skepticism, but often derisive skepticism. Forewarned is forearmed.
So, if you are a noncustodial parent who is good and decent, and your child honestly and sincerely comes to you saying, “mom/dad, I can’t stand living with the custodial parent anymore, and I want to live with you,” how do you proceed?
First, if the child refusing to live with the custodial parent because the child just wants to spend more time with you and/or less time with the custodial parent, and the custodial parent is not neglecting or abusing the child in any way, 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. At the same time, the custodial parent needs to acknowledge the child’s desires to spend more time with the noncustodial parent as being a legitimate concern that needs to be addressed and resolved, and that usually means the custodial parent agreeing to give the child and the noncustodial parent more time together. If the custodial parent refuses to do the right thing, you may ask whether it’s wise to petition the court for a modification of the child custody award, so that you and the child get more time together. Unfortunately, odds are that if you file a petition to modify child custody and the only basis for your petition is the child’s desire to spend more time with you, you will probably lose. While it is technically and conceivably possible to win such a petition, usually the courts in Utah require more than just the child’s desire as the basis for a modification. And what form does this “more” take? Typically, you would have to show that the custodial parent is neglecting and/or abusing the child to get a modification of the child custody award.
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 | divorceutah.com | 801-466-9277
If a parent exceeds parent-time by an hour or so, what can I do? Our custody order provides that child visitation is 11a.m. – 4p.m.My ex and I agreed by e-mail to change it to 10a.m. to 3p.m.But now my ex picks up at 10 and returns the child at 4p.m. instead of 3p.m., Is there no recourse since the order says 4pm despite their agreement?
Great question.
If you were to take this problem to court for the judge to resolve, odds are that the hearing would unfold something like this and that the judge would do something like this:
Argument from parents:
Parent 1 “The custody order says child visitation is 11 a.m.-4 p.m. Parent 2 asked to make it 10 a.m. to 3 p.m., and I agreed, but now Parent 2 picks up at 11 a.m. and brings the kids back at 4 p.m. I want Parent 2 held in contempt of court!”
Parent 2 “Parent 1 lies! It’s true that Parent 2 and I agreed to change visitation start and end times from 11 and 4 to 10 and 3, but I always bring the kids back by 3 p.m. Sometimes I may run into a traffic jam or something that causes me to run a little late, but I’m not trying to ‘steal’ an extra hour. I am outraged!”
Judge’s decision:
“Well, you both can’t be telling the truth, but it’s impossible for me to know which of you is lying. So, unless and until one of you has independently verifiable proof to support his/her argument, I am not going to reward one of you or punish the other on such a dearth of evidence and shaky evidence at that. Now both of you obey court orders. If there is a problem with Parent 2 going an extra hour over the court-ordered visitation period, and if Parent 1 has a problem with that, then Parent 1 may want to consider keeping a photographic or videographic log of pick up and return times to document the problem and provide the court with proof. If Parent 2 is being falsely accused, then Parent 2 may also want to consider keeping a photographic or videographic log of pick up and return times and a log of photos or videos showing that if and when Parent 2 is late it’s because of traffic jams or other things beyond Parent 2’s control.
“Can my ex use the panic over Coronavirus/COVID-19 to withhold the kids from me?”
“Will I still be free to pick my son up at the end of the week from his spring break visitation? With all the panic over Coronavirus/COVID-19, I am really nervous that the other parent will use it as an excuse to withhold our child from me.”
You’re not alone. And you haven’t been since long before Coronavirus/COVID-19 was a concern.
We divorce and family law attorneys knew it was only a matter of time until Coronavirus/COVID-19 would become relevant to custody and visitation/parent-time disputes.
As most experienced divorced parents know, it doesn’t really matter what the excuse is for defying a court’s custody and visitation/parent-time orders, just that the parent has a legitimate excuse (or what he or she believes will pass for a legitimate excuse).
Parents who have wanted to keep the kids away from the other parent have always used the “Johnny is sick today” excuse, so the Coronavirus/COVID-19 just puts a more contemporary gloss on this old reliable excuse. Why?
Because sickness (real sickness) is often a very good reason for children not to go back and forth between their parents’ respective residences. If Mom or Dad is sick, and the child is at the other parent’s house, it doesn’t make sense to send a healthy child to a sick parent until that parent is no longer sick and contagious. If the child himself or herself is sick, and the the parent who would otherwise be spending time with the child during his/her custody or visitation is not sick, then it also makes sense for the child to stay put until he or she is no longer sick and contagious.
But any parent whose co-parent is a malicious type who wants to keep the children away knows how to game the system with plausible deniability. I can easily see how such a parent could claim that he or she fears the children or other parent may have been exposed to the Coronavirus/COVID-19 and then assert that fear as the basis for withholding custody or parent time from the other parent until the time consuming process of quarantine and testing is completed. It’s also very difficult for a court to discern whether such ostensible concerns were sincere or just a means of interfering with custody and parent time and depriving the parent and child of time with each other. And so these judges err, understandably, on the side of giving the ostensibly concerned parent the benefit of the doubt.
Here’s the unfortunate truth: with Coronavirus/COVID-19 being such a sensational hot topic in the news these days, no judge is going to want to appear as though he or she is not taking a public health crisis seriously.
So if you are the kind of parent who wants to keep kids away from the other parent, expressing fears over the transmission of Coronavirus/COVD-19 is a great way to interfere with the other parent’s custodial and visitation rights with impunity. The odds of you being accused of expressing such fears maliciously are slim to none. Otherwise stated, you’ll almost surely get away with it. That, however, doesn’t necessarily mean that the victimized parent and child do not have an avenue of compensation.
Let’s say that the other parent invokes fears over Coronavirus to keep the child away from the other parent for a period of 2 to 3 weeks. Once the danger has passed, if I were that other parent, then if the other parent will not agree to schedule 2 to 3 weeks of “make-up” or compensatory time that the child and I were denied as a result of the quarantine and testing period, I would go to court and move the judge to award the child and I such a period of compensatory time. The judge could grant the compensatory time on the grounds that it was denied due to sickness or concerns over sickness, and now that the sickness and/or danger of sickness is passed, the parent and child who were denied time together can now spend that entire period together without risk.
Utah Family Law, LC | divorceutah.com | 801-466-9277
“Can my ex use the panic over Coronavirus/COVID-19 to withhold the kids from me?”
“Will I still be free to pick my son up at the end of the week from his spring break visitation? With all the panic over Coronavirus/COVID-19, I am really nervous that the other parent will use it as an excuse to withhold our child from me.”
You’re not alone. And you haven’t been since long before Coronavirus/COVID-19 was a concern.
We divorce and family law attorneys knew it was only a matter of time until Coronavirus/COVID-19 would become relevant to custody and visitation/parent-time disputes.
As most experienced divorced parents know, it doesn’t really matter what the excuse is for defying a court’s custody and visitation/parent-time orders, just that the parent has a legitimate excuse (or what he or she believes will pass for a legitimate excuse).
Parents who have wanted to keep the kids away from the other parent have always used the “Johnny is sick today” excuse, so the Coronavirus/COVID-19 just puts a more contemporary gloss on this old reliable excuse. Why?
Because sickness (real sickness) is often a very good reason for children not to go back and forth between their parents’ respective residences. If Mom or Dad is sick, and the child is at the other parent’s house, it doesn’t make sense to send a healthy child to a sick parent until that parent is no longer sick and contagious. If the child himself or herself is sick, and the the parent who would otherwise be spending time with the child during his/her custody or visitation is not sick, then it also makes sense for the child to stay put until he or she is no longer sick and contagious.
But any parent whose co-parent is a malicious type who wants to keep the children away knows how to game the system with plausible deniability. I can easily see how such a parent could claim that he or she fears the children or other parent may have been exposed to the Coronavirus/COVID-19 and then assert that fear as the basis for withholding custody or parent time from the other parent until the time consuming process of quarantine and testing is completed. It’s also very difficult for a court to discern whether such ostensible concerns were sincere or just a means of interfering with custody and parent time and depriving the parent and child of time with each other. And so these judges err, understandably, on the side of giving the ostensibly concerned parent the benefit of the doubt.
Here’s the unfortunate truth: with Coronavirus/COVID-19 being such a sensational hot topic in the news these days, no judge is going to want to appear as though he or she is not taking a public health crisis seriously.
So if you are the kind of parent who wants to keep kids away from the other parent, expressing fears over the transmission of Coronavirus/COVD-19 is a great way to interfere with the other parent’s custodial and visitation rights with impunity. The odds of you being accused of expressing such fears maliciously are slim to none. Otherwise stated, you’ll almost surely get away with it. That, however, doesn’t necessarily mean that the victimized parent and child do not have an avenue of compensation.
Let’s say that the other parent invokes fears over Coronavirus to keep the child away from the other parent for a period of 2 to 3 weeks. Once the danger has passed, if I were that other parent, then if the other parent will not agree to schedule 2 to 3 weeks of “make-up” or compensatory time that the child and I were denied as a result of the quarantine and testing period, I would go to court and move the judge to award the child and I such a period of compensatory time. The judge could grant the compensatory time on the grounds that it was denied due to sickness or concerns over sickness, and now that the sickness and/or danger of sickness is passed, the parent and child who were denied time together can now spend that entire period together without risk.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Do parents in psychiatric care deny thoughts of self-harm for fear admitting it may impact custody? Is it common for a parent in psychiatric care to make false denials of thoughts of self-harm for fear that doing so may adversely impact parental rights, visitation, or shared custody?
Of course. Many times we justify withhold information by invoking “Some things are better left unsaid.”
Utah Family Law, LC | divorceutah.com | 801-466-9277
After filling for legal separation where is my only child going to stay? I have my child with me right now. How is the custody going to work after separation?
The question of what the court will do regarding child custody is premature.
The first question you should ask is 1) “Can the other parent and I reach our own agreement on custodial and visitation (now often called parent time) arrangements?”
And if you and the other parent cannot reach agreement, then the second and third questions you should ask are2) “What custodial and parent time arrangement is best for the children,” irrespective of what I may desire?” because that’s essentially the question the court will try to answer in fashioning its custody and parent time award; and 3) am I willing to spend thousands (maybe even tens of thousands) of dollars to fight over the issues of child custody and parent-time?
If you and your spouse/the other parent can agree on what the custody and parent time schedule will be between you both, then you both don’t need to bring that matter before the court for a temporary order. Far too often parents end up litigating more than they need to because they don’t realize they don’t need to litigate every issue. They don’t realize that they can (and should as much as possible) make agreements and follow those agreements.
That stated, I, as a divorce and family law attorney, am well aware that child custody is frequently (even usually) a bone of contention between parents who are separating or divorcing. Still, even parents that don’t get along may find it in their individual and mutual best interest to reach an agreement over child custody and parent time, instead of placing that decision in the hands of the court.
Before you go to the trouble and expense of litigating temporary child custody and support, it wouldn’t hurt you at all to try and work out an agreement on the subjects with the other parent first. Even if the other parent simply to negotiate or refuses to negotiate in good faith, you can go to court knowing that, for the sake of your kids, you did your best to reach consensus instead of conflict.
Judges don’t know (and thus cannot accommodate) your or your children’s needs nearly as well as you and the other parent do. For all that they say to the contrary, the truth is that judges usually don’t particularly care that much about other people’s children and what’s best for them. They deal with hundreds and thousands of couples and families, so to an extent, you can’t really blame them completely. Judges often have surprisingly obtuse, bizarre, and counterproductive ideas about what the best custodial and parent time arrangements are for children.
So as long as you and the other parent are decent and rational people, you should be able to come up with a custody arrangement that is not only fair to you as parents, but what your children need and deserve. If you and the other parent can’t set aside your own self-interest and posturing for the sake of doing what’s best for your children, then frankly you deserve to have the court impose a child custody and parent time award on you, like it or not.
If you and the other parent cannot reach an agreement regarding child custody and parent time so that the court is left to make that determination, then here are the factors that the courts in Utah (where I practice divorce and family law) consider in analyzing and determining what the child custody and parent time awards shall be:
(2) In determining any form of custody and parent-time under Subsection (1), the court shall consider the best interest of the child and may consider among other factors the court finds relevant, the following for each parent:
(a) evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the parent, or a household member of the parent;
(b) the parent’s demonstrated understanding of, responsiveness to, and ability to meet the developmental needs of the child, including the child’s:
(i) physical needs;
(ii) emotional needs;
(iii) educational needs;
(iv) medical needs; and
(v) any special needs;
(c) the parent’s capacity and willingness to function as a parent, including:
(i) parenting skills;
(ii) co-parenting skills, including:
(A) ability to appropriately communicate with the other parent;
(B) ability to encourage the sharing of love and affection; and
(C) willingness to allow frequent and continuous contact between the child and the other parent, except that, if the court determines that the parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration; and
(iii) ability to provide personal care rather than surrogate care;
(d) in accordance with Subsection (10), the past conduct and demonstrated moral character of the parent;
(e) the emotional stability of the parent;
(f) the parent’s inability to function as a parent because of drug abuse, excessive drinking, or other causes;
(g) whether the parent has intentionally exposed the child to pornography or material harmful to minors, as “material” and “harmful to minors” are defined in Section 76-10-1201;
(h) the parent’s reasons for having relinquished custody or parent-time in the past;
(i) duration and depth of desire for custody or parent-time;
(j) the parent’s religious compatibility with the child;
(k) the parent’s financial responsibility;
(l) the child’s interaction and relationship with step-parents, extended family members of other individuals who may significantly affect the child’s best interests;
(m) who has been the primary caretaker of the child;
(n) previous parenting arrangements in which the child has been happy and well-adjusted in the home, school, and community;
(o) the relative benefit of keeping siblings together;
(p) the stated wishes and concerns of the child, taking into consideration the child’s cognitive ability and emotional maturity;
(q) the relative strength of the child’s bond with the parent, meaning the depth, quality, and nature of the relationship between the parent and the child; and
(2) In determining whether the best interest of a child will be served by ordering joint legal custody or joint physical custody or both, the court shall consider the custody factors in Section 30-3-10 and the following factors:
(a) whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal custody or joint physical custody or both;
(b) the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;
(c) co-parenting skills, including:
(i) ability to appropriately communicate with the other parent;
(ii) ability to encourage the sharing of love and affection; and
(iii) willingness to allow frequent and continuous contact between the child and the other parent, except that, if the court determines that the parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration; and
(d) whether both parents participated in raising the child before the divorce;
(e) the geographical proximity of the homes of the parents;
(f) 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 joint legal custody or joint physical custody or both;
(g) the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents;
(h) the past and present ability of the parents to cooperate with each other and make decisions jointly; and
(1) If the parties are unable to agree on a parent-time schedule, the court may establish a parent-time schedule consistent with the best interests of the child.
(2) The advisory guidelines as provided in Section 30-3-33 and the parent-time schedule as provided in Sections 30-3-35 and 30-3-35.5 shall be presumed to be in the best interests of the child unless the court determines that Section 30-3-35.1 should apply. The parent-time schedule shall be considered the minimum parent-time to which the noncustodial parent and the child shall be entitled unless a parent can establish otherwise by a preponderance of the evidence that more or less parent-time should be awarded based upon one or more of the following criteria:
(a) parent-time would endanger the child’s physical health or mental health, or significantly impair the child’s emotional development;
(b) evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, a parent, or a household member of the parent;
(c) the distance between the residency of the child and the noncustodial parent;
(d) a credible allegation of child abuse has been made;
(e) the lack of demonstrated parenting skills without safeguards to ensure the child’s well-being during parent-time;
(f) the financial inability of the noncustodial parent to provide adequate food and shelter for the child during periods of parent-time;
(g) the preference of the child if the court determines the child is of sufficient maturity;
(h) the incarceration of the noncustodial parent in a county jail, secure youth corrections facility, or an adult corrections facility;
(i) shared interests between the child and the noncustodial parent;
(j) the involvement or lack of involvement of the noncustodial parent in the school, community, religious, or other related activities of the child;
(k) the availability of the noncustodial parent to care for the child when the custodial parent is unavailable to do so because of work or other circumstances;
(l) a substantial and chronic pattern of missing, canceling, or denying regularly scheduled parent-time;
(m) the minimal duration of and lack of significant bonding in the parents’ relationship before the conception of the child;
(n) the parent-time schedule of siblings;
(o) the lack of reasonable alternatives to the needs of a nursing child; and
(p) any other criteria the court determines relevant to the best interests of the child.
Utah Family Law, LC | divorceutah.com | 801-466-9277
In some jurisdictions, interference with or noncompliance with child custody orders issued by a court are not enforceable by police officers or sheriff’s deputies because there is no statute or statutes that authorize and empower the police to intervene. This is why law enforcement officers do not intervene in such jurisdictions. The only way that law enforcement officers can intervene in such jurisdictions is for a court to authorize and direct law enforcement officers to enforce child custody and parent time orders, and to do so by force if necessary. This is why, when a parent asking for the police to help with enforcement of a child custody or parent time order, will often receive this kind of response from the officer or officers called: “This is a civil matter. We do not have the authority to intervene to enforce your court orders.”
In other jurisdictions, such as Utah, where I practice divorce and family law, laws have been passed and are now on the books making interference with child custody and/or parent time orders a violation of statutory law. They are commonly referred to as “custodial interference laws”.
Do law enforcement officers in such jurisdictions enforce such statutes? Rarely.
Why?
Because being a law enforcement officer is a thankless job. Consequently, with rare exception, law enforcement officers hate enforcing custodial interference laws. Law enforcement officers generally dislike handling disputes between parents over enforcement of custody and parent time orders because it wastes their time and resources and interferes with their ability to prevent and solve serious crimes, such as aggravated assault, rape, burglary, etc. Some officers get lazy sometimes A) don’t enforce laws they consider not worth enforcing and/or B) don’t want to hassle with all the paperwork associated with responding to, reporting on, and enforcing custodial interference laws.
Instead, they will lie to your face and give you the “This is a civil matter. We do not have the authority to intervene to enforce your court orders” line in the hope that you will believe them when they tell you they cannot help you and thus stop asking them for help. [NOTE here: if you are someone who does not deal with law enforcement officers routinely, you would be pardoned for believing law enforcement officers do not lie and lie a lot. So fool you once, shame on them, fool you twice, shame on you. I know this may shock and sadden some readers—I felt that way when I discovered it and could no longer deny it.] Officers who don’t want to enforce custodial interference laws deal with parents who know of the laws on the books and aren’t fooled by the “this is a civil matter” dodge will simply threaten to arrest those parents who won’t back down for “disorderly conduct” and/or “disturbing the peace” (two favorite go to intimidation tactics that law enforcement officers frequently utilize to get people off their backs). Why? Because they can get away with it. More often than not, if you were to complain about law enforcement officers failing and refusing to enforce custodial interference laws, their superiors will nod their heads, thank you for “bringing this matter to my attention,” promise that action will be taken, wait for you to hang up the phone or leave the office, and then never give the matter a second thought.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Would you be ok with a parent getting out of jail and having full unsupervised visitation?
Under certain circumstances, yes. Certainly.
If the jailed parent was jailed for non-violent, non-dangerous crimes like unpaid parking tickets or check kiting, it would not make sense to restrict parent-time to supervision, reason being that there is no evidence that unpaid parking tickets or check kiting makes one a danger to the child.
Utah Family Law, LC | divorceutah.com | 801-466-9277
If a divorced parent doesn’t want visitation rights (i.e. doesn’t want to see his/her child), is that legal, or would the court order the unwilling parent to have visits?
This a great question because it’s a bold, honest question that many parents (more than you’d think) want to ask, but are afraid to ask for fear of being branded scum of the earth.
To those of you who think that only the scum of the earth would ask such a question, I can assure you that there are times when a loving parent may nevertheless not want visitation rights. One of those instances is when a parent knows that the other parent is hell-bent on making the children suffer unless and until they break all ties physical and emotional with the other parent.
So a good question like yours deserves a good answer, and I will do my best to provide you with one:
Can a court order a parent to spend time with his/her children, even if that parent does not want to spend time with his/her children? Yes. I have never seen it happen in a case I’ve handled, and I do not know of any instances of it happening in other cases. But yes, the court has the power to order a parent to spend time with his/her child.
Would a court order a parent to spend time with his/her children, even if that parent does not want to spend time with his/her children? Probably not. Courts know it’s virtually impossible to enforce such an order, and even if it could be enforced, the enforcement of the order would probably do the children more harm than good.
Warning: if a parent took the position of “I don’t want visitation now, but maybe later, and if and when I do want visitation, I’ll just go back to court to get visitation ordered” the court would likely tell such a parent, “You had your chance, you forfeited visitation then, and so you can’t get it now,” unless somehow that absentee parent could prove that the children will suffer irreparable harm if they were denied visitation going forward.
Finally, unless you are a parent in one of those weird (and tragic) situations where visitation between you and your child(ren) would do them more harm then good, abandoning your children is one of the most cruel things you could do to them; it leaves scars and cripples all but the strongest of children emotionally and psychologically for life. Your kids need to see and be involved with you, even if you don’t want to be involved with them. Other than in exceptional circumstances, you owe it to them.
Utah Family Law, LC | divorceutah.com | 801-466-9277