What Discovery is and Why It is Important in Divorce and Custody Cases

If you are involved in a family law case in Utah, the divorce discovery process will play a role. You might be confronted with discovery requests. Alternatively, you might be the one who needs to use discovery. Therefore, discovery can be a complex process. The attorneys at Christensen Law, located in Salt Lake City, have experience in divorce, custody, and child support cases. They can help you satisfy discovery requirements or use discovery to help your case.

The information Christensen Law provides below is for general informational purposes only. However, for advice specific to your case, you should consult with an attorney.

What is Discovery?

Discovery is a process by which the parties to a lawsuit can gather information about the case. The information gathered will help the parties file motions or go to trial. There are various discovery methods and requirements.

In family law cases, the parties, as part of discovery, are automatically required to exchange financial information. The court provides a financial declaration form the parties fill out and to which they attach financial documents. On the financial declaration, parties disclose income, assets, debts, expenses, and other information.

In family law cases and all other civil cases, litigants can employ more generic discovery tools. Parties can submit written interrogatories to the opposing party. So, an interrogatory is a question that the opposing party must answer in writing. Parties can submit requests for admission, asking the other side to admit or deny facts that should be obvious. They can request that the other party produce copies of documents relevant to the case. So, parties can issue subpoenas to other parties or to banks, employers, and other institutions for records. Parties can depose (interview) other parties or potential witnesses to explore potential testimony at trial.

How is discovery useful?

Therefore, at a trial or in hearings, you need to present evidence or testimony and prove facts to prevail. In a lot of family cases, both parties already have facts and documents. But sometimes, they will not. Discovery can help you get the evidence and testimony you need to do well in court. Therefore, if you have an obligation to produce discovery, meeting your obligation is important. Thus, it can actually help you. With the facts at your fingertips, you can both make your best case or negotiate a good settlement.

At Christensen Law, we can help you with your discovery needs and obligations. So, good discovery requests and responses will help your case.

Peter ChristensenWhat Discovery is and Why It is Important in Divorce and Custody Cases
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When is the Case Over and Does It Matter?

Is your case over?  It is good practice to ensure that you understand whether a case is over, or finalized. Whether a case is final or not determines your options and liabilities going forward. This applies to divorce cases, custody cases, personal injury cases, and other civil cases.

At Christensen Law, in Salt Lake City, Utah, the attorneys handle divorce, family law, personal injury, and other civil matters. They can handle and give you specific advice on your case. However, for your general information, they provide some general guidelines below. The general guidelines should not be used blindly on your own case. You should seek an attorney for specific advice for your specific case.

When is the case over?

Your case is over when the court has adjudicated all claims as to all parties in the case. So, if you sued or were sued for multiple claims, each claim must be finalized. Or, the court must explicitly make its decision on one claim final. Take for example a case where Bob sues Billy for trespass and assault. If the court make a final decision on trespass, but not assault, the case is not over. Though, the court could declare the trespass decision a final judgment. But, it would have to do that explicitly. If there is a final decision on both trespass and assault, the case is over. This example could apply in the family law context as Bob suing Sally for divorce, custody, and child support. Each of those elements is a separate claim.

Why does it matter?

A case that is merely dormant and not final presents certain risks or opportunities. If the case is not finalized, it can be revived. Whether revival of the case is good or bad for you depends on a number of factors. An attorney can help you understand the risks and opportunities and take the next step to help you.

Peter ChristensenWhen is the Case Over and Does It Matter?
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How to Defend Yourself against a Petition to Modify Custody

A custody order in a divorce or paternity case is not permanent. Until the children reach age eighteen, either parent can petition the court to modify the prior custody award. This is true even if the current custody award was negotiated as part of a settlement or stipulation. The courts understand that circumstances can change and that the children need a change. If the custody award favors you, you might be defending against a petition to modify custody sometime in the future.

We are Utah custody lawyers practicing family law in the Salt Lake City area and along the Wasatch front. Below, we provide some tips for how to defend against a petition to modify custody. Please keep in mind that every case is different and the tips are generalities. If you have questions about your specific case, feel free to reach out for a free consultation.

Ensure That Your Children Are Thriving and Document It

If the children are thriving, it will be difficult for the other parent to persuade the court to change custody. Keep track of your children’s progress at school and in other things. Do not neglect or abuse the children or do anything about which the other parent could legitimately complain. Keep documentation of the good things so that you can prove it in court.

Do Not Attempt to Unnecessarily Cut Off the Children from the Other Parent

The conventional wisdom to which the courts adhere is that parents need both parents. If the other parent is entitled to parent time, see to it that he or she gets it. The exception is where the other parent might harm the children. Contact with the other parent is for the benefit of the children. Inappropriately cutting off the other parent will put you in a bad light.

Begin Defending Against a Petition to Modify Custody as Soon as Possible

Do not wait for a petition to modify custody to start acting like the good parent. Start now. Keep records. You do not want the court to determine you are a good parent only while a case is pending. Your children will benefit, and the other parent may not feel a need to fight for custody.

Peter ChristensenHow to Defend Yourself against a Petition to Modify Custody
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How to Modify a Child Custody Order

Changing circumstances may lead parents to decide to modify their child custody order. This post explores how to change a child custody order. This post only covers basic, general information regarding this topic.  For specific advice tailored to your circumstances, you should consult a Utah custody attorney.

Change of Custody by Stipulation

Sometimes, parents find themselves in a custody routine that differs from the custody order. It is usually a good idea for the parents to get that new routine included in the court order. Other times, the parents find themselves in a situation where they both agree that custody must change. If both parents agree or stipulate, the court will typically allow the parents to update the order. This update will also typically lead to an update on the child support order.

Change of Custody by Litigation

Many parents are unwilling to agree to have less custody. This can be true even if they do not regularly exercise all their custody rights. In such cases, the parent wishing to modify custody must convince a judge to change custody.

To convince a judge to change custody, the judge must believe two things:

First, the judge must believe that circumstances have changed since the previous custody order. Changes of circumstance must be significant and must be relevant to custody. (Though, if the previous custody order was based on a settlement, there is more leeway.) Additionally, changes must typically involve the parent who is to have less custody. For example, you might argue that a parent can no longer take care of the child. Or, that the parent no longer does care for the child or exercise custody. You will need to back these arguments with strong evidence.

Second, the judge must be convinced that the proposed change is in the child’s best interests. There are a number of factors judges consider. However, the focus will often be on the reason the parent wants to change custody.

Obtaining Advice Specific to Your Case

At Christensen Law, the attorneys are Utah custody lawyers in Salt Lake City, serving the Wasatch front and beyond. We can give you advice about your circumstances and help with your case.

Peter ChristensenHow to Modify a Child Custody Order
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What is a custody evaluation?

In Utah, the courts sometimes order custody evaluations. This can happen in divorce, paternity, modification, or other custody cases. And then, the court with input from the parties appoints an evaluator. If available, the evaluator will inform the court. From there, the evaluator receives standard instructions, and the parties receive orders to cooperate with the custody evaluator. The parties will likely visit with the evaluator, undergo assessments, and have a chance to share concerns. Eventually, the evaluator informs the parties and court that the evaluation is done or soon will be done.

What happens after the custody evaluation?

After the evaluation, the attorneys, parents, and evaluator will have a meeting. At the meeting, the custody evaluator will verbally inform everybody present of his or her conclusions. Often, a mediator will be present and involved. Then, the parties will be able to take advantage of the ability to mediate in light of the evaluation results. The results of the evaluation can have a number of effects on the mediation. The evaluation might clarify what is important or not important. The evaluation might also serve as a reality check for one or both of the parents. If you do not reach a settlement agreement, the case will eventually go to trial. If requested, the custody evaluator will prepare a written report and will be available to testify at trial.

What happens if the custody evaluator strongly favors or disfavors a particular parent?

As noted above, the custody evaluation can serve as a reality check. The evaluation might discourage one parent from moving forward on the case. On the other hand, it might give the other false confidence. The custody evaluator is not the judge. Then, the recommendation will not necessarily become the order of the court. If there is a custody evaluation in your case, consider hiring an attorney for the meeting. Then, the attorney can advise you about the effect the evaluation has in your case. Lastly, if you feel inclined to settle based on the evaluation, the attorney can help craft an agreement with which you and the children can live.

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Going through the divorce process can be stressful. There is often uncertainty, unfairness, and uncivility, among other challenges. These challenges can both make your life difficult and interfere with your case. It is worth finding ways to overcome the challenges, even mid-divorce.

The attorneys at Christensen Law are Utah divorce lawyers. They are accustomed to handling divorce, custody, and other family law matters for local and out-of-state clients. Below, Christensen Law provides some tips that may help you. However, keep in mind that all situations are different. For advice tailored to you, you should consult a Utah divorce attorney.

Tip #1: Stay Organized and Keep Up with Things

You need to know what to ask the court to rule on. And, you will need to gather the evidence or testimony to support your arguments. Even if represented by an attorney, you need to coordinate with him or her.  If you want the court to split bank accounts, you need to show account statements. If the other side is harassing you with texts, you need to show the texts. Perhaps you are disputing alimony, and if so you will need to track and document expenses.

Tip #2: Try to Stay Calm During Hearings and Mediation

Feeling strong emotions is to be expected. However, if you lose control at a key moment, there could be long-term consequences. At hearings or trial, your demeanor in the courtroom will have a direct effect on the outcome of the hearing. The judge will note your behavior. Even if he or she does not, negative behavior will distract your attorney. As for mediation, you often will be in an entirely separate room with only your attorney. But, if you are not calm, you may make poor decisions that will have long-term consequences.

Tip #3: Consider Therapy or Counseling

A divorce is a big change and typically comes with an assortment of emotional issues. It may be that therapy or counseling could prove useful. A therapist or counselor can help you overcome the
emotional injury associated with divorce. He or she could help you find constructive ways to address ongoing challenges. And, he or she can help you learn how to develop the skills to deal with an ex-spouse.

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How to Have Your Voice Heard in Your Divorce or Custody Case

In Utah, it is common for those struggling with a divorce case to leave the courtroom feeling that their voice went unheard. Part of this stems from the use of the domestic commissioner system in Utah’s more populous counties. Many family law hearings in Utah occur in front of a domestic commissioner. The commissioner typically holds abbreviated hearings where family law attorneys summarize evidence.

The lawyers at Christensen Law are divorce attorneys in Utah. We assist clients with divorce, custody, and child support cases. Through our experience, we have found a number of ways to help
our client’s voices be heard. Below, we provide some key tips. However, each case has it’s own challenges. For advice specific to your case, feel free to contact us for a free consultation.

Work Closely with Your Attorney to Draft a Written Statement

Domestic commissioner and judges often review written statements submitted prior to the hearing. Sometimes, they are better at reading than listening. Working with your attorney to write out what you want the commissioner or judge to know can help your case. Your voice in the writing will be persuasive. An attorney can help ensure that what you tell the court is relevant and helpful.

Prepare for and Request an Evidentiary Hearing Before the Judge

Sometimes you will not be persuasive in writing. Or, perhaps the other side is able to overstate their case in their writing. If you are unhappy with the commissioner’s recommendation, you may request an evidentiary hearing before the judge. On custody issues and certain others, the judge is obligated to allow an evidentiary hearing. At the hearing, you will at least be able to cross-examine the other side about their statement.

Gather, Summarize, and Present Evidence

Complaining about never getting parent time or being child support goes only so far. If you want to drive the point home, gather evidence. If the evidence is voluminous, prepare a summary. Backing up your claims will help them carry more weight.

Peter ChristensenHow to Have Your Voice Heard in Your Divorce or Custody Case
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Supervised Visitation

The State of Utah recognizes a parent’s fundamental liberty interest in raising his or her children. They will ordinarily allow divorced or separated parents to have unrestricted and unsupervised access to their children. However, a court can order supervised visitation if they find the child subject to harm if left unsupervised with the parent.  They will also order supervised visitation if no less restrictive means are available to protect the child. Supervised parent-time is as it sounds. A parent may receive permission to have parent-time with the child. However, the parent cannot exercise that time alone with the child. They must have a supervisor present to oversee the parent-time.

How to Get Supervision for the Other Parent’s Visitation Time

The parent requesting supervised parent time has a great deal to do if they want the other parent’s time supervised.

First, they must prove the child could be harmed if the other parent’s time with the children was unsupervised.  Courts typically find such when the child has been subject to physical or sexual abuse. They also find this when the parent has drug addiction and has used in the presence of the children.  It can also happen if the parent has put the children in physical danger. Minor criminal charges, DUIs, disagreements between the parents are usually not enough to justify supervised parent-time. The moving party must also show that there are no less restrictive means available to protect the children. This means that the party must show the court that there is nothing else the court can do to protect the children except order the supervised parent-time.

Supervised parent-time is not something that a court typically orders absent extreme circumstances. The court sees supervised parent time as an extreme remedy and will only order it if no better option exists. If you are considering asking a court to order supervised parent-time for the other parent, please consult with the Utah custody lawyers at Christensen Law to make sure that your situation justifies such an extreme remedy.

What to Expect from the Court

If the court orders supervised parent-time, the court will give preference to a supervisor suggested and agreed to by the parties, including any relatives. Then, if the suggested person is willing to supervise, and the court finds them capable, they will authorize the person to supervise the parent-time. If the parties cannot authorize anyone, the court can require professional services to supervise the parent’s parent-time.

Every time the court orders supervised parent time, the court must provide specific goals and expectations for the parent to accomplish before unsupervised they get parent-time. The court will hold follow-up hearings to review the parent’s progress with the specific goals and expectations. The parent with supervised parent time may file a petition to modify the order at any time. They just need to show they’ve accomplished the goals and expectations set by the court. If you have supervised visitation with your children and want to get the supervision removed, please consult with the Utah custody lawyers at Christensen Law to see if you have a case to have the supervised visitation removed.

Peter ChristensenSupervised Visitation
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Objecting to a Commissioner’s Recommendation

Court commissioners have limited judicial authority compared with a court judge. A court commissioner initially hears the majority of family law matters. At the conclusion of a hearing, the court commissioner will make a recommendation on orders regarding the relief requested. However, if an individual is unsatisfied with the commissioner’s recommendation,
Utah law provides a method to object to the commissioner’s recommendation. The District Court Judge then considers the matter.

Under Utah Rules of Civil Procedure Rule 108, a party may file a written objection to the recommendation. It must be filed within fourteen (14) days after the recommendation is:

  • made in open court, OR
  • when the minute entry in the recommendation is served.

The objection consists of a written pleading filed with  the court. The Utah Rules of Civil Procedure Rule 7 governs the length and content of the pleading.

The objecting party must identify:

  • the particular findings of fact
  • conclusions of law
  • order, OR
  • part of the recommendation to which the objection refers and state the relief sought.

Presenting Evidence to a Judge

Ordinarily, only evidence presented to the commissioner will have presented to the judge. However, the judge may consider new evidence if there has been a substantial change of circumstances since the commissioner made his or her recommendation. The non-objecting party has a chance to respond to the objection as provided under Utah Rules of Civil Procedure Rule 7. It is possible that both parties can object to the commissioner’s recommendation since the commissioner can make several decisions or recommendations.

The same findings of fact or conclusions of law made by the commissioner do not bind the judge. The judge will make independent findings of fact and conclusions of law based on the evidence, whether by

  • proffer
  • testimony, OR
  • exhibit

This is different than appealing a case or decision to the Utah Court of Appeals or the Utah Supreme Court. The district court judge is not required to give deference to the commissioner’s findings like the Court of Appeals or Supreme Court must do at times. Either party may request a hearing before the judge; however a judge does not necessarily have to agree to have a hearing and can decide the matter based on the motions and evidence presented. If neither party requests a hearing, then the judge can either make a decision based on the record or decide to hold a hearing on its own.

Things to be Aware of Concerning Filing an Objection

An objection is an important tool an individual can use to get a fair and equitable result. If an individual believes the recommendation made by the commissioner to be unfair or inequitable, that individual has the right to object to the recommendation and have the matter heard again before the judge. However, an individual should not approach the initial hearing with the commissioner with minimal effort.

The judge usually only considers evidence presented to the commissioner. Evidence not presented to the commissioner will not be presented to the judge. An objection can also be a costly procedure. While an individual may prevail in their objection, they will incur extra legal fees. In the alternative, an individual can lose his or her objection and still end up with the extra legal fees. If you are considering objecting to a commissioner’s recommendation, please consult with your Salt Lake City family lawyers to discuss the pros and cons of doing so.

Jon HammondObjecting to a Commissioner’s Recommendation
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The Impact of an Affair on Your Divorce Case

Many people consider divorce after discovering a partner’s affair. As a salt lake city divorce lawyer, the Christensen Law Firm and I have represented numerous clients whose marriages ended due to infidelity. This includes representing clients on both sides of the equation. Often, clients want to know whether cheating impacts issues like alimony, custody, and child support.

In Utah, adultery initiates divorce as a considered fault ground. Utah is a “no fault” divorce state. This means neither party needs to prove fault in order for a divorce to be granted. However, a party can allege fault, such as adultery, as grounds for divorce. The benefit of alleging adultery as grounds for the divorce is a question which requires careful consideration. Accordingly, consult an attorney regarding the specific facts of each case.

Building a Divorce Case Around Evidence of an Affair

Although an affair used as grounds for a fault-based divorce in Utah, cheating can have little effect on a case if the fact of cheating has not directly impacted the parties’ children or the couple’s finances. However, if the cheating party squandered marital assets while pursuing an affair or if the children were directly impacted by the affair through exposure to one parent’s sexual exploits, these facts can have an impact on custody and support.

Finally, whatever side of the infidelity you find yourself on, it is helpful to discuss your options with an attorney. We can help you

  • understand the law
  • get a sense of what kind of support you can receive
  • and custody entitled to you in the divorce.
Jon HammondThe Impact of an Affair on Your Divorce Case
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