Utah Child Custody Legal Questions

You are a legal stranger to the child. You can mess around with attempting to get your husband to sign some paper that might have questionable validity, or you can simply go to court. However, if you go to court, understand that the State of Utah, DCFS, may get involved. You need to do two things: 1. Get qualified as a foster parent; and, 2. Find an experienced family law attorney to work with, and move forward with your case at court. If you wish, my office may be able to assist.... Read More

You are legally a stranger to the son, as you are not related by blood or marriage. In the current situation you might be able to file a case for custody, but as you are unrelated, the court may require notice to other family members, or place the child in foster care. If you want to take this route, you shoud get qualified as a foster care person, so as to avoid any delays in investigating your parenting abilities. You really should find an attorney with whom you feel comfortable. I have handled such situations in the past and am open for new clients.... Read More

Quite simply, you will need to file a court case for paternity, which will address all of the issues you raise. Once that case is completed, you will then have orders to control the issues you talk about - if the order is properly drafted. Quite simply, find an experienced family law attorney who you feel comfortable with, and hire that person to handle all of the problems and details associated with such a case.... Read More

You fail to specify whether there are any orders in place concerning custody or parent-time. If there are, then you will need to review the current order, in detail, presumably with an experienced family law attorney. Then, if everything is in order, you will need to take the father to court and either enforce the current orders, or create more specific orders concerning the medications. In doing so, you might be able to be awarded your attorney fees for the work. You really should communicate with an experienced family law attorney.... Read More

There is no age when children decide. If a guardian ad litem is appointed, the child can express his opinion to the guardian, who can then reflect it in the report. You don't say why the boy doesn't want to go to his father? If there is a problem there and he won't tell you what it is, I suggest you take him to a child therapist where he can talk to a neutral person who can either help him deal with it or provide information about why it's not in his interest to see his father at this time.... Read More

Your order appears to contain language from statute about special considerations. However, I do not see that learning your mother has a terminal illness (cancer) falls under the listed events; and, yes, you do need to be close to the language to succeed. Your mother's diagnosis, while terrible, is not a special consideration. It is not an ”event“ that will happen on a particular day. Your mother may be alive for weeks, or months, yet to come. As such, there is no basis for shortening dad's time with the children.... Read More

The short answer is -- maybe. It all depends on the facts of the case, what is going on with the other spouse, your support groups, and the like. It may not be an easy fight, and you would have to be prepared to have your past brought out and argued about in court. The divorce could get very ugly, and expensive, possibly requiring a custody evaluation to fully address any safety concerns. The best thing to do is find a good attorney, one who has access to child-custody experts, and be the moving party. In my opinion, it is always better to be presenting facts, even not-so-good facts, first, rather than having to answer claims of bad behavior and then defend against those claims. Steal the opponent's thunder by admitting the problems first, and present the curative facts to show the problems are addressed.... Read More

In Utah, a member of the military (as defined in state statute) does have a right to not be denied parent-time (Utah appears to be phasing out “visitation”) due to his service. That being said, the terms of the decree control, and must be reviewed in detail. Best case would be to work through an attorney and attempt an amicable solution -- dad would not loose his parent-time, and the child would not be left with step-mom. The potential of different dates for parent-time could resolve the issue. Worst case, you might want to file a petition to modify the terms of the decree, to avoid such problems. My reading of the law in Utah is that parent-time (visitation) is time for the parent and child to be together, it is not time to deprive the other parent of time with the child. Take a copy of your decree to a family law attorney, and explore these options.  ... Read More

The 2 DUI's may have some effect, but will certainly not be determinative. The mother will have a real hard time explaining why she is concerned now, and has not been for two years. Further, she will have a hard time explaining why she should collect child support and not give up a tax deduction for one-half of the time. No guarantees of what a judge will do, but there certainly some good arguments on your husband's behalf.... Read More

This is an excellent question. First, it depends upon what your decree of divorce provides. There are statutory provisions for how child support adjusts, but if you and your ex have agreed upon a child support order that is different from the guidelines in the Utah Code, your decree will control, and not the provisions of the Utah Code. Let me give you an example: if you have three children and you and your ex agreed that child support would continue until each of your children reach the age of 21, then you would not be able to adjust child support when the oldest of your three children turned 18 because in your decree child support lasts for each child until the age of 21. But if you and your ex did not make any special provisions for child support that were any different from the guidelines in the Utah Code, then here are the terms upon wihch child support adjusts when a child reaches the age of majority or otherwise emancipates (a minor who is "emancipated" assumes most adult responsibilities before reaching the age of majority, i.e., 18 years old; emancipated minors are no longer considered to be under the care and control of parents instead, they take responsibility for their own care). When I inquired with the Office of Recovery Services (ORS) about how child support is automatically adjusted, here is what the ORS agent who spoke to me told me: ORS keeps records of the ages of the children who are the subject of the child support order. ORS makes a note in its records to terminate child support either when the child turns 18 or if the child turns 18 before graduating from high school, as a policy to terminate child support at the time of graduation. In the state of Utah, it is presumed that most children who graduate from high school will graduate by the end of May, so ORS's default policy is to terminate child support at the end of May. If you have a child in a high school with an earlier or later graduation date, you will need to notify ORS of this fact; otherwise ORS will default to terminating child support for an 18-year-old child after the month of May following the child's 18th birthday. When I asked the ORS agent how you prove that a child's graduation date is earlier or later than the end of May, I was pleasantly surprised to learn that any reasonable evidence will be considered. A graduation announcement, a letter from the high school about ordering your And down for graduation on X date that is the kind of evidence ORS wants to see, and as long as the other parent doesn't object or send some contradictory evidence to ORS, once ORS has what it deems sufficient evidence to establish the correct graduation date/date at which child support terminates, ORS will use that date. If a child: 1) becomes 18 years of age or graduates from high school during the child's normal and expected year of graduation, whichever occurs later; or 2) dies, marries, becomes a member of the armed forces of the United States; or 3) is emancipated by a court order in a petitionon for emancipation action in Juvenile Court, then the base child support award is automatically adjusted to the base combined child support obligation for the remaining number of children due child support. (See 78B-12-219. Adjustment when child becomes emancipated.) If: the incomes of the parties are not specified in the most recent order or the child support worksheets; the information regarding the incomes is not consistent; or the order deviates from the guidelines, then automatic adjustment of the order does not apply and the order will continue until modified by the court or ORS, depending upon which one issued the original child support order. (See 78B-12-219(3)) Review and Adjustment of Support Amounts Under Federal and State law, you have the right to request a review of your child support order. A private attorney can assist you with the review or the Office of Recovery Services/Child Support Services (ORS/CSS) can conduct a re... Read More

First, make sure that you are not merely seeing problems that you want to see. Even a bad relationship with a parent is often considered better than no relationship at all. But I get the impression from your email that you are not just being a bitter and self-serving ex-wife, and that you truly do see the children as suffering in the relationship with her father. I am considered something of an iconoclast among Utah divorce lawyers, but what I am about to tell you is my sincere and honest opinion. The conventional wisdom among most divorce attorneys and judges and court commissioners is that children must spend time with each of their parents come hail or high water. This is funny because these are the same courts that often order that sole custody is better than joint custody, but I digress. Judges and court commissioners will tell you that it is presumptively in the best interest of the child that he or she have both parents in his or her life. And few people would argue that point in general, including me. But what many courts and commissioners are unwilling to acknowledge is that some parents, if they weren't already bad parents prior to divorce, become really lousy parents after the divorce case is ended. And because the good parent and bad parent no longer live under the same roof, the good parent either stays good or gets better, while the bad parent simply stays bad or gets worse . The children will come to the good parent and tell the good parent how miserable they are with the other parent, and the good parent just wrings her hands in both sympathy and frustration. Efforts at appealing to the bad parents sense of decency and love for the child fall on deaf or even derisive ears. The good parent then thinks of approaching the court to say: "Your Honor, please don't take my word for it, just simply listen to what my child has to say. If you determine that I have exploited this child, coached this child and encouraged him or her to lie, then so be it. I think you will see that this child is credible and sincere." For reasons I honestly do not understand, the overwhelming majority of Utah courts hate this approach. They will almost literally bend over backward to avoid having to talk to a child to ask about that child's experiences, observations, feelings, opinions, and preferences when it comes to child custody. These judges and commissioners will tell you (falsely) that the reason they are so reluctant to speak with children is to spare the child harm. The reason I can say this is false with so much confidence is because the alternative to having the judge interview the child that courts come up with is far worse. While judges will routinely tell you that a child will be unduly or irreparably harmed if interviewed by a judge, these same judges have absolutely no compunction against, and see no irony in, ordering the child to be interviewed by someone else. And not just interviewed by someone else, but interviewed by *many* different people, such as a custody evaluator, a child psychologist, a therapist, a counselor, and the guardian ad litem. Somehow being interviewed by all of these people seemingly has no deleterious effects on children, or if it does have any adverse effect on the child, it is deemed justifiable. Otherwise stated, don't take everything the judges tell you as gospel. They do a lot of things for self-serving purposes under the guise of virtue. So my best advice to you, if you want to change your child's situation, is to find an attorney who has the guts and the will to get with this child needs, regardless of what the courts due to work your efforts at the outset. You've been duly warned, so be prepared for a lot of flak, but persistence and the long game ultimately win more often than not.... Read More

Where your ex wants to put the child in a day care that is not providing the minimum necessary day care, but, as you describe it a "more academic day care," the argument is there to claim that your ex is spending money that is not necessary to spend. You add to that your argument that you don't have the ability to pay the minimum necessary day care expenses, and you have an argument that what your ex is trying to make you do is inequitable and ultimately not the best interest of the child because if you cannot afford to provide for the basics of the child if you are forced to pay for good, but prohibitively expensive, day care, which prevents you from providing the child with the necessities of life. You may want to consult your Decree of Divorce contains requirements that day care expenses cannot be incurred unless they are deemed "reasonably necessary" or "reasonably affordable" or described in other such terms. There comes a point in every family's finances where they have to pick their priorities. It is good that your ex is current on his other child support obligations. This shows that where he's capable, he is paying is a support obligations for the children. If he comes to court claiming you cannot afford any additional expenses, the court is likely to take you more seriously than if he were not even meeting his basic child support obligations. Here's a possible compromise for resolving this dispute over day care expenses: let's assume that the minimum necessary day care provider charges $400 a month, but the "more academic day care" that your ex wants to use costs $800 a month. Let's also assume that your Decree of Divorce orders you and your ex to share the costs of day care equally. Your half for minimum required day care would be $200 each month. You could offer to give your ex $200 a month and then tell her that if she wants to pay for the more expensive day care, you have no objections, but she would be required to pay the balance over and above the minimum necessary costs that you are required by the Degree of Divorce to pay. In other words, you end up paying what you are required by the Decree of Divorce paren i.e., $200), and your ex would pay the balance of what it takes to put the child in the more advanced academic day care (i.e., $600). This appears to me to be a perfectly equitable solution. The question of how you would bring this matter before the court and get an order protecting you is actually the more difficult question. In an odd sense, you would be arguing that your ex is acting contrary to the best interest of the child, and perhaps violating the terms of the decree of divorce by attempting to force the other parent to do something either the decree does not require him to do or that the decree does not cover. So would you file a motion to hold the ex in contempt of court? Or would you have to give notice to your ex that you refuse to agree to pay for a portion of the child's more expensive day care and then wait for your ex to take you to court trying to claim you are in violation of the decree of divorce? Your Decree of Divorce probably contains a clause that requires you and your ex to submit any disputes between you to an attempt to settle in mediation before you can take the matter to court for resolution. If so, make sure you document a proposal and offer to your ex indicating clearly that you are willing to take the matter to mediation to see if it can be resolved there. If your decree requires mediation before you can take a matter before the court for resolution, then by attempting mediation, you can more clearly argue that you are entitled to take the dispute before the court for resolution through motion practice. If your ex either refuses to go to mediation, or goes to mediation and still does not resolve the matter with you, then if I were your attorney, I would file a motion with the court explaining that there is a dispute over what the Decree of Divorce means and ... Read More

You asked: Can evidence at a family child custody case still be presented at the hearing if I wasn't able to get it in before discovery ended? Answer: Probably not, but nothing ventured, nothing gained. It can't hurt to try and present the evidence. The worst that can happen is that the court refuses it. If a witness does not appear in response to being subpoenaed, the court should issue a warrant for the witness's arrest and you could ask (ask, not demand) that the hearing or trial be continued until the witness is located. In practice, however, a witness who doesn't show *usually*results in the hearing or trial taking place without that witness's testimony and you're out of luck.... Read More

Nothing is automatic. The father should file a Petition for a Parenting Plan (or a parentage action if he's not on the birth certificate) and ask for primary residential time and restrictions on her time if she is living with the abusive boyfriend or if she's not living with him restrict him from being present when the child is with her. Threatening her with what will happen is useless. Dad needs to stop sitting on his thumbs.... Read More