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

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.

BACKGROUND¹

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 Estoppel⁷

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?

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

§ 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

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

(c) intentionally or knowingly:

(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

(C) the combined influence of alcohol and a nonprescribed controlled substance as defined by Section 58-37-4;

(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

(c) under color of authority.

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

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? 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.