Utah Family Law Blog

Some Free Resources on Preparing for Your Divorce or Other Family Law Matter Deposition

2010-09-24T20:58:00.002-06:00

Here are some links to video clips one can you review in preparing for a deposition in a family law case. Most of these clips deal with personal injury cases (because these are among the most common cases involving depositions), but knowing this in advance, you should find yourself able to differentiate between injury-specific advice and advice that pertains to the deposition of one being deposed in a family law case, particularly given that you’ve already been deposed once before in this case and by the same attorney.

http://www.youtube.com/watch?v=PATX-1Qm1A0

http://www.youtube.com/watch?v=NWJkP3tCM74&feature=related

http://www.youtube.com/watch?v=qRa9uAyGOB0&feature=related

http://www.youtube.com/watch?v=e-Mu_vuggx8&feature=related

http://www.youtube.com/watch?v=PuYVhIa_vIg&NR=1 – cheesy, but a good summary

http://www.youtube.com/watch?v=64WwYX_Gld8&feature=related

http://www.youtube.com/watch?v=RnZAmMCOQOM&NR=1

Here are my personal notes on preparing for a deposition:

How to Testify Successfully at Your Deposition

SUMMARY:

1. Follow the Golden Rule(s)

2. Always Tell the Truth.

3. Simply Telling the Truth Is Not Enough Sometimes. It is essential for you to understand the purpose of a deposition and the relevance of your responses to the ongoing litigation.

4. Your Deposition Can Only Hurt You. Repeat: Your Deposition Can Only Hurt You, so don’t try to make your deposition your personal soapbox. Don’t even think about it.

5. Be Prepared

6. Understand the Question

7. Think Before You Speak

8. Do Not Put Words in Your Own Mouth. Do Not Let Opposing Counsel Put Words in Your Mouth.

9. Mistakes Happen; don’t let them send you into a tailspin

10. “I Don’t Know” And “I Do Not Recall” Are Acceptable Answers

11. Do Not Guess, Speculate, or Surmise in responding to a question.

12. Remember The Golden Rule—Tell The Truth

13. Only the Facts

14. Do Not Volunteer Information

15. Conduct Yourself Professionally and Maturely

16. You Are Never “Off The Record”

17. Know Your Role

Follow the Golden Rule(s)

Always tell the truth. This is imperative. While telling the truth may not necessarily limit your exposure or benefit your case, lying or playing fast and loose with the truth will undoubtedly increase your potential exposure and almost certainly damage your credibility.

Simply Telling the Truth Is Not Enough Sometimes. It is essential for you to understand the purpose of a deposition and the relevance of your responses to the ongoing litigation. The reasons for your taking deposition may be numerous. Understanding the reason for your deposition, as well as an in-depth understanding of the deposition process, will enable you to testify truthfully and intelligently.

*YOUR DEPOSITION CAN ONLY HURT YOU*

Consider what that previous sentence means: your deposition can only hurt you. A deposition is taken for several reasons; it is therefore important to realize what a deposition is and is not. A deposition is not taken to exonerate the person or corporation being deposed. It is not your opportunity to “tell your side of the story,” “to get your licks in,” or “to set the record straight.” Simply put, your deposition can only hurt you. So do your best to minimize the damage.

1. One reason you are deposed is to learn your version of the facts—that is, to learn what you will testify to at the trial if called as a witness. This will enable the deposing attorney to prepare his or her case for trial.

2. Another reason is to develop impeachment[1] evidence and admissions against your interest. The attorney will attempt to elicit testimony favorable to his or her client, which is thus damaging to you. If your answers to the same questions you are asked in your deposition are materially different to those questions when asked at the trial, the attorney will read back portions of your deposition testimony and try to impeach you (that is to say, make you out to be a liar).

3. Most important, a deposition is not your chance to explain your side of the story. All too often, as a participant in a lawsuit, you will attempt to convince the opposing party that its case has no merit. You may be eager to explain your actions or explain why the opposing party is in the wrong. !!Stop!! You will have an opportunity to explain your story at the trial: a deposition is not the time or the place to tell your side of the story or set the record straight as you see it. Repeat that to yourself orally: A deposition is not the time or the place to tell your side of the story or set the record straight as you see it. Ignore this advice at your peril.

At the trial, your attorney will ask you questions to bring out your testimony in a favorable light. While it may be frustrating to restrain yourself from “telling your side of the story” or “setting the record straight as you see it” at the deposition stage of litigation, it is essential for a successful deposition and favorable resolution of your involvement in the lawsuit.

Understanding the Deposition Process

You can expect a deposition to proceed as follows:

A deposition is taken in an informal setting. It is usually in an attorney’s conference room. There is no judge. There is plenty of water to drink. If you need to get up to use the restroom, you may. The attorneys may even be very friendly. Do not be fooled. The opposing attorney is looking for chinks in your armor to stab you in the soft underbelly, no matter how charmingly he may slip in the knife.

Power Struggle. At the outset of a deposition, the examining attorney will attempt to establish control.

This can be done in several ways.

An attorney will often try to befriend you through small talk or humor, before and during the deposition. But remember, this is an adversarial system. The opposing attorney is never your friend.

On the other hand, control may be established through intimidation. If you are prepared for your deposition and are familiar with the ins and outs of the deposition process, you will not be intimidated. If you are unsure about any aspect of your deposition, then please, for your own sake, talk to your attorney! Don’t worry about looking foolish or unsophisticated—your attorney is there to educate you and polish you up. No question is too silly to ask. Questions unasked are questions unanswered; that is to say they are unanswered until the opposing lawyer asks them and you look like a deer in the headlights. Ask in advance your stupid and embarrassing questions of someone who’s looking out for you, please.

Admonitions. Your deposition will typically begin with the deposing attorney explaining the ground rules of a deposition to you. These are called admonitions. If you are unfamiliar with these, you will be relying on the opposing attorney for an explanation—the attorney is therefore in control. To avoid this, it is important for you to understand the rules before the deposition begins.

The following is a typical list of admonitions that are given by the deposing attorney at the beginning of a deposition. After each explanation is given, the attorney will likely ask if you understand:

• “The oath you have been given is the same oath that would be given in a court of law and comes with the same penalties of perjury.”

• “The court reporter is taking down every word that is spoken—the reporter cannot transcribe nods or headshakes. Also, a court reporter can only take down what is being said by one person at a time. I therefore ask that you wait until I finish my question before you give your answer, and I will provide you with the same courtesy.”

• “Your attorney may make objections to my questions in the course of your deposition, but as you can see, we have no judge here to sustain or overrule objections, so, except in rare situations, you will need to answer each of my questions, regardless of whether your attorney objects to them or not.”

• “If you do not understand a question, please let me know. If you do answer my question, I will assume you understood and answered the question I asked.”

• “Please do not guess in response to my questions. I am, however, entitled to your best estimate. Do you understand the difference between a guess and an estimate?”

• “Your testimony will be transcribed into a booklet form. You will have the opportunity to review your testimony and make any changes you deem appropriate. You will then sign your deposition transcript under the penalty of perjury. If you make any substantive changes to your testimony, however, either your attorney or other counsel may comment on your changes at trial and it may adversely affect your credibility.”

• “I therefore request you give me your best testimony today. Is there any reason you cannot go forward with providing your best testimony today?”

• “Are you under the influence of any drugs, alcohol or medications that may affect your ability to understand and respond to my questions?”

• “Do you have any questions regarding the deposition process before we start?”

Listen to the particular admonitions that are explained to you by the deposing attorney. Be confident, however, that you already have an understanding of the deposition process and are ready for the challenges that lie ahead.

Be Prepared

A deposition will often be about an incident or incidents that happened a long time ago. It is critical to review all relevant records before your deposition.

You will want to have an understanding of the factual background giving rise to the lawsuit. In addition to being familiar with specific incidents, you will also want to understand the issues in the lawsuit.

Understand the Question

It is the questioning attorney’s responsibility to articulate intelligible questions. If you do not understand the question, say so. It is not your responsibility, however, to help the attorney formulate an understandable question.

It is the questioning attorney’s responsibility to learn the facts. You are not required to volunteer this information without being asked to educate him in this endeavor.

Furthermore, be wary of compound questions (two questions asked in the same sentence, such as “Did you or your partner steal the money?”; or “Tell me, Mr. Smith, how your wife managed to place the house up for sale without your knowledgeand how she closed on the sale without you being present.”).

If a question is too complex for you to easily understand and consider in your mind, it is too complex and ambiguous to answer. Remember, you are in control. If the question contains conjunctions (“and,” “or,” “because”), ask the attorney to rephrase or break down the question.

Alternatively, do not overanalyze every question or be too eager to anticipate questions from the attorney deposing you. Repeat this orally to yourself: Do not overanalyze every question or be too eager to anticipate questions from the attorney deposing you.

Give the attorney’s words their literal, plain English meaning. Having the attorney define words that are clearly understandable to the average person will make you seem obstructive when the testimony is read to a jury.

Think Before You Speak, Think Before You Speak, and Think Before You Speak.

Take your time when responding to questions. Pause for about two to three seconds (i.e., “one thousand one, one thousand two, one thousand three”) after each question. Seriously. This has many benefits:

1) I allows your attorney to formulate objections.
2) It provides you with an opportunity to decide whether you know the answer and to determine how you will respond.
Remember, you are in control of answering questions. Don’t let the opposing attorney bully you into making snap responses (and he’ll try).

Also, do not allow the attorney to interrupt you. If you are not finished answering a question, immediately advise the attorney that you have not finished. Likewise, pacing yourself will ensure that you do not interrupt the attorney’s questions.

Do not try to talk over the attorney questioning you.

Do not argue with the attorney questioning you.

Do not antagonize or insult the attorney questioning you, and do not look to be insulted by every word that issues from the mouth of the attorney questioning you. I know the pressure is on you, but losing your cool only makes you look bad, not like the martyr you feel you are.

This all relates back to the issue of control. Do not allow the attorney to take control of the rhythm of the deposition. There is no time clock or deadline for your answers. Pace yourself and remain in control.

Do Not Put Words in Your Own Mouth

When responding to questions, pay attention and be careful not to adopt “facts” just because the attorney questioning you mentions them. Do not allow the attorney to put words in your mouth. Do not accept his characterizations of people, events, and other facts.

Also, do not accept the attorney’s allegedly logical inferences and deductions. Whenever a deposing attorney is characterizing, summarizing or deducing information in his or her questions, he or she is doing so in a light favorable to his case, not yours. You must rephrase the question in your own words or fully answer the question without adopting the attorney’s words. Again, if you do not point out the errors contained within the question, it will be assumed you adopted these purported facts and the deposition will go forward.

You watch enough TV to know that opposing attorneys questioning you are trying to make you look foolish, ignorant, to be a liar or a loose cannon. Don’t give the bastards the satisfaction—keep your cool.

Every word you say is being recorded. If you’re on camera, every expression you make, the spit flying from your mouth, your shifty eyes, and the veins popping in your forehead will be recorded for all to see. If you find yourself reaching the breaking point, ask for a break. You’re entitled to them.

Mistakes Happen

Keep in mind that every witness makes mistakes in a deposition. Some are bigger than others. If you make a mistake or overlook something, all is not lost. If you realize you have made a mistake during your deposition, the mistake should be corrected and explained as soon as you realize it. If the mistake only comes to your attention after the deposition, you may correct the mistake when you sign the transcript. However, remember the admonition that any written changes to your deposition may affect your credibility at the trial.

If you know you made a mistake in your deposition and then wait until trial to try to fix that mistake, it will almost surely be too late.

“I Don’t Know” and “I Do Not Recall” Are Acceptable Answers

All your life you have been coming up with the right answers, be it answering questions on exams or accurately answering questions at work. Knowing the answers to critical questions in your work life can greatly affect your success. In a deposition, however, sometimes you simply don’t have all the answers, and you do not need to have all the answers.

It’s human nature to want to avoid looking foolish or ignorant, but the opposing attorney is playing upon your vanity and pride to make you speculate and appear to be a fool and/or a liar. Do not succumb.

It is the attorney’s intent to exhaust your knowledge. The attorney will ask: “Is there anything else?” or “Is there any other reason?” or “Do you have any other opinions?” Do not try to come up with the “right” answer. A deposition is not a test you have to ace. You simply want to tell the truth in response to the questions, to the extent that you know the truth.

When the opposing attorney asks:

“Is there anything else?”

“Is there any other reason?” or

“Do you have any other opinions?”,

do not answer “no” to the above questions. “No” is an unequivocal denial. Rather, state: “That is all I can recall at this time,” “I don’t presently know,” or a similar response. Leave the door open for any later recollection that may occur prior to or at the trial.

“I don’t know” will often be a more truthful response than attempting to guess or speculate at a “correct” answer to the question. For example, “Have you ever spoken with the plaintiff’s wife?” This is an extremely broad question. It refers to your entire life, not just regarding this lawsuit. Without spending the time to review your entire life, simply answering “no” may be inaccurate. A response such as, “I do not recall meeting the plaintiff’s wife,” or “I am not sure,” is certainly more accurate. While your answers should be brief and to the point, be wary of unequivocal “yes” or “no” responses to some questions.

Do Not Guess

Remember the golden rule—tell the truth. You are not telling the truth if you guess.

You are to testify based upon your own personal knowledge. This necessarily requires that you distinguish between the information you have heard from others and what constitutes your own knowledge.

For instance, assume that you are accused of not knowing your child’s special health needs. You are asked if you know how to apply some prescription ointment.

Q: “Do you know how to apply the ointment?”
A: “Yes.”
Q: “What is your understanding?”
A: “I squirt about half an inch of it onto my finger and gently rub it in a circular motion on the scab until it is evenly distributed.”
Q: “Is this consistent with what the doctor directs?”
A: “I have no personal knowledge; this is how my wife told me the doctor instructed it be done.”
Each of the above answers is accurate and responsive to the attorney’s questions. You did not, however, volunteer any information or guess. Speculating and guessing are not truthful.

Only the Facts

You may have the tendency to characterize your statements and embellish them. In a deposition, such is extremely detrimental. Avoid characterizing your testimony with lead-ins such as “in all candor,” “honestly” or “to tell the truth.”

We also have a tendency to give our state of mind when speaking in normal conversation. For instance, when asked if you buckled the child’s seat belt, the answer is “yes,” not “yes, and everything seemed to be in order.” Your thoughts are to be given only when they are specifically asked for.

Also, avoid the use of “never” or “always.” Such language can come back to haunt you.

Do Not Volunteer Information

Answer only the question you are asked. If you are asked whether you spanked your son, do not explain when you spank children, why you spank, or what behavior is deserving of a spanking. None of these things were asked for and your answer would therefore be unsolicited.

If the attorney wants more information, he or she will ask the follow-up question. Remember, this is not your opportunity to defend yourself or explain your side of the story. Volunteering information will only lead to additional questions and prolong your deposition.

Act Professionally and Maturely

While this may seem to be common sense, it is imperative that you behave professionally and maturely at all times. You must dress professionally and maturely (e.g., wear a suit). You obviously should not chew gum or eat during your deposition. You should also refrain from any off-color humor (as tempting as a good attorney joke may be).

While hopefully you will be cautious when responding to deposition questions, never become combative or argumentative in your deposition. Lawyers argue. Witnesses testify. Answer the questions truthfully, without arguing or being difficult.

Behaving professionally and maturely will enable you to concentrate on providing truthful testimony and present a good face to the court.

You Are Never Off the Record

If you are tired or not feeling well, you may, at any time, request a recess. Asking for a break is not a sign of weakness. Be aware, however, that whatever you say in a conversation off the record may very well be the subject of questioning on the record.

Counsel may joke with you off the record. Do not be tempted to engage in such behavior. Even more important, never use obscenities or make slurs while testifying. This can be extremely embarrassing and damaging.

Remember the written transcript does not communicate sarcasm. The court reporter also does not note laughter. Therefore, although the entire room may be laughing at your comment, it may seem extremely rude when printed in black and white and read to a jury several months later.

Expert Opinions

If you are not represented by counsel, and are not being paid as an expert, be wary of giving any opinion testimony. Questions regarding standard safety procedures or other normal company practices are of particular concern. For example, you may be asked “How do you think your smoking may affect your children’s health?” Or, “In your opinion, what could have been done to avoid the accident?” Each of these questions calls for your opinion. Responding to such questions can be damaging to you and your company. At the very least, never offer any unsolicited opinions.

Being Questioned About Documents and Pictures

At your deposition you will likely be shown and asked to identify and/or comment on letters, financial documents, photographs, and other documents pertaining to the law suit. These documents are typically those that the opposing side feels support its case and/or weaken yours.

Your records do not speak for themselves. If they did, there would be no need to take your deposition.

The opposing attorney has already reviewed your records prior to the deposition, and has questions about them. You want to re-familiarize yourself with these records so you can confidently respond to—and possibly anticipate—the attorney’s questions. Furthermore, because the attorney will be questioning you about your records, not reviewing them will only lengthen and/or weaken your deposition.

Handling of Documents

You will be shown several documents during your deposition. The attorney has certain objectives when showing you these documents:

• To authenticate the document, i.e., the document is what it purports to be

• To determine that you have personal knowledge regarding the document or the information in the document

• To learn all you know regarding the preparation, transmittal and receipt of the document

• To learn all you know regarding the information in the document

If a document is important enough for an attorney to use in questioning, you should treat it with equal importance, scrutinizing it carefully before providing any answers. Take your time reviewing, even if you believe you have seen it before. Before answering any questions:

• Look at the document to see who wrote it, who it was sent to and who else received copies.

• If you are not included in this group of people, scan the document for handwritten notes to determine whether they are in your handwriting or whether the notes were directed to you.

• Look at major subheadings on the document to assist you in deciding whether or not you have ever seen it.

• Lastly, determine whether you have, in fact, ever seen the document before.

If you have never seen the document, when the attorney asks if you have seen it before, tell him that you do not recall having seen it. Only read the document in detail if the attorney then asks you to read it. Do not be rushed to finish reading the document. You will not be able to tell the truth by only glancing through it.

Additionally, if your subpoena does not request you to bring any documents, do not bring any. If counsel becomes aware of additional documents you may have during your deposition, do not immediately agree to produce them. If the attorney is seeking documents that were not previously subpoenaed, ask him or her to send you a subpoena for them. This will give you and your attorney an opportunity to review the request and make an appropriate response.

Videotaped Depositions

The above-mentioned guidelines are even more critical in a videotaped deposition, which may be shown at the trial. While being videotaped, you must be aware that you are speaking to the judge, not just the attorneys present at the deposition. You should turn and face the camera when responding to questions. Do not look across the table at the questioning attorney.

You should also avoid engaging in any distracting mannerisms, such as shifting in your seat, gazing helplessly at your attorney, tapping your pen, shuffling papers or moving a coffee cup. Whether you feel happy and relaxed or not, look that way on camera. No one likes a tense grump. The deposition is being audio taped as well. Unlike a written transcript, a jury will be able to hear the tone of your responses in a video recorded deposition.

Know Your Role

A deposition can be an intimidating process and should never be taken lightly. Following these guidelines will help ensure that you have testified truthfully and with confidence. You can also be confident that your deposition testimony has effectively limited your potential exposure.
A question that often comes up as to how your attorney prepares you for your deposition without suggesting what your testimony should be. Obviously, your attorney will not tell what to say. It is unethical and unlikely to help you (and could even backfire). But what you can, and should do, is have your attorney explain to you what the case is about, how your testimony fits into the case, and what your testimony will likely cover. If your attorney has identified the key themes that support your case (and odds are you have, or should have, done so) then you can weave those themes into your explanation of the case.

Legislator, Father's Rights Group Claim Police Don't Enforce Custodial Interference Law

2010-09-23T12:55:00.003-06:00

A Utah lawmaker and a fathers' rights group claim police are not enforcing a new state law, on parents' court-ordered visits with their own children. House Bill 197, "Custodial Interference Amendments," passed during the last legislative session.

Click here for the link to the Channel 2 news story: http://connect2utah.com/search-fulltext?nxd_id=106725

To continue reading, please visit http://www.divorceutah.com/legislator-fathers-rights-group-claim-police-dont-enforce-custodial-interference-law/

Calculating Alimony in Utah

2010-08-25T08:23:00.006-06:00

Many people ask me how alimony is calculated in Utah divorce actions. Unlike child support, which is principally calculated on a statutory arithmetical formula, calculating alimony does not follow a single or even a set method. Notwithstanding, the most commonly utilized starting point when calculating alimony is an “income equalization” formula, which I will demonstrate below:

In this very simple hypothetical setting, the husband, John, and his wife, Jane, are getting divorced. John and Jane have two children, with primary physical custody awarded to Jane.

While men can, in theory, receive an alimony award, husbands in Utah typically out-earn their wives in the majority of divorce cases, which makes the award of alimony to men a rarity. So we will calculate alimony based upon John earning more than Jane.

To continue reading, please visit http://www.divorceutah.com/calculating-alimony-in-utah/.

For Utah Divorce Practitioners - Help from the Separate Maintenance Provisions of the Utah Code

2010-08-21T21:20:00.005-06:00

Here's useful drafting language when moving for temporary orders in a divorce action where the movant seeks to restrain the disposal or encumbrance of property (the sections of the Utah Code pertaining to divorce don't have this, but the benefit of adapting it's application to a divorce action is apparent):

30-4-4. Restraining disposal of property.

At the time of filing the complaint mentioned in Section 30-4-1, or at any time subsequent thereto, the plaintiff may procure from the court, and file with the county recorder of any county in the state in which the defendant may own real estate, an order enjoining and restraining the defendant from disposing of or encumbering the same or any portion thereof, describing such real estate with reasonable certainty, and from the time of filing such order the property described therein shall be charged with a lien in favor of the plaintiff to the extent of any judgment which may be rendered in the action.

Successful Strategies for Divorce, If You Have No Conscience or Sense of Decency

2010-08-20T20:32:00.007-06:00

I have been wanting to prepare a posting entitled "Successful Strategies for Divorce, If You Have No Conscience or Sense of Decency" for years, but have been too busy to organize for this purpose until now.

Because political correctness has all but surely killed any appreciation for satire and thus also scared witless anyone who might wish to write satirically, before I go any further I must make the following disclaimer:

With my blog posting(s) under the title of "Successful Strategies for Divorce, If You Have No Conscience or Sense of Decency," I am not encouraging anyone to engage in dishonest, illegal or other wrongful behavior in divorce. My purpose of such a blog posting or postings on the subject is quite the contrary, i.e., to utilize irony, sarcasm, ridicule, or the like to expose, denounce, and deride inequitable behavior in divorce and those who engage in it. By exposing such misconduct I hope to help in its eradication.

To continue reading, please visit http://www.divorceutah.com/successful-strategies-for-divorce-if-you-have-no-conscience-or-sense-of-decency/

Memorable quotation from The Rainmaker

2010-08-11T20:12:00.002-06:00

Memorable quotation from The Rainmaker (1997), the movie made from John Grisham's novel of the same name:

"Every lawyer, at least once in every case, feels himself crossing a line that he doesn't really mean to cross... it just happens... And if you cross it enough times it disappears forever. And then you're nothing but another lawyer joke, just another shark in the dirty water."

Child Support and Conventional Wisdom

2010-08-11T19:41:00.011-06:00

Here's a topic for debate:

Resolved: That the expenditure of child support payments made by one parent to the parent with primary custody of the couple's children are subject to the discretion of the support recipient.

This is clearly not the case. Utah Code Section 78B-12-218 plainly provides:

To continue reading, please visit http://www.divorceutah.com/child-support-and-conventional-wisdom/

In Defense of Justice Over "Conflict Resolution"

2010-08-10T22:51:00.005-06:00

Any time someone tells me that I need to see my role as a lawyer as a “problem solver,” I roll my eyes. You know:

“Eric, you need to stop litigating everything and be a problem solver”;

“Eric, we [meaning the opposing attorney and I] need to focus on solving our respective clients’ problem and stop the fighting between them”;

“Eric, I don’t have to justify my positions to you. Now, do we have an agreement or not?”

“If we remember that we are professionals working together to solve a dispute between two third parties [sic], we are more likely to behave like professionals.” (Diana Hagan, Bar & Bench (Salt Lake County Bar Association), Winter 2009) [1]

To continue reading, please visit http://www.divorceutah.com/in-defense-of-justice-over-conflict-resolution/

Too Expensive

2010-07-24T12:23:00.004-06:00

I've heard it for years, but only recently have I come to understand it myself; litigation is too expensive. Way too expensive. Counter-productively expensive. Ruinously expensive. Inexcusably expensive. Unjustly expensive.

Attorneys and the judges who hear their cases should be paid for a valuable service, no more no less, but that is not what is happening now. Litigation has become expensive because, at bottom, everyone's trying to pass the buck, and to those to whom the buck is passed, each of them is out to make a buck.

To continue reading, please visit http://www.divorceutah.com/too-expensive/

KUDOS TO THE UTAH SUPREME COURT ADVISORY COMMITTEE ON THE RULES OF CIVIL PROCEDURE

2010-07-03T13:51:00.005-06:00

For many years the Civil Rules Committee has been concerned with the increased expansion and cost of discovery and the impact of this on our civil justice system. Rule 1 states that the rules “shall be liberally construed to secure the just, speedy, and inexpensive determination of every action.” The discovery rules may have contributed to “just” results in the sense that they provide parties of sufficient means with the ability to discover all facts relevant to the litigation, but modern, expansive discovery has had a decidedly negative impact on the “speedy” and “inexpensive” resolution of civil disputes. Current civil discovery practice fosters one of the goals of Rule 1 at the expense of the other two.

Discovery has become the focus and the most expensive part of modern litigation. Discovery is viewed also as a primary contributor to delay.

To continue reading, please visit http://www.divorceutah.com/kudos-to-the-utah-supreme-court-advisory-committee-on-the-rules-of-civil-procedure/

Child Custody and the Best Interests of the Family

2010-05-30T14:50:00.014-06:00

There is an entrenched, but (in my opinion) illogical and myopic convention in Utah regarding child custody awards. While many appellate cases address the matter, my comments are based upon two cases that concisely summarize what is unfortunately considered the received wisdom on the subject of child custody awards: Pusey v. Pusey, 728 P.2d 117 (Utah 1986) and Tucker v. Tucker, 910 P.2d 1209 (Utah 1996). I hope I can refute this convention with the following comments.

Pusey v. Pusey, 728 P.2d 117 (Utah 1986) provides:

We believe that the choice in competing child custody claims should instead be based on function-related factors. Prominent among these, though not exclusive, is the identity of the primary caretaker during the marriage. Other factors should include the identity of the parent with greater flexibility to provide personal care for the child and the identity of the parent with whom the child has spent most of his or her time pending custody determination if that period has been lengthy. Another important factor should be the stability of the environment provided by each parent.

To continue reading, please visit http://www.divorceutah.com/child-custody-and-the-best-interests-of-the-family/

Can Anyone Provide Proof that Questioning Children as Witnesses Is Inherently Traumatic?

2010-02-09T08:01:00.011-07:00

Children are rarely indispensable witnesses in family law cases (but because I use the term “rarely” that denotes that there are in fact times when a child is in fact an indispensable witness). Children are often, however, extremely helpful witnesses for both litigants and the courts. I know because I have deposed children (yes, it can be done).

But you’d be hard-pressed to convince courts in family law cases that a child should be questioned in the discovery process. The e-mail exchange cited below is a real e-mail exchange between opposing counsel and me. Names have been changed to protect the attorney’s and the parties’ respective identities. This exchange distills much of the argument (if you can call it an argument) over child witnesses in family law cases. You tell me who has the better position.

To continue reading, please visit http://www.divorceutah.com/can-anyone-provide-proof-that-questioning-children-as-witnesses-is-inherently-traumatic/

Proposal to Revise Utah's Custodial Interference Statute

2010-01-18T09:40:00.004-07:00

Among the bills proposed during the Utah State Legislature's 2010 session is H.B. 197, which proposed to repeal and replace the current criminal code section dealing with custodial interference. The link to the bill is http://le.utah.gov/~2010/bills/hbillint/hb0197.htm.

I have prepared this side-by-side comparison of the current version § 76-5-303 and of the proposed the revisions of H.B. 197, with my comments.

To continue reading, please visit http://www.divorceutah.com/proposal-to-revise-utahs-custodial-interference-statute/

Period of Minority - Duration of Child Support in Utah

2010-01-16T11:08:00.009-07:00

So how long does child support have to be paid in Utah?

Utah Code § 15-2-1 (Period of minority) provides:

The period of minority extends in males and females to the age of eighteen years; but all minors obtain their majority by marriage. It is further provided that courts in divorce actions may order support to age 21.

Special findings of mental or physical disability are sufficient to warrant extension of child support beyond age eighteen. See Jackman v. Jackman, 696 P.2d 1191, 1192-93 (Utah 1985); Dehm v. Dehm, 545 P.2d 525, 527 (Utah 1976).

Moreover, orders extending child support until the anticipated date of high school graduation are upheld. See, e.g., Thornblad v.Thornblad, 849 P.2d 1197, at 1199 (Utah Ct. App.1993).

The courts can also enforce an agreement by the parties in a divorce action to continue support beyond that allowed by statutory law. See Despain v. Despain, 627 P.2d 526, 528 (Utah 1981); see also Balls v. Hackley, 745 P.2d 836, 837-38 (Utah Ct.App.1987) (affirming trial court's enforcement of parties' stipulation that child support would continue after eighteen years under specified circumstances).

However, in Kerr v. Kerr (610 P.2d 1380 (Utah 1980)), the husband was only required to pay child support until the minor child's 18th birthday, at which time if support was still needed, wife could petition for continuation of support based on circumstances existing at that time. Since the child’s 18th birthday was at the time of trial more than three years in the future, the court could not know and therefore could not find what his specific needs would be at age 18 or beyond.

Purpose of statute authorizing court in a divorce action to order support of child to age 21 is to give court latitude in determining whether exigent circumstances exist necessitating further support of dependent child rather than allowing him to become dependent on state. Court in a divorce proceeding has power to order continued support for child until age 21 when it appears to be necessary and when court makes findings of any special or unusual circumstances to justify order. Harris v. Harris, 585 P.2d 435 (Utah 1978).

France Mulling Making "Psychological Abuse" a Crime

2010-01-11T08:01:00.009-07:00

The French parliament is mulling a law that would recognize a new crime of “psychological violence.”

Among the provisions is Article 17, which provides (translated):

“To submit a spouse to acts or words repeated with the effect of degradation of living conditions of the victim that may affect his rights and dignity and bring about a deterioration of his physical or mental health is punishable by three years of imprisonment and a € 75,000 fine.”

NPR reported on this development, then held an interview with Dr. Steven Stosny, a psychologist.

The following is my transcript of a January 8, 2010 interview broadcast on NPR between Michele Norris and Dr. Stosny. Here is the link to this interview:

http://www.npr.org/templates/story/story.php?storyId=122372371

To continue reading, please visit http://www.divorceutah.com/france-mulling-making-psychological-abuse-a-crime/

Utah Supreme Court Standards of Professionalism and Civility - an assertion to which I welcome reasoned responses

2010-01-05T16:35:00.004-07:00

Utah Supreme Court Standards of Professionalism and Civility - an assertion to which I welcome reasoned responses:

I was recently asked this question: What's the most effective way to deal with fellow lawyers who exploit my good will and generally lie and cheat their ways through a case?

My answer:

Grab the bull by the horns and take these shysters to task. You’ll do more for professionalism and civility than any list of 20 commandments alone could ever do.

The Utah Supreme Court and the Utah State Bar apparently believe that by calling the shyster problem a matter of "professionalism and civility," we miraculously dispose of shysters by relabeling them as merely "uncivil" and/or "unprofessional."

The problem with this kind of thinking is that shysters by any other name still stink as much as ever, and if we think we can solve the problem by writing aspirational, non-binding "Standards," all we succeed in doing is sending the tacit--though very clear--message that while shysterism may be eloquently condemned, it will not be actively hunted down and eradicated. If shysters remain unchecked, and even allowed to wield the Standards as swords in the service of their sharp practices, the shysters win, and propogate.

Negotiation: An end in itself?

2009-11-09T11:56:00.011-07:00

I recently came across this thought from a speech given by John Bolton, former U.S. Ambassador to the United Nations, that is particularly apt regarding mandatory mediation in divorce actions (he was not speaking on the issue of mandatory mediation, but his thoughts still apply):

Negotiation is not a policy. It is a technique. It is a way of achieving our objectives.

It doesn't tell us what our objectives are. The emphasis on negotiation as an end

in itself reflects . . . shallowness . . . and gives us little confidence that our interests

will be well-served.

Mediation is mandatory in Utah (yes, you can be excused from the obligation, but pursuing that objective does you more harm than good and/or costs you more than just jumping through the mediation hoop, generally--which I submit is by design). Mediation is often (not always) an effective means of resolving conflict to the mutual satisfaction of the parties. But there is nothing inherently effective about mediation nor is there anything about mediation that makes it the panacea for all the ills of divorce. Mediation works for people who want to compromise. Compromise, however, is not required of a party to a divorce action, or any legal action. If that were so, there would be no need for courts and judges, just mediators and/or craps tables.

Yes, yes, I know, I know. Insert Abraham Lincoln quotation here:

“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out

to them how the nominal winner is often a real loser: in fees, expenses and waste of time.

As a peacemaker, the lawyer has a superior opportunity of being a good person.” (“Notes

for a Law Lecture,” July 1, 1850, Abraham Lincoln and His Books by William Barton, Marshall

Field & Co., Chicago, Ill., 1920.)

(Note: Lincoln never actually gave this lecture, but I digress.)

Even Lincoln qualified his encouragement to compromise with "whenever you can," not with "by any means necessary." So what do you do with the party/parties that either will not or cannot negotiate (and thus compromise) in good faith or without compromising their interests away altogether? Some would suggest (and seriously too) . . . more mediation.

Too often, parties who do not settle in mediation (and for good reason) are chastised by the court for somehow failing to "do right" by the mediation process. Mediation is (or was), however, an alternative to litigation, not a substitute. When mediation, like negotiation, becomes an end in itself, it becomes shallow and gives participants in their divorce case little confidence that the interests of justice, equity, the parties, and their children will be well-served. This is why mandatory mediation (not mediation itself, but mandatory mediation) is, in my opinion, a dereliction on the part of the courts to meet their Utah State Constitutional duty to redress grievances properly before them.

It's Time for Ask Eric. Today's Topic: Utah Code Section 30-2-05: Husband and Wife, Property Rights, Separate Debts

2009-09-21T07:21:00.008-06:00

Hello Eric,
As I was looking through the Utah Code the other day for sections relevant to divorce and settlement, I came across a section that one party in a marriage cannot be made responsible for debts incurred during the marriage by the other party (30-2-05: Husband and Wife, Property Rights, Separate Debts). I purchased a house in my name during the marriage. We don't live it in, and only I am named on the title and on the mortgage. If my spouse has no liability for this house, then my spouse cannot also have an interest in it, right?
Sincerely,
Rational Reviewer of the Utah Code
Dear Rational:
Right, but also wrong.
You are correct about what § 30-2-5 of the Utah Code provides; however, there is more to this situation than what § 30-2-5 provides alone.
In fact, while § 30-2-5 is good law, it is one of those code sections honored more often in the breach, believe it or not, because other code sections and case law pretty much render § 30-2-5 a nullity. See the following case law below to get a good taste of how and why this is:

Defendant contends his equity in a home he purchased during the marriage should not have been considered a marital asset subject to division. Such an argument is contrary to the specific provisions of Utah Code § 30-3-5, and the rulings of this court in accordance therewith. The marital estate is evaluated according to the existing property interests at the time the marriage is terminated by the decree of the court. (citing Hamilton v. Hamilton, 562 P.2d 235 (Utah 1977); Jesperson v. Jesperson, 610 P.2d 326 (Utah 1980)). Fletcher v. Fletcher, 615 P.2d 1218 (Utah 1980).
"In a divorce action, there is no fixed formula upon which to determine a division of debts. However, such allocation must be based upon adequate factual findings which ruling we will not disturb absent an abuse of discretion." Rehn v. Rehn, 974 P.2d 306.
“Marital property ‘encompasses all of the assets of every nature possessed by the parties, whenever obtained and from whatever source derived,’” Sorensen v. Sorensen, 769 P.2d 820, 824 (Utah Ct. App. 1989) (quoting Gardner v. Gardner, 748 P.2d 1076, 1078 (Utah 1988)), and that the trial court may, in the exercise of its broad discretion, divide the property equitably regardless of its source or time of acquisition. Haumont v. Haumont, 793 P.2d 421, 424 (Utah Ct. App. 1990) (citations omitted). Watson v. Watson, 837 P.2d 1 (Utah Ct. App. 1992).
So, Rational, what this means in practice is that when a judge wants to keep property such as yours separate, he/she refers to § 30-2-5 in issuing the order. When a judge wants to "divide the property equitably regardless of its source or time of acquisition," he/she refers to § 30-3-5 and the case law that interprets it. My experience has been that courts will defer to the policy of § 30-3-5 and the case law that interprets it far, far more often than to the policy of § 30-2-5 and the meager case law that treats it. Practically speaking, unless there are new decisions from the appeals courts to bolster § 30-2-5, the provisions of § 30-2-5 are effectively subsumed in the provisions of § 30-3-5.

2009-09-06T11:54:00.004-06:00

I came across the following article in the Salt Lake Tribune:

"DA making defense attorneys pay for paperwork (Lawyers complain that the fee schedule is unfair)"

By Stephen Hunt

The Salt Lake Tribune

http://www.sltrib.com/news/ci_13263279

Here is a small excerpt from the article (the full articlate can be found at http://www.sltrib.com/news/ci_13263279)

Salt Lake County District Attorney Lohra Miller says the budget crunch has her office charging defendants in criminal cases for materials they had been getting for free.

Starting this month, defense attorneys are paying for copies of police reports, photographs, videotapes and witness interviews.

Miller argues the administrative cost of processing such materials should be borne by defendants rather than taxpayers. But defense attorneys on Wednesday said they worry the multitiered fee schedule Miller has devised will mean delays in getting information needed to build their cases.

Added defense attorney Clayton Simms: "There is something fundamentally unfair about having to pay to see the evidence against you."

I know Clayton Simms. He's not just a sharp attorney, he's a good man. And he's right. There is something fundamentally unfair about requiring you to pay the government (which is prosecuting you) to divulge the evidence it has against you.

The Utah Rules of Criminal Procedure on the subject of discovery are surprisingly straightforward:

Rule 16. Discovery.

(a) Except as otherwise provided, the prosecutor shall disclose to the defense upon request the following material or information of which he has knowledge:

(1) relevant written or recorded statements of the defendant or codefendants;

(2) the criminal record of the defendant;

(3) physical evidence seized from the defendant or codefendant;

(4) evidence known to the prosecutor that tends to negate the guilt of the accused, mitigate the guilt of the defendant, or mitigate the degree of the offense for reduced punishment; and

(5) any other item of evidence which the court determines on good cause shown should be made available to the defendant in order for the defendant to adequately prepare his defense.

(b) The prosecutor shall make all disclosures as soon as practicable following the filing of charges and before the defendant is required to plead. The prosecutor has a continuing duty to make disclosure.

I don’t do as much criminal defense work as I once did, but I do enough, and when I read the article about the SLC D.A. charging for discovery, I was angered (there’s no other appropriate word for it). There is just something (on various levels) perverse about making someone charged with a crime pay for the evidence the State has against him/her.

Worse, giving discovery documents to the public defender, but making defendants who hire private counsel pay only makes this bitter pill that much harder to swallow. But it gets even worse if the D.A. plans to charge attorney time for preparing and producing discovery as well. Mr. Xais, as quoted in the Tribune article (http://www.sltrib.com/news/ci_13263279) is right: the D.A.’s office cannot in good conscience charge for attorney time for doing the job its attorneys are already paid to do.

Even worse, to hide behind the excuse that:

“In setting our fees, we held a public hearing in front of the council which was duly noticed. We also set these fees at an amount that merely covers our costs, they are not intended (nor do they) actually raise revenue,”

- Lohra Miller,

is a bit insulting (yes, insulting; sure, I could be more diplomatic, but that would only result in being more vague and/or appearing more weak in my position too) to the majority of us who don’t follow the schedule of the Salt Lake County Council and who don’t have the option of charging opposing counsel for our time when we ourselves produce documents in discovery.

What about these possible compromises?:

1. Charge a reasonasble fee for discovery, and if the case settles or the defendant is not convicted, refund the fee to the defendant.

2. For the majority of criminal prosecutions, discoverable evidence that is stored digitally (even if primarily for the D.A.’s own internal use) can, as part of the same system, also be produced to criminal defense attorneys free of charge or virtually free of charge, if the D.A. is willing to implement the extremely simple and relatively inexpensive policies and procedures involved. And virtually all discovery documentation can be stored and produced digitally. If we limit the scope of attorneys who practice in Salt Lake County (whether they live in Salt Lake County or not) to $100 per attorney donated (yes, donated) to the D.A. to outfit itself with equipment to digitize its criminal case files prospectively, including all documents, audio, photographs, video images, and other discoverable data, this can be done. Rather than charging $25 per “initial discovery packet” per case, for every case, we can, by paying a nominal fee up front (and yes, $100 is nominal) to equip the D.A.’s office with basic, reliable equipment for digitizing its files for good. Once it has the equipment, the D.A.’s office would be responsible for maintaining the infrastructure.

- A robust scanner for documents can be purchased at retail for $350. Each secretary in the D.A.’s office would get one of these to scan paper documents and hard copies of photographs for each case file.

- .pdf document production and manipulation/editing software could be purchased as a bulk government order for every attorney at the rate of about $100.

- I can’t imagine that the Salt Lake County Sheriff’s office or the D.A.’s office uses (or wants to use) film cameras or film video cameras anymore. I can’t imagine that the Salt Lake County Sheriff’s office or the D.A.’s office uses (or wants to use) tape to record audio anymore either. Virtually any computer equipped with Microsoft Windows can store photograph, video, and audio files, without the need to purchase any new equipment, and can e-mail these files without the need to purchase any new equipment.

Joint Child Custody in Utah

2009-08-26T21:16:00.004-06:00

Let's talk more on joint custody in Utah.

Utah Code § 30-3.10.1 (Definitions -- Joint legal custody -- Joint physical custody) provides:

As used in this chapter:
(1) "Joint legal custody":
(a) means the sharing of the rights, privileges, duties, and powers of a parent by both parents, where specified;
(b) may include an award of exclusive authority by the court to one parent to make specific decisions;
(c) does not affect the physical custody of the child except as specified in the order of joint legal custody;
(d) is not based on awarding equal or nearly equal periods of physical custody of and access to the child to each of the parents, as the best interest of the child often requires that a primary physical residence for the child be designated; and
(e) does not prohibit the court from specifying one parent as the primary caretaker and one home as the primary residence of the child.
(2) "Joint physical custody":
(a) means the child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support;
(b) can mean equal or nearly equal periods of physical custody of and access to the child by each of the parents, as required to meet the best interest of the child;
(c) may require that a primary physical residence for the child be designated; and

(d) does not prohibit the court from specifying one parent as the primary caretaker and one home as the primary residence of the child.

30% of 365 days is 109.5.

So 110 overnights is joint physical custody, right?

Wrong. See Utah Code § 78B-12-208 (Joint physical custody -- Obligation calculations):

In cases of joint physical custody, the base child support award shall be determined as follows:
(1) Combine the adjusted gross incomes of the parents and determine the base combined child support obligation using the base combined child support obligation table.
(2) Calculate each parent's proportionate share of the base combined child support obligation by multiplying the base combined child support obligation by each parent's percentage of combined adjusted gross income. The amounts so calculated are the base child support obligation due from each parent for support of the children.
(3) If the obligor's time with the children exceeds 110 overnights, the obligation shall be calculated further as follows:
(a) if the amount of time to be spent with the children is between 110 and 131 overnights, multiply the number of overnights over 110 by .0027, then multiply the result by the base combined child support obligation, and then subtract the result from the obligor's payment as determined by Subsection (2) to arrive at the obligor's payment; or
(b) if the amount of time to be spent with the children is 131 overnights or more, multiply the number of overnights over 130 by .0084, then multiply the result by the base combined child support obligation, and then subtract the result from the obligor's payment as determined in Subsection (3)(a) to arrive at the obligor's payment.

Standard parent-time as provided in the stipulation gives you 101-110 overnights per year. To get joint physical custody you need at least 111 days per year.

Standard parent-time gives you:

Every other weekend = 52 overnights—26 Fridays, 26 Saturdays (but some holidays get in the way, so you don’t get all, but holidays also work in your favor sometimes too)

4 weeks in summer = 28 overnights (but holidays get in the way, so you don’t get all, but holidays work in your favor)

Holidays = approx. 21 per year

Total: 101 days

(f) In years ending in an odd number, the noncustodial parent is entitled to the following holidays:
(ii) Martin Luther King, Jr. beginning 6 p.m. on Friday until Monday at 7 p.m. unless the holiday extends for a lengthier period of time to which the noncustodial parent is completely entitled;	= 3 overnights
(iii) spring break beginning at 6 p.m. on the day school lets out for the holiday until 7 p.m. on the Sunday before school resumes;	= approximately 3 overnights
(iv) July 4 beginning 6 p.m. the day before the holiday until 11 p.m. or no later than 6 p.m. on the day following the holiday, at the option of the parent exercising the holiday;	= approximately 2 overnights
(v) Labor Day beginning 6 p.m. on Friday until Monday at 7 p.m., unless the holiday extends for a lengthier period of time to which the noncustodial parent is completely entitled;	= approximately 3 overnights
(vi) the fall school break, if applicable, commonly known as U.E.A. weekend beginning at 6 p.m. on Wednesday until Sunday at 7 p.m. unless the holiday extends for a lengthier period of time to which the noncustodial parent is completely entitled;	= approximately 4 overnights
(vii) Veteran's Day holiday beginning 6 p.m. the day before the holiday until 7 p.m. on the holiday; and	= approximately 1-3 overnights
(viii) the first portion of the Christmas school vacation as defined in Subsection 30-3-32(3)(b) including Christmas Eve and Christmas Day until 1 p.m. on the day halfway through the holiday, if there are an odd number of days for the holiday period, or until 7 p.m. if there are an even number of days for the holiday period, so long as the entire holiday is equally divided.	= approximately 4 overnights

(g) In years ending in an even number, the noncustodial parent is entitled to the following holidays:
(ii) President's Day beginning at 6 p.m. on Friday until 7 p.m. on Monday unless the holiday extends for a lengthier period of time to which the noncustodial parent is completely entitled;	= approximately 3 overnights

(iii) Memorial Day beginning at 6 p.m. on Friday until Monday at 7 p.m., unless the holiday extends for a lengthier period of time to which the noncustodial parent is completely entitled;	= approximately 3 overnights
(iv) July 24 beginning at 6 p.m. on the day before the holiday until 11 p.m. or no later than 6 p.m. on the day following the holiday, at the option of the parent exercising the holiday;	= approximately 1-2 overnights
(v) Columbus Day beginning at 6 p.m. the day before the holiday until 7 p.m. on the holiday;	= approximately 1 overnights
(vii) Thanksgiving holiday beginning Wednesday at 7 p.m. until Sunday at 7 p.m.; and	= approximately 4 overnights
(viii) the second portion of the Christmas school vacation as defined in Subsection 30-3-32(3)(b), beginning 1 p.m. on the day halfway through the holiday, if there are an odd number of days for the holiday period, or at 7 p.m. if there are an even number of days for the holiday period, so long as the entire Christmas holiday is equally divided.	= approximately 5 overnights

(i) up to four weeks consecutive at the option of the noncustodial parent, including weekends normally exercised by the noncustodial parent, but not holidays;
(ii) two weeks shall be uninterrupted time for the noncustodial parent; and	14 days
(iii) the remaining two weeks shall be subject to parent-time for the custodial parent for weekday parent-time but not weekends, except for a holiday to be exercised by the other parent.	12-14 days
(l) The custodial parent shall have an identical two-week period of uninterrupted time during the children's summer vacation from school for purposes of vacation.

The Joint Physical Custody Catch-22

2009-07-08T11:20:00.005-06:00

Utah Code § 30-3-10 (Custody of children in case of separation or divorce -- Custody consideration), subsection (1)(b) provides:

“ The court shall, in every case, consider joint custody but may award any form of custody which is determined to be in the best interest of the child.”

In practice, § 30-3-10(1)(b) is simply not applied. Courts consider the provision of § 30-3-10(1)(b)—if they consider it at all—a clumsy, idealistic, unworkable code provision, a nuisance. As such, courts, in my experience and observation, do not consider joint physical custody worthy of serious consideration and not worthy of implementing on even a temporary, trial basis.

Unless both parents agree to joint physical custody, trying to persuade courts in Utah to adopt a joint physical custody arrangement in divorce or parentage cases is, given the current climate, virtually impossible. But what is to be done when both parents are good parents, but one of the parents selfishly refuses to consider joint custody? Typically, the courts will respond to this kind of situation with reason such as, “Well, the parents can’t agree on joint physical custody, so thus joint physical doesn’t have a snowball’s chance of working, so I will have to award sole custody to one parent or the other.” Now I am not a father’s rights whacko, but 9.5 times out of 10, the parent who is awarded physical custody when there’s a custody dispute is . . . mom. So mothers, if you want sole custody even when you know your husband is a fine parent and could handle joint custody as well as you, if you claim joint custody can’t work, your odds of winning sole custody are so high as to be practically guaranteed.

What follows is the text of a temporary custody and parent-time award for an actual case of mine (used with my client’s permission, and names have been changed for privacy’s sake), with my and my client’s commentary on why the courts’ analysis of requests for joint physical custody are simply not getting the intellectual honesty and opportunity they deserve.

ARGUMENT

In the hope of persuading the Court of the request to modify the temporary orders governing legal and physical custody, I present the argument alongside the language of the court’s Temporary Orders.

The text in regular type contains the verbatim citation to the Court’s Temporary Orders

The text in italics contains the Father’s averments on the subject of child custody and parent-time that Respondent and his counsel wishes for the court to revisit and revise.

There is no finding of past or present ability of the parents to cooperate with each other and make decisions jointly, which is critical for a joint custody situation.

Mother will still not allow there to be any reasonable way to communicate and make decisions jointly because she knows this may alter the custody rights and parent-time rights.

The court finds it is in Child's best interests to have one house during her infancy and early childhood that provides stability and the court finds at this point in time that it's clearly in her best interests to have one place to reside; when Child gets older that may change, but on a temporary basis the court feels that Child needs to reside in one place.

The court never articulated the factual basis for this finding. Rather, the court in fact concluded “it is in Child's best interests to have one house during her infancy and early childhood” the court did not cite to any particular facts that support such a conclusion. Neither did the court cite to any particular facts in the record that sole custody and one place to reside” “provides stability” for Child. In fact, Child residing in one home serves to marginalize my role as a parent and father. It also empowers and emboldens the Respondent to act in way that show disrespect for me as a parent and that alienate the child from me. Allow me to provide the court with specific examples of the Respondent’s conduct as the sole custodial parent (see infra).

It has been the court's experience that it is not good for infants to be bounced back and forth during a time when it's critical for them to establish family relationships.

This ruling does not address how family relationships can be established with a non-custodial parent through a sole custody award. Moreover, there can be no denying that a sole custody award hinders the establishment of family relationships with the non-custodial parent. This is why there should be no “custodial/non-custodial” distinction. Respondent and I are both parents, and as such, barring any demonstrated unfitness on the part of either parent, our roles as to our daughter should be the same.

Because Child is thriving right now the court concludes that it is in her best interests that Respondent be awarded sole custody

To thrive means to grow vigorously or luxuriantly, to flourish. This is hardly the case with Child. While there is no dispute that Child is in good health, both physically and emotionally, within normal ranges for a child her age, such a condition is plainly not “thriving,” nor is there any evidence that she is “thriving” because of the sole custody award currently in place.

Why can it not be stated with certainty that Child is thriving in a sole-custody situation? Because there is no evidence that the child would do as well, if not better (even thrive), in a joint physical custodial relationship. If the court does not, on at least a temporary orders basis, give the parties and the child the opportunity to experience joint physical custody, then the court will never have any such evidence to consider when issuing its final order of physical custody for the child.

The Court has considered the factors under Utah Code § 30-3-10.2; the reason the court is not ordering joint custody is because there is no history that the parents have with each other and the court understands that there is a natural conflict built into this situation, although the court does not blame one party or the other.

A “natural conflict”? With respect, this is an unfair and unwarranted conclusion. What “natural conflict” exists in the instant case? The fact that Child was born out of wedlock? What conflict “naturally” arises from that? By such reasoning, any custody dispute is a “natural conflict” that would render an award joint custody an impossibility and thus render the Utah Code’s provisions regarding joint custody a nullity.

And the reason there is “no history that the parents have with each other” is because while she was pregnant the Mother told the Father that she had miscarried. Mother told Father there would be no Child. Given what Mother told Father, there need not be any “history that the parents have with each other.” So if Mother can lie about her pregnancy to Father, I would argue that this cuts against the Mother, not the Father. Because as soon as Father discovered that in fact Mother had not miscarried, Father was there, offering support and filing his parentage action to take responsibility for his Child. That’s all the history there is. Is it not enough to show that Father can be (and should be) entrusted with joint custody on at least a trial basis before a permanent order of custody is made? Of course. There can be no serious question.

Moreover, any conflict between the parties is entirely the Respondent’s doing. I do not want to fight with Mother over custody of Child, but apparently that means that if we dispute what custodial arrangement is best—albeit not ideal, but best under the circumstances, given competing opinions—for Child and her parents, one parent gets sole custody. Such thinking is illogical and imprudent.

Respondent cannot use the conflict she created as a basis for arguing joint custody will not work and that thus, she must be the sole custodial parent. To hold otherwise would provide incentive to custodial parents to claim (if not actually create) conflict between the parents in order to justify the custody award Respondent seeks in her self-interest, not the best interest of the child. Fullmer v. Fullmer, 761 P.2d 942, 948, (Utah App.,1988)

I want for Child (and for me and for Mother) that the parties be awarded joint legal and physical custody of our daughter. What I propose treats both parties equally and for the benefit of the parental relationship between the child and both of her parents. My joint custody proposal inherently does not favor one parent over the other, just as the child should not learn or be given the impression that one parent is better or more important than is the other. My custody proposal is the application of the Golden Rule. How can that realistically be deemed to create “a natural conflict”? It can’t.

It is problematic when parties have a situation where they have a child and the parents themselves have no relationship; such a situation is tailor-made for conflict, the court applauds both parties in that they have attempted, both of them, to minimize this conflict.

Finding that both “a natural conflict” exists between the parties and at the same time applauding “both parties in that they have attempted, both of them, to minimize this conflict” suggests to me that Mother and I showed a “willingness and ability to protect the child from conflict that may arise between the parents.” See Utah Code § 30-3-10.2.

The standard for determining custody is not whether or which custodial award form will result in absolutely no conflict or disagreement. Indeed, no custody award can ensure such a state.

So if the parties are applauded for minimizing conflict between them, why then, can they not be given at least the opportunity to engage in joint custody on a temporary basis, for the purpose of supplying at least the court (if not the parties and the child themselves) with evidence as to how well or how poorly joint custody may function in the life of this child?

It is apparent that the Petitioner, Petitioner, loves his child and wants what is in her best interests, but the court concludes that right now it is in Child's best interest that the Respondent be awarded sole custody of the child.

The court, after concluding that it is apparent “that the Petitioner, Petitioner, loves his child and wants what is in her best interests,” nevertheless precluded him from demonstrating whether joint custody may be better for the child than would sole custody. If, at the temporary orders stage of this case, Petitioner is not given the opportunity to succeed or fail as a joint custodian, he will never be given that chance, and when this case goes to trial the court will have (as a result of a circumstance it created) no evidence before it as to whether joint custody can and should be awarded the parties in the best interests of the child.

Otherwise stated, the Petitioner is faced with a classic Catch-22:

· To prove that joint custody is good for the child, Petitioner must present evidence in support of this point.

· To obtain and present evidence in support of this point, the parties necessarily must exercise joint custody for period a sufficient to demonstrate whether joint custody is in fact in the best interest of the child.

But the court refuses to give Petitioner the opportunity to exercise joint custody for period a sufficient to demonstrate whether joint custody is in fact in the best interest of the child because the court has presumed that joint custody is not in the child’s best interest, thus providing the court with a basis for determining that even a temporary, trial period of joint custody cannot be implemented.

The court awards parent-time to the Petitioner pursuant to Utah Code § 33-35.5 as age appropriate, but the court also orders that beginning _________, Petitioner is allowed overnight parent-time with Child, during the weekend periods of parent-time provided in § 33-35.5, i.e., on opposite weekends from Subsection (2)(d)(i), from 6 p.m. on Friday until noon on Saturday.

The period from November to December 2008 will give the Petitioner a period of regular parent-time, and then he will be able to take the child for overnight periods starting ___________ 200__.

I have voice-recorded conversations that show Mother is the instigator of self-serving, unnecessary conflict between us. Mother will not allow there to be no conflict.

The first time I was able to take Child from Mother’s home was November 18, 2008, for a period of three hours, once to twice a week, from November 18th to until Christmas Eve when I was allowed a 4.5-hour visit, instead of 3hours. Commencing ________, 200__, Mother started allowing me five to six hour periods of parent-time once to twice a week, this is the current way it is arranged, when I can establish contact with her. Several times (in audio-recorded conversations) Mother has denied me any more parent time. She insists that she has not denied me any parent time, so when I request that she follow the court’s order she refuses.

I have requested my overnight parent-time, and Mother says no. I request more days, her response is no. Several times Mother indicated that she would email me what she thought was fair parent time for me to have. I never received the email despite my having requested it multiple times of Mother. She indicated she sent the email, I told her I failed to receive it and to please print it and give me a copy she indicated to be to “busy” to do so. When I try to establish any form of long-term arrangements, Mother says, “we’ll have to see.” My parent time now is none. Mother does not answer my phone calls, and after I have called her home phone and cell phone more than a few times and a few days in a row in an attempt to communicate and coordinate with her, she will send me a voice mail saying she got a message to call me, but she will do no more. I didn’t receive parent time on Child’s birthday, my birthday nor Father’s day.

The parent-time awarded to the Petitioner is a minimum standard; Petitioner should be able to see the parties' child as often as the parties can work it out.

Mother limits me to less than the minimum parent-time I have been awarded. When I requested to see Child on a weekend, Mother informed me that: 1) It was her time with her or 2) Child (a child who is less than 2 years old) was busy and had plans. I have never had Child on a weekend; I’ve had her with me one Friday during the day and one evening visit for a three-hour period when our attorneys made her call me.

The Respondent is ordered to place Child in Petitioner's care for daycare provider purposes, if that can be resolved between the parties because Petitioner is willing to do that and his doing so is definitely in Child's best interest.

Child remains in the care of her grandmother on a daily basis while Mother is at work, school, or doing miscellaneous things such as when she is out with what she calls her “dating partner.” Mother has told me numerous times that this is where Child belongs.

There is no evidence here that Petitioner cannot take care of this child in a proper manner.

Mother has specific orders to me for which Child is to eat, dress, drink, and play. When I pick-up Child, I must take a diaper bag which contains only things that Mother sees fit for her to have. With only so much formula, only certain foods and only certain utensils she is to use. I’m not allowed to give Mother anything else that is not provided in the bag. Mother calls me while I have Child during parent-time and asks me “what is Child doing; “What she has eaten, when how many times, and why.” There has never been a time when Mother hasn’t dictated what it is I can do with Child during my parent time. If, for some reason, there is a left-over in Child’s bag that Mother gives me, or “not enough” formula drunk when I take Child home to her grandmother Mother immediately calls me while I am on my way home asks why Child did not eat all that was provided (these are recorded and the elevated anger and almost desperate sound in Mother is apparent).

The child's prior problems associated with premature birth no longer exist and so it is appropriate that the child spend as much time with Petitioner caring for her and as much time with his Petitioner and his family as it can be arranged because it is definitely in the child's best interests.

Mother insists that Child is still, to this day, a “premature infant” and that Child has eating disorders and potential health problems because of it. Mother would only send me with just one bottle of formula to last me six hours, so without Mother knowing, I found out who Child’s doctor was, called that doctor, and asked what kind of formula our daughter took. I bought the proper formula, for an extended period of time prepared Child her bottles, and gave her the proper formula and amounts when Child was hungry. One day, I forgot to empty the bottle out that Mother sent when I returned Child home. The next time I picked Child up, Mother asked what I had fed her (this was the last time I saw Mother face to face, by the way), I told Mother that I fed Child her formula. Mother asked what kind, and I told her what kind. Mother said it was the wrong kind. I just smiled because I knew it was the same kind, literally as the doctor ordered, and that I had not given Child the wrong formula. Mother then insisted that Child had been sick for a week because she was premature and I had given her the wrong food. Mother had no clue I had been giving Child the proper formula all along and I wanted to prove she was saying and doing things to make me look bad and justify why I couldn’t provide care for her.

Mother has insisted that if I’m going to be letting my family spend time with the baby then she would not let me take her and Child would stay home. Mother would say things such as, “If your family is going to be watching Child she will stay home; that’s where she belongs”. There has never been a time when I have left Child with anyone, but Mother on several occasions tried to accuse me of not bonding with Child and that I had let my family have too much time with Child. My response to Mother has always been “allow me more parent time,” but to no avail.

There are, in this case, two families that are obviously going to care a great deal for this child, so she should have the advantage of contact with the families on both her father's and her mother's sides.

As I have detailed above, I am being denied the right—even the mere opportunity—to to care a great deal for Child by denying me contact with Child. And it’s Mother, the custodial parent, who is denying me. How could anyone claim this is in Child’s best interest? How could anyone blame me for this? Why should Child and/or I suffer for this?

Petitioner is to have any other parent-time periods that that can be reasonably arranged because this is a temporary order that will give the parties and the court time to work out some parent-time. The court wants parent-time to be as open and appropriate as the parties can resolve it.

As indicated earlier Mother never coordinates extra parent time with me, nor is parent-time open because Mother says Child needs to spend time with Mother’s family. Mother has gone as far as saying “Child has things to do,” and when I insist on Mother telling me what it is our one-year old-daughter has to do, Mother says, “Play”.

Since Petitioner has a schedule that would allow him to have some time to provide care for the child during the day, when Respondent is going to work and it is possible for Petitioner to provide care for the child, Respondent is ordered to drop Child off with Petitioner, so that Child can spend the day with her father. The parties are to work on coordinating the care of the child so that the parents can provide daycare as much as possible.

Mother will not allow me to be Child’s caregiver. Mother has picked or dropped off Child at my apartment a total of six times. Mother now refuses to pick Child up or to drop her off to my apartment for parent-time. After that point, Mother said if I wanted to see Child I had to pick her up and to drop her off. Mother completely refused to do either. There were absolutely no instances nor any reasons for Mother to do this, she just started to refuse. I reminded Mother on several occasions that the court had ordered she help out in Child’s transportation, and Mother made it clear and well known to me that she did not care.

At first, I would pass Mother on the way to East Carbon to pick Child up, or pass her on my way home after dropping her off. Mother would pass by with a big smile on her face looking right at me as we passed. It was definitely known to me that she had found another way to make things difficult on me. On two occasions, Mother volunteered to pick Child up from my apartment after not having involvement in doing so for two months. The first was ________, 200__, Mother came to my apartment with a friend/coworker earlier than expected and demanded Child (my sister and two nephews were present in my apartment at this time). I got Child ready and tried to help her outside. Mother rudely grabbed Child from me, grabbed the diaper bag, and walked out . I had my audio recorder in my pocket and on. I followed Mother out and asked why she was doing what she was doing. Mother informed me “because I can.” I asked when I could see Child again and I was told that she didn’t know. I asked if I could I please have Child overnight , as the court has ordered I am to have her. Mother turned to me and said, “I will never let you keep her overnight.” Mother put Child in the car as I walked inside. Once inside, I looked out my window and watched as Mother got in the driver’s seat. Mother and her friend began laughing until they looked up and saw me watching out the window. They both stopped laughing, Mother then backed out of the driveway and went back to Price.

Another incident was ________, 200__, when Mother volunteered to pick Child up from my apartment. This time when she arrived, she pulled in with a police officer (but the officer happens to be a family friend of the Mother). The officer informed me that he was there to “keep the peace” while Mother picked up the baby. I asked him what the reason he was there was and he said that he had been called out by dispatch, and that I was to cooperate.

Petitioner's gross monthly income is $_______. Respondent's gross monthly income is imputed to be at minimum wage on a full-time basis, i.e., $________. Accordingly, child support is calculated and ordered as follows:

1. Petitioner's obligation: $_______ ;

2. Respondent's obligation: $_______ .

Accordingly, Petitioner shall pay the Respondent $________ per month for child support, until further order of the court.

I am even willing to continue to pay Mother child support at the rate set for me, were I the non-custodial parent. This is not about money and it never has been. Remember, I am the Petitioner here. I sought to establish my parental relationship through the parentage petition. As the court may recall, Mother told me she’d miscarried her pregnancy. She did not want me to know Child even existed.

This is about giving our daughter the best relationship she can have with her parents, both of them. That is all I have ever sought.

Because Child needs to be with both her parents equally, she needs active involvement, care and discipline from both her parents. Only being allowed 2-4 days a month as per Utah’s minimum child custody guidelines will not give Child that bonding she needs with both Parents.

While I make no claim to being perfect, I am a stabilizing and beneficial presence in my child’s life. Taking that presence and influence from the child does her no good. Preventing me from sharing the burdens of child-rearing will cause Mother to become a worse parent, not a better one, and our daughter will be adversely affected as a result. Saying, without any basis in fact, that I should only see our daughter once a week and every other weekend makes no sense and it’s self-evident that the less time and influence I have with our daughter the less close, the less helpful, and the less important I become to them through no fault of mine or theirs.

Motherhood is a challenge for Mother. I know she loves our daughter, but she cannot handle sole physical custody of her, especially when I am available to assist in raising our daughter. Joint physical and legal custody will benefit Mother by giving her a break from motherhood on a regular basis so that she can decompress and prepare for and enjoy the week she has the child.

Mother wants sole custody of our daughter not because it’s in the child’s best interest but because Mother considers our daughter hers; hers to control. Mother also wants the child support money through the larger amount of money she will get in child support if she is awarded sole custody. Such an arrangement is not fair to or good for anyone.

I have never done harm, nor do I pose a substantiated potential of harm to our daughter. Mother knows this, and there is no evidence to support any allegation that I pose a risk of harm to our daughter.

Before Mother and I separated I was legally and in fact the joint physical guardian and custodian of our children. Nicole and I shared the rights as joint physical guardian and custodian of our daughter to the benefit of the child.

Even though it pertains to parent-time, the language of Utah Code § 30-3-32 reflects my reasons for why I advocate joint legal and physical custody on an equal time-sharing basis:

Time that parents and child spend together should be at a level consistent with all parties' interests, i.e., the best interests of the family and all family members;
Absent a showing by a preponderance of evidence of real harm or substantiated potential harm to the child:

it is in the best interests of the child of divorcing parents to have frequent, meaningful, and continuing access to each parent following separation and divorce;
it is in the best interests of the child to have both parents actively involved in parenting the child.
each divorcing parent is entitled to and responsible for frequent, meaningful, and continuing access with his/her child consistent with the child’s best interests;

§ How can Mother and/or I be the most responsible of parents if contact with the child is limited to a weekday evening and every other weekend? We spend more time with co-workers than that. How does a schedule like that strengthen the parent-child bond? It simply does not because it cannot. If Mother and I are not merely entitled to, but responsible for frequent, meaningful, and continuing access with our child, then give us the fair opportunity to live up to that responsibility. Consigning either of us to spending a few days a month with them virtually guarantees that the child will grow detached and distant from the parent who, by court order of all things, is compelled to spend less time with his child than the other parent. Consistent with the child's best interests, she deserves joint legal and physical custody on an equal time-sharing basis. Anything less dooms the relationship with the “non-custodial” parent from the start. I don’t want that for me, and I don’t want that for Mother either.

Joint legal and physical custody on an equal time-sharing basis is the closest thing to an intact family that our child can have. The best, if not the only sensible, way to encourage time between parents and child at a level consistent with all parties' interests is for both parents to have frequent, active, meaningful, and continuing access to each parent following separation and divorce. If the court can think of a better way to achieve this objective than joint legal and physical custody on an equal time-sharing basis, then it not only can, but should implement a different custody award; otherwise, joint legal and physical custody on an equal time-sharing basis is what the child and parents alike deserve.

As the attorney, I am waiting to see whether the court in this particular case will find this argument persuasive. If you are a betting man/woman, however, I wouldn’t count on the court granting this motion for the reasons articulated above. I welcome a counterpoint argument, I really do. I want to ensure my and my client's reasoning is not self-serving. The point is to bring some rational analysis to joint physical custody considerations.

In All Sincerity (Really)

2009-06-08T08:33:00.002-06:00

After inquiring with the Utah Division of Child and Family Services (DCFS), I have learned the following:

36,456 calls/reports of abuse and neglect were made to the DCFS Intake office in 2008. Of those 36,456 calls/reports DCFS accepted 19,878 calls/reports as cases for investigation.

Of the 19,878 calls/reports that were accepted as cases for investigation DCFS determined that 31 of them were “False Report”.

Thus, according to DCFS, .00156% (that's slightly more than one thousandth of a percent) of the 19,878 calls/reports of abuse and neglect were determined to be false reports.

Does anyone other than I find this hard to believe? Does anyone believe that of the 19,878 calls/reports of abuse and neglect DCFS received that were initially decided to investigate all but 31 of them were legitimate? If DCFS itself determines up front that 16,669 of the 36,456 initial calls/reports are not legitimate, how can DCFS then conclude that all but 31 of the remaining 19,878 are legitimate reports of abuse or neglect?

An Homage to Norm McDonald - The 2009 Utah Legislative Session

2009-04-25T17:05:00.011-06:00

Comedian Norm Macdonald, when he anchored Saturday Night Live's "Weekend Update," had a bit where he would report on a story such as this one (from a transcript of a 1994 SNL episode):

"A new study says that people who quit smoking have healthier lungs. Yet another groundbreaking story from the pages of the medical journal, "DUH" ... [Image of the October 1994 cover of DUH which features a photo of a doctor and lists a few articles: EXERCISE IS GOOD, MEDICINE CAN HELP, SMOKING IS BAD, EAT RIGHT FOR BETTER HEALTH and CANCER CAN CAUSE DEATH -- cheers and applause]"

In homage to Norm McDonald, I report the following story from the 2009 Utah Legislative Session:

The Utah Legislature amended Subsection (5) of § 30-3-11.3 (pertaining to the Mandatory educational course for divorcing parents) to include the following new provision, "(5)(b) The [mandatory educational course for divorcing parents] shall instruct both parties that domestic violence has a harmful effect on children and family relationships."
(emphasis mine)

Aren't you glad to see the Legislature is doing its part to educate divorcing parents as to the painfully obvious?

Is There No Alternative to Automatic Income Withholding by ORS to Collect Child Support (you know I wouldn't ask unless the answer is "No.")?

2009-04-08T20:56:00.006-06:00

ORS is not inescapably bound to withhold or to attempt to withhold income to ensure the payment of child support.

When a child support order is issued the obligor's income is subject to immediate income withholding for the child support described in the order, unless the court or administrative body which entered the order finds that one of the parties has demonstrated good cause so as not to require immediate income withholding.

In determining "good cause," the court or administrative body may, in addition to any other requirement it considers appropriate, consider whether the obligor has: (a) obtained a bond, deposited money in trust for the benefit of the dependent children, or otherwise made arrangements sufficient to guarantee child support payments for at least two months; (b) arranged to deposit all child support payments into a checking account belonging to the obligee, or made arrangements insuring that a reliable and independent record of the date and place of child support payments will be maintained; or (c) arranged for electronic transfer of funds on a regular basis to meet court-ordered child support obligations (See 62A-11-403. Provision for income withholding in child support order -- Immediate income withholding)).

There are clearly times when income withholding is unnecessary, otherwise Utah Code §§ 62A-11-403 and 62A-11-502 would not exist.

It is both unfair and illegal of ORS to insist on pursuing income withholding without consideration for Utah Code §§ 62A-11-403 and 62A-11-502, and for whether the circumstances exist for a good cause exception.
62A-11-403. Provision for income withholding in child support order -- Immediate income withholding.

(1) Whenever a child support order is issued or modified in this state the obligor's income is subject to immediate income withholding for the child support described in the order in accordance with the provisions of this chapter, unless:
(a) the court or administrative body which entered the order finds that one of the parties has demonstrated good cause so as not to require immediate income withholding; or
(b) a written agreement which provides an alternative payment arrangement is executed by the obligor and obligee, and reviewed and entered in the record by the court or administrative body.
(2) In every child support order issued or modified on or after January 1, 1994, the court or administrative body shall include a provision that the income of an obligor is subject to immediate income withholding in accordance with this chapter. If for any reason other than the provisions of Subsection (1) that provision is not included in the child support order the obligor's income is nevertheless subject to immediate income withholding.
(3) In determining "good cause," the court or administrative body may, in addition to any other requirement it considers appropriate, consider whether the obligor has:
(a) obtained a bond, deposited money in trust for the benefit of the dependent children, or otherwise made arrangements sufficient to guarantee child support payments for at least two months;
(b) arranged to deposit all child support payments into a checking account belonging to the obligee, or made arrangements insuring that a reliable and independent record of the date and place of child support payments will be maintained; or
(c) arranged for electronic transfer of funds on a regular basis to meet court-ordered child support obligations.

62A-11-502. Child support orders issued or modified on or after January 1, 1994 -- Immediate income withholding.

(1) With regard to obligees or obligors who are not receiving IV-D services, each child support order issued or modified on or after January 1, 1994, subjects the income of an obligor to immediate income withholding as of the effective date of the order, regardless of whether a delinquency occurs unless:
(a) the court or administrative body that entered the order finds that one of the parties has demonstrated good cause so as not to require immediate income withholding; or
(b) a written agreement which provides an alternative payment arrangement is executed by the obligor and obligee, and reviewed and entered in the record by the court or administrative body.
(2) For purposes of this section:
(a) an action on or after January 1, 1994, to reduce child support arrears to judgment, without a corresponding establishment of or modification to a base child support amount, is not sufficient to trigger immediate income withholding;
(b) "good cause" shall be based on, at a minimum:
(i) a determination and explanation on the record by the court or administrative body that implementation of income withholding would not be in the best interest of the child; and
(ii) proof of timely payment of any previously ordered support;
(c) in determining "good cause," the court or administrative body may, in addition to any other requirement it considers appropriate, consider whether the obligor has:
(i) obtained a bond, deposited money in trust for the benefit of the dependent children, or otherwise made arrangements sufficient to guarantee child support payments for at least two months;
(ii) arranged to deposit all child support payments into a checking account belonging to the obligee, or made arrangements insuring that a reliable and independent record of the date and place of child support payments will be maintained; or
(iii) arranged for electronic transfer of funds on a regular basis to meet court-ordered child support obligations.
(3) In cases where the court or administrative body that entered the order finds a demonstration of good cause or enters a written agreement that immediate income withholding is not required, in accordance with this section, any party may subsequently pursue income withholding on the earliest of the following dates:
(a) the date payment of child support becomes delinquent;
(b) the date the obligor requests;
(c) the date the obligee requests if a written agreement under Subsection (1)(b) exists; or
(d) the date the court or administrative body so modifies that order.
(4) The court shall include in every child support order issued or modified on or after January 1, 1994, a provision that the income of an obligor is subject to income withholding in accordance with this chapter; however, if for any reason that provision is not included in the child support order, the obligor's income is nevertheless subject to income withholding.
(5) (a) In any action to establish or modify a child support order after July 1, 1997, the court, upon request by the obligee or obligor, shall commence immediate income withholding by ordering the clerk of the court or the requesting party to:
(i) mail written notice to the payor at the payor's last-known address that contains the
information required by Section 62A-11-506; and
(ii) mail a copy of the written notice sent to the payor under Subsection (5)(a)(i) and a copy of the support order to the office.
(b) If neither the obligee nor obligor requests commencement of income withholding under Subsection (5)(a), the court shall include in the order to establish or modify child support a provision that the obligor or obligee may commence income withholding by:
(i) applying for IV-D services with the office; or
(ii) filing an ex parte motion with a district court of competent jurisdiction pursuant to Section 62A-11-504.
(c) A payor who receives written notice under Subsection (5)(a)(i) shall comply with the requirements of Section 62A-11-507.

Child Custody and Parent-time in Utah: It's not just for parents anymore!

2009-02-15T12:00:00.007-07:00

Child Custody and Parent-time in Utah: It's not just for parents anymore!

After the general session of the 2008 Utah State Legislature concluded, the Legislature met in special session. Among the bills that were not passed in the general session but that were passed in the special session was Utah Code Title 30, Chapter 5a, the (are you ready for this?): "Custody and Visitation for Persons Other than Parents Act."

No, this is not my April Fool's Day 2009 blog entry. I am dead serious. My comment on the Utah Custody and Visitation for Persons Other than Parents Act will follow in a later blog entry.

In the meantime, here for your information and review (and outrage) is the entire Act:

30-5a-101. Title.

This chapter is known as the "Custody and Visitation for Persons Other than Parents Act."

30-5a-102. Definitions.

As used in this chapter:
(1) "Parent" means a biological or adoptive parent.
(2) "Person other than a parent" means a person related to the child by marriage or blood, including:
(a) siblings;
(b) aunts;
(c) uncles;
(d) grandparents; or
(e) current or former step-parents, or any of the persons in Subsections (2)(a) through (d) in a step relationship to the child.

30-5a-103. Custody and visitation for persons other than a parent.

(1) In accordance with Section 62A-4a-201, it is the public policy of this state that parents retain the fundamental right and duty to exercise primary control over the care, supervision, upbringing, and education of their children. There is a rebuttable presumption that a parent's decisions are in the child's best interests.
(2) A court may find the presumption in Subsection (1) rebutted and grant custodial or visitation rights to a person other than a parent who, by clear and convincing evidence, has established all of the following:
(a) the person has intentionally assumed the role and obligations of a parent;
(b) the person and the child have formed an emotional bond and created a parent-child type relationship;
(c) the person contributed emotionally or financially to the child's well being;
(d) assumption of the parental role is not the result of a financially compensated surrogate care arrangement;
(e) continuation of the relationship between the person and the child would be in the child's best interests;
(f) loss or cessation of the relationship between the person and the child would be detrimental to the child; and
(g) the parent:
(i) is absent; or
(ii) is found by a court to have abused or neglected the child.
(3) A proceeding under this chapter may be commenced by filing a verified petition, or petition supported by an affidavit, in the juvenile court if a matter is pending, or in the district court in the county in which the child:
(a) currently resides; or
(b) lived with a parent or a person other than a parent who acted as a parent within six months before the commencement of the action.
(4) A proceeding under this chapter may be filed in a pending divorce, parentage action, or other proceeding, including a proceeding in the juvenile court, involving custody of or visitation with a child.
(5) The petition shall include detailed facts supporting the petitioner's right to file the petition including the criteria set forth in Subsection (2) and residency information as set forth in Section 78B-13-209.
(6) A proceeding under this chapter may not be filed against a parent who is actively serving outside the state in any branch of the military.
(7) Notice of a petition filed pursuant to this chapter shall be served in accordance with the rules of civil procedure on all of the following:
(a) the child's biological, adopted, presumed, declarant, and adjudicated parents;
(b) any person who has court-ordered custody or visitation rights;
(c) the child's guardian;
(d) the guardian ad litem, if one has been appointed;
(e) a person or agency that has physical custody of the child or that claims to have custody or visitation rights; and
(f) any other person or agency that has previously appeared in any action regarding custody of or visitation with the child.

Increase in the Federal Minimum Wage

2008-11-08T07:35:00.003-07:00

The federal minimum wage for covered nonexempt employees is $6.55 per hour effective July 24, 2008. This is important to keep in mind when calculating child support and alimony. Many divorce litigants and their attorneys are not aware that the minimum wage increased from $5.85 to $6.55.

Effective July 24, 2009, the federal minimum wage will be $7.25 per hour.

What would you change in Utah Divorce Law?

2008-10-12T15:34:00.004-06:00

What would you change in Utah Divorce Law? Please share with me your substantive criticism and what you propose be done to remedy the problem(s)?

Allow me to start the process with some criticisms and proposals of my own (these are in no particular order of importance):

1. Simplify the Utah Code sections governing or pertaining to divorce

2. Eliminate contradictory provisions of the Utah Code

3. Eliminate patronizing, paternalistic, parochial provisions of the code

4. Speed the divorce process without sacrificing factual discovery, accuracy, and procedural fairness

5. Get rid of Rule 26(a) and (f) of the Utah Rules of Civil Procedure

6. Get rid of Rule 101 of the Utah Rules of Civil Procedure and have motion practice before domestic relations commissioners follow the procedure of URCP Rule 7.

7. Make it clear that custody evaluations are not mandatory where child custody is at issue.

8. Allow children to testify (sure, impose reasonable restrictions to prevent abuses of this right, but don't completely bar child testimony)

9. Do not force a party who does not want a custody evaluation to pay for any part of one at the commencement of the custody evaluation (sure, reserve the possibility of apportioning costs at trial, if you must).

10. Eliminate mandatory mediation

11. Make the divorce orientation course and the divorce education course for parents available in a cheap or free book form, and eliminate the requirement that one attend it on person.

1. Eliminate appointment of a guardian ad litem unless there is a prima facie showing that the children are abused or in substantial danger of being abused.

1. Enact a presumption that a divorce litigant who seeks divorce on a no-fault basis is rebuttably presumed not to be entitled to seek an award of alimony or any other form of spousal support.

I will touch on each of these in future postings, but again, as I mentioned at the beginning of this posting, I want to know what YOU suggest. No topic is too small or too big, no topic is too obscure or too sacred to be raised. The idea is to generate ideas for improving the divorce process (and improving is not synonymous with "enlarging" or "complicating").

An Open Letter to the newly established Utah Supreme Court Professionalism Counseling Program Board

2008-09-20T10:03:00.001-06:00

An Open Letter to the newly established Utah Supreme Court Professionalism Counseling Program Board

From Eric K. Johnson

Introductory Note: At the Utah State Bar 2008 Spring Convention in St. George, the Utah Supreme Court announced issuance of Utah Supreme Court Standing Order No. 7 (effective April 1, 2008), establishing a program of “professionalism counseling” for members of the Utah State Bar, overseen by “a board of five counselors (the “Board”) to: (1) to counsel members of the Bar, in response to complaints by other lawyers or referrals from judges; (2) provide counseling to members of the Bar who request advice on their own obligations under the Court’s Standards of Professionalism and Civility (hereinafter the “Standards”).; (3) provide CLE on the Standards; and (4) publish advice and information relating to the work of the Board).

Members of the Board:

Before proceeding further, full disclosure: while I endorse professionalism and civility (in lower case letters), I dislike the “Standards of Professionalism and Civility.” I wrote an article in the Utah Bar Journal on the subject, “Standards for Standards’ Sake: Questioning the Standards of Professionalism and Civility.” You can review it on the Utah State Bar’s website at this link:

http://webster.utahbar.org/barjournal/2005/06/standards_for_standards_sake.html

I realize that there are few who publicly disagree with the party line regarding 1) the alleged sorry state of professionalism and civility in the legal profession; and 2) the proclaimed crucial need for improvement, but I believe my sentiments actually reflect, at least for the most part, the private opinions of most, active attorneys in Utah.

Allow me to clarify my critique of the Standards and the newly created professionalism Counseling Program (and) Board in greater detail by revisiting portions of my article and by posing some questions that the Standards raise in my mind.

The Standards consist of twenty (20) normative, yet aspirational provisions. While I respectfully submit that most of these provisions are duplicative of existing norms governing Utah attorneys and/or sophomoric[1] (See Standard No. 11: “Lawyers shall avoid impermissible ex parte communications”) some are either beyond reproach (See Standards No. 12 and 20) or truisms not worthy or in need of further discussion (or any discussion, come to think of it; see Standard Nos. 2 and 7). Accordingly, I will question only those Standards I perceive to be most substantially flawed and/or accepted without much thought.

Standards 1 and 3

1. Lawyers shall advance the legitimate interests of their clients, without reflecting any ill-will that clients may have for their adversaries, even if called upon to do so by another. Instead, lawyers shall treat all other counsel, parties, judges, witnesses, and other participants in all proceedings in a courteous and dignified manner.

3. Lawyers shall not, without an adequate factual basis, attribute to other counsel or the court improper motives, purpose, or conduct. Lawyers should avoid hostile, demeaning, or humiliating words in written and oral communications with adversaries. Neither written submissions nor oral presentations should disparage the integrity, intelligence, morals, ethics, or personal behavior of an adversary unless such matters are directly relevant under controlling substantive law.

Questions:

Is it inherently discourteous, undignified, demeaning or disparaging, hostile, demeaning, humiliating, or otherwise improper:

- to express to opposing counsel your honest belief that his case is frivolous, without merit, or filed or pursued in bad faith?

- to state to opposing counsel your honest belief that her behavior is dilatory, burdensome, unduly expensive, or harassing?

- to tell opposing counsel honestly that if he does not withdraw the false representations in his pleadings you will seek Rule 11 and/or other sanctions?

If so, when did litigators, who chose a profession based on an adversarial system of conflict resolution, become so thin-skinned that arguing—even heated arguing—over such points between them became unprofessional?

How does one address the misconduct of the opposing side without either risking running afoul of Standards 1 and/or 3 or being a wimp?

Where does one man’s honesty and candor become another’s incivility and offensiveness, especially if the ostensibly “offended” party can make hay out of it?

Are Standards 1 and 3 akin to the U.S. Supreme Court Justice Stewart’s standard for identifying hard-core pornography?, i.e., “I know it when I see it.”^{^[2]} If not, then what is it?

Won’t the Professionalism Counseling Program Board take every complaint it receives and lavish on each one “serious” and “careful” consideration merely by virtue of its being made?

You know what I mean: to avoid being labeled insensitive or inattentive to the supposedly wretched state of professionalism and civility in the profession^{^[3]} and to justify the Board’s existence, won’t you feel compelled to treat everything but the most obvious and petty alleged affronts as worthy of solemn consideration? And how will you then resist the temptation to view every situation with self-righteous 20-20 hindsight and offer advice as to how the accused “might have handled the situation better” irrespective of whether you conclude he/she violated a Standard?

While quotations such as, “Credibility is often directly tied to civility and professionalism”[4] sound Lincolnesque, they are as misleading as “Perception is reality.” Credibility is a matter of being honest and reliable; one can be a boorish jerk, yet be perfectly credible. By the same token, “killing them with kindness” is still murder, albeit with a healthy dose of civility.

If you are angered or wronged by a fellow attorney or the actions of her client, what are you to do?[5] Hug it out? Mediate? Increasingly, if you are frustrated and correspond with counsel to express that frustration or outrage, you are dismissed as uncivil and/or unprofessional (or Thomas Paine). Where lawyers (particularly litigators) operate within an adversarial system civility frequently must take a back seat to the messy, intransigent pursuit of truth and justice.

The way to diminish and marginalize you and dismiss your message these days is to label you uncivil. Labeling one uncivil is a clever, effective, and virtually effortless way to destroy ones message, or at least divert attention from the message to the messenger. One successfully painted as uncivil is seen (or not seen at all, as the case may be) as a mindless savage not worthy of consideration.[6]

One need only call a fool a fool to be attacked for being an uncivil extremist.[7]

Standard 4

4. Lawyers shall never knowingly attribute to other counsel a position or claim that counsel has not taken or seek to create such an unjustified inference or otherwise seek to create a "record" that has not occurred.

Questions:

How can one ever effectively and reliably determine/conclude that opposing counsel “knowingly”:

1) attributed to other counsel a position or claim that counsel has not taken?; or

2) sought to create an unjustified inference that other counsel took a position or claim that counsel has not taken?

Just try to call opposing counsel on this during a hearing or in a memorandum and see how the judge reacts, you arrogant, whiney, upstart.

And even if you were to prove such misconduct, what are the odds of that attorney being effectively sanctioned (as opposed be being merely “counseled”) for it? After all, don’t you now have Standards 3 and 5 to contend with when contemplating making a complaint?

Standard 5

5. Lawyers shall not lightly seek sanctions and will never seek sanctions against or disqualification of another lawyer for any improper purpose.

Questions:

Isn’t it hard enough to earnestly seek and obtain seek sanctions for any proper purpose without Standard 5 throwing up additional barriers?

If you add to the sorry state of doormat attorneys the new rule of Standard 5, do you not provide but more defenses for the hacks? Imagine this not so hypothetical scenario:

“Your Honor, opposing counsel’s request for sanctions on the ground that I counseled my client to lie under oath are lightly sought and for an improper purpose, in violation of Standard 5. Unless he can prove otherwise, I ask that the request for sanctions be dismissed and opposing counsel admonished for disparaging and humiliating me in violation of Standard 3.”

How would you handle such a situation, were you the judge?

I’ll tell you (because I’ve experienced similar situations, as I am sure many of us have): you would likely do very little.

Would you not hesitate, if not outright refuse, to stick your neck out, call a spade a spade, or take a position as to which attorney was in the wrong, and admonish and/or sanction the wrongdoer?

Or would you instead (be honest), on the pretext of maintaining that ever-so-paramount image of impartiality and detachment:

1) admonish both attorneys equally for being unprofessional—and even then not for inappropriate behavior, but for simply not getting along and causing you to address thorny matters you’d prefer to avoid?;

and then

2) direct both attorneys not to bring their “personal disputes” before you?;

and then

3) make it clear to the poor attorney who had the guts to complain that he’d think twice before ever seeking redress before you again?

If so, how will your approach as Board members differ from that of the hypothetical judge, who is right there in the thick of it, but refuses to take any substantive action to remedy the problem?

Standard 6

6. Lawyers shall adhere to their express promises and agreements, oral or written, and to all commitments reasonably implied by the circumstances or by local custom.

Questions:

How and why did the second clause of this Standard arise?

Can you give me an example of a promise or agreement that one could objectively identify as “reasonably implied by the circumstances or by local custom?”

Quick, within 30 seconds, can you:

- describe any “commitment reasonably implied by local custom?”

- identify any “local custom” by which “commitments are reasonably implied”?

If an attorney who is not a local does not infer what the local customs are, is she nevertheless bound by “commitments reasonably implied by local custom” and worthy of admonition if she inadvertently does not follow them? What if she deliberately rejects them as provincial or obsolete?

While the second clause of Standard 6 is well-meaning, isn’t it so amorphous and subjective as to:

1) the equivalent of “I know it when I see it?,” and as a consequence,

2) have the same normative force, i.e., virtually none?

Finally, when do “commitments reasonably implied by the circumstances or by local custom” hold sway over the universal and mandatory provisions of statutes and rules?

Standard 9

9. Lawyers shall not hold out the potential of settlement for the purpose of foreclosing discovery, delaying trial, or obtaining other unfair advantage, and lawyers shall timely respond to any offer of settlement or inform opposing counsel that a response has not been authorized by the client.

Questions:

Can any new rule or combination of rules ever do away with this time-tested trick?

Would any savvy attorney suggest that an offer of settlement was used against him to hold up discovery or delay trial?

Would any judge take seriously an allegation that Settlement (the all-important objective of litigation in the 21^st century) could ever be broached for any improper purpose?

Doesn’t the potential for a legitimate settlement—no matter how remote it may be—always exist? Who has the guts to brand a settlement offer a sham (after all, if you do that, aren’t you violating Standards 1 and 3)?

Thus, even in the most hotly contested matters is it not virtually impossible to show a lawyer held out the potential of settlement for illegitimate purposes?

Isn’t a violation of Standard 9, as with the other Standards, on a practical basis virtually impossible to identify, much less sanction?

I mean really, who would ever accuse another lawyer of acting unprofessionally because he offered to settle? The complainant would catch more heat than the attorney complained of, no?

Standard 10

10. Lawyers shall make good faith efforts to resolve by stipulation undisputed relevant matters, particularly when it is obvious such matters can be proven, unless there is a sound advocacy basis for not doing so.

Question:

Can you find the “obvious” flaw in this rule that renders it all but completely impotent? This is not a rhetorical question.

Standard 13

13. Lawyers shall not knowingly file or serve motions, pleadings or other papers at a time calculated to unfairly limit other counsel's opportunity to respond or to take other unfair advantage of an opponent, or in a manner intended to take advantage of another lawyer's unavailability.

Questions:

Should an attorney ever be formally admonished under the Standards for following the letter of the law? If so, what effect would such a policy have on respect for the rules? How can one fairly be found at fault for following the letter of the law?

Furthermore, if compliance with rules constitutes “incivility” or unprofessional conduct what does that mean for the rule of law generally?

Are we to place civility above compliance with and enforcement of court rules and the law? If so, to what degree and to what end?

Standards 14 and 15

14. . . . Lawyers shall agree to reasonable requests for extension of time and waiver of procedural formalities when doing so will not adversely affect their clients' legitimate rights. Lawyers shall never request an extension of time solely for the purpose of delay or to obtain a tactical advantage.

15. . . . Lawyers shall never request a scheduling change for tactical or unfair purpose. If a scheduling change becomes necessary, lawyers shall notify other counsel and the court immediately. If other counsel requires a scheduling change, lawyers shall cooperate in making any reasonable adjustments.

Questions:

“Lawyers shall never request an extension for the purpose of delay or tactical advantage?” Yeah, right. And throwing cigarette butts on the ground is littering. Which of these offenses—littering or violating Standard 14 and/or 15 is likely to be punished first?

(And did you notice the peculiar wording of Standard 14: “Lawyers shall never request an extension of time solely for the purpose of delay or to obtain a tactical advantage.” So does this mean that if you have a legitimate reason for seeking an extension you can tack on delay and/or tactical advantage? Why include “solely” in the wording at all?)

Have you ever asked an attorney claiming to have a scheduling conflict to provide corroborating evidence of the scheduling conflict? Most of you will probably answer, “No.” But why?

I’ll tell you why: because a convention has arisen that if an attorney claims a scheduling conflict, we are to accept it as gospel, and somewhere along the line it became received wisdom challenging a claimed scheduling conflict is worse than exploiting a fellow attorney’s good will by lying about a scheduling conflict.

Now many (if not all) of us know when we’re being hustled by a chronic scheduling-conflict-claiming shyster, but we’ve been taught (or more accurately, shamed into accepting) that challenging a request for an extension is worse than simply giving in and granting continuance after ill-gotten continuance. What principled basis is there for this?

Unless a lawyer is willing to ferret out false claims of need for extensions or schedule changes, are Standards 14 and 15 are of any practical benefit anyway?

Standard 16

16. Lawyers shall not cause the entry of a default without first notifying other counsel whose identity is known, unless their clients' legitimate rights could be adversely affected.

Questions:

(Actually, a comment first: To its credit, here’s a standard that, if violated, has at least a better than even a chance of being proven it was violated.)

What’s so terribly wrong about defaulting a party worthy of default, and doing so without flagging the inattentive opposing attorney?

Besides, Rule 4 of the Utah Rules of Procedure already provides, in subparagraph (c)(1):

The summons . . . shall state the time within which the defendant is required to answer the complaint in writing, and shall notify the defendant that in case of failure to do so, judgment by default will be rendered against the defendant.

(emphasis added)

Why, when Rule 4 already mandates notice to the defendant of the possibility of default, was it felt necessary to create essentially another notice requirement with Standard 16?

Additionally, does Standard 16 create a possible conflict between it and Utah Rules of Civil Procedure, Rule 55, which contains no requirement that notice be given to opposing counsel in advance of seeking default?

If so, why not repeal Standard 16 and amend Rule 55 to include a notice provision?

Moreover, wouldn’t obeying Standard 16 basically allow an ethically bankrupt opposing side to delay proceedings by failing to participate in the case and relying on the opposing attorney’s Rule 16 obligation of “notifying other counsel,” in advance, at which point the scheming “lazy” attorney finally files his responsive pleading so that the case is decided on the precious merits?

Rule 55 is already honored in the breach. Did we really need to eviscerate it even more with Standard 16?

Standards 17, 18, and 19

17. Lawyers shall not use or oppose discovery for the purpose of harassment or to burden an opponent with increased litigation expense. Lawyers shall not object to discovery or inappropriately assert a privilege for the purpose of withholding or delaying the disclosure of relevant and non-protected information.

18. During depositions lawyers shall not attempt to obstruct the interrogator or object to questions unless reasonably intended to preserve an objection or protect a privilege for resolution by the court. "Speaking objections" designed to coach a witness are impermissible. During depositions or conferences, lawyers shall engage only in conduct that would be appropriate in the presence of a judge.

19. In responding to document requests and interrogatories, lawyers shall not interpret them in an artificially restrictive manner so as to avoid disclosure of relevant and non-protected documents or information, nor shall they produce documents in a manner designed to obscure their source, create confusion, or hide the existence of particular documents.

Questions:

With respect to Standards 17 through 19, lawyers are already subject to provisions of the Utah Rules of Civil Procedure, the Utah Rules of Evidence, and even the Utah Code when engaging in the discovery process, and these rules already arguably prescribe the same conduct (and proscribe misconduct) for which Standards 17 through 19 were promulgated, do they not?

Moreover, would you not agree that Standards 17 through 19, like the rules of civil procedure and evidence, are so vulnerable to self-serving interpretation and construction that promulgating even more subjective rules on discovery abuses will do nothing more to curtail discovery abuses than the Rules of Civil Procedure and the Rules of Evidence already do (or don’t, as the case may be)?

I’ve seen attorneys rail against those who serve 26 interrogatories, who serve 80 requests for admission, and request a copy of a party’s driver license (front and back). Who’s right? Who’s wrong? Is it a question of deciding on a case by case basis? If so, then what good are general standards in a case-by-case setting?

And just what is an “artificially restrictive manner” anyway? Is that Justice Stewart I hear?

_______________________

This new Professionalism and Civility Board is one of those things that every attorney will agree is needed, but for other attorneys, not for themselves. Such sentiments give rise to a stone thrower’s paradise. Am I wrong? Let me know if and when a member of the Bar complains of himself to the Board.

With due respect, yet candidly, any time anything is organized for “others’ benefit” (read: “Well, guys, how can we describe ourselves and our purpose without using the term ‘busybodies’?”[8]) you’re—we’re—in trouble.

I’ve gone on record before, and I’ll state it again:

“In reviewing the Standards of Professionalism and Civility, I see no pre-existing need that is filled by their passage, no flaw in the existing rules of professional conduct that the Standards remedy.” (Standards for Standards’ Sake: Questioning the Standards of Professionalism and Civility, Utah Bar Journal, June 2005)

The same can be said of the Board.

“Most, if not all, of the Standards, as currently constituted, do little to lead good lawyers or bad lawyers to be any better than they would have been in their absence. In this regard the Standards of Professionalism and Civility do little to address or cure any lack of professionalism and civility in the profession.” (Id.)

The same can be said of the Board. There’s no point in sugar-coating it.

Why is all this attention being focused on professionalism and civility when there are so many other issues more worthy of our attention as lawyers? I could contend (sincerely) that the fashion sense of Utah attorneys is deplorable and needs to be addressed and rehabilitated by having the Supreme Court and/or Bar establish:

a program of “dress and grooming counseling” for members of the Utah State Bar, overseen by “a board of five stylists to: (1) to counsel members of the Bar in response to complaints by other lawyers or referrals from judges of attorneys who wear belts with suspenders (ahem—braces), brown shoes with blue suits, too much perfume, fishnet stockings, etc.; (2) provide counseling to members of the Bar who request advice on their own fashion blunders; (3) provide CLE on contemporary tie widths and hairstyles; and (4) publish advice and information relating thereto.

I mean, come on. Some “problems” are best left to themselves because the cure is worse (or at least no better) than the disease. And just as it won’t kill me if I see another crew neck sweater and tie combination, will the profession really suffer a fatal blow if I criticize or disagree in the strongest terms without fear that it will be taken as disrespect or a personal attack?

In all seriousness, the Standards of Professionalism and Civility are about as effective a means of fostering the principles of Professionalism and Civility as are warning labels on cigarettes as a means of discouraging smoking. Professionalism and Civility problems do not stem from a lack of rules or counseling, for Pete’s sake.

If your best solution to the perceived professionalism and civility problem—and such a “problem” is insoluble on so many levels—turn your attentions and energies toward more pressing and substantive matters. Before we get any more caught up in professionalism and civility concerns, let’s focus on justice and equity for all first, and then see how much attention professionalism and civility still need.

[1] To borrow from the field of intellectual property, I utilize this word as “merely descriptive” and not for any other purpose. I considered “oxymoronic” in place of “sophomoric,” but that term does not express the full, precise meaning I wish to convey.

[2] Jacobellis v. Ohio, 378

U.S.

184, 197 (1964).

[3] On what objective evidence does everyone who bemoans the professed decline of professionalism and civility base their conclusion?

[4] Peters v. Pine Meadow Ranch Home Ass'n,

151 P.3d 962, 967 (Utah 2007).

[5] http://www.tremonter.com/node/1144

[6] http://www.tremonter.com/node/1144; Peters v. Pine Meadow Ranch Home Ass'n,

151 P.3d 962(Utah 2007).

[7] http://www.tremonter.com/node/1144

[8] Please don’t take this personally, Board (your intentions are pure, but your means are wanting). If you do, such is an indictment of the Standards of Professionalism and Civility. If satire is deemed violative of the Standards, then satire and the Standards cannot co-exist, and one must be discarded. Don’t let the door hit you on the way out, Standards.

Break Your Engagement, Win $150,000? Not Likely in Utah.

2008-07-29T20:55:00.004-06:00

Recently, I came across the following news item (a good summary of which is found at People.com):

In what sounds like the plot of a Julia Roberts movie, a jury in Georgia this week awarded a woman $150,000 after she sued her fiancé for breaking off their engagement three days before the wedding.

Adding insult to injury, the groom-to-be, Wayne Gibbs, informed his intended, RoseMary Shell, of his decision by leaving her a note in the bathroom.

Shell said she left her friends and a $81,000-a-year job in Florida to move to Georgia to be with Gibbs, and that she also suffered emotionally since the wedding was called off last year.

Speaking to Meredith Vieira on Friday's Today show, where she appeared with her attorney Lydia J. Sartain, Shell refuted Gibbs's claim that she was swimming in debt. The allegation, she said, is "simply not true."

While Gibbs did not appear on Today, his attorney, Hammond Law, reportedly told jurors in his closing arguments for the breach-of-contract suit: "You would be sending the message that if you have a dispute with somebody and you think they have been a scoundrel, go get a lawyer and hope the Brink's truck backs up to the jury room."

He added, "If you award one penny, you're saying, 'File frivolous lawsuits.' "

So what impact might the RoseMary Shell case have on Utah? Not much. Her verdict is not likely to be as well received in Utah as it was in Florida. Utah, as well as other states, has abolished the cause of action for breach of promise to marry. See the Utah case of Hess v. Johnston (not cited in its entirety) below.

Court of Appeals of Utah.

Layne D. HESS, an individual, Plaintiff, Appellant, and Cross-appellee,
v.
Jody JOHNSTON, an individual, Defendant, Appellee, and Cross-appellant.

No. 20060497-CA.

June 21, 2007.
Rehearing Denied July 12, 2007.

163 P.3d 747, 580 Utah Adv. Rep. 29, 2007 UT App 213

Plaintiff Layne D. Hess appeals the trial court's order dismissing his complaint, with prejudice, for failure to state a claim upon which relief can be granted, see Utah R. Civ. P. 12(b)(6). Defendant Jody Johnston cross-appeals, arguing that the trial court committed error when it denied her motion for sanctions under rule 11 of the Utah Rules of Civil Procedure, see Utah R. Civ. P. 11. We affirm.

BACKGROUND ¹

Hess and Johnston started dating in mid-April 2004 and within three months, they decided to marry. Johnston found an engagement ring she liked, and Hess commissioned a jeweler to craft one like it. The couple planned to marry sometime in November 2004, but mutually decided that they would take their time in planning the wedding to ensure their finances were in order.

About this time, Johnston told Hess that, during their engagement, she wanted to go on some trips and wanted Hess to have a vasectomy . Hess complied with these requests. Hess began by paying for the couple to take a seven-day cruise to Alaska at the end of July. In August, Hess underwent the vasectomy procedure requested by Johnston. And in September, after Johnston expressed an interest in traveling to France to introduce Hess to friends she had met while living there years earlier, Hess paid for the couple to travel to France for three weeks. Before leaving on the trip, Hess paid the balance on the custom engagement ring so that he could present Johnston with it while in France. After returning from France, Hess and Johnston twice rescheduled the wedding, first, from November 2004 to May 5, 2005, and then to July 9, 2005. In October 2004, Johnston also asked Hess to help purchase a vehicle for her son. Hess contributed $2400 toward the automobile.

In late April 2005, without any forewarning or explanation, Johnston returned the engagement ring to Hess and informed him that she would not be his wife. Hess attempted, numerous times, to obtain an explanation from Johnston, but she refused to offer any excuse for breaking off the engagement.

In November 2005, Hess brought suit against Johnston seeking restitution under four different legal theories: (1) conditional gift, (2) unjust enrichment, (3) promissory estoppel or reasonable reliance, and (4) breach of contract. Central to all the claims is the argument that but for Johnston's promise to marry him, Hess would not have paid for the engagement ring, the Alaskan cruise, the trip to France, or the vehicle for Johnston's son. Hess sought restitution in the form of reimbursement for Johnston's portion of the travel expenses, the medical costs of the vasectomy and a reversal procedure, the money given toward the vehicle, and the difference between the purchase price of the engagement ring and its eventual sale price. In response, Johnston sought sanctions under rule 11 of the Utah Rules of Civil Procedure and moved to dismiss the complaint, with prejudice, for failure to state a claim upon which relief can be granted. The trial court denied the motion for sanctions but dismissed the complaint on the ground that Utah has abolished the common law cause of action for breach of a promise to marry. Both parties appeal.

* * * * *

Johnston argues that Jackson v. Brown, 904 P.2d 685 (Utah 1995), clearly abolished the cause of action for breach of a promise to marry, including claims of the type asserted by Hess. Therefore, she reasons that sanctions were proper because, given the settled state of the law, Hess would not have brought his claims had he first made the reasonable inquiry required by rule 11.² We disagree. First, we begin by noting that “the reasonable inquiry analysis does not hinge solely on whether the law is clear. [Instead, t]he focus should be on what the attorney actually did in researching the law.” Barnard, 846 P.2d at 1236-37. Second, and perhaps more importantly, we disagree with Johnston's contention that Jackson clearly bars Hess's claims. Instead, we read Jackson as expressly acknowledging the possibility that some economic claims arising out of a failed engagement may still be viable.

In Jackson, the Utah Supreme Court examined the common law cause of action for breach of a promise to marry. See 904 P.2d at 686-87. In abolishing that claim from Utah's common law, the court first examined the history of the cause of action, noting that it “arose over four hundred years ago,” when marriage was viewed primarily as an economic transaction. Id. at 686. Because of the economic nature of matrimony, the cause of action for breach of promise provided an economic remedy to persons who had relied to their detriment on a recanted promise of marriage. See id. The court noted, however, that over time “American marriage customs ha[ve] so changed as to be totally unlike those prevailing when breach of promise first became actionable.” Id. The court reasoned that because modern concepts of marriage focus primarily on emotion-not economics-the breach of promise cause of action had lost its historical moorings such that “an action developed to remedy the economic losses resulting from the withdrawal of a marriage promise ... [was being] used in this day and age to redress the emotional losses that follow[ed].” Id. at 687 (emphasis added). The supreme court found this use of a breach of promise claim antithetical to modern policy considerations and held that the cause of action was no longer “the proper vehicle” to recover for emotional damages where the “losses complained of are pride, love, and esteem.” Id. Rather, the court held that recovery for emotional damages was properly pursued only through a claim for intentional infliction of emotional distress and only if the strict elements of such a claim could be established. See id. at 687-88.

Despite abolishing the cause of action for breach of a promise to marry, the Jackson court specifically left open the question of whether economic damages arising from a broken engagement could ever be recovered under alternate legal theories. All the justices agreed that, despite abolishing the cause of action for breach of a promise to marry, “no injury to a plaintiff, upon proper showing, goes unremedied.” Id. at 687. A majority of the court, however, postponed deciding which legal theories would support recovery of economic damages stemming from a broken engagement. See id. at 688 (Stewart, J., concurring, joined by Zimmerman, C.J. & Russon, J.) (stating that the issue of what theories would support a recovery of economic damages “should be addressed ... only when it is properly presented to [the c]ourt and properly argued by the parties”). Alternatively, Justice Durham, joined by Justice Howe, anticipated the question and suggested that “any economic losses suffered because of [plaintiff's] reasonable reliance upon [defendant's] promise to marry ... may be recoverable under a theory of reasonable reliance or breach of contract.” Id. at 687 (Durham, J., concurring, joined by Howe, J.).

Because Jackson did not clearly foreclose claims for purely economic damages, we cannot say that Hess's reading of the law, alone, supports the conclusion that he did not make a reasonable inquiry into the claims, defenses, and other legal contentions contained in the complaint. Rule 11 does not “require the attorney to reach the correct legal position from the research. It is enough that the attorney's reading of the law is a reasonable one.” Barnard, 846 P.2d at 1236. Therefore, we affirm the trial court's denial of Johnston's motion for rule 11 sanctions.

II. Failure to State a Claim

Despite finding that Jackson does not clearly bar his claims, we nonetheless affirm the trial court's dismissal of Hess's complaint because the facts as alleged cannot support recovery under any of the theories pleaded. Cf. Griffith v. Griffith, 1999 UT 78, ¶ 8, 985 P.2d 255 (affirming on alternative grounds).

A. Conditional Gift

Assuming, without deciding, that Utah would allow recovery of engagement gifts under a theory of conditional gift, Hess's claims fail as a matter of law because he has not alleged facts that could establish that the travel, vasectomy,³ or money for the vehicle were conditioned on the marriage taking place.⁴ Instead, Hess urges this court to adopt the position that any gift given during the engagement period carries an implied condition of marriage. We decline to do so. If we were to imply a condition on all gifts given during the engagement period, every gift would be recoverable regardless of the size, cost, significance, or nature of the gift, and without regard to the surrounding circumstances under which the gift was given.

Surely, the donor will give some gifts during the engagement period that are intended as absolute gifts. However, with an implied condition, the donor would have to expressly indicate that he does not expect the gift back in order to make an absolute gift .... turn[ing] traditional gift law on its head.

Cooper v. Smith, 155 Ohio App.3d 218, 2003-Ohio-6083, 800 N.E.2d 372, at ¶ 26.

Because we do not accept Hess's contention that all gifts given during the engagement period carry an implied condition of marriage, and because “one asserting the delivery [of a gift] was made on some condition ... has the burden of establishing such condition” as an element of recovery under a conditional gift theory, Fierro v. Hoel, 465 N.W.2d 669, 671 (Iowa Ct.App.1990), we examine Hess's complaint for allegations that could support his contention that the gifts were conditional.

Hess's complaint states that, in retrospect, Hess would not have made the expenditures but for Johnston's promise to marry him. But this assertion, relying on hindsight, even if true, is not sufficient to establish that the gifts were conditioned on the marriage taking place. “Whether a gift is conditional or absolute is a question of the donor's intent, to be determined from any express declaration by the donor at the time of the making of the gift or from the circumstances.” 38 Am.Jur.2d Gifts § 72 (1999) (emphasis added).

Here, Hess's complaint fails to include any facts that could demonstrate, either expressly, by the circumstances, or by the nature of the gifts that his intent was to condition the gifts on the marriage taking place. Cf. Mace v. Tingey, 106 Utah 420, 149 P.2d 832, 834 (1944) (evaluating “the intention of the donor, the situation and relationship of the parties, the kind and character of the property, and the things said, written or done” in determining whether an irrevocable gift was given (emphasis omitted)). First, Hess does not allege that he expressly conditioned the gifts when he gave them. Second, the alleged circumstances existing at the time the gifts were made do not imply that the gifts were conditional. See, e.g., Maiorana v. Rojas, 787 N.Y.S.2d 678, 3 Misc.3d 1107, No. 94988KCV2003, 2004 WL 1258073, 2004 N.Y. Misc. LEXIS 669 (N.Y. Civ.Ct. June 3, 2004) (concluding that ring was not conditional gift when circumstances showed it was given on donee's birthday). But see, e.g., Fanning v. Iversen, 535 N.W.2d 770, 772 (S.D.1995) (holding that circumstances surrounding gift of money implied a condition of marriage where check memo indicated money was for wedding expenses). When evaluating the circumstances surrounding the gift, some jurisdictions will examine the purpose of the gift and inquire whether that purpose can be achieved only by the marriage taking place. See, e.g., Wagener v. Papie, 242 Ill.App.3d 354, 182 Ill.Dec. 417, 609 N.E.2d 951, 953-54 (1993) (examining circumstances surrounding gift/sale of family home to future son-in-law and finding that purpose of gift-to use home as marital home-would be frustrated when the marriage did not ensue); Cooper, 155 Ohio App.3d 218, 800 N.E.2d 372, at ¶¶ 25-27, 32 (finding gift of improvements to the donee's home were not conditional where donor “merely presumed” but did not articulate the intention that they would live in the improved home after they wed); Restatement of Restitution § 58 cmt. c & illus. 5 (1937) (noting that the gift of a car to a putative future son-in-law for the purpose of a honeymoon road trip may be recoverable because the purpose may only be achieved if the marriage ensues). Here, the facts alleged cannot support the conclusion that the purposes of the gifts were frustrated when the wedding did not take place. The complaint states that the purpose of the Alaskan cruise was to travel for pleasure before the wedding. The same purpose applied to the Paris trip, which also had the added purpose of allowing Johnston an opportunity to introduce Hess to her friends. The vasectomy was for the purpose of mutuality in birth control .⁵ And, the gift of money to Johnston's son was for the purpose of allowing him to purchase a vehicle. All of these purposes were achieved despite the fact that the parties did not marry. Thus, Hess's complaint fails to state any facts that suggest the circumstances surrounding these gifts implied they were conditioned on the marriage.

Finally, the nature of the gifts does not give rise to an inference that they were inherently conditional. Some jurisdictions have recognized that gifts, like engagement rings, carry with them an implied condition of marriage due to the inherent symbolism of the gift. See, e.g., Fierro, 465 N.W.2d at 671 (“The inherent symbolism of [an engagement ring] forecloses the need to establish an express condition that marriage will ensue.”); Heiman v. Parrish, 262 Kan. 926, 942 P.2d 631, 634 (1997) (“[E]ngagement rings should be considered, by their very nature, conditional gifts given in contemplation of marriage.”); see also Restatement of Restitution § 58 cmt. c (noting that a donor may be entitled to restitution “if the gift is an engagement ring, a family heirloom or some other thing intimately connected with the marriage”). Here, the nature of the gifts-trips, a vasectomy, and cash given to a third party-carry no inherent inference that they were conditioned on the marriage.

Thus, even if Utah recognized recovery under a theory of conditional gift, which we do not decide today, Hess's claim for recovery would be barred because none of the alleged facts support the conclusion that at the time he made the gifts, he did not intend for them to take effect until the marriage ensued. Instead, the facts alleged in the complaint can only be read to support the conclusion that Hess intended an unconditional gift. We do recognize that the alleged facts suggest that the reason Hess gave the unconditional gifts was because he and Johnston were engaged. However, the reason for a gift should not be confused with a donor's intent that the gift be revokable. “ ‘Many gifts are made for reasons that sour with the passage of time.’ Unfortunately, gift law does not allow a donor to recover/revoke an inter vivos gift simply because his or her reasons for giving it have ‘soured.’ ” Cooper v. Smith, 155 Ohio App.3d 218, 2003-Ohio-6083, 800 N.E.2d 372, at ¶ 25 (quoting Albanese v. Indelicato, 25 N.J. Misc. 144, 51 A.2d 110 (1947)); see also Restatement of Restitution § 58 (1937) ( “A person who has conferred a benefit upon another, manifesting that he does not expect compensation therefor, is not entitled to restitution merely because his expectation that an existing relation will continue or that a future relation will come into existence is not realized, unless the conferring of the benefit is conditioned thereon.”). We therefore affirm the trial court's dismissal of Hess's cause of action for recovery under a theory of conditional gift.

B. Unjust Enrichment

Hess's complaint does not allege facts sufficient to sustain a claim for restitution under a theory of unjust enrichment. To state a claim for unjust enrichment, a plaintiff must allege facts supporting three elements: “(1) a benefit conferred on one person by another; (2) an appreciation or knowledge by the conferee of the benefit; and (3) the acceptance or retention of the benefit under such circumstances as to make it inequitable for the conferee to retain the benefit without payment of its value.” Jeffs v. Stubbs, 970 P.2d 1234, 1248 (Utah 1998) (quotations omitted). Although Hess has pleaded facts that support the first two of these elements, his complaint fails to allege facts that can support the conclusion that it would be inequitable for Johnston to retain the benefits of the gifts without payment.

Unjust enrichment occurs when a person has and retains money or benefits that in justice and equity belong to another; however, “[t]he fact that a person benefits another is not itself sufficient to require the other to make restitution.” Fowler v. Taylor, 554 P.2d 205, 209 (Utah 1976). Money or benefits that have been “officiously or gratuitously furnished are not recoverable.” Jeffs, 970 P.2d at 1248 (quotation omitted). A person acts gratuitously when, at the time he conferred the benefit, “there was no expectation of a return benefit, compensation, or consideration.” Id. at 1246. As previously discussed, Hess's complaint fails to allege that, at the time the vacations, vasectomy, and money for the vehicle were given, he intended anything other than an unconditional gift. “[E]nrichment of the donee is the intended purpose of a gift, [therefore,] there is nothing ‘unjust’ about allowing [the donee] to retain the gifts she received ... in the absence of fraud, overreaching or some other circumstance.”⁶ Cooper, 155 Ohio App.3d 218, 800 N.E.2d 372, at ¶ 15. Thus, the benefits were gratuitously bestowed on Johnston, and the trial court properly dismissed Hess's unjust enrichment claim.

C. Promissory Estoppel ⁷

Like unjust enrichment, promissory estoppel is an equitable remedy and should be employed where injustice can be avoided only by enforcement of the promise. To state a claim for promissory estoppel, Hess must allege four elements:

(1) [t]he plaintiff acted with prudence and in reasonable reliance on a promise made by the defendant; (2) the defendant knew that the plaintiff had relied on the promise which the defendant should reasonably expect to induce action or forbearance on the part of the plaintiff or a third person; (3) the defendant was aware of all material facts; and (4) the plaintiff relied on the promise and the reliance resulted in a loss to the plaintiff.

Youngblood v. Auto-Owners Ins. Co., 2007 UT 28, ¶ 16, 158 P.3d 1088 (quotations omitted). Here, Hess has failed to allege facts that would support the first element, that he acted with prudence and reasonable reliance on Johnston's promise to marry.

A promise to marry is unique in that it is not generally considered enforceable, but instead is made for the purpose of “allow[ing] a couple time to test the permanency of their feelings.” Fierro v. Hoel, 465 N.W.2d 669, 672 (Iowa Ct.App.1990). Thus, the fact that the engagement period is, in essence, a test period makes reliance on the promise of marriage inherently problematic because “[w]hen either party lacks ... assurance, for whatever reason, the engagement should be broken.” Id.; see also Jackson v. Brown, 904 P.2d 685, 687 (Utah 1995) (“It is certainly the policy of the state to uphold marriage vows. However, we see no benefit in discouraging or penalizing persons who realize, before making these vows, that for whatever reason, they are unprepared to take such an important step.”).⁸ This is especially true when, as here, the couple had not even set an actual date for their nuptials.⁹ Cf. Gilbert v. Barkes, 987 S.W.2d 772, 777 (Ky.1999) (holding that recovery was unavailable because where no wedding date is set, the plaintiff could not “affirmatively demonstrate the parties' final and serious intent to enter into marriage”). Without foreclosing the possibility that, in some instances, the acts undertaken in reliance on a promise of marriage can be so intertwined with the promise itself that reliance may be reasonable,¹⁰ in this instance, Hess's complaint fails to allege facts that can support the conclusion that he was acting prudently and reasonably on Johnston's promise of marriage. All that can be inferred from the facts alleged in the complaint is that Hess made several irrevocable gifts during the engagement period. Thus, this is not a situation where “injustice can be avoided” only by awarding restitution damages, Skanchy v. Calcados Ortope SA, 952 P.2d 1071, 1077 (Utah 1998), and Hess's promissory estoppel claim fails as a matter of law.

Fierro v. Hoel, 465 N.W.2d 669, 672 (Iowa Ct.App.1990).

D. Breach of Contract

Similarly, even assuming without deciding that Jackson v. Brown, 904 P.2d 685 (Utah 1995), does not preclude a claim for breach of contract based on reciprocal promises to marry, Hess's claim fails because his allegations cannot support a conclusion that the damages were causally related to the breach.

Hess does not allege that Johnston made any promise to repay him if the marriage did not ensue; she never promised to pay for half of the travel, or to bear the cost of the vehicle herself. The only promise Johnston made was to marry Hess. Thus, in order to recover general damages, Hess would be required to show that the damages or injuries he sustained “flow[ed] naturally from the breach” of that promise. Machan v. UNUM Life Ins. Co. of Am., 2005 UT 37, ¶ 15, 116 P.3d 342 (quotations omitted). Or, to recover consequential damages, Hess must demonstrate that the damages he sustained were “reasonably within the contemplation of, or reasonably foreseeable, by the parties at the time the contract was made.” Id. (quotations omitted). Under the circumstances of this case, none of the allegations show how restitution for gifts of travel, a vasectomy, and money to a third party flow naturally from a breach of a promise to marry or were reasonably contemplated by the parties at the time they decided to wed. As previously discussed, none of these gifts or the circumstances under which they were given suggest that they were in any way conditioned on the promise to marry being fulfilled. Additionally, neither the travel, the vasectomy , nor the gift of money to Johnston's son were preparatory acts required to be performed under the contract to marry. To hold otherwise would give rise to a claim for breach of contract-albeit for economic damages instead of emotional damages-“any time a person, for whatever reason, cancels or indefinitely postpones wedding plans.” Jackson, 904 P.2d at 687. This result is clearly “contrary to the public policy of this state” because “such an action [would] be readily amenable to abuse [and] would discourage individuals with legitimate doubts or concerns about a planned wedding from cancelling the event.” Id. Therefore, Hess's claims for restitution under a breach of contract theory were properly dismissed as a matter of law.

CONCLUSION

Rule 11 sanctions are inappropriate where, as here, counsel's interpretation of existing law is reasonable and there is no other evidence demonstrating counsel's failure to make a reasonable inquiry required by rule 11. Therefore, the trial court's denial of Johnston's motion for sanctions was proper. It was also proper for the trial court to dismiss Hess's complaint because the facts alleged could not support recovery of restitution under any of the grounds pleaded.

Affirmed.

¹In considering the correctness of an order dismissing a complaint, we assume the truthfulness of each of the facts alleged by plaintiff. See Oakwood Vill. L.L.C. v. Albertsons, Inc., 2004 UT 101, ¶ 9, 104 P.3d 1226.

²Because Johnston's argument raises a question of law, we review it for correctness under the second tier of the rule 11 standard of review. See Barnard v. Sutliff, 846 P.2d 1229, 1236 (Utah 1992) (reviewing, for correctness, whether existing law was clear such that attorney's decision to proceed with claims demonstrated a failure to make a reasonable inquiry under rule 11).

³Under the facts of this case, it is not necessary to address whether a vasectomy, undertaken by one person in a relationship, can ever be a “gift” to the other person in the relationship.

⁴We note the possible exception of the engagement ring. See, e.g., Fierro v. Hoel, 465 N.W.2d 669, 671 (Iowa Ct.App.1990) (“An engagement ring given in contemplation of marriage is an impliedly conditional gift.”); Heiman v. Parrish, 262 Kan. 926, 942 P.2d 631, 634 (1997) ( “Once it is established the ring is an engagement ring, it is a conditional gift.”). However, because Johnston returned the ring, Hess received back exactly that which he gave. Consequently, he has already received restitution, and this court need not address whether the gift of an engagement ring carries with it an implied condition of marriage requiring its return when the wedding does not ensue.

⁵Johnston had already undergone a tubal ligation, but remained concerned about the possibility of pregnancy.

⁶Hess has not alleged that Johnston fraudulently promised to marry him.

⁷Hess also characterizes his claim for promissory estoppel as a claim of reasonable reliance. We, therefore, treat them together under the rubric of promissory estoppel.

⁸After all,[w]hat fact justifies the breaking of an engagement? The absence of a sense of humor? Differing musical tastes? Differing political views? The painfully learned fact that marriages are made on earth, not in heaven. They must be approached with intelligent care and should not happen without a decent assurance of success. When either party lacks that assurance, for whatever reason, the engagement should be broken. No justification is needed. Either party may act. Fault, impossible to fix, does not count.

⁹Hess does allege that in late 2004 the couple eventually set an actual wedding date for May 5, 2005. However, at the time the trips were taken, the vasectomy was performed, and the money was given to Johnston's son, the couple had not yet set an actual date for a wedding but were, instead, tentatively planning to marry sometime in November 2004.

¹⁰As noted in Jackson v. Brown, 904 P.2d 685 (Utah 1995), it may be reasonable, under certain circumstances, to rely on another's promise of marriage when undertaking “normal expenses attendant to a wedding.” Id. at 687. However, we do not reach that question because Hess is not seeking recovery of expenses directly related to a wedding.

So Who Has the Right to Name the Child?

2008-07-13T20:46:00.009-06:00

Who has the right to name a child, whether the parents are married or unmarried, separated or divorced? Utah Administrative Code § R436-1-5 has the answer:

R436-1-5. Name of Child.

A newborn child's name should be recorded on the birth certificate as determined by its' parents. If the parents disagree on the child's name and they have never married each other or are separated or divorced, the custodial parent shall determine the child's name. If the parents are married to each other and cannot agree on the child's name, it may be left blank on the birth certificate and added later by an Affidavit to Amend a Record or by court order.

As you may have concluded, this effectively means that where parents are unmarried or divorced or separated, until Dad gets his hands on the baby somehow (and before the birth certificate is filled out), Mom is almost surely the de facto custodial parent, and if she gets her hands on the birth certificate first, the baby will have whatever name she gives it.

As with everything in divorce, the “best interests of the child” are (to the exclusion of other, equally important considerations) of paramount consideration in determining whether child's name should be changed. Ascertaining the best interests of the child, in action to change child's name, is a factual, not a legal, determination (and thus subject to whatever determination the judge can claim with a straight face the evidence in the record will support). Hamby v. Jacobson, 769 P.2d 273 (Utah App 1898).

Generally, upon the birth of their children, the parent can give the children whatever surname the parent(s) wish(es). See Jay M. Zitter, Rights and Remedies of Parents Inter Se with Respect to the Names of their Children 40 A.L.R. 5^th 697, 712 (1998). No law, statutory or otherwise in Utah, dictates that a child’s surname be that of either parent. The parent(s) may literally select virtually any name as a surname for the children. Hamby v. Jacobsen, 769 P.2d 273, at 276 (Utah 1989).

Following this rationale, the Utah Administrative Code states that “[i]f the parents disagree on the child's name and they have never married each other or are separated or divorced, the custodial parent shall determine the child's name.” U.A.C. R436-1-5 (1993) (emphasis added). Also, since children spend the majority of their time with their custodial parent, there is a rebuttable presumption in at least one jurisdiction that the children should bear the name of the custodial parent. See Lynn M. Curtis, Sexism and bias in the Name of Tradition: missouri’s Standard of Inequality Regarding Children’s Surnames, 66 U.M.K.C. L. Rev. 169, 191 (1997), and the burden to prove that the custodial parent’s name may not be in the child’s best interest shifts to the non-custodial parent seeking the name change. Id

In the past, some common law courts followed the view that a father had a protectible or primary interest in having his children bear his surname unless he had forfeited that right by misconduct or neglect. Hamby, 769 P.2d at 276. This attitude was the result of the common law custom that a woman, in marriage, gave up her contractual and ownership rights. See In re Marriage of Douglass, 205 Cal. App. 3d 1046 (Cal. Dist. Ct. App. 1988). However, along with most jurisdictions (See In the Name of the Father: Wisconsin’s Antiquated Approach to Name Changes in Post-Divorce and Paternity Proceedings, 83 Marq. L. Rev. 279, 285 (1999) (“Most courts no longer acknowledge an unsupported preference for the biological father’s name.”)), the Utah Supreme Court has modernized what it considers the sexist and archaic tradition of paternal preference and has stated that a paternal preference for a child’s surname is improper, just as a preference for the maternal surname would be improper. Hamby, 769 P.2d at 277 (emphasis added). Under the current law, the process of giving a child a name and surname must be free of gender-based notions of parental rights; arguing the child should bear the paternal surname, in these times of equality, is another way of arguing that it is permissible to discriminate because the discrimination has endured for many years. Id. at 278.

As with all my postings, I welcome your comments and suggestions.

One more reason why the Utah Code Needs Serious Revision on the Family Law Front

2008-06-18T20:41:00.005-06:00

§ 30-3-32 (Parent-time -- Intent -- Policy – Definitions) provides, in pertinent part:

(1) It is the intent of the Legislature to promote parent-time at a level consistent with all parties' interests.

(2) (a) A court shall consider as primary the safety and well-being of the child and the parent who is the victim of domestic or family violence.

(b) Absent a showing by a preponderance of evidence of real harm or

substantiated potential harm to the child:

(i) it is in the best interests of the child of divorcing, divorced, or adjudicated

parents to have frequent, meaningful, and continuing access to each parent

following separation or divorce;

(ii) each divorcing, separating, or adjudicated parent is entitled to and

responsible for frequent, meaningful, and continuing access with his child

consistent with the child's best interests; and

(iii) it is in the best interests of the child to have both parents actively involved

in parenting the child.

Utah Code § 30-3-33 (Advisory guidelines) provides, in pertinent part:

In addition to the parent-time schedules provided in Sections 30-3-35 and 30-3-35.5, the following advisory guidelines are suggested to govern all parent-time arrangements between parents.

(emphasis added)

But then Utah Code § 30-3-34(1) and (2) provide, in pertinent part:

(1) If the parties are unable to agree on a parent-time schedule, the court may establish a parent-time schedule consistent with the best interests of the child.

(2) The advisory guidelines as provided in Section 30-3-33 and the parent-time schedule as provided in Sections 30-3-35 and 30-3-35.5 shall be presumed to be in the best interests of the child. The parent-time schedule shall be considered the minimum parent-time to which the noncustodial parent and the child shall be entitled unless a parent can establish otherwise by a preponderance of the evidence that more or less parent-time should be awarded[.]

For crying out loud, Utah State Legislature! You’ve got the Code speaking out of both sides of its mouth.

How can § 30-3-33 expressly state that the parent-time guidelines (guidelines, mind you, not mandatory statutory provisions) are advisory and suggestive in nature, yet state in § 30-3-34 that they “shall be presumed to be in the best interests of the child” and “shall be considered the minimum parent-time to which the noncustodial parent and the child shall be entitled”? How can § 30-3-35 and/or § 30-3-35.5 both presumptively be in the child’s best interest, yet simultaneously be considered advisory, suggested, and the minimum parent-time to be awarded, and then be subject to an increase or decrease as circumstances dictate?

If we were to accept the fractured line(s) of reasoning that the current Utah Code implements in analyzing and determining child custody, joint physical custody would be all but an impossibility in any child custody case. Then again, perhaps that is precisely the legislature's intent. § 30-3-10 (Custody of children in case of separation or divorce -- Custody consideration) (1)(b) provides:

The court shall, in every case, consider joint custody but may award any form of custody which is determined to be in the best interest of the child.

Yet, thanks to § 30-3-34(2), we already know that the legislature has reached the foregone conclusion (for every divorce, apparently) that the advisory guidelines as provided in Section 30-3-33 and the parent-time schedule as provided in Sections 30-3-35 and 30-3-35.5 "shall be presumed to be in the best interests of the child" and "shall be considered the minimum parent-time to which the noncustodial parent and the child shall be entitled" unless "a parent can establish otherwise by a preponderance of the evidence that more or less parent-time should be awarded[.]"

My solution: when confronting a dispute over child custody, start with the presumption that joint legal and physical custody are inherently fair and equitable as to both parents and children and the closest approximation to an intact family, then require the parent who wishes to depart from a joint custody award to prove by a preponderance of the evidence that custody should be awarded otherwise. I defy anyone to demonstrate that my proposal is worse than what we have now.

As always, your comments are welcome.

H.B. 233 - Exceptions to Immunity Granted to Government Employees

2008-04-16T18:34:00.001-06:00

H.B. 33 Enrolled 2008

WAIVERS OF IMMUNITY - EXCEPTIONS

2008 GENERAL SESSION

STATE OF UTAH

Chief Sponsor: Gregory H. Hughes

Senate Sponsor: Dan R. Eastman

General Description:

This bill amends the Utah Human Services Code and the Governmental Immunity Act of Utah to provide exceptions to the immunity granted to government employees and certain persons, officials, and institutions.

Highlighted Provisions:

This bill:

. provides that the immunity of a person, official, or institution who participates or
assists in a child protection matter does not apply if the person intentionally, willfully, or knowingly engages in certain misconduct;

. provides that the immunity of a government employee during the performance of an
employee's duties, within the scope of employment, or under color of authority does
not apply if the employee intentionally or knowingly engages in certain misconduct;
and

. makes technical changes.

Utah Code Sections Affected:

AMENDS:

62A-4a-410, as last amended by Laws of Utah 2005, Chapter 102

63-30d-202, as enacted by Laws of Utah 2004, Chapter 267

62A-4a-410. Immunity from liability -- Exceptions.

(1) Except as provided in Subsection (3), any person, official, or institution participating in good faith in making a report, taking photographs or X-rays, assisting an investigator from the division, serving as a member of a child protection team, or taking a child into protective custody pursuant to this part, is immune from any liability, civil or criminal, that otherwise might result by reason of those actions.

* * * * *

(3) The immunity described in Subsection (1) does not apply if the person, official, or institution:

(a) acted or failed to act through fraud or willful misconduct;

(b) in a judicial or administrative proceeding, intentionally or knowingly gave, upon a lawful oath or in any form allowed by law as a substitute for an oath, false testimony material to the issue or matter of inquiry in the proceeding; or

(i) fabricated evidence; or

(ii) except as provided in Subsection (4), with a conscious disregard for the rights of others, failed to disclose evidence that:

(A) was known to the person, official, or institution; and

(B) (I) was known by the person, official, or institution to be relevant to a material issue or matter of inquiry in a pending judicial or administrative proceeding if the person, official, or institution knew of the pending judicial or administrative proceeding; or

(II) was known by the person, official, or institution to be relevant to a material issue or matter of inquiry in a judicial or administrative proceeding, if disclosure of the evidence was requested of the employee by a party to the proceeding or counsel for a party to the proceeding.

(4) Immunity is not lost under Subsection (3)(c)(ii), if the person, official, or institution:

(a) failed to disclose evidence described in Subsection (3)(c)(ii), because the person, official, or institution is prohibited by law from disclosing the evidence; or

(b) (i) pursuant to the provisions of 45 CFR 164.502(g)(5), refused to disclose evidence described in Subsection (3)(c)(ii) to a person who requested the evidence; and

(ii) after refusing to disclose the evidence under Subsection (4)(b)(i), complied with or responded to a valid court order or valid subpoena received by the person, official, or institution to disclose the evidence described in Subsection (3)(c)(ii).

§ 63-30d-202. Act provisions not construed as admission or denial of liability -- Effect of waiver of immunity -- Exclusive remedy -- Joinder of employee -- Limitations on personal liability.

(1) (a) Nothing contained in this chapter, unless specifically provided, may be construed as an admission or denial of liability or responsibility by or for a governmental entity or its employees.

(b) If immunity from suit is waived by this chapter, consent to be sued is granted, and liability of the entity shall be determined as if the entity were a private person.

(c) No cause of action or basis of liability is created by any waiver of immunity in this chapter, nor may any provision of this chapter be construed as imposing strict liability or absolute liability.

(2) Nothing in this chapter may be construed as adversely affecting any immunity from suit that a governmental entity or employee may otherwise assert under state or federal law.

(3) (a) Except as provided in Subsection (3)(c), an action under this chapter against a governmental entity for an injury caused by an act or omission that occurs during the performance of an employee's duties, within the scope of employment, or under color of authority is a plaintiff's exclusive remedy.

(b) Judgment under this chapter against a governmental entity is a complete bar to any action by the claimant, based upon the same subject matter, against the employee whose act or omission gave rise to the claim.

(c) A plaintiff may not bring or pursue any civil action or proceeding based upon the same subject matter against the employee or the estate of the employee whose act or omission gave rise to the claim, unless:

(i) the employee acted or failed to act through fraud or willful misconduct;

(ii) the injury or damage resulted from the employee driving a vehicle, or being in actual physical control of a vehicle:

(A) with a blood alcohol content equal to or greater by weight than the established legal limit;

(B) while under the influence of alcohol or any drug to a degree that rendered the person incapable of safely driving the vehicle; or

(C) while under the combined influence of alcohol and any drug to a degree that rendered the person incapable of safely driving the vehicle;

(iii) injury or damage resulted from the employee being physically or mentally impaired so as to be unable to reasonably perform the employee's job function because of:

(A) the use of alcohol;

(B) the nonprescribed use of a controlled substance as defined in Section 58-37-4 ; or

(iv) in a judicial or administrative proceeding, the employee intentionally or knowingly gave, upon a lawful oath or in any form allowed by law as a substitute for an oath, false testimony material to the issue or matter of inquiry under this section; or

(v) the employee intentionally or knowingly:

(A) fabricated evidence; or

(B) except as provided in Subsection (3)(d), with a conscious disregard for the rights of others, failed to disclose evidence that:

(I) was known to the employee; and

(II) (Aa) was known by the employee to be relevant to a material issue or matter of inquiry in a pending judicial or administrative proceeding, if the employee knew of the pending judicial or administrative proceeding; or

(Bb) was known by the employee to be relevant to a material issue or matter of inquiry in a judicial or administrative proceeding, if disclosure of the evidence was requested of the employee by a party to the proceeding or counsel for a party to the proceeding.

(d) The exception, described in Subsection (3)(c)(v)(B), allowing a plaintiff to bring or pursue a civil action or proceeding against an employee, does not apply if the employee failed to disclose evidence described in Subsection (3)(c)(v)(B), because the employee is prohibited by law from disclosing the evidence.

(4) Except as permitted in Subsection (3)(c), no employee may be joined or held personally liable for acts or omissions occurring:

(a) during the performance of the employee's duties;

(b) within the scope of employment; or

Keep My Family Out of This: The Proposed New CJA Rule 4-509

2008-04-14T21:41:00.006-06:00

The Supreme Court and the Judicial Council have proposed, among other things, amendments to the Code of Judicial Administration by creating a new rule, Rule 4-509, pertaining to Court-appointed parent coordinator. The comment period expires May 28, 2008.

In short, I urge everyone committed to the rule of law to oppose passage of proposed Rule 4-509 on the grounds that the practice of divorce and family law is being overrun by a regulatory policy that, at the pace it's on now, seems poised to challenge the U.S. Tax Code for sheer volume, complexity, redundancy, and rigidity.

But don't take my word for it (although if you wish, my comments are found in the column to the right of the text of proposed Rule 4-509); proposed Rule 4-509 speaks for itself (and it's rather loquacious at that):

Text of Proposed CJA Rule 4-509

My Comment

Applicability

This rule applies in any case in which a parenting plan is required under Utah Code Section 30-3-10.8 and a parent coordinator is ordered by the court.

Nothing in this rule limits, supersedes, or replaces court-ordered or mandatory 7 mediation.

Statement of the Rule

(1) Role of the parent coordinator.
(1)(A) Upon court order, a parent coordinator may be appointed to serve in child custody and parent-time disputes. The parent coordinator’s role is to consult with the parties and make recommendations directly to the parents about how the children’s needs can best be served. The role of the parent coordinator is like that of the mediator in that the parent coordinator seeks to elicit cooperation and agreement between the parents. Using his or her expertise in child development, however, the parent coordinator also, after hearing the parents’ perceptions and thoughts, offers advice and guidance with regard to specific decisions. With the help of the parent coordinator, the parents then create, revise, or clarify their parenting plan, as defined in 30-3-10.7 (1).

(1)(C) The role of the parent coordinator is not primarily investigative, although the parent coordinator may meet and/or interview the children briefly during the course of the consultation process. Suggestions will not be binding upon the parties, and will not be sent to the Court or others unless both parents agree to their dissemination and sign written releases to that effect. Involvement of a parent coordinator is best suited for parties who can respectfully exchange ideas and who can benefit from independent professional advice in areas where they disagree. If a viable parenting plan is established through work with the parent coordinator, the parents may stipulate to a custody and parent-time agreement, and thereby avoid active involvement of the court.

(2) Term and condition of consultation.
(2)(A) The order appointing the parent coordinator shall address:
(2)(A)(i) the minimum number of visits, not to be less than 4 hours of face to face joint consultation, with the parent coordinator, unless the formal parenting plan is finalized sooner;

(2)(A)(ii) responsibility for payment of the parent coordinator’s fees; and
(2)(A)(iii) should specify any limitations on the role of the parent coordinator.
(2)(B) Termination of the services shall not excuse either party’s responsibility for fees already incurred.
(3) Content of consultation. The parent coordinator may consult with the parties on a wide variety of issues related to child custody/parent-time as well as other needs of the children. The focus will be the developmental and other needs of the children in the family. The goal will be to preserve relationships and protect the children from the disruption and conflict that can occur with divorce.

Specific topics that may be covered include:

(3)(A) methods of communication between the parents;
(3)(B) responsibilities of each parent regarding decision-making and delivery of care;
(3)(C) methods of resolving conflict or disagreement without child involvement;
(3)(D) ways in which the parents can support the child’s relationship with the other parent;
(3)(E) parental agreement and consistency regarding the parents’ expectations of the child and discipline techniques;
(3)(F) dates and times of pick-up and delivery;
(3)(G) parent-time during vacations and holidays;
(3)(H) method of pick-up and delivery;
(3)(I) transportation to and from each other’s home;
(3)(J) selection of child care and baby-sitting;
(3)(K) adherence to special diet, clothing, bedtime, and recreational requirements;
(3)(L) child’s participation in recreational and other activities with each parent;
(3)(M) notification of other parent when surrogate care is needed;
(3)(N) selection of surrogate care;
(3)(O) alterations in the parent time schedule;
(3)(P) participation of relatives and friends during parent-time;
(3)(Q) execution of daily routines;
(3)(R) adherence to conditions for parent-time (e.g., supervision by a third party, drug monitoring, etc.);
(3)(S) school attendance;
(3)(T) selection of school;
(3)(U) access to information about the child (e.g., from school, physician);
(3)(V) step-parent issues;
(3)(W) administration of medication; and
(3)(X) any other issues as agreed upon by the parties.

(4) Qualifications. To be eligible to serve as a parent coordinator, the individual must meet the same licensure requirements as a custody evaluator as noted in Rule 4-903(1)
(4)(A) social workers who hold the designation of Licensed Clinical Social Worker or equivalent license by the state in which they practice may perform custody evaluations within the scope of their licensure; or
(4)(B) doctoral level psychologists who are licensed by the state in which they practice may perform custody evaluations within the scope of their licensure; or
(4)(C) physicians who are board certified in psychiatry and are licensed by the state in which they practice may perform custody evaluations within the scope of their licensure; or
(4)(D) marriage and family therapists who hold the designation of Licensed Marriage and Family Therapist (Masters level minimum) or equivalent license by the state in which they practice may perform custody evaluations within the scope of their licensure;
and must have the following minimum qualifications:
(4)(E) formal training in child development; this training may have been received during one of the degree programs referred to above.
(4)(F) at least 3-year post-licensure clinical practice substantially focused on child/marital/family therapy; and
(4)(G) a working familiarity with child custody/parent-time law and the ethical issues involved in custody matters; and
(4)(H) beginning in 2010, at least a total of 18 hours of continuing education during the previous 3 years and every 3 years thereafter; training hours should include all of the following areas:

(4)(H)(i) conflict resolution theory and techniques, including
(4)(H)(ii) mediation;
(4)(H)(iii) child development and psychology, including
(4)(H)(iv) adjustment to divorce;
(4)(H)(v) domestic relations law;
(4)(H)(vi) familiarity with the dynamics of domestic violence; and
(4)(H)(vii) associated safety and intervention considerations; and
(4)(I) in areas of the state where there is a shortage of services, a professional who meets the licensure requirements outlined above in (4)(A) – (4)(E) may act as a parent coordinator in up to 10 cases before being required to meet the remaining qualifications.

(5) Impartiality.
(5)(A) A parent coordinator shall maintain impartiality in the process of parenting coordination. Impartiality means freedom from favoritism or bias in word, action, or appearance, and includes a commitment to assist all parties, as opposed to any one individual.
(5)(B) A parent coordinator shall withdraw if the parent coordinator determines he or she cannot act in an impartial or objective manner.
(5)(C) A parent coordinator shall neither give nor accept a gift, favor, loan or other item of value from any party having an interest in the parenting coordination process. During the parenting coordination process, a parent coordinator shall not solicit or otherwise attempt to procure future professional services or positions from which the parent coordinator may profit.
(5)(D) A parent coordinator shall not coerce or improperly influence any party to make a decision.
(5)(E) A parent coordinator shall not intentionally or knowingly misrepresent or omit any material fact, law or circumstance in the parenting coordination process.
(5)(F) A parent coordinator shall not accept any engagement, provide any service or perform any act outside the role of parent coordinator that would compromise the parent coordinator’s integrity or impartiality in the parenting coordination process.

(6) Conflict of interest.
(6)(A) A parent coordinator shall not serve in a matter that presents a clear conflict of interest.
(6)(B) A conflict of interest arises when any relationship between the parent coordinator and the participants or the subject matter of the dispute compromises or appears to compromise a parent coordinator’s impartiality.
(6)(C) A parent coordinator shall disclose potential conflicts of interest to the parties and counsel of record as soon as practical after a parent coordinator becomes aware of the interest or relationship giving rise to the potential conflict.
(6)(D) After appropriate disclosures, the parent coordinator may serve with the written agreement of all parties and, if court ordered, the approval of the court. However, if a conflict of interest clearly impairs a parent coordinator’s impartiality, the parent coordinator shall withdraw regardless of the expressed agreement of the parties.
(6)(E) During the parenting coordination process, a parent coordinator shall not create a conflict of interest by providing any services to interested parties that are not directly related to the parenting coordination process.
(6)(F) A parent coordinator may make referrals to other professionals to work with the family, but shall avoid actual or apparent conflicts of interest by referrals. No commissions, rebates, or similar remuneration shall be given or received by a parent coordinator for parenting coordination or other professional referrals.

(7) Dual roles.
(7)(A) A parent coordinator shall not serve in dual sequential roles.
(7)(B) A parent coordinator shall not serve in multiple roles in a case that creates a professional conflict.
(7)(B)(i) A mediator or custody evaluator shall be cautious about becoming a parent coordinator in the same case, even with the consent of the parties, because of the differences in the role and potential impact of the role change.
(7)(B)(ii) A parent coordinator shall not become a custody evaluator either during or after the term of a parent coordinator’s involvement with the family.
(7)(B)(iii) A parent coordinator shall not be appointed after serving as a therapist or consultant or serve in another mental health role to any family member.
(7)(B)(iv) A parent coordinator shall not become a therapist or consultant or serve in any other mental health role to any family member, either during or after the term of the parent coordinator’s involvement.
(7)(C) In some contexts (rural communities) it may not be possible to avoid multiple relationships between the parent coordinator and the family involved in parent coordination, attorneys for the case or the judge involved in the proceedings. In these cases the parent coordinator shall disclose to relevant parties any relationships that might likely lead to impaired objectivity or decreased competence and effectiveness. The parent coordinator shall inform relevant parties of the potential negative consequences of such multiple relationships and seek to minimize these consequences by either withdrawing or limiting the tasks they agree to undertake.

(8) Communications and confidentiality.
(8)(A) All suggestions made to the parties should occur in joint sessions.
(8)(B) Bearing in mind that the role of a parent coordinator is not primarily investigative, the parent coordinator may, nevertheless, communicate with the guardian ad litem attorney, if one is appointed, but shall only communicate with any third persons (including teachers, physicians, clergy, therapists or other extended family members) with the express written permission of both parties and only to the extent necessary to obtain information that the parties agree can be most reliably obtained in that fashion. The parent coordinator may meet and/or interview the children with the express written permission of the parents or the guardian ad litem attorney (if appointed) as part of the consultation process if the parent coordinator believes that such action will aid in issuing appropriate suggestions.
(8)(C) Unless otherwise agreed by the parties, all oral or written communications between the parent coordinator and the parties, other than a formal parenting plan and the quarterly status report are deemed confidential and may not be released unless agreed to by both parties.
(8)(D) Nothing in this rule excuses mandatory reporting requirements pursuant to Utah law, federal law, and/or other professional reporting requirements.
(9) Agreements and enforcement.
(9)(A) Any formal parenting plan agreed to by the parties and drafted by the parent coordinator shall be reduced to a written document and forwarded to the parties, their attorneys, and the guardian ad litem attorney (if one is appointed).
(9)(B) Parent coordinators shall notify the court of the status of the parent coordinator process, on a form provided by the court, at three month intervals or earlier upon termination.

Parenting plans themselves are an ineffectual, burdensome requirement of § 30-3-10.8 (and the subject of a separate, soon-to-come blog posting). Moreover, § 30-3-10.8 was promulgated for the express, stated purpose of requiring divorcing parents to:

(a) provide for the child's physical care;
(b) maintain the child's emotional stability;
(c) provide for the child's changing needs as the child grows and matures in a way that minimizes the need for future modifications to the parenting plan;
(d) set forth the authority and responsibilities of each parent with respect to the child consistent with the definitions outlined in this chapter;
(e) minimize the child's exposure to harmful parental conflict;
(f) encourage the parents, where appropriate, to meet the responsibilities to their minor children through agreements in the parenting plan rather than relying on judicial intervention; and
(g) protect the best interests of the child.

(See § 30-3-10.9(1) (Parenting plan -- Objectives -- Required provisions -- Dispute resolution)).

Evidently, § 30-3-10.8 and the parents who follow it aren’t doing the job, so Rule 4-509 adds a third party to the equation in the form a parent coordinator who is no better equipped than the court to govern parenting disputes and is subject to a ludicrously detailed, complex laundry list of additional strictures and requirements that we will address infra.

Does anyone honestly (honestly) believe that the reason we have or have persistent child custody and parent-time disputes is because we lack for those who can or will “consult with the parties and make recommendations directly to the parents about how the children’s needs can best be served?” Come on. What problem does a rule like this solve?

And why must every dispute be treated as something where if we just “seek to elicit cooperation and agreement between the parents” somehow the dispute will be resolved? Consider: many parent-time disputes arise because (and I realize this may be a radical concept) a parent is in the wrong. Sometimes that parent is innocently in the wrong, other times that parent is deliberately violating the decree and/or the laws governing child custody and parent-time disputes. Either way, wrong is wrong, and there is no need nor reason to treat this wrong-headedness as something to be negotiated over. Are you refusing to have the children back at the conclusion of parent-time at 7:00 p.m. on Sunday? Hey pal, this ain’t a dispute; you’re in the wrong, and the custodial parent need not “negotiate” or “mediate” or “dialogue” on this topic. You’re in contempt of court. Case closed. If we introduce proposed Rule 4-509 into the mix it gives bull-headed miscreants and their baseless “positions” merit, as it compels the aggrieved parent to work with the parent coordinator (after all, if you go straight to court with a plain vanilla motion for order to show cause, what good’s the parent coordinator?) or he/she risks being branded “uncooperative,” “close-minded” and “part of the problem, not part of the solution.” Proposed Rule 4-509 is an example of where the maxim “Don’t just do something, stand there” should be heeded.

Some “disputes” are not disputes at all, but merely antagonism dressed up in sheep’s clothing by a clever, opportunistic parent acting in bad faith. Such “disputes” do not merit advice or guidance, or revision, or clarification of their parenting plan, but instead just need good old fashioned retribution and punishment. Such “disputes” are not best addressed by

suggestions, solutions, compromises or settlements. Where a parent is just plain wrong, just plain poking his/her finger in the eye of the other parent, the court, and the law, no amount of insight, training, therapeutic skill or stimulation of appropriate parental communication is warranted or effective. Punishment, however, is; and if punishment is not meted when when called for, justice is denied. Again, I know it’s a radical concept, but punishment does work, and in some cases, it’s not only appropriate, but the only effective means of stopping the misconduct.

Now this is rich: “Involvement of a parent coordinator is best suited for parties who can respectfully exchange ideas and who can benefit from independent professional advice in areas where they disagree.” Parents who can respectfully exchange ideas and who can benefit from independent professional advice in areas where they disagree don’t need a parent coordinator in the first place! Hey you attorneys out there, have you ever seen anyone recommend a parent coordinator when the parents actually try to get along and acknowledge that reasonable minds can disagree, yet still treat each other civilly and in a spirit of cooperation? Hell no! Parent coordinators are recommended when someone (whether sincerely or just to impose financial hardship or other burdens) claims that without a “referee” the parents will never stop arguing and fighting over parent-time and/or custody. Give me a break.

Huh? How was the “minimum [that’s a loaded term, if ever there was one] number of visits [i.e., no less than 4 hours of face to face joint consultation] decided? Was that just a number that felt good? Where’s the justification for making parents meet for 4 hours with the parent coordinator, no matter what? With due respect, these kinds of rules lack any basis in science or even just plain good sense.

Uh-oh. Did I read that right?: “as well as other needs of the children”? In the military, we call such language mission creep. How can proposed Rule 4-509 initially proclaim the “role of the parent coordinator” to be “to serve in child custody and parent-time disputes,” yet broaden the parent coordinator’s reach to include “other needs of the children”? What if the parents have no dispute between them, but the parent coordinator feels that little Johnny could benefit from the parents taking a Love & Logic course? What if, despite an order of joint custody, the parent coordinator feels that Dad’s the better parent? What if the parent coordinator feels that the kids need time to “explore their sexuality”? You get the idea.

One word comes to mind when I read subpart 3 of proposed Rule 4-509: micromanagement. Remember when the public and legislature that serves it treated divorcing parents as though their divorce did not divest them of their intelligence, their reason, and maturity? Is it too hard to recall that there was a time when a divorce decree assumed that parents would, despite the dissolution of the marriage, continue to function reasonably well as parents? Apparently so, because now a parent coordinator is needed to consult and instruct parents on a 25-point list on basic parenting covering everything from “decision-making [sic] and delivery of care” to “dates and times and method of pick-up and delivery” to “parent-time during vacations and holidays [don’t we have a statute or two or three that already covers that?]” to “transportation to and from each other’s home” to “adherence to special diet, clothing, bedtime, and recreational requirements [Aaagghhh!]” to
“school attendance.” School attendance? Is that even negotiable?

Why must anyone who is considered minimally competent to advise parents be a professional? Why can’t a 68-year-old mother or father of a couple of kids who grew up without becoming felons qualify? They appear to have known something about good parenting too.

No offense to psychologists and their ilk, but psychology is not a hard science. One day Dr. Spock is everybody’s hero, the next he’s history’s greatest child development monster. If child development were a skill we could teach like plumbing or carpentry, based upon timeless principles upon which there is little to no argument, then I’d say leave parent coordination to the psychologists, the LCSWs and the marriage and family therapists, but we’ve got to get over this notion that the only people who know about parenting are professionals who may not even be parents themselves. Fact: you don’t need “formal training in child development” to give sound advice about parenting. Fact: you need not be forced spend hundreds of dollars an hour to get sound parenting advice when needed. Fact: running to the professionals isn’t the answer to every problem.

“a working familiarity with child custody/parent-time law and the ethical issues involved in custody matters”? There’s a specific definition. And who determines who meets this ambiguous standard?

Let me be blunt(er): Referring people to professionals who have all this training and knowledge isn’t going to make a noticeable difference. People referred to mediation settle not solely because they discovered their BATNA (or whatever they’re calling it these days) but often because they got tired of jumping through all the damn dispute resolution hoops the judiciary is apparently hell-bent on throwing in front of them.

Good grief. Did we really need to articulate that the parent coordinator needed to be impartial? And did we need 195 words to boot to get the point across?

Did we really need to articulate that the parent coordinator needed to be free of conflicts of interest? And did we need 222 words to boot to get the point across? Why are we treating parents and lawyers and the child development professionals like amoral, unethical morons?

Why?

Great; the parent coordinator can get a guardian ad litem in on the act. Don’t forget the special master while you’re at it.

And who could forget to include teachers, physicians, clergy, therapists or other extended family members? And why stop there? Perhaps the disputes between two parents should be made part of a statewide ballot initiative too. Can’t we just leave the family to deal with its own problems? Aren’t we getting, with proposed Rule 4-509, a cure worse than the supposed disease?

If a shortage of rules is what caused parenting disputes or allowed them to persist, more rules would be a fitting, salutary response to the problem. More rules, however (particularly more rules such as proposed Rule 4-509), in their haste to stamp out disputes among divorced parents (and it's crazy to suppose anything will ever do that), simply exacerbate the problems. Rather than create more rules, the simplest, most expeditious way to deal with disputes in divorce is to clear the pathway to the judge or commisioner, so that he/she hears and decides he matter in a timely manner and/or to make parents who seemingly cannot resolve parenting disputes between them pay a premium to bring such matters before the judge, and then mercilessly punish those parents who engage in "disputes" out of malice or bad faith.

I welcome your comments.

More Griping About Custody Evaluations – And a Solution

2008-04-03T20:57:00.003-06:00

I again go on record to say what so many attorneys secretly know or at least believe, but are seemingly afraid to admit:

1) custody evaluations are often requested in divorce cases as a knee-jerk reaction without the requesting party considering whether an investigation into custody is necessary or even warranted; and

2) custody evaluations are often requested not out of any genuine desire for professional analysis of custody, but as a bad faith means of crushing the opposing party under what is for most parents the unbearable financial burden associated with paying for a custody evaluation.

Why will so few admit these facts? I imagine most would agree with at least some of my suggested answers:

1) It’s hard to argue that a custody evaluation can provide useful information potentially valuable to the court and of potential benefit to the children; so if you oppose a custody evaluation, you can easily be branded as “anti-information,” “anti-truth-seeker,” “anti-will-somebody-please-think-of-the-children” etc.

a. But the fallacy of this hasty reasoning lies in the fact that just because something may be beneficial or is beneficial does not necessarily justify the thing itself. Installing breathalyzer ignition interlocks on every single car would probably radically reduce DUIs, but that sole benefit, considered in isolation, clearly does not justify the accompanying expense and the burden. The same reasoning applies to the knee-jerk request for a custody evaluation. I can be all for truth and benefit to kids yet oppose a financially crippling means of fostering it.

2) Accusing a party of a malicious motive in requesting a custody evaluation in bad faith is similar to accusing someone of making a charitable donation solely for the tax break.

a. But it should be readily apparent that where two parents’ combined household income is $4,000 or less, it is ridiculous to request that one or both of them spring for a custody evaluator’s $2,000 to $3,000 initial retainer, let alone the total cost of a completed evaluation. Anyone who requests a custody evaluation under such circumstances is, in my book, presumptively acting in bad faith, or at least out of stupidity, and neither acting in bad faith nor out of stupidity justifies a custody evaluation.

So what do you if faced with a knee-jerk or bad-faith request for a custody evaluation? Try this:

Retain the evaluator for a custody evaluation, and pay the initial retainer, but have the evaluator perform only a preliminary custody interview in preparation for and for presentation of findings at the statutorily-mandated mediation settlement conference (Utah Code § 30-3-39).

If the evaluator’s preliminary findings/report provided at the mediation/custody interview combination settlement conference satisfies the parties and they can craft a parenting plan around it, then the parties settle the issue of custody, the evaluator’s work is done, and a full-blown custody evaluation (and its attendant costs) will not be necessary.
If mediation does not result in settlement, then the evaluator’s preliminary findings/report are not wasted and the evaluator simply continues to conduct and complete a full-blown custody evaluation as the parties conduct discovery and prepare for trial.

The parties get to mediation (as mandated by statute) early in the process when mediation is most efficient and effective.

As much as I hate the term, this proposal is a “win-win” for both parties. Each gets what he/she wants without compromising his/her position in the underlying litigation, and this arrangement has the fringe benefit of getting the parties to mediation quickly and with useful information on custody from the evaluator, without having to spend thousands of dollars and wait months on end. Neither party suffers any prejudice or wastes any time or money on the mediation/custody interview combination settlement conference because this arrangement preserves the right to have the evaluator apply the preliminary work and findings toward a full-blown custody evaluation, if mediation fails. And last, but not least, this arrangement is a great impediment to those who would request a custody evaluation out of haste or bad faith without you having to risk looking anti-custody evaluation.

I welcome your comments on this posting.