Unmarried Partners: Custody

When an unmarried couple has a child, the parent-child relationship is established by the following means:

Mother-child relationship:

(a) the woman’s having given birth to the child, except as otherwise provided as part of a gestational agreement;

(b) an adjudication of the woman’s maternity;

(c) adoption of the child by the woman; or

(d) an adjudication confirming the woman as a parent of a child born to a gestational mother if the agreement was validated or is enforceable under other law.

Father-child relationship:

(a) an unrebutted presumption of the man’s paternity of the child.  For example, he and the mother of the child have married and the child is born during the marriage or within 300 days after the marriage ended;

(b) an effective declaration of paternity by the man, unless the court rescinded the declaration or successfully challenged;

(c) an adjudication of the man’s paternity;

(d) adoption of the child by the man;

(e) the man having consented to assisted reproduction by a woman, which resulted in the birth of the child; or

(f) an adjudication confirming the man as a parent of a child born to a gestational mother if the agreement was validated or is enforceable under other law.

Without the establishment of the parent-child relationship, the duties and rights associated with that relationship do not exist. Examples include custody and visitation or child support. Once the parent-child relationship becomes established, the rules of custody and parent visitation apply no differently than if the couple had not yet divorced. The court uses the standard “best interest of the child” for determining custody. The factors the court considers are the needs of the child, the child’s bond with the parents, and the parenting skills of the parties.

Unmarried Partners: Custody
read more

Child Custody Considerations – part 3 – Joint Custody

In the past, I’ve listed a few of the factors courts will consider in making determinations for custody awards. Here, I’d like to talk in depth about what are perhaps the most important and compelling factors.

If you’re following along with the statute, regard U.C.A. 30-3- 10.2(d), which states, “whether both parents participated in raising the child before the divorce.” Another way of saying this is, who is the primary caretaker?

This is an important question and is also fairly easily demonstrated. The court will want to see what the parties did historically. The questions will be such as, who feeds, bathes and puts the children to bed.

Obviously, these aren’t the types of things a parent might easily look at a diary and say, on January 10, 2004, I gave Junior a bath, just like January 11, January 12, and so on and so on… unless that parent “always” did those activities.

There are, however, many things a parent can report with a great degree of accuracy and support. School records, for instance, are obtainable and very helpful. Who goes to a parent-teacher conference with the children? Does anyone volunteer at school? Who signs the child’s homework or progress reports? These are all examples of records that are regularly kept and easily ascertainable.

Another entity that keeps great records is doctor’s offices. Who is taking the children to their doctors and dental appointments? For younger children, who is checking them into and out of day care and pre-school?

These are all simple ways for the court to see who is actively parenting the children. I cannot overstate the importance of being involved in the children’s lives. For that matter, you can make your own record of how you spend your time with the children. Document things.

First of all, make time for the kids. One of the factors the courts will consider is the extent of bonding between the parent and the children, meaning the depth, quality, and nature of the relationship between a parent and child. A great example of this is when, for instance, daddy has a date night with each of the kids. It’s important to make time to spend with each one of the children. In addition to making time, document it. Keep a diary of activities you do with the children. Photographs and videos of activities make strong evidence.

The bottom line is that a court will be interested in who is and has been the primary caretaker to make a determination about how custody will unfold and how to award parent-time. It is important to be able to show the court that a parent seeking joint custody participated historically in raising the children and fostered a strong bond with the children.

Child Custody Considerations – part 3 – Joint Custody
read more

Child Custody Considerations – part 2

If you’ve ever heard anyone talk about their “parent-time” in traditional terms, you’ve probably heard the old saw “every other weekend and one night a week”.

This version of parent time is also called “minimum parent time” even though it is very typical. In 2015, the legislature, in their infinite wisdom, saw fit to expand the schedule for parent-time. They call this “optional schedule for parent-time”.

Minimum Parent-Time vs Optional Schedule for Parent-Time

The differences between the two can seem minimal, looking only at the differences in actual parent time. The differences, however, are significant for a couple of reasons. Under the minimum parent-time schedule, the non-custodial parent will get the children on alternating weekends from 6:00 p.m. on Friday (or sometimes from after school on Friday) until Sunday at 7:00 p.m. If you’re counting, that’s two overnights. In addition to that alternating weekend, one weeknight per week from 5:30 p.m. to 8:30 p.m. That’s NOT an overnight.

Under the new “expanded” parent-time, the alternating weekend goes from Friday at 6:00 p.m. (or after school on Friday) to the following Monday morning. In addition to that, the midweek visit is expanded to overnight. That’s two additional overnights in the same time period.

The operation of overnights is critical. Under the first, minimum schedule, it works out to be about 107 overnights per year for the non-custodial parent. Under the expanded parent-time, it turns into 145 overnights.

This is significant because of its impact on Child Support. This additional schedule moves the child support structure from “sole” custody to “joint” custody. Child support measures time with each parent based on how many “overnights” each parent has with the children.

To demonstrate the impact of that difference, consider a divorcing couple with two children. Assume custodial parent earns minimum wage and non-custodial parent earns $4,500 monthly. Under the minimum parent-time schedule, non-custodial parent would be obligated to pay $992.00 per month in child support. Now, compare the exact same income levels and a number of children under the expanded parent-time. Now the non-custodial parent’s obligation is reduced to $764.00 per month or about a 23% reduction in child support.

The New Parent-Time

The new parent time was not designed to simply reduce the non-custodial parent’s child support obligation. The legislature drafted this expanded parent-time with the consideration that, as I’ve written before, the state encourages healthy relationships between the children and both parents. To that end, the statute reads thusly: “the parents and the court may consider the following increased parent-time as a minimum when the parties agree or the non-custodial parent can demonstrate the following:”

Let’s examine why this was written this way. In the ideal situation, both parents will want the children to have and maintain a healthy relationship with the other parent and, therefore, agree to have an equal parent-time. Unfortunately, most cases are not the ideal situation. Many situations occur such that the custodial parent wants all of the parent-time and non-custodial parent to have none. There are many reasons for this, I don’t need to explain them… the reader can guess many of them.

When that is the case, however, the non-custodial parent has the opportunity to “demonstrate” that the expanded parent-time is appropriate. The statute goes on to list various factors that the non-custodial parent can demonstrate, of which we won’t list all of them, but a couple of important ones are how involved that parent has been in the children’s lives, whether the parent can facilitate the increased parent-time, among others. You can find the entire list in the statute at U.C.A. §30-3- 35.1.

When these issues present themselves, it’s important to understand the law and how it affects your case. A good Salt Lake City divorce attorney can help you navigate these new parent-time laws to help you get the most out of your divorce in Utah.

Child Custody Considerations – part 2
read more

GATHERING FINANCE INFORMATION ABOUT YOUR DIVORCE THROUGH DISCOVERY

Reaching a fair divorce settlement or preparing a good divorce case for trial requires information about the marital finances. You will want to know how much money is available and where it is. The judge will also need to know this information in order to make good decisions in your case. If your spouse managed the marital finances during the marriage, you may not know this information. Alternatively, perhaps you jointly managed finances, but your spouse has all of the paperwork. Still yet, perhaps you suspect that your spouse has been hiding away money or assets.

If you lack information or documentation about the marital finances, discovery can help you. Through the discovery process, you can gather information about the marital finances. There are a number of avenues open to divorce litigants to request information. Receiving a request obligates the recipient to respond. If their response does not satisfy the requester, he or she can ask the court for help to get the information requested.

Financial Disclosures

Whenever a family law case begins, the state automatically requires the parties to make financial disclosures. The financial disclosures involve a form where each party lists all assets, debts, expenses, and income. The legal system also expects parties to attach bank statements, loan applications,pay stubs, and tax returns to the declaration.

Interrogatories

In family law cases or divorce cases, each party can ask the other party ten questions. One or more of these questions might focus on family finances. For example, a question could ask a party to explain the family finances.

Requests for Production

In addition to ten questions, each party may make ten requests for production. One spouse might ask the other to produce two years of bank or financial statements. Alternatively, there can be requests for employment documents, tax documents, or other property documents.

Subpoenas

Some divorce litigants stubbornly refuse to provide information or otherwise attempt to cheat or game the system. In such situations, it is easier to go directly to the source. If it is known that an individual has an account with a certain bank or works for a certain employer, a subpoena can be issued directly to the bank or employer. A subpoena is a court order directing an individual to produce certain documents.

GATHERING FINANCE INFORMATION ABOUT YOUR DIVORCE THROUGH DISCOVERY
read more

WHICH STATE HAS JURISDICTION OVER YOUR CHILD CUSTODY CASE?—Part 1

Sometimes, parents who are disputing custody live in different states. This adds an extra wrinkle to a divorce or custody case. If the parents cannot agree about which state should have jurisdiction, they will have to turn to litigation. Sometimes, the courts from both states will need to take part. Even if the parents agree, the attorney may still need to take great effort to iron out the situation.

In Utah and most other states, the question of which state has jurisdiction is decided by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). This act has been adopted by the state legislatures of most U.S. states. Take note that in discussing UCCJEA, this blog post speaks only in very general terms. There are exceptions and technicalities that may apply to your situation.

At Christensen Law, the attorneys are able to analyze your specific situation and advise you. With that said, here are some general guidelines regarding the UCCJEA. Typically, the state that should have custody jurisdiction is the child’s home state. A state becomes the child’s home state once the child has lived there with a parent for six months.

Until the child has lived with a parent in a state for six months, the child’s previous state of residence remains the home state, if the other parent continues to reside there. This means that a parent who takes a child and moves to another state should not be filing a custody case with the new state until at least six months have passed.

Additional Things to Consider

In some instances, if the child and parents have moved around enough, there may no state that qualifies as the child’s home state. Regarding that case, a state may claim jurisdiction if the child and at least one parent of the child have a significant tie to a particular state.

In other rarer instances, a state may have jurisdiction if other states or other states that should have jurisdiction have affirmatively decided to decline jurisdiction. One reason a court might refuse jurisdiction is if that court detects that a parent is gaming the system.

WHICH STATE HAS JURISDICTION OVER YOUR CHILD CUSTODY CASE?—Part 1
read more

Mediation and Divorce

Typically, if you decide to get divorced in Utah, the court will require you to participate in a mediation. Mediation can occur at nearly any point in the divorce process. But, you will be required to have participated in a mediation session before you can start scheduling a trial. Here are a number of things to keep in mind about mediation and divorce:

There Are Exceptions to the Mediation Requirement

If you can show good cause, the court may waive the mediation requirement. If there are concerns about the potential for violence at mediation, the court might waive mediation. Also, if circumstances make mediation impossible, the court might waive mediation. However, some courts are stubborn about the mediation requirement. If there is any possible way to mediate, you should go ahead and mediate.

Mediation Can Save You Money

Trials are expensive. Instead of going to trial, divorcing spouses could be dividing the money they would have spent on the trial. Or, they could be using that money to make alimony or child support payments. Admittedly, the mediation process also costs money. But, if you reach a mediated agreement, the divorce will cost a fraction compared to a trial.

Mediation Does Not Necessarily Place In the Same Room as the Other Party

Technically, mediation can involve both parties, their attorneys, and the mediator sitting around one big table. But, some mediators prefer, and any party can insist, that the parties be in separate rooms. The mediator will then go back and forth between rooms.

Attorneys Can Provide Valuable Assistance at Mediation

The mediator is there to facilitate a settlement and help explore options. The mediator has no obligation to warn you when the other party rips you off. Moreover, some mediators will not know whether the settlement agreement is legal or enforceable. An attorney can ensure that any settlement is as fair to you as it is to the other party. An attorney can also anticipate any legal or practical difficulties and ensure that your agreement avoids those difficulties. Additionally, an attorney can help you turn a settlement agreement into a divorce decree.

Mediation and Divorce
read more

WHAT HAPPENS WHEN A PARENT RELOCATES OR WANTS TO RELOCATE FROM THE OTHER PARENT?—Part 3

In two previous blog posts, we discussed that in custody cases, a parent might decide to relocate far away. Long-distance relocation can result in a need to change the court’s previous custody/parent time orders.

Your current custody order might not already deal with long-distance relocation. If so, it is likely that Utah Code § 30-3- 37 will have an effect on your case. That statute provides what are becoming the default rules for such situations.

When you (or the court) are operating under Utah Code § 30-3- 37, you should keep some things in mind. Our two previous blog posts pointed out and discussed some of these things:

A parent’s long distance relocation can result in a change of custody. Parents wanting to relocate need to do it correctly so as to avoid unnecessary trouble and a bad outcome. Long-distance relocation can be a good opportunity for a noncustodial parent to gain custody. The legal process under Utah Code § 30-3- 37 will move quickly. You need to be well prepared if you are facing proceedings under Utah Code § 30-3- 37.

Failure to properly prepare for a hearing under Utah Code § 30-3- 37 can lead to an adverse result. Moreover, even a well-prepared and deserving parent may face a bad result at the hearing before the domestic commissioner. This blog post discusses what happens if you dispute the commissioner’s decision. Additionally, this blog post briefly discusses options after an adverse decision from a judge.

Unhappy Parents Can File an Objection to a Commissioner’s Decision Regarding Relocation

If you go to a relocation hearing and the domestic commissioner rules against you, you still have a chance to object. In Utah, domestic commissioners are not judges, and their “orders” are only recommendations. A recommendation is a court order unless/until a judge changes it. Unhappy

litigants have fourteen days from the recommendation to object and ask the judge to change the court’s order.

The ability to object to the commissioner’s recommendation is a second chance for a better decision from a judge. But, it is not necessarily a second chance to present a better case than you did to the commissioner. Rule 108 of the Utah Rules of Civil Procedure sets limits on objections.

It bars you from bringing the judge information you did not offer to the commissioner. This means you must do your best before the commissioner. If you are planning on initiating the relocation process or are facing a hearing, consider hiring an attorney to help. Regardless of whether you have counsel or not, the judge also may make a bad decision.

Unhappy Parents Can File an Appeal to a Judge’s Decision Regarding Relocation

Judges can make wrong decisions, too. If your objection to the commissioner’s recommendation is unsuccessful, you can appeal to a higher court. Alternatively, if you win in front of the commissioner but lose in front of the judge, you may want to appeal to a higher court.

An appeal is different from what you encounter at the trial level and much more complicated. It can be difficult to prevail on appeal in custody cases. Appellate judges look at transcripts and written documents. There are appellate rules that prevent appellate judges from reversing a lower court unless there is a clear error or abuse of discretion. If you are interested in an appeal, you should consult an attorney about your chances on appeal and consider hiring an attorney to write the appeal for you. If successful on appeal, the original judge will either have to order the result you desire or hold another hearing and eliminate any prior mistakes.

WHAT HAPPENS WHEN A PARENT RELOCATES OR WANTS TO RELOCATE FROM THE OTHER PARENT?—Part 3
read more

WHAT HAPPENS WHEN A PARENT RELOCATES OR WANTS TO RELOCATE?—Part 2

In a previous blog post, we discussed that in divorce, a parent might decide to relocate. If they relocate far away, it may be necessary to change the custody order to accommodate the distance factor.

Some custody orders include language discussing how parents should deal with a long-distance relocation. There is also a statute, Utah Code § 30-3- 37, that provides default rules for how to cope with a long-distance relocation.

When dealing with relocation, especially when it involves Utah Code § 30-3- 37, keep in mind a number of things. Previously, we pointed out that long distance relocation can result in a change of custody. Parents that want to relocate need to do it correctly. Also, long-distance relocation can be a good opportunity for a noncustodial parent to gain custody. Something else to consider is how quickly the court proceedings will move if one of the parents take a long-distance relocation issue to court. If you have such a hearing in your future, you will want to come well-prepared for it. You should probably consider consulting an attorney or having an attorney prepare for and attend the hearing with you.

Under Utah Code § 30-3- 37, the custody arrangement in your divorce decree or custody order can permanently change based on a short hearing where nobody directly testifies or is cross-examined.

The non-moving parent is entitled to request a hearing. They can submit this request once they are notified of the pending relocation or discover that it has occurred. At the hearing, the court will consider whether the long-distance relocation is in the best interest of the child. If the court determines relocation is not in the child’s best interest, the court can change custody. This can happen if the parent planning to relocate follows through with the move. Regardless of which parent retains or gains custody, the court will also make other orders.  These orders are about how parent time and communication is to occur now that the parents live far apart.

The problem with this process is that in Utah’s more populous counties, the above-described relocation hearing is often conducted in front of a domestic commissioner. Commissioners typically consider affidavits and statements by attorneys as to what their client would say. They typically do not put witnesses on the witness stand. The hearings can be short. The evidence and arguments submitted are often subject to a page limit. With such a quick process, a parent that would normally retain or gain custody might lose custody. This happens because parents and attorneys can easily come unprepared or make mistakes at these short hearings.

In Closing

Fortunately, commissioners are not supposed to have the final say in Utah’s district courts. An unhappy parent can request a hearing before the judge with witnesses, evidence, and due process.

However, this hearing before the judge will not go well if the parent did not put on a good case before the commissioner. The hearing before the judge and what must be done to prepare for that hearing while still before the commissioner will be discussed in a future blog post. The takeaway from this blog post is that if you are about to request or attend a relocation hearing before a domestic commissioner in Utah, you need to be well prepared with all your materials and affidavits from yourself and witnesses. You also need to be ready for the potential fast pace of the process. At Christensen Law, we can help you in many ways. We can evaluate your options, prepare for the hearing, and put on your case at the hearing.

WHAT HAPPENS WHEN A PARENT RELOCATES OR WANTS TO RELOCATE?—Part 2
read more

Legal Separation

What is legal separation? In Utah, legal separation is termed, “Separate Maintenance”. It looks like a divorce in all respects except the parties are not actually divorced. That means, either by agreement or decree of separate maintenance, the court allocates various things to the couple. Such things could include child support, custody, alimony, property settlement, etc.

Besides the legal designation of still being married, the couple entering into legal separation does not have to go through the divorce requirements of taking the divorce education classes and waiting the ninety day period.

It is important to stress that once a couple enters into legal separation, the state considers them married and they must file for divorce. This is the case only if that’s the ultimate course they seek. A legal separation never turns into divorce automatically.

In all other aspects, the legal separation is accomplished in the same manner as a divorce. A couple can agree on the terms and propose it to a judge.  Or, if they can’t agree, they can ask a court to make a determination. The requirements for getting into court are also the same, for instance, the parties must have been residents of the county in which they file for the previous three months.

Here’s the caveat regarding legal separation. Unlike divorce, which can happen on grounds of irreconcilable differences, a party seeking legal separation must claim specific grounds. In Utah, they are:

Whenever a resident of this state:

  • Deserts a spouse without good and sufficient cause;
  • Being of sufficient ability to provide support, neglects or refuses to properly provide for and suitably maintain that spouse;
  • Having property in this state and the spouse being a resident of the state, so deserts or neglects or refuses to provide such support; or
  • Where a married person without that person’s fault lives separate and apart from that spouse, the district court shall, on the filing of a complaint, allot, assign, set apart and decree as to alimony the use of the real and personal estate or earnings of the deserting spouse as the court may determine appropriate.
Legal Separation
read more

Termination of Parental Rights

The rights of parents to nurture and raise their children are deeply embedded in the history and culture of Western Civilization. This primary role of the parents in the upbringing of their children is now established beyond doubt as an enduring American tradition. Wisconsin v. Yoder, 406 U.S. 205 (1972).

Accordingly, as a Constitutional protection, the United States Supreme Court has held that parents have a “fundamental liberty interest in the care, custody, and management of their child[ren]”. Santosky v. Kramer, 455 U.S. 745 (1982)

However, just as any of our “fundamental rights”, they are not absolute. The state also has what’s called an important government interest in protecting children. When these two interests collide, the state may move in and terminate a parent’s rights.

There are two ways to terminate a parent’s rights. This article will address those two processes.

I. Voluntarily

This is most commonly seen in adoption cases. The scenario usually goes along these lines – Mom and dad have a child and either never get married or get divorced, etc. But one way or another they split up, and separate far and wide. Mom takes her child with her and, years down the road, she finds herself married to another man, and they start having a family of their own. In many cases, husband and wife would like to adopt mother’s child. There are a number of reasons a step parent would want to adopt a child of a spouse, but this article’s focus is on termination of parental rights, so we will leave the details of adoption for another time.

The easiest way to adopt a child of the spouse is to simply get the biological parent’s consent. To say that is the easiest way does not, by any means, mean it will be easy. The biological parent, for whatever reason, may not consent to the adoption.

There are, of course, good reasons for the biological parent to simply consent to the adoption. When the biological parent consents to the adoption, he is giving up all his legal parental rights in the child or children. That also means he is giving up all his legal obligations, i.e. child support. As someone famous, either Gandhi or Spiderman once said, with great rights come great responsibility.

In the case of voluntarily terminating parental rights, you also give up your responsibilities.

Now, what if biological parent doesn’t want to consent or voluntarily give up their rights? A parent can ask the court to terminate the other parent’s rights. Assume biological parent left when the child was born and child is now ten years old, having never seen that parent.

A court may terminate parental rights if the court finds ANY ONE of the following grounds:

  • Only token efforts have been made by the parent to:
  • A Parent is unfit or incompetent.
  • Parent has neglected or abused the child.
  • Parent has abandoned the child.
    • Support or communicate with the child.
    • Prevent neglect of the child.

Among other reasons.

In the case of the parent who left the child at an early age and has been absent for years, it’s a pretty easy case to show abandonment or neglect.

II. Involuntary

The second way to terminate parental rights is to remove the child from the parent(s) involuntarily. This usually, comes in the form of the Division of Child and Family Services (DCFS) who initially removes the child from a home on a finding that there is some form of abuse, neglect, endangerment or other factors.

Because of the Constitutional rights parents have with their children, discussed at the beginning, the steps DCFS has to take to terminate parental rights are stringent, to say the least. The Division can initially remove a child from a dangerous environment, say, in the face of drug use, physical abuse and the like. That, in and of itself, does not terminate a parent’s rights. The state must give wide latitude in helping the parents recover, go through therapy or take every reasonable measure to put the child back into the home of the natural parents and in a safe environment.

However, if the Division determines that the parent is unfit or incompetent and on a showing that there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care, the Division will petition the court to terminate the parent’s rights.

Termination of Parental Rights
read more