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Parent Time: This is not a “pay to play” thing.

I’ve had this question come up a few times in the past few weeks, from a few different places.  A friend from way back asked if it was legal to withhold parent time for non-payment of child support, because he knows a guy (who lost his job, and got behind) who is experiencing that right now with his ex.  And I advised a couple that their daughter cannot keep her kids away from dad because he’s not paying child support (even though that dude is actually refusing to work specifically so he doesn’t have to pay–but that’s a topic for another day.)

So why CAN’T a custodial parent keep the non-custodial from having parent time if that person isn’t paying his/her child support?

Let’s start with the focus of the issue:  The kids need to have a relationship with BOTH parents.  Parent time is not something that is doled out based upon one’s ability to pay, or even their willingness to pay child support.  Studies have shown that children in divorce do better emotionally and socially when they have both parents actively involved in their lives.  A parent time order is designed to do just that–keep both parents involved with the kids.  Keeping a child from a loving parent, just because that parent isn’t paying the other one, disrupts the child’s relationship with that parent, and really could constitute emotional child abuse.

Mrs Doubtfire

One should never have to cross-dress just to have access to their kids.

“But it’s not fair!”  I hear this a lot (I hate the “F”–fair–word).  Why should the non-custodial parent get the benefit of having a relationship with the child when he/she isn’t even financially supporting the kid? I’ll tell you why–this is NOT about you, and it’s not about the money.  It’s about the kids.  Kids. Need. Both. Parents.  Even if one parent is a deadbeat (and for the record–I do not believe all people who don’t pay child support are deadbeats).  As (retired) Commissioner Garner of the First & Second Judicial Districts here in Utah was wont to say, children are half of each parent.  Denying a child from being with a parent is denying half of the child.   In the words of Natalie Hillard, the littlest child in Mrs. Doubtfire, “we’re his goddamn kids too!”

The divorce code specifically states that the other party not complying with the parenting plan provisions or child support order does not mean you can not comply, too.  (See U.C.A. 30-3-10.9(9)).  Parent time is part of the parenting plan provisions.

So yeah, it’s illegal.  But it’s also criminal.  If you keep a kid from a non-paying parent during the time he/she is supposed to have visitation, just because they’re not paying child support, you are committing a crime.  It’s called custodial interference, and the statute is found at U.C.A. 76-5-303.  Nothing in the statute makes an exception for non-payment of child support.  Unless you honest to God believe your child is in danger of abuse at the hands of the other parent, you cannot keep a parent with a visitation order away from his or her kid(s) during the time they have been awarded by the court.

Custodial Interference - 2016

…though it IS located in the criminal code under kidnapping…

A first offense is a Class B Misdemeanor; doing this twice in a 2 year period raises that to a Class A Misdemeanor.  Removing the child from the state when it’s supposed to be the other parent’s time is a third degree felony.  Class B misdemeanors may be punishable by a fine of up to $1000 and prison not to exceed 6 months; Class A–fine up to $2500 and not more than one year in prison; and third degree felonies may be punishable by a fine up to $5000 and up to 5 years in prison (see U.C.A. 76-3-301; 76-3-203; and 76-3-204).  The legislature was serious about parent time.  You should be, too.

So what can you do if this happens to you?  First off–you should be communicating clearly and in writing with a parent who is withholding your kids from you.  Email and request confirmation of the parent time schedule for the week, or the month, or the summer, or whatever.  Be civil.  Keep any responses.  Text the other parent about parent time.  Be civil.  Keep all responses.

If you have a statement from the other parent saying that they will NOT give you the kids for your parent time, call the police.  Request a civil standby, and go to the ex’s place to pick up your kids at the appointed hour.  When the other parent and the kids aren’t there, or if the other parent refuses to allow you to take the kids, make a police report.  Get copies of the police report. Request law enforcement refer the case to the local prosecutor.

File a motion to enforce your parent time order with the court.  This is called an Order to Show Cause.  It does not cost you anything to file, and you do not have to have a lawyer for this.  You can find forms on the Utah courts website to do this.

The caveats on enforcement:  Police and prosecutors won’t always want to charge a parent with custodial interference.  But if it were me, I would make a pest of myself until law enforcement took me seriously.  We’re talking about your relationship with your kids.  They won’t always be kids; you miss out on their growing up, and you can’t get that back.  If they don’t know who you are because the custodial parent is horrible, and you didn’t try harder, that’s partly on you.  Be the adult.  Be brave.

They’re your goddamn kids too.

To Talk to the Cops or Not: What are you REQUIRED to say?

So I have teenaged sons.  And it appears from my experience with them and law enforcement that they, being teenaged boys, are cop magnets.  I’ve had my kids report to me that they were stopped by police for some of the slimmest of reasons. Legitimate reasons for the stop include going a mile over the speed limit, having a tail light out, failure to illuminate a license plate, etc.  While these may seem weak, they do give law enforcement justification to effect a stop, as they have reasonable suspicion to believe that the person has violated some law.

Following this encounter between law enforcement and some kids

boys-on-red-truck

These aren’t the kids involved, but they ARE sitting on a red truck, and they ARE guilty of being teenaged boys.

my middle child was hanging out with last Friday night (my kid was NOT in one of the cars, thank heavens), a discussion came up between me and my boss about whether one MUST provide identification during a stop.  There’s a lot of myth and misunderstanding about this, so I decided it was time to do some research.  (I’ve gotta know what to tell my kid, ya know?)

This is state of Utah specific, and the statutes cited are Utah Code.  Every state’s a little different, so you’ll have to do your own research if you’re  not in Utah.

In a case decided by the United States Court of Appeals, Tenth Circuit (of which Utah is a part), the court worked through whether one is required to provided identification to law enforcement in the course of a stop.  The case is Oliver v. Woods, 209 F.3d 1179 (2000). The case revolves around whether Oliver’s 4th amendment rights had been violated by the stop and detention, and then if the stop WASN’T justified, whether he had to provide identification to the officers or not (he had refused).

Traffic Enforcement

…and this isn’t Centerville or Farmington city…just for the sake of full disclosure.

The Utah Code sections that were cited in the Oliver case are U.C.A. §§ 53-3-217, 76-8-301.5, and 77-7-15.  And the sum up is this:

  1. You’re required to carry your license with you at all times while operating a motor vehicle (UCA 53-3-217), AND you are also required under that same statute to present it “upon demand of a…peace officer…” This means that the drivers license code requires you to provide ID to a cop.
  2. If you are subjected to a lawful stop, the officer “may demand [your] name, address and an explanation of [your] actions.” ( UCA 77-7-15). And this is a lawful stop: “A peace officer may stop any person in a public place when he has a a reasonable suspicion to believe he has committed or is in the act of committing or is attempt to commit a public offense.”
  3. Failure to provide your name to an officer during a *lawful stop, after being asked for it by law enforcement, is a class B Misdemeanor. (UCA 76-8-301.5)

So there ya go.  Yes, you have to give the cop your ID, and yes, you may have to tell him what you’re doing wherever it is that you are.   BUT you don’t have to say anything else.  So please, for the love of all that is good and holy, recognize that you have a right to remain silent, that officers are not allowed to question minors outside of the presence of their legal guardian or parent, that if you’re over the age of 18 you are not obligated to say anything beyond the above (don’t elaborate!!), and that you do not have to consent to a search of your vehicle.

Our Fourth Amendment right to be free from unreasonable search and seizure has been fairly tightly defined by the courts, but it’s not always easy to determine what’s an unreasonable seizure/detention and what is not, especially in the moment.  That doesn’t mean you don’t have that right.  At least invoke those rights to remain silent when reasonableness of the stop is in question.

To wrap up:  PLEASE PLEASE PLEASE be courteous to law enforcement.  Be respectful.  Whatever your opinion is of the police, they deserve to be treated with respect AS DO ALL OTHER HUMANS.  And you have a much better chance of NOT getting arrested or yanked out of your car and tazed if you’re not a jerk about the stop.

Officer & Family

Officers are people too… So don’t act like a total jerk when you’re pulled over, m’kay?

*Note:  There is a line between whether the stop is “lawful” or not, but it’s a fine line, and one that you really don’t want to risk testing given that the courts may or may not decide you were right.

Civil Procedure in Divorce/Child Custody Part 1: Certificates of Service

In any court proceeding, there are rules regarding how and what you have to do–the Rules of the game, if you will.  The point of the Rules is to make sure everyone is given their constitutionally guaranteed due process rights  under the law.  The other party must be “served”–initially either by the sheriff, a private process server, another adult who is NOT involved in the court case, or via certified mail.  “Serving” the other side after that just requires that you (regular) mail or hand deliver the document to the other side.  You don’t have to have a process server deliver every document to opposing party–just the initial petition/complaint.

Any court proceeding that has parties in opposition to each other requires that certificates of service are included with each filing.  This is not just a family law thing.  A certificate of service is included generally on the last page of any pleading, and it usually says something like this:

Certificate of service sample

A Certificate of Mailing is the same thing as the Certificate of Service…just depends on what you want to call it. This one would be for Initial Disclosures, but you’d fill in whatever the document’s title is.

“I certify that on the (nth) day of (month), (year), I delivered a true and correct copy of the foregoing document via (hand delivery/US Mail/carrier pigeon, etc.) to the following individuals:

(name and address of person who you sent it to)

(Your signature)”

If you’re representing yourself in your court case, on the day that you are going to mail or hand deliver the document to the other side, fill out the certificate of service first, and then make 2 copies of the document.  The original document is filed with the court.  One copy is sent to the other party, and you keep one for your own files. Always keep a copy of everything you file with the court–that way you have a record of it that you can refer to yourself.

You can serve the other party by emailing the documents to him/her if he/she says that he/she will accept that as service.  You would initially email him/her and ask if they agree to accept service via email, and keep the response he/she sends back stating that they agree to that.  If the other party agrees to accepting service via email, you’ll only need to keep a copy for yourself and send the original to the court–just email a scanned copy of the filing to the other side, and keep the email you send, showing that you DID in fact send it.

The point behind all this is to tell the court, in a sworn court document, that you told the other side what you told the court.  Talking to the court without telling your opponent what you said is called ex parte communication with the judge, and it’s illegal.  Everyone is entitled to notice of ALL communication with the court in any legal case…That’s the whole due process thing.  If you don’t know what’s been filed, you have no way of responding to it.  Failing to respond affects your rights.  A lot.  Which is why if you don’t send the other side a copy of everything you file with the court, the court won’t act on your filing.  It’s as though you haven’t filed it yet.  Which stalls your case.  Nobody wants that.  Save yourself time and energy and do it right the first time.Do It Right the First Time

 

 

Bio Fathers by Sexual Assault…Rights? Really?

Shortly after I graduated from law school in 2010, I became aware of a law review article that had been written by a woman named Shauna Prewitt of Georgetown Law.  The topic of the article was the gaping hole in the law regarding the rights of men who conceived children with women whom they raped.  The article stated the statistic that at that time, 2/3 of the jurisdictions in this country did not have any laws on the books that prevented a man who became a father through rape from gaining custodial rights to the child conceived by his assault on the child’s mother, in the event the mother chose to keep the child and raise it (rather than have an abortion or place the child for adoption.)

1 in 5 women will be victims of sexual assault in their lifetimes... and you CAN get pregnant if your're raped, in spite of some politicians bizarre beliefs.

1 in 5 women will be victims of sexual assault in their lifetimes… and you CAN get pregnant if your’re raped, in spite of some politicians bizarre beliefs.

At the time the article was published in the Georgetown Law Journal (link to the full article here), Utah was among those states with NOTHING preventing a rapist from having this kind of continual access to his victim with the blessing and aid of the courts.  However, I am happy to note that the legislature remediated that situation in 2013, at U.C.A. 76-5-414:

“76-5-414 Child conceived as a result of sexual offense — Custody and parent-time.

(1) A person convicted of a violation of Title 76, Chapter 5, Part 4, Sexual Offenses, except for Sections 76-5-401 and 76-5-401.2, that results in conception of a child may not be granted custody or parent-time rights by a court regarding the child, unless:

(a) the nonconvicted biological parent or legal guardian of the child consents and the court determines it is in the best interest of the child to award custody or parent-time to the convicted person; or

(b) after the date of the conviction, the biological parents cohabit and establish a mutual custodial environment for the child.

(2) A denial of custody or parent-time under this section may not in and of itself:

(a) terminate the parental rights of the person denied parent-time or custody; or

(b) affect the obligation of the convicted person to financially support the child.”

Notice that parental rights are not automatically terminated in these situations.  This means that unless it happens through a parental rights termination petition, the rapist is still on the hook for child support.  Which just seems like sweet justice to me.

Do note the language of “may not” up there in section 1…”May” is permissive language.  That means the court May Not, or it just May anyway.  Which is interesting…It’s like an escape clause for the court to award custody and parent time in these instances regardless of the circumstances.  Which is, quite frankly, Odd to me.  The statute already allows for exceptions in certain situations; what’s up with the “may” language?

Another interesting thing to pay attention to:  The exception to this statute is for individuals who are convicted under the sex with minors statutes.  Why they are the exception to the rule is beyond me.  In looking at the legislative notes available online, I see no reason or justification for this.  Another thing to just be aware of.

This is another one that we just might have to wait and see what the courts do.  Sometimes the spirit of the law gets lost in the letter…

Your Lawyer’s Job

*Note:  This is another contribution from my experienced attorney friend in Wyoming.  He writes this after working a case with a client who would not listen to him and got him yelled at by a judge.  FYI:  Attorneys do NOT like to have the judge yell at them.  In fact, the first rule of practicing law in court is DO NOT PISS OFF THE JUDGE. 🙂  Read this.  Believe it.  Adjust your behavior accordingly.

“Are you a bulldog?”  “That is to say, are you going to fight and not let go?”  “Are you going to make him/her pay for what he/she has done?”

Does your lawyer act like this? Not. Good.

My role as your attorney is as advocate and protector.  My job is stand up for you, polish the shiny parts, and fix up the dings and scratches.  Most of all, keep you from hurting yourself.  You are not paying me several hundred dollars an hour to be your hand puppet.

If you have any expectation that I, as your attorney, should conduct myself as a slobbering, aggressive, moron who will “do what you tell me to do”, then you should probably look else where for legal representation.  I cannot effectively represent you if you expect me to do whatever you want me to do.  Often times, what you “want” and what you “need” are diametrically opposed to one another.

Believe me, I understand the pain of your situation.  I’ve been there.  I have also stood before judges who, while biting their tongues and swallowing the blood as it runs down their throats, have sought to do “justice”.

This is usually accomplished by punishing the attorney/client who plays dirty, seeks revenge, or distorts the truth.  I will work as hard as I can to get you what you need – I will not spend my credibility trying to get you what you think you want.

I cannot count the number of times a client has wanted me to do something that, while not illegal, certainly would not advance their cause.  My reply is usually this – Go find yourself another attorney.  Very few have actually gone and hired another attorney.  Those who have – regret their decision.

So remember this the next time you see the attorney billboard with the shadow of a pit bull dog, or hear an advertisement where a dog is growling and barking in court:  Dogs growl and bark when they are afraid or not prepared to confront the situation before them.  The dogs you should be weary of are the ones wagging their tails and positioning themselves to take a hunk out of your posterior.

**If anyone is going to be a hand puppet, YOU should be your lawyer’s hand puppet.  Watch this clip.  Take note.

How to Get Tagged As a Sex Offender Without Even Trying–Part I

In case you missed out on this bit of info somewhere in this blog, I have children.  All boys.  Four of them.  My oldest are fraternal twins, and they’re 14 1/2.  This is something of a scary age for a Mom.  They like girls.  They talk about girls.  Heaven knows what they’re actually DOING with girls.  I’m trying to be cool, and trust my sons, and keep the lines of communication open, by being as Cool as possible, given my obvious advanced age and how that makes me Out of Touch with Kids These Days.  I’m hearing some things coming out of the mouths of my sons that I decided ya’ll might have heard as well.  And some of these things consist of mythology that can get a kid tagged as a sex offender for a good long time, if not for life.

I have no idea how this conversation started, but the Scary Thing that was said was this:  “You can’t rape the willing!”  I remember hearing this coming out of the mouths of many when I was in high school, college, law school, etc.  And it’s a lie.

"But Officer, I SWEAR she said she was 18. . .!"

There is this thing called statutory rape.  In Utah it’s located at U.C.A. § 76-5-401.  The basics:  In Utah, it is a 3rd degree felony to have sexual relations with a minor (not younger than 14 or older than 16) under circumstances not amounting to rape (i.e., the child “consented,” which is fiction as far as the law is concerned with sex and minors), where the actor/person who is NOT the minor is 4 years or more older than the minor.  And if the actor is less than 4 years older than the minor?  Still a crime, but it’s a Class B misdemeanor instead.  [You should read the whole law to get the specifics, but these are the highlights.]

In other words, you CAN rape the willing.  This is a sex offense.  For this particular offense, if the perpetrator is convicted of a felony in relation to this statute, he/she will be required to register as a sex offender for 10 years.  TEN.  There are a significant number of limitations put on registered sex offenders.  It’s not a place you want to be.  Especially if you got there by being stupid, and thinking things like, “you can’t rape the willing.”

 

Categories: criminal law

Cohabitant Abuse in Utah: “They don’t DO gays.”

[**Note:  I post this story with permission from my client, whose name and the name of the other party have been changed to protect my client’s privacy.  I’ve left out jurisdictional identifiers for the same reason. The picture that accompanies this post actually IS my client.  I saw the photos of her injuries prior to meeting her.  I did not recognize her when I met her from seeing this/the other pictures, and felt that no one else would either.]

I recently finished up my second non-prosecutorial criminal case.  My client, who we’ll call Beth, had been cited for domestic violence assault as a result of an altercation with her girlfriend, who we’ll call Sue.  Yes, you read that right:  my client was in a homosexual relationship where there was domestic violence.  But I’m getting ahead of myself. . .

My client retained me after being cited in this case.  What happened was this:  Beth had had previous interactions with Sue, her girlfriend, that indicated to her that Sue was trying to exert control over her.  Sue had already been verbally abusing Beth, but had never struck her.  On the day of the incident, back in November of 2010, Sue had started arguing with Beth in their bedroom about Beth’s 14-year old son.  The argument escalated, and Beth tried to leave the room and the argument.  Sue became angry and blocked the doorway.  Beth, who is 7 inches shorter than Sue, and was outweighed by 30 pounds, tried to duck under Sue’s arm.  Sue pushed her back, and then began punching Beth in the head.  Beth felt 2 blows before she was knocked to the floor.  Sue jumped on top of her, straddling her, and began punching her in the head and face.  At this point, Beth’s 14 year old son came into the room, screaming for Sue to get off of his mom.  Sue jumped up and ran out of the room, and then immediately called the police, claiming that Beth had assaulted her.

When the police officer arrived, he met a calm Sue outside the house.  There were some scratches on her chest, and her t-shirt was torn slightly at the collar.  Sue told him that Beth had scratched her and kicked her, and admitted to punching Beth, but just once, and just in self-defense.  Beth, in the meantime, was in a state of shock, and did not cooperate with the officer.  At that time, all that was apparent of Beth’s injuries was a goose-egg rising out of her left temple.

What it looks like when a woman’s girlfriend beats the hell out of her. . .And you don’t even see the height of the bump on the temple from this angle.

Not seeing a large differential in the severity of the parties’ injuries, and hearing opposing stories about what happened, he cited both Beth and Sue with domestic violence assault. (See U.C.A. § 77-36-2.2 for duties and powers of law enforcement when called to a domestic violence scene, including what to do when there are conflicting stories from the parties.)

Beth left the scene in an ambulance, and had a CAT scan immediately upon arriving at the emergency room.  As the bruising in her face developed, her eye, head, and cheek turned black from the injuries inflicted on her by Sue, her girlfriend.

Domestic violence, or cohabitant abuse, occurs anytime there is abuse between people who cohabitate–be they in a romantic relationship or just roommates. (See U.C.A. § 78B-7-102.)  The cop got it right when he issued citations for DV assault.  Whether the parties were gay or straight, they lived together, which qualifies as cohabitant abuse.  The prosecutor, on the other hand, didn’t see it the same way.  He worked a plea agreement (plea of guilty held in abeyance upon successful completion of one year probation) with Sue for simple assault–his theory was that since the homosexual relationship wasn’t recognized by the state (at that time), DV assault wouldn’t stick.  He told me this himself–in front of the cop as well, who looked at me, smiled a little, and shook his head.  I said, “It’s a cohabitant abuse statute.”  “It is,” said the cop, “which is why I cited them with dv assault.”  The prosecutor, sadly, wasn’t. . .*something* enough to see that.

You might wonder what the big deal is with calling it assault or dv assault.  Under the statute, repeated domestic violence assault convictions have enhanced penalties, as a deterrent to re-offending (see U.C.A. § 77-36-1.1).  By not prosecuting Sue on a dv charge, she will not have the enhanced penalties for future offenses, which offenses are a real possibility, given her history and personality. Further, there are statutory protections put in place to protect victims of domestic violence that are not present for victims of assault.  These protections keep the victim from being further abused, and further traumatized by the system. (See U.C.A. Title 77 Chapter 36 for the Cohabitant Abuse Procedures Act.)

It’s also a slap in the face to the actual victim in a case–regardless of whether he or she is gay or straight.  Domestic violence is not a problem that is unique to the heterosexual population, but it’s largely seen as such by law enforcement.  We had a particularly open-minded cop in our case.  He was at least willing to give the DV cite out to a same-sex couple.  That said, had Sue been a man, and had my client been assaulted by her boyfriend, chances are she would not have been cited at all.

At our first pre-trial hearing appearance, I provided the prosecutor with pictures taken of Beth’s injuries after the bruising had developed.  He was not willing to dismiss the charge, or listen to any reason concerning the statute.  We re-scheduled pre-trial for March 18th.  I called the prosecutor a week prior to the pre-trial, to see if he would be willing to dismiss based on this new evidence (and on the fact that they had absolutely NOTHING that would stand up in court to prove the city’s case against my client.)  He was unwilling to discuss at all.  We showed up at the pre-trial expecting the worst.  The prosecutor met with me prior to calling our case and told me that he was going to move to dismiss the charge–but was very quick to point out that it had nothing to do with anything I’d argued to him.  Right.

Sue showed up at the court during our appearance.  She sat herself right down behind Beth while we waited our turn.  When the judge dismissed Beth’s charge, Beth got a look at Sue’s face.  She was angry.  She left the courtroom, but lingered in the lobby.  The responding officer was again in court with us, and he told us to wait a minute before leaving, then headed out into the lobby to usher Sue out.  He came back for us, and waited with us in the lobby until Sue got into her car and actually left the parking lot.  Sue sat in her car a full 5 minutes before leaving.  I appreciated the police escort.  Sue creeped me out.  And I’d never had any actual contact with her.

My client was thrilled.  She thanked the officer, told him she understood his position.  She was very gracious.

Beth was in an abusive relationship with a man before she started living with Sue.  Law enforcement swooped in and protected her in that instance.  Not so this time.

She told me that she had been beaten by a man before, but it was nothing like what happened with Sue–Sue was utterly vicious, merciless.  She said it was absolutely staggering.  Domestic violence is not exclusive to heterosexual relationships.  The only difference between straight and gay DV is the reaction to it by law enforcement and the prosecution:  As Sue told Beth weeks before beating her black and blue, “Don’t bother calling the police for domestic violence in ________.  They don’t DO gays.”

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