Saturday, March 29, 2008

Bills from the 2008 Session of the Utah State Legislature that Affect Family Law

Bills from the 2008 Session of the Utah State Legislature that Affect Family Law:

House Bill (“H.B.”) 022 – Expedited Parent Time Enforcement - Passed

HB 023 – Child and Family Protection - Passed

H.B. 36 – Child Welfare Amendments - Passed

H.B. 46 Substitute -- Adoption and Termination of Parental Rights - Passed

H.B. 071 – Parent-Time Amendments - Passed

H.B. 78 – Title 78 Recodification and Revision - Passed

H.B. 149 --"Protective Order Amendments" - Passed

H.B. 169 "Custody Evaluators and Parent Coordinators." – DID NOT PASS

HB 247 – Domestic Violence & Dating Violence Amendments – DID NOT PASS

H.B. 265 -- Office of Recovery Services - Electronic Funds Transfer – Passed

H.B. 289 -- Adoption - Investigation and Release of Information – DID NOT PASS

H.B. 315 -- Child and Vulnerable Adult Endangerment Provisions – DID NOT PASS

H.B. 318 -- "Utah Adoption Amendments." – DID NOT PASS

H.B. 358 "Custodial Interference Amendments." – DID NOT PASS

H.B. 415 "Joint Custody Modifications." – DID NOT PASS

Senate Bill (“S.B.”) 024 – Retirement Death Benefits & Divorce Revisions ­– Passed

S.B. 145 – State Family Day Holiday – DID NOT PASS

S.B. 154 "Protective Orders: Crime of Inducing Breach." – DID NOT PASS

S.B. 186 "Custody and Visitation for Non-Parents." – Passed

Senate Joint Resolution 9 "Joint Resolution Amending Rules of Evidence Relating to Information Contained in the Management Information System. " which effects the use of DCFS reports in family law cases. Make sure you review the Amendments which include substantive changes to the original resolution. – DID NOT PASS

Senate Bill 198 Child Support Technical Amendments - Passed

Friday, March 28, 2008

Pop Quiz: What is the purpose of a Financial Declaration?

Scores of attorneys, and even many judges, do not know either when a financial declaration is required in a Utah divorce action or what the purpose of the Financial Declaration is.

Search the Utah Code for "financial declaration." You won't find it there. No, provision for submission of financial declarations is found in the Utah Rules of Civil Procedure, Rule 101 to be exact. Utah Rules of Civil Procedure, Rule 101(d)(1) provides, in pertinent part:
Attachments for motions and responses regarding alimony shall include income verification and a financial declaration. Attachments for motions and responses regarding child support and child custody shall include income verification, a financial declaration and a child support worksheet. A financial declaration shall be verified.
So, did you pass the quiz?

In my next post we'll tackle these questions:

1) Whose expenses are properly included in a financial declaration; the individual parties' personal expenses?; the individual parties' personal expenses and (if the party has any children) those of the children too?; the the entire family's expenses?

2) What relevance does (or should) a financial declaration have on determining child support when child support calculation is prescribed by statute?

Thursday, March 27, 2008

Custody Evaluations Are a Discovery Tool, So Why Make the Opposing Side Share in the Costs?

    1. A custody and/or parent-time evaluation is a discovery tool;
    2. No one should have to pay to assist an adverse party in a lawsuit in conducting discovery and build a case against him-/herself;
    3. Moreover, to prevent a motion for custody and/or parent-time evaluation from being abused as a means of forcing an opposing party to incur expenses he/she does not wish to incur in this action, a party who wishes to have a custody and/or parent-time evaluation conducted should be solely responsible (at least initially) for this expense, i.e., this expense should be treated no differently than any other discovery expense of a party, i.e., the expense of a custody evaluation should be treated no differently than any of the other expenses a party incurs in conducting discovery;

i. Provisions of Utah Rules of Judicial Administration 4-903 notwithstanding, there is nothing inherently prejudicial or otherwise improper about presenting the court with one or two separate custody and/or parent-time evaluations; the court can weigh the probative value of each and benefits from any differing opinions presented by multiple custody evaluations;

1. To reject the notion that each party should be permitted to obtain his/her own custody/parent-time evaluation on the grounds that multiple custody/parent-time evaluations would be expensive ignores the fact that making a party pay for half of an evaluation he/she feels is unnecessary is also unduly expensive for that unwilling party and compels a party to incur expenses he/she does not wish to incur;

2. To reject the notion that each party should be permitted to obtain his/her own custody/parent-time evaluation on the grounds that multiple custody/parent-time evaluations would be “confusing” to the court not only underestimates the intelligence of the court, but presupposes not only that the court is not capable of discerning and weighing the probative value of each evaluation, and falsely presumes the court cannot benefit from differing opinions presented by two evaluations;

3. To reject the notion that each party should be permitted to obtain his/her own custody/parent-time evaluation ignores the fact that input on the subject of child custody and/or parent-time from two experts as opposed to one is inherently helpful to the court in determining the credibility of the experts and the parties, as well as helpful to the court in determining the facts at issue and crafting its orders pertaining to child custody and/or parent-time accordingly.

    1. The court should reserve final apportionment of expenses for custody and/or parent-time evaluation expenses and may order an adverse party to pay some or all of the opposing party’s custody/parent-time evaluation expense, if it makes commendably detailed, written findings that good cause exists for so doing;
    2. Provisions for the performance of a custody evaluation and for time limits thereon in a discovery and case management order should not:

i. constitute consent to performance of a custody evaluation or the endorsement of the performance of a custody evaluation by the parties;

ii. restrict the parties or the Court from gathering evidence pertaining to child custody and parent-time by other means permitted by law, including but not limited to means provided in Utah Code § 30-3-10 and Rule 6-401 of the Utah Rules of Judicial Administration.

    1. This does not mean that the parties should be precluded from jointly moving for the performance of a custody and/or parent-time evaluation for which they share the expense between them.
I welcome your comments.

Wednesday, March 26, 2008

Utah's New "Custody and Parent-time [sic] for Persons Other than Parents Act"

In it’s 2008 session, the Utah legislature passed and the governor signed Senate Bill 186. I am against it for reasons I will articulate below. First, some background on this new law. This bill allows persons who are related to a child and have assumed the role of parent to petition the court for custody or visitation. The bill:
. defines "person other than a parent" as a person who is related to a child;
. provides a procedure for a person other than a parent to gain custody or visitation;
. requires notice to a parent, guardian, or state agency with an interest; and
. provides that it may not be used against a person serving in the military who is outside the state.
Senate Bill 186 enacted new sections of the Utah Code:
30-5a-101 (Title)
30-5a-102 (Definitions)
30-5a-103 (Custody and visitation for persons other than a parent)
The full text of these new sections can be found at:
While there was some opposition in the legislature to S.B. 186, it was of the wrong kind. Many legislators wanted it to provide "parent-time" (S.B. 186 was, and I kid you not, originally titled as the "Custody and Parent-time [sic] for Persons Other than Parents Act") to anyone that could be shown to have a close, beneficial relationship with a child. The flaw in S.B. 186 is not that it is un-inclusive, but that it is over-inclusive. No such law should exist.

While I feel for non-nuclear family members and others who may have formed strong attachments to children not their own, that does not mean that such attachments should be institutionalized and given the protection and enforcement of law. It also does not mean we sacrifice basic human rights to satisfy the desires of non-biological/adoptive parents. In reference to the other non-parent visitation statute currently on the books in Utah (§ 30-5-2, Grandparent Visitation Rights) the Utah Supreme Court stated:

While the Grandparent Visitation Statute includes “child’s best interests” and “grandparent fitness” as relevant factors to the determination of whether the parental presumption has been rebutted, a judge cannot rely solely on these factors in determining whether the parental presumption has been rebutted and still comport with due process. Id.

“[T]he Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made.” In re Estate of S.T.T., 144 P.3d 1093, ¶ 33. See Troxel v. Granville, 530 U.S. 57 at 72-73, 120 S.Ct. 2054. Allowing the “child’s best interests” and “grandparent fitness” factors alone to rebut the parental presumption would come too close to allowing a judge to supersede a parent's decisions based solely on a disagreement between the parent and the judge.

The above-quoted opinion from In re S.T.T. contains powerfully persuasive reasons why non-family member visitation is poor policy. These reasons should be apparent to everyone.

A husband and wife who bring children into their own family by birth or adoption and who conduct themselves lawfully and legally as to their children are entitled to govern their family’s affairs without interference from outside third parties and/or the state. By extension, a woman who bears a child out of wedlock, and the father of that child should, so long as they conduct themselves legally and lawfully as to the child, be left alone, free of interference by the state as to what is best for the child and what other person(s) should have contact with the child (and yes, if you were wondering, this is one of the reasons why I am also against grandparent visitations statutes too, but that ship has sailed). Such parents are entitled to the assurance that they will not be surprised by an interloper seeking to interfere in their private affairs (and can we not all agree, no matter what your political or moral values, that family dynamics are and should remain almost exclusively a private matter, free of government interference?).

Minor children are subject to the will of their parents, so long as the parents do not abuse that authority. Parents, as free citizens, are not held to a standard of perfection, just a standard of basic fitness. Such recognizes that the state is certainly no better at parenting than the fit parent himself. Allowing the state to usurp parental authority is nothing short of a recipe for disaster; disaster for families and for society at large. Any time the government attempts to control matters of personal liberties and the exercise of free will and family governance it fails. S.B. 186 is and will be, if passed, no exception. Even if all one were to consider is the bottom line, S.B. 186 will not result in a net benefit to society at large. Do you trust the state to know better than you as to what is in your, your children’s, and your family’s best interests when it comes to visitation (that’s a rhetorical question)?
S.B. 186 appeals to our sense of love and affection, but it appeals not to the best interests of children but to the best interests of third party non-family members (let’s face it, grandparent visitation and non-parent visitation statutes weren’t lobbied for by grandchildren and the children of gay couples; they were lobbied for by grandparents and “psychological parents” for primarily their own benefit, and while there’s nothing wrong with wanting contact with grandchildren and children you’ve cared for from birth, don’t confuse that with a need on the part of the child or with an argument for usurping biological parental authority). S.B. 186 also ignores the practicalities entailed by it. S.B. 186 (if passed and if it withstands a challenge to its constitutionality) will create a new source of litigation. It will drive wedges between people that heretofore did not exist as a matter of law. It will substantially interfere with and adverse affect family autonomy and the right to govern and move one’s family as the family chooses. It will place in the hands of judges and commissioners power they simply do not have the time, wisdom, interest, or need to wield effectively, and certainly not better than the child’s own parents can. Children do not exist in isolation, and they do not come into this world spontaneously.

To determine whether a child should have visitation with a non-family member based upon the child’s “best interests” is facile and poor policy. There are rights and interests that trump even a child’s best interests. One of these rights and interests is the best interests of the family. The best interests of the family subsume or at least should subsume the best interests of the child. Accordingly, the best interests of the family trump (or should trump) any effort to compel a family to provide a non-parent with visitation of that family’s children.

As always, I invite your comments on this subject.

Tuesday, March 25, 2008

Another Modest Proposal: No-fault divorce petitioner presumptively barred from receiving alimony

(Note: Given that the overwhelming majority of alimony recipients have been and remain women, I will refer for this reason and this reason alone in this entry to the party seeking alimony in the feminine gender).

(Note: I am not divorced; this entry is not driven by a personal agenda or misogyny; it is a call for thoughtful debate on a topic that I feel has not been thoughtfully addressed)

Here is today's topic of debate:

Resolved, that the Utah Code governing divorce (Title 30, Chapter 3) should be modified to include a provision that if one petitions (or counter petitions) for a divorce on no-fault grounds, there is a rebuttable presumption that the petitioner is not entitled to an award of alimony.

Argument: If a petitioner seeks a divorce on no-fault grounds, she is literally claiming that she has not been compelled to seek divorce by any fault of the respondent, but has chosen to leave the marriage of her own accord. If a petitioner seeks to be released from a marriage in which the respondent spouse is without fault and remains willing to continue in the marriage and to "support his wife when she is in need" (See Utah Code Section 78-45-3 (Duty of Man) (repealed February 2008), it would be unjust and inequitable to require that faultless spouse to finance the petitioner's new, unmarried life, i.e., if the petitioner no longer wishes to be married to a faultless spouse, then a consequence of that wish should be termination of the financial support from the faultless spouse whom the petitioner is abandoning.

How can a petitioner logically ask on one hand, "I want to be free of all my marital responsibilities and obligations and return to my status as an unmarried person," then on the other hand claim, "But the purely marital obligation of my soon to be ex-spouse to provide for my financial/material support I wish to continue"?

And consider this: if the petitioner claims she should be freed from her obligations under the marriage contract, yet have the ex-spouse ordered to continue to provide her with financial/material support (put another way: getting the milk for free without buying the cow), why should not the ex-spouse be entitled to have the petitioner ordered to clean the respondent's house, cook his meals, babysit his children (if he's awarded child custody), or even provide him with sexual favors on a regular basis? What is the essential difference?

Whether the petitioner has "need" of support or whether the respondent "has the ability to pay" are irrelevant questions where the petitioner, knowing she cannot provide for her own support if unmarried and no longer legally entitled to her spouse's financial or other material support, nevertheless chooses to abandon the marriage on no-fault grounds.

I welcome your comments.

Monday, March 24, 2008

Rule 101 of the Utah Rules of Civil Procedure: Why Mandatory Hearings?

I propose that Utah Rules of Civil Procedure, Rule 101, be amended to eliminate the mandatory hearing requirement for all motions before domestic relations commissioners.

This rule seems to serve no necessary purpose and ends up penalizing attorneys (and their clients) who practice before commissioners because every bloody motion, no matter how insignificant the issue may be, must be subject to a hearing, whereas in district courts where there are no commissioners, motions can be submitted for decision without a hearing (and frequently are).

Moreover, even an uncontested motion, if before a commissioner, must still receive a hearing, and that makes no sense at all. Technically, a joint, stipulated motion filed by both parties to an action must receive a hearing according to the language of the current Rule 101. Even when counsel on both sides have attempted to stipulate to submitting a motion on the pleadings without a hearing (and yes, I’ve had that happen to me), they are compelled to schedule and hold a hearing.

How is it that all motions before commissioners (where 99% of the time everything proceeds by proffer, so it’s not as though the hearing serves a vital role as an evidence gathering tool) must receive a hearing, but motions before a judge need not? This mandatory hearing provision wastes time and money and does not apply to all district courts, so it ends up penalizing litigants in commissioner-served districts.

I would wager that no one, not the attorneys, not their clients, not the commissioners, and not the judges favor this mandatory hearing provision. But even if there are attorneys out there who prefer to have every motion subject to a hearing, Rule 101 could simply adopt the provisions of Rule 7 and allow any moving party to request a hearing on his motion, and thus the rule would serve everyone better.

I have asked judges and commissioners alike to explain the rationale behind the mandatory hearing provision of Rule 101, and I either get "that's the way it is" or "the Supreme Court wants it that way" response. It appears that nobody knows the policy (if there is one) behind the mandatory hearing before commissioners rule. I, at least, have been unable to find anyone who can tell me the reason why.

I am at a loss to explain what fundamental principle of justice or equity necessitates mandatory hearings for motions before commissioners. Accordingly, since the rule apparenly serves no crucial purpose and in fact often adds an additional, superfluous hoop through which one must jump, I propose that the timing provisions of Rule 7 for motion practice apply in motions before commissioners, and that if a motion before a commissioner is uncontested or stipulated, that no hearing be required, and that the motion can be decided on a notice to submit for decision.

Do you disagree? Do you agree? If we get a large enough consensus on this issue cogently discussed on this blog, maybe the the Supreme Court and Judicial Council will see their way clear to amending Rule 101 to function more efficiently and effectively. I welcome your comments.

Saturday, March 22, 2008

Utah Family Law Blog: Difficult Divorce Depositions: a Modest Proposal

Difficult Divorce Depositions: a Modest Proposal

Difficult Divorce Depositions: a Modest Proposal

What is the tactical Utah divorce lawyer's most-hated deposition abuse? I submit that it is the deposing lawyer who deliberately poses objectionable questions knowing that the deponent has to answer them "subject to the objections" anyway, thus obtaining by deposition evidence he/she could otherwise never get.

Because no judge is present to rule on the objections raised in a deposition, the attorney who considers a question of his client improper nevertheless states his/her objection for the record so that the judge can then determine whether the objection should be sustained or overruled, albeit after the deponent answers the question nevertheless. Thus, answered objectionable questions will not taint the evidence in the record.

Of course, no one actually believes such a notion any more than one believes he can unring a bell; once it's done, it cannot be undone. No one believes that a judge reviewing the deposition transcript or videotape will read/hear the objectionable question, then read/hear the objection, but then NOT read/hear the deponent's answer before determining whether the objection should be sustained or overruled. And even if one did believe such a thing, that naive soul would agree that such an amazing judge could either not realistically avoid reading the answer to the question that was stricken from consideration upon the sustained objection or erase from memory what the judge read and/or heard.

"But wait," you might say, "to prevent your client from answering objectionable questions you could simply object and instruct your client not to answer the question, right?" Wrong. Believe it or not, the rules of court do not permit this (there is, actually, a good reason for this, but explaining it would detract from my upcoming modest proposal, so please indulge me). The rule generally is that the only time objecting counsel can instruct a deponent not to answer a question is to preserve a privilege or to enforce a limitation on evidence as previously directed by the court. So nice try, but no cigar. We appreciate your efforts, but we do not need efforts; we need results. There has been no way to ensure that a deposition is conducted according to the same safeguards as are present when testimony is taken before a judge--until now.

A Modest Proposal: Appoint a Deposition Arbiter


- before the deposition commences, you fear (based on previous experience) that opposing counsel will exploit his/her ability to pose objectionable questions in deposition that your client must answer them, subject to your largely impotent objections; or

- during the deposition counsel poses objectionable questions with seeming impunity in the smug expectation that your client must answer them,

you are no longer without recourse. Invoke the power of the deposition arbiter.

If you anticipate opposing counsel will or even may abuse the deposition format, file a motion to have a deposition arbiter appointed. The arbiter could be simply a retired judge or even a neutral fellow attorney who is well-versed in the rules of evidence. If the judge feels your motion has merit, the order would provide that the arbiter would be appointed, held to a strict standard of impartiality, notified of the date of the deposition, and ordered to stand ready to oversee the deposition personally and to rule on objections--just as the judge would--as the deposition proceeds.

The arbiter would be paid a small, flat fee, non-refundable "retainer" or per diem by the moving party simply for being appointed, whether his services are utilized at the deposition or not. Most attorneys I know would gladly pay $150 to $200 in advance and consider it a bargain if they knew it ensured that it would guarantee an end to abusive deposition practices.

If the arbiter's presence is invoked (either from the beginning, or at any time during the deposition), the parties would then split equally the costs of the arbiter's hourly fee until the deposition is completed.

If a party contends the arbiter was invoked in bad faith to incur needless costs or burdens, that matter can be addressed subsequent to the deposition, and (bonus) the arbiter can be called as a witness to give his objective opinions on the subject.

If a party contends that a question was erroneously sustained as objectionable, the aggrieved party could file a motion seeking a ruling on the issue from the judge, and if that party prevails, the question(s) can be posed to the witness with an instruction from the court that the witness must answer or be held in contempt.

And let me be clear: the purpose of creating the role of deposition arbiter is preventative. Merely knowing an arbiter could be appointed should be enough to prevent his being appointed in the first place. Just as dentists are ironically working hard to put themselves out of business by improving oral hygiene, it is the specter of having a deposition arbiter participate in a deposition that should be sufficient to accomplish its purpose, i.e., preventing deposition abuses.

Just knowing that a deposition arbiter could be appointed and his services invoked would all but end the practice of asking objectionable questions in depositions in bad faith and/or to obtain an unfair advantage. Thus, the appointment of arbiters would be rare, and limited only to those occasions when an attorney or attorneys don't have the sense or self-discipline to follow the rules of court just because they aren't in court and subject to the watchful eye (and power to punish) of the judge.

Fringe benefits. The appointment or possibility of appointment of a deposition arbiter would also foster, if not guarantee, good behavior from all participants in a deposition, as the participants would know that the arbiter is an agent of the court who could report (on the parties' own nickel) any and all misconduct that any participant--counsel and client alike--engages in during the deposition. Depositions will be less distressing and more expeditious for clients and attorneys alike. Judges will receive far, far fewer unexpected telephone calls during depositions seeking orders and rulings on the spot.

I welcome your suggestions for, comments on, and critiques of this modest proposal.