Right of First Refusal in Childcare

If you’re trying to look this up in the Utah state statutes with this term, you won’t find it.  “Right of first refusal in childcare” (commonly shortened to ROFR when lawyers start talking in writing about it) stands for the proposition that it’s better for a child to spend time with the other parent than with a babysitter.  It IS in statute, however, if you know where to look.  At UCA 30-3-33(15), the Advisory Guidelines, it says: “Parental care shall be presumed to be better care for the child than surrogate care and the court shall encourage the parties to cooperate in allowing the noncustodial parent, if willing and able to transport the children, to provide the child care.”

Mom&SonCooking

It takes time to teach…

So let’s break that down.

First:  parental care is better than surrogate care.  So who is a surrogate?  Anyone who is NOT a parent is a surrogate.  That means stepparents, grandma, aunts, uncles, a babysitter, a friend…ANYONE who isn’t mom or dad.

Second: the noncustodial parent–this is whichever parent is not the one who has physical custody of the kids at the time the care is needed.  That means that even if the parties have joint physical custody of a child, if it’s NOT mom’s time to have the kid, and dad needs someone to take care of him/her, Mom is the noncustodial parent in this situation, and she should be given the option FIRST of taking care of the child.  FIRST, as in, call her first before you talk to the babysitter, grandma, or stepmom about watching the child for that period of time.  If she can’t care for the child at that time, for whatever reason, then dad would go to someone else to see if they can help with childcare for that time period.

Third:  “if willing and able to transport the children..”  In the above example, if Mom wants to have the child while Dad is otherwise occupied, she’s got to provide the transportation–the pick up and drop off.  If she can’t, Dad’s not obligated to use Mom for childcare on that occasion.

That’s the statute.  How does that translate in YOUR custody order?  Well, your custody order may have other factors included, like ROFR only applies if the custodial parent will be away from the child for x amount of hours, commonly like 3 or 4.  Or ROFR will NEVER apply, for whatever reason–maybe because the parties don’t get along and any time they interact there’s conflict that bleeds over onto the kids, or because you live too far away from the other parent to make it practical to use.  Or because there have been issues of abuse.  Or because the other parent can only have the kids while they’re supervised, and there’s no supervisor available on short notice.  There are definitely reasons to NOT have ROFR included in your Order, but if it’s not specifically excluded, the statute applies–even if it’s not mentioned anywhere at all in the custody order.

Dad&DaugherCar

…if there’s no time, the life skills teaching can’t happen.

The goal with right of first refusal if for both parents to have the opportunity to spend as much time as possible with their kids.  Kids need BOTH parents, and having that extra time with Mom or Dad is important for building that parent/child relationship.  Being a good parent means encouraging that relationship.  So make sure you’re doing what you can in your own custody order to help your kids that way.  Right of First Refusal, those words, aren’t anywhere in the statute.  But they very well should be in your own parenting philosophy and practice.

September

fall leaves depression

It’s beautiful, really…

September has been my least favorite month for a lot of years now.  Bad things, hard things, miserable things, challenging things, depressing-life shifting-exhausting things happen in September. Every September.  For more than a decade.

This September, my middle child left home to serve a religious mission in the Farmington, New Mexico area.  He’ll be gone for the next 2 years.  When he returns, he’ll go straight to the university, out of town.  He’s gone, basically, and will not be Home with me again.

My oldest child, who had been living with me during the month of August, moved out of state–I drove the Yukon hauling the trailer with all (most) of his belongings myself to get him there.  He’s not planning on moving back to Utah any time soon, so this is effectively a permanent move.

Autumn & DyingMy husband has been gone most of the month with work and then elk hunting, which meant these first weeks of going from 4 kids that drop in or live with me constantly to 1 child with me part of the time and the drop-ins dropping off sharply, I’ve been largely on my own.

A dear friend lost his father, quite unexpectedly, and has struggled personally through the month prior to his dad dying–and, obviously, since as well.

My anxiety and depression have been through the roof.

Basically, it’s been a September.

I am thrilled that we are putting this month to rest in a couple of days.  I’ve had enough of it.  I will breathe a sigh of relief when September is Done.

Green Day got it right….

Useful New Blog I’m Linking To

I came upon a useful new blog today while reading a very interesting article on protective orders and what constitutes violating one in this age of online appearances, social media platforms, and etcetera.  (That article is here.)  The new blog  is called Technology Safety, and there is a link to it on the right side of this page, under My Links.  There is a lot of good information there regarding ways to stay safe with all of the new technological advances that make spying on/stalking someone so much easier.  Check it out.

Convicted Felons CAN Vote (in most states)

Something I learned today…while a felon loses his/her right to vote upon conviction and incarceration, the right to vote in Utah is restored as soon as they start probation, or are granted parole, or are released from incarceration for whatever conviction they were sentenced under.  It’s in the voting code, located at UCA 20A-2-101.5.  Honestly, this makes me very happy.  To take away someone’s voice in our governmental system is a really horrible thing.  I am THRILLED that that voice is restored.

The law varies by state.  Check out this blog for information regarding your state’s laws.

And tell your friends ;).

Votes

You don’t vote, you don’t get to complain about your elected officials 😉

Termination of Parental Rights & Guardianship: How & Why

I had opportunity to volunteer last night at a free legal clinic.  The beauty of volunteering is that not only do I get to help people, but I also find out where my knowledge of my claimed “specialty” in the law is limited, and then I have something to research to bolster that knowledge.  It’s a win-win.

Last night I consulted with a woman on guardianship of a child.  Her circumstances are such that she’s in a temporary guardianship situation, but because the child’s mother is not making any efforts to become a fit parent, and there is a constant underlying threat that mom is just going to swoop in and try and take the child home with her to “be the mom”, the woman expressed an interest in a more permanent arrangement.  We discussed a few different options, including filing a petition to terminate mom’s rights and then filing for adoption of the child, and a permanent guardianship.

bad parenting

Hopefully this is NOT this kid’s parent…

I am familiar with the statute regarding termination of parental rights, and I’ve read a good chunk of caselaw recently about termination of parental rights, but I could not for the life of me find the statute last night when I was talking to this woman (it’s a little tricky to pull/find/read on a 4 inch iPhone screen, btw.)  SO. Today I found it, on a desktop computer.  Statute that governs parental rights termination is located at Utah Code Title 78A Chapter 6 Part 5.  Any interested party, including a foster parent, can file a petition to terminate rights of a parent (UCA 78A-6-504).  Grounds for termination are located at UCA 78A-6-507.  You’ll note that only ONE of those grounds have to be shown/proven to terminate rights, which include abandonment of the child.  A parent can be found to have abandoned their child if they’ve only had “token” contact or communication with a child.  So if mom hasn’t seen a kid in 2 years, and then suddenly shows up and takes him to McD’s, or sends a card with $5 in it, that doesn’t constitute enough contact or support to prevent a court from finding that the parent has abandoned the child.

The statute spells out what needs to be in the petition to terminate, and also states what the process is (serving the parent, timeframes for having a hearing, etc.) at UCA 78A-6-504 and -505.  While I’m not finding any forms for terminating someone else’s parental rights (NOT voluntary relinquishment of rights–those forms and information are here), the statute is specific enough that one should be able to put together their own petition and get service of process done without them (or with some limited consulting with an attorney.)

Like I said, I’ve read a raft of caselaw recently regarding the process of terminating someone’s parental rights (here are just a few examples:  In re K.W., In re A.J., and In re B.A.).  A parent is entitled to a court appointed/state paid for attorney in termination proceedings if they can’t afford to hire a lawyer, but the parent is not required to have a lawyer–meaning, if the parent is offered but refuses counsel, they can’t come back later and say they were deprived of due process.  And the courts really do only require the showing of ONE of the statute’s grounds for termination.  ONE.  Though quite frankly, all the cases I’ve read where the appellate court affirmed the juvenile court’s decision to terminate rights have had a bucketload of grounds that more than justified termination.  All that said, the court MUST put into findings of fact actual facts that support the court’s decision to terminate rights….and they can’t be terminated just because a parent doesn’t strictly comply with a DCFS family plan.  (For an example/more explanation, see the court case In Re E.A., from May of 2018.)

The whole point behind a parent having rights to their child removed is for the welfare of the child.  This is not something to take lightly, but if you’re looking at a situation where a parent is NOT getting their act together, is consistently behaving in ways that make them an unfit parent (see the statute for what those ways legally are), and this behavior is threatening the ongoing stability of their child, terminating rights may be the best thing to do for the sake of that child.  Terminating parental rights opens up the child for adoption (which you’d file at the same time as the petition to terminate rights, just to cover your bases–but that’s another blog post.)  Adoption generally equals stability, and the chance to grow up better adjusted and more normally.  Best interests of the child are key here.

Family hands

Because family isn’t just about blood…it’s about people who care about each other.

Terminating parental rights is not the only way to get a child in a more secure situation, for the record.  I also discussed with the woman last night the possibility of getting a permanent guardianship in place.  This is more of a middle ground solution–it’s not legally Permanent–it CAN be undone at some point.  When a parent’s rights are terminated, it IS permanent.  Even if they voluntarily relinquish their rights.  There are no “I changed my mind” options.  Guardianship leaves open a way for a parent to get their situation under control, get stable, and eventually, possibly, get their kid back.  The Utah Courts website has a lot of info on getting a guardianship put in place, including forms.  Have a look-see.

To the woman I spoke with last night:  Good on you for caring enough to even look into this.  Legal actions are never convenient, and rarely pleasant, but you CAN do what needs to be done to make sure the child you’re caring for is in a stable place.  I wish you the best.

Protective Orders: What They’re NOT for

While I’m not in private practice anymore, I do take the occasional one-off type thing: those cases that will have a one time court appearance or are strictly consulting, or are basic estate planning–that sort of thing.  Today I had a hearing defending a client in a motion for a permanent protective order.

I truly believe in protective orders.  When they are needed, one should ABSOLUTELY get one.  That said, I ALSO feel strongly that protective orders should not be abused.  If one is simply trying to control another person, or force a custody order, or simply to “get back” at another person for some perceived slight, getting a protective order is absolutely inappropriate.  Personally, I think people who get ex parte protective orders for the wrong reasons should have to pay the other person’s costs and attorneys fees when the motion and temporary PO are dismissed.  And maybe have some sort of sanction thrown at them by the court, like being ordered to do community service.

My client this morning who I was defending was in a situation where the protective order was being used as a tool to try and control and manipulate him.  The Petitioner in this case, his baby mama, was not in need of protection by the court.  They’re not even Utah residents–they’ve both been living in California up until she took off and came back to Utah, taking their tiny baby daughter with her.  He filed for custody in California a week or so after she left, when it became apparent that she couldn’t be trusted to allow him contact with his child.  And 3 weeks later, after dodging–but finally being served– with the California court papers, Baby Mama filed for a protective order.

Long story short, I won this one.  The protective order motion was denied, and the ex parte/temporary order was dismissed.  The reason I won is because my client was excellent at documenting stuff–he saved all the texts, emails, and Facebook messages the two had exchanged.  And he was totally upfront with his less-than-perfect behaviors.  He had also not been abusive to her–in fact, SHE had assaulted HIM; SHE had been the one threatening HIM. And in the end, we were able to prove that Baby Mama did not meet the requirements to get a protective order against my client.

Gifts from Client 4-19-18

Gifts from my client :).  He was very grateful, and very nice. The best kind of client to have.

I like to win.  A lot.  And when that win can knock down what I see as abuse of  protective orders, and protect a person from losing constitutional rights in a quasi-criminal action, all the better.  I hate people who cry wolf.  They truly degrade the value of the protective order, which hurts everyone out there who honest to God needs one.

It’s Not Just “Being Worried”: Anxiety

Well Adjusted

I’ve mentioned a few times that I’ve struggled with some mental health issues.  I’ve been diagnosed with generalized anxiety disorder (GAD), panic disorder, major depressive disorder (MDD), and dysthymia (persistent long-term depression).  Mental disorders can be debilitating, especially when you ignore them, pretend they don’t exist, and refuse to address them as you would any other illness.  I closed my private law practice in large part because my anxiety had gotten so bad that I was absolutely terrified of checking my email, answering the phone, TALKING to anyone…Getting out of bed was a major accomplishment every day.  Was it all in my head?  Yeah, just like asthma is all in your lungs, and scoliosis is all in your spine.  Stop Having a Seizure

On my better days, I venture the thought of going back into private practice…until the panic hits, and I start getting short of breath just thinking about it.  And I AM medicated.

It’s not something that I can fully control, though I have learned to cope a little better.  My work now is considerably less stressful, and I’m getting paid regularly (!), something that wasn’t happening when I was in private practice, which alleviates a lot of general life stress.  I’m in a much better place.

I’m not the only one who has had their life hijacked by anxiety…Meet Jalen Moore.

 

I work with Jalen’s mom; my kids were wowed by Jalen’s basketball talent in high school.  He’s gonna be just fine, because he’s smart enough to face HIS anxiety head-on, and work toward responsible management of it.  And like any illness, any physical problem, accepting that it’s a REAL problem, and not a weakness that reflects badly on one’s character is where you start in getting healthy again.

physical effects anxiety

The upshot is a panic attack can feel like you are dying…Nothing to worry about, right?

 

For a little musical insight, I give you the Black-Eyed Peas: Anxiety.  With the lyrics, so you can see and FEEL a little what this is like.

 

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