Child Custody and the Best Interests of the Family

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?

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

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

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

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

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?

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.