It's the End of the World As We Know It…

*Updates to the courts procedure while we’re going through this COVID-19 thing can be found at this link, which is to the Utah Courts webpage for updates.

Ok, so not really. It IS the end of the world as we know it for at least a few weeks to months. I’m avoiding Facebook, etc., myself, because I had been before (depression + Facebook=kill me now, most of the time) but it’s even worse now. My family is basically prepared. When the store shelves cleared immediately of toilet paper and water, I had a dozen and a half or so rolls, and kept wondering who these weird people were who thought a pandemic was the equivalent of an earthquake, and that our city water would suddenly become contaminated and undrinkable.

That’s not how pandemics work, ya’ll. That’s how earthquakes work (which as a sidenote, actually happened this morning early in the Salt Lake Valley, so maybe those folks are glad they bought up all the water…more about THAT here.).

Anyway. The beauty of my job is that I really CAN do it anywhere there’s an internet connection, and on Monday, I dragged my desktop home from my day job, and got myself set up to work from home for the next few weeks. I love working from home. As an anxious depressive, getting out of bed in the morning is excruciating, especially knowing I’ll have to, like, put on pants and makeup and not look like a slob and stuff. These past couple of days, I have literally dragged myself out of bed, put on my bathrobe, and sat down at my computer at 8am. No makeup required. No pants required. That’s straight up perfection, my friends.

Feels like straight up Magic, actually...

It’s also really fantastic that most of us really DO have technology literally at our fingertips that allows for all kinds of communication without having to be WITH anyone. My smartphone has face to face calling (Facetime because it’s an Apple, but Skype and Facebook Messenger do the same thing). I can text if I don’t feel like talking. I can receive and send email from my phone as well. And so can 95% of the world’s population (that’s totally a guess. I have no data to support that percentage.)

The population that I’M speaking to now, though, you folks in Utah, you who are scared or confused about the legal system, who are afraid to leave your homes, but afraid to not be able to leave your homes, I’m still here for you. I’ve been doing a lot of family law legal consulting. For those who would qualify for CAPSA’s services, I do it for free. For those of you who actually CAN pay some legal fees, I charge $75/hr, which I can take through Venmo or Paypal or Square on a credit card. You CAN still talk to a lawyer–I can Facetime/etc with you. Or you can email.

The point here is this: Don’t feel like you’re stuck in a situation that you don’t want to be in because you don’t have access to any legal counsel. I’m available virtually by appointment (which you can make by emailing me–see my About tab at the top of this page). Or you can just email if you have a specific question. A lot of your FAQ’s are already answered on my blog here…just go to the “search” box at the top right of the page, and type in a keyword you need info on, and everything I’ve written about that topic will come up. Hell, if push came to shove, the courts are still open, and I can e-file any case documents for a legal case I’m working on, without having to leave my home office. (I actually HAVE completed entire cases without ever traveling to a courthouse.)

So keep that in mind. Don’t panic. It may be the End of the World as We Know It, but You Can Still Feel Fine ;).

For your listening pleasure…Never lose your sense of humor, folks 😉

The Happy Childhood After Divorce: Myth or Reality?

I got divorced a very long time ago…11 years this past March, actually.  The State of Utah had instituted at some time prior the requirement that parents who are divorcing take a divorce orientation and parenting in divorce class.  They’re technically 2 classes, but they teach them one after the other in a 3 hour block.  My divorce was extremely traumatic for me, but I remember that class being a bright spot.  Not because I actually REMEMBER any of it, just what the takeaway was for me:  My kids did not have to end up being a statistic.  They could turn out just fine, being totally well-adjusted, even though their dad and I were no longer married.

The classes started out with the terrifying statistics about how kids of divorce have a higher chance of being drug addicts, having poor self-esteem, acting out, getting poor grades, and on and on and on.  The parade of horrors of kids in divorce, if you will.  But then the kicker–what can I do as a parent to keep this from happening?

If you google this, you’re going to find a number of great articles.  I’m pulling my information from this Psychology Today website article, by Wendy Paris.  First off, what children need to thrive:

• Children do well when they have good relationships with both parents or primary caregivers, adults who basically get along.  But those parents don’t need to be married or living in the same house.
• Children benefit from emotionally stable parents—adults who are recuperated enough, in the case of divorce, to focus on the basic job of parenting, including establishing stability, exercising fair discipline, providing love and being emotionally responsive.  But those parents need not be married or living in the same house.
• Children need adequate resources such as food, safe housing, and social support.  But they don’t need a mansion with every toy available, and those resources can be provided by parents who are not married or living in the same house.

Ms. Paris’ info comes from a 20 year study done regarding children of divorce, that was conducted by child development expert and Cambridge University professor Michael Lamb.  Solid data, not just Wishes and Dreams.  So what can you do to make sure that your kids are in the 80% of divorced kids who turn out just fine (and yes, that actually is the number–more are fine than not)?  Back to Ms. Paris’ advice:

 

Co-parenting.  It’s not a competition between two homes. It’s a collaboration of the parents doing what’s best for the kids.  –Heather Hetchler, www.cafesmom.com

 

Five Principles for Positive Co-Parenting:

1. Because we know that high conflict between the parents is one of the most damaging experiences for children, we can foster cooperation with our co-parent, and work to squash conflict.
2. Because we know that children benefit from stability, we can focus on establishing new routines that work in our newly structured lives.
3. Without a spouse around to blame for, well, everything, we can let divorce challenge us to be a better, more focused parent and to bring our personal strengths to our child-rearing.  We also can look for ways that the very characteristics of our ex that annoyed us in marriage (“He’s such a neat freak!” or “All she cares about is hiking!”) may benefit our children; how great to have one parent who likes the outdoors.
4. We can create positive moments for our children that have nothing to do with the state of their parents’ love life. We can foster engagement in outside activities and with other supportive adults.
5. Because we understand that being emotionally present for our children rests on our own recuperation, we can prioritize taking care of the care-givers, ourselves.

This requires two parents who are actually willing to put aside their own pettiness and hatefulness for the Other.  If 80% of kids turn out all right, there must be a LOT of parents who are capable of doing this.  Which means YOU CAN TOO.

In my practice of law, I pretty much only dealt with the ones who were at each other’s throats; they were either deeply entrenched in their own desires in the divorce, or they were trying to enforce the decree they already had in place.  I really wanted to write something positive in my blog today, and after my experiences with other people’s divorces, my own in the very early stages, and my husband’s, I needed a break from conflict.  And ya know what?  There’s a lot of good out there that can be reality in a family with divorced parents.  It can be a reality in your life as well…  Happily Ever After, in real life, without the ideal.

That’s something to smile about :).

https://www.facebook.com/plugins/video.php?href=https%3A%2F%2Fwww.facebook.com%2Fsherryischerry%2Fvideos%2Fvb.100001002740529%2F984276941615721%2F%3Ftype%3D3&show_text=0&width=400

(If you haven’t seen this video of a little child named Tiana discussing co-parenting with her mother, you really ought to…and a little child shall lead them…)

 

Parental Alienation: How Many Times Do I Have To Keep Bringing this Up??

I can’t even tell you  how much I want to just RANT right now.  Instead, let’s just put it all out there this way.

From Psychology Today, June 28, 2011 (citation is below):

“Research with “adult children” of parental alienation syndrome (that is, adults who believe that when they were children one parent turned them against the other parent) confirms that being exposed to parental alienation represents a form of emotional abuse. Furthermore, these adults reported that when they succumbed to the pressure and rejected one parent to please the other, the experience was associated with several negative long-term effects including depression, drug abuse, divorce, low self-esteem, problems with trusting, and alienation from their own children when they became parents themselves.”

Just to sum up:  If you are a custodial parent, and you undermine the parent time of or relationship of the children with the non-custodial parent, just because you do not like that person, YOU ARE A BAD PARENT.  I don’t care what kind of lies you tell yourself about how fantastic you are.  YOU ARE NOT.  Trying to eliminate a fit parent from a child’s life through bad-mouthing, bashing, and brain-washing is CHILD ABUSE.  And you are an ABUSER.  

And someone might end up taking you back to court on a petition to modify based upon parental alienation.

(some scholarly work that says you are a child abuser as well…)

http://www.warshak.com/publications/what-is-parental-alienation.html

Click to access Parental-Alienation-Syndrom-2nd-ed..pdf

http://www.tandfonline.com/doi/abs/10.1080/019261802753573821

https://www.psychologytoday.com/blog/caught-between-parents/201106/parental-alienation-is-emotional-abuse-children

Privacy Issues in Domestic Cases…Who’s Seeing What?

Balancing judicial efficiency with your privacy…

When you think about it, a domestic law court case has a LOT of personal information in it.  Tax returns or paystubs to support a child support calculation.  Full names of people.  Their addresses and phone numbers (if they’re representing themselves).  The kids’ names.  Social security numbers.  All of this stuff could be used in identity theft or to commit fraud.  So how is this info protected?

In Utah families cases, as of April 2012, ALL of the documents with the exception of orders (like temporary orders, the final order/decree, etc) are considered private.  The rule regarding this is in the Utah Code of Judicial Administration.  Down starting at Rule 4-202.01 it starts talking about records classifications (private, public, or sealed) and who has access to them. Private records can only be given to people who were either a person involved as a party in the case or their current attorney, essentially.  So as soon as your family law case is filed is classed as private record.

Except orders, including the final order.  I can go online and pull up ANY final order in ANY Utah family case I want at ANY time.  Or I could go into the court house and submit a request to the court clerk.  This is where keeping information sufficiently vague is important for that whole protection from fraud thing.  So this is how you should put information into a document, if you MUST, that will protect it from fraudsters:

Rule 4-202.09 Miscellaneous 

(9)(C) If the following non-public information is required in a public record, only the designated information shall be included:

(9)(C)(i) social security number: last four digits;

(9)(C)(ii) financial or other account number: last four digits;

(9)(C)(iii) driver’s license number: state of issuance and last four digits;

(9)(C)(iv) address of a non-party: city, state and zip code;

(9)(C)(v) email address or phone number of a non-party: omit; and

(9)(C)(vi) minor’s name: initials.

In domestic cases, truly, for the sake of maintaining the kids’ privacy in the publicly accessible final decree, use your kids’ initials to refer to them.  Some lawyers don’t do that.  You make sure that YOUR lawyer does, or that you do it yourself.  Also–DO NOT FILE PRIVATE INFORMATION AS AN ATTACHMENT TO YOUR PUBLICLY ACCESSIBLE ORDER.  For example, information you have to supply in the Required Child Support Location Information form is highly sensitive–Drivers license numbers, social security numbers of the parties AND the kids, birthdates, addresses, addresses of employers…Not stuff you want floating around the internet. File that as a separate document, not as an attachment or an exhibit to the final Order.

Just things to remember.  Your case IS private.  But just make sure you’re not throwing a lot of info out there willy-nilly that will turn up in the publicly available final order…No need to let it all hang out, folks.

…because letting it all hang out probably isn’t something you wanna do..

Civil Procedure in Divorce/Child Custody Part 2–the Summons

* Note:  This is another Utah specific article, however, ALL court actions require that parties’ be served with process no matter what state you’re in.  The rules may be different, though, so make sure and check your own states Rules of Civil Procedure.

A Summons is how you really get the ball rolling in your court action.  Because while you might technically “start” your case by filing a complaint or petition, nothing is going to happen until the opposing party has been served with process.  A person’s right to due process under the law is a constitutional one–you can find it as the 5th amendment, within the Bill of Rights.  Amendment 14 goes on to also discuss one’s right to equal protection under the law and apply it to the states (so it’s not just a right in federal actions), which includes the right to receive notice of a court action filed against him/her.

The Supreme Court went on to apply Fifth Amendment due process requirements to civil actions within Boddie v. Connecticut, a divorce case.

 

I talked in a previous blog post about certificates of service, and mentioned summonses very briefly then.  Rules regarding the Summons are found (in Utah) at Utah Rules of Civil Procedure (URCP) Rules 4 and 12.  URCP Rule 4 specifically discusses what needs to be included in the Summons document.  Rule 12 states how much time a defendant/Respondent has to respond to the complaint with an Answer.

A Summons must:

“contain the name of the court, the address of the court, the names of the parties to the action, and the county in which it is brought. It shall be directed to the defendant, state the name, address and telephone number of the plaintiff’s attorney, if any, and otherwise the plaintiff’s address and telephone number. It shall state the time within which the defendant is required to answer the complaint in writing, and shall notify the defendant that in case of failure to do so, judgment by default will be rendered against the defendant. It shall state either that the complaint is on file with the court or that the complaint will be filed with the court within ten days of service.” Utah RCP 4(c)(1)

Forms that you’ll need to serve someone with process in a court action can be found at the Utah Courts website.  Detailed instructions are also there.

You CAN draft up your own forms if you choose to.  The ones from the state’s courts website include check boxes for ALL types of process service, which you wouldn’t actually need in every case.  It doesn’t really make a difference whether you use the state’s forms or not, so long as you have all the correct language in yours.

I don’t know how they do it, but somehow process servers WILL find you…

It’s common to have the sheriff’s office serve the other party with process.  They are *usually* the cheapest option (though not always…you’ll want to look into that), and sometimes the ONLY option.  You may also have the option of hiring a private process server to handle it.  There are times when one or the other may be more appropriate.  If you’re dealing with a person on the other side who may be violent, probably go with the sheriff’s office.  That said, having the sheriff show up at one’s home or workplace DOES have a tendency to either embarrass the person or just piss them off.  Your call on that.  I always prefer to keep these things as low-key as possible for the sake of retaining everyone’s ability to be reasonable going forward.

…because the court is going to expect everyone to be reasonable, whether they are or not.

You can also have a third party, who is not an official process server, who is over the age of 18, and who is NOT one of the parties to the case serve process.  There’s a form on the courts website you can use for return of service in a case like that.  (But good luck finding a mutual friend who wants to get involved in your divorce by doing that for you…)

The final option, and the method we all hope we can use for the sake of simplicity, is having the other party accept service.  There are two types of acceptance of service:  1) Acceptance, Waiver of Service & Default–this is when the other side is fine with whatever the Petitioner ask for in the petition, and is fine with the court just entering a default against them.  The upshot is the divorce (or whatever) can go through more quickly.  The other type: 2) Acceptance of Service.  Just that.  It states that the person has received the documents, and accepts service of the documents without a process server having to serve them, and that they know they have 21 days to respond (though if the person accepting service demands it, he/she can get 45 days to respond under the Rules…See the link below).  It does NOT mean that the court will default you–just that the Petitioner doesn’t have to go through the process of having you served officially by a third party.  (There are specific rules regarding this as well, that you can find here, at subpart f.)

You have 120 days after you file a complaint/petition to have the other party served.  After that, the court will dismiss the action.  You can bring it again, but you have to start over with the filing fee and all–as though you’d never done it before.  (You can also have someone served with process BEFORE you file your complaint, but in that case you have to have it filed within 10 days of serving the other party.)

So there you have it…Summonses in a nutshell, and a bit about service of process.  Don’t forget what your goal is in this whole thing–As amicable a case as possible.  And that starts with reasonable service of process.  Scorched Earth method not required.

Not exactly the best way to get the other party to be reasonable…

Mean–To the Bullies

You know who I’m talking about.  The parents who use their kids as leverage against the other, taking hostages, stabbing at the place they can do the most damage.  Or you, the abusive spouse who lies to the other and threatens and bullies, all to maintain power and control.  Or you, The Perfect Mother, who uses the child support money dad sends to buy cigs, alcohol, nails, and hair.  Or YOU, the manipulative, hateful narcissist, who does your best to make the other feel like they must be insane, lying to the whole world, trying to make yourself look Perfect and your spouse like the devil himself.  I’m talking to YOU.

You’re mean.  Just. Plain. Mean.  And Karma’s gonna come for you… and she’s only a bitch if you are.  So maybe you should check yourself, stop being horrible, and get on with finding your own happiness–which will not come from being Mean.

 

Sing it, Taylor…

 

A Divorce Action–Start at the Beginning…

***Please note: I am only licensed to practice law in the state of Utah, and every state is a little different as to how they do things.  So this is specifically directed at Utah folks.  To the rest of ya’ll–Many states have online information and/or contact information for free legal assistance, as well as access to forms for people representing themselves in their family law court case.  Take a look online and see what you can find.  And if you need more help, probably hire a lawyer licensed in your locality.

In the beginning, your marriage was good.  Or maybe it wasn’t, but you were gonna stick it out, either for the kids, or so you could say at least you did everything you could to save it.  But at some point, the marriage got bad enough to call it quits.  When that happens, you decide you need to file for divorce.  (Forms and detailed instructions can be found at the Utah Courts Website.)

But to explain from the beginning…

The Petition.  To start any court action, you have to file a petition (or complaint, but a petition in the case of a divorce.)  The petition says that you live in the jurisdiction that you’re filing in; that you were married on x date in x place to your spouse; that you have/don’t have kids with your spouse; how you think the division of your property and debts should be; if you want alimony and how much; if you will have the kids primarily with you and need child support; who’s going to get custody of the kids; who’s going to get parent time, and what will that look like.  A lot of times petitions will ask for things that are so completely out there that they’re a bit ridiculous.  Like the man who wanted sole legal AND physical custody of his 4 children, including the newborn that his wife had a few days after he left her and the kids and moved out, and hadn’t really seen them since.

And why would someone do that??  The answer is this:  In the event that the other party defaults (doesn’t file an answer to the petition), you can only get from the court what you ask for in the petition.  Nothing more.  The theory is that we ask for things in the petition that we may not actually expect to get if the whole thing proceeds without a default.  It’s a matter of putting a client (or yourself) in the best position possible post-divorce.

This is not the face of someone feeling Reasonable.

All that said, I do not advise asking for outrageous, unreasonable, ridiculous things in your divorce petition.  I have seen too many people get served with divorce papers and come completely unglued because of the unrealistic (and mean, which is how it feels) things that the petition is claiming the filing party should get.  Like custody of kids that that parent left and hasn’t seen or talked to since s/he left.  Or amounts of alimony so huge that there’s no way the other person could pay it.  Or all of the property that both parties own, and the other should get all the debt.  The net effect of this is to cause the responding party to freak out/cause their hair to burst into flames while their head rotates and they spew green vomit.  NO ONE can be reasonable in going through a divorce action if they are immediately enraged by the initial pleading, so DON’T DO THAT.

As far as parent time goes, if you can’t do 50/50 joint physical custody (for whatever reason–sometimes it just doesn’t work), go with the statutory minimums as a baseline, with language allowing for additional parent time for the non-custodial parent as the parties can agree. (Note:  The Utah State Legislature enacted new law regarding statutory minimums, which has the effect of giving the parties joint physical custody, though not a 50/50 split.  You can find that new section here.  It’s an excellent option in cases where a 50/50 split isn’t really workable, but the non-custodial parent has been more involved than not in the kids’ lives to that point.)

The goal with any divorce should be to have an amicable and equitable separation of property, debt, etc., and to make it so the parties are no longer married but can maintain good relationships with the kids, and not end up horribly destroyed financially.  Your life will NOT be better if you f*** over your ex-spouse!  Don’t be vindictive and horrible that way.  Because NO ONE WINS A DIVORCE–there are just varying shades of Loss.  And we REALLY don’t want the kids to end up the big losers in the whole thing by having their parents in constant turmoil because of the fall-out from a horrible or one-sided divorce.

Probably these 2 are gonna have a difficult time co-parenting… 😦

Trust me on this one….I’ve felt it up close and very personal.  And so have my kids.

Sometimes it feels like this…I had a case that this song rolled through my head every time I worked on it.  Sad.

Personalities and Payment (or, Just because you refuse to have reasonable expectations doesn’t mean you don’t have to pay.)

During the time I was practicing law, I had a wide range of client personalities to work with.  They ran the gamut from the Terrified & Will Do Anything I Say As Long As I Hold Their Hand; to the Super Organized, Gets Me Everything I Need Before I Need it Just In Case and It’s Organized and Tabbed to Boot; to the I Don’t Trust a Damn Thing You Do and Won’t Sign Anything Even Though I Already Agreed to It Because The Internet Told Me That You’re Wrong.  It’s this last category of personality that I’d like to speak to right now.

Not helping.

My goal in all of my cases was to instill in my client reasonable expectations regarding the outcome of their case, so that they would not be disappointed with the (inevitable) outcome.  Some were not going to end well, and that was known from the start.  There are statutory limits on how things will go down, and I do my best to minimize the damage to my client, but that doesn’t mean worst case scenario won’t happen to you.  Further, in a lot of divorce cases (most of them) that I handled, the parties did not have enough combined income to maintain anything that remotely resembled the lifestyle that they were accustomed to, because they were barely scraping by before the divorce. The court will generally not order one party to live the same lifestyle to the detriment to the other.  Divorces are between the married parties, NOT the kids, and so division of assets only considers the couple. There is absolutely nothing your lawyer can do to create more money/assets/stuff where none existed in the first place.  And thinking that he/she can is just setting yourself up to be let down. In a BIG way.

It goes without saying that the marriage wasn’t the best; there may have been issues that involved getting protective orders put in place.  That doesn’t mean there would’ve been sufficient evidence to get a criminal conviction, and even if there were, I can’t control how the other party’s defense attorney and the prosecutor on that (totally separate criminal case) will work together to resolve the criminal charges.  I can’t do anything there.  I can only work with my part, the divorce action, and do the best I can from there.  A divorce is NOT the place to prosecute domestic violence allegations, especially ones that the criminal process determines are not cut and dried.  So realistic expectations are needed in those situations as well.

I had clients who wouldn’t listen to a thing I said; who refused to sign off on things they’d already agreed to in mediation; who created conflict with their estranged spouse at any time they could (for the benefit of the children, of course), then screamed at me

Still not helping.

because I couldn’t get them their own way; and who wouldn’t even listen when the court told them how it was.  These were the clients who were abusive during the course of my representation of them, and who were livid in the end when it all happened like I said it would.  To these clients, I say this:  I do not work for free.  You knew that up front; there’s a clause in my retainer contract that says you pay me even if you don’t like how it all ends up.  Just because you don’t like how your life turned out, does not mean it is either my fault, or that you are absolved from a responsibility to pay your bill.  Would you honestly expect any other person providing a service to you to work for free if you are even marginally dissatisfied with the service?  No.  You wouldn’t.  And if you failed to pay them, you’d get sent to collections.

 

Which is how it works with me, too.

New Useful Stuff I Just Found/Modifying Your Divorce

I’ve told a bunch of people in the past few years that there are no forms on the Utah courts website for modifying your own divorce (child custody/visitation).  Weeellll…..There are now.  You can find them, as well as further information and instructions, here.

I do always recommend that you get a lawyer to handle your own case.  It really is ridiculously emotionally difficult to handle your own modification, but I do know that that’s not always financially possible.  At least now you have the tools to handle it on your own.  And as always, Good Luck and God Speed.

Still daunting, but maybe less scary (and more possible) to handle on your own…

Stipulated Decrees & Orders: Will they hold water?

(**Note:  Anytime anyone who comments on my page has those comments referenced to, any identifying information will be redacted.  )

I recently received the following (lengthy) question in the form of a comment:

“[E]x and I stipulated a divorce decree.  I had sole physical custody, joint legal.  When we were in court, the bifurcated case considered both 1) substantial change in circumstance and 2) best interests of the child.  HOWEVER, because it was stipulated, the judge pretty much said that the change in circumstances was a non-issue.  I moved.  There was a relocation clause in our decree.  It meant nothing.  (I read your articles on alimony.  Apparently nothing means anything?)  Ex ended up with the kids.

The cases my ex’s lawyer quoted were Woodward v LaFranca, Taylor fka Elison v Elison and Elmer v Elmer.  Someone else told me that there’s another case that happened just last year that pretty much put the last nail in the coffin for stipulated decrees. (Would you happen to know which case that was?)

In an appeals trial, could you argue that a stipulated decree details the parents’ beliefs for the children’s best interests and that these are their decisions for the children…. and to disregard the parent’s wishes would be a violation of parental rights? (Yes, we obviously have one parent who has since changed their mind, but that’s the reason for the substantial change of circumstances, right?)”

You’d think we could treat the stipulated agreement more like a contract….

Unfortunately for just about ALL of us, who truly do not want to have the court involved in our family life for the rest of ETERNITY, this is the answer to her questions:

The new case from 2014 that kicks stipulated agreements to the curb is RB v. LB, 339 P.3d 137 (UT Ct App 2014).  The big takeaway is that parties “cannot stipulate away the district court’s statutory responsibility to conduct a best-interest analysis.”  This was a case where the parties put in the stipulated agreement that what they were doing in terms of the custody agreement should be considered best interest from a legal standpoint.

A paragraph from this case:

“¶ 17 Father poses the question, “Can parents resolve issues of child custody via the legal procedures established for doing so as Utah law demands, have that resolution reduced to judgment, and rely on the courts to enforce the judgment once entered?” We are sympathetic to Father’s plea; in 2009, the stipulation must have seemed an elegant solution to an intractable problem. However, Utah law has recognized that in the context of a child’s well-being, interests in finality rank below the child’s welfare. See Elmer v. Elmer, 776 P.2d 599, 603 (Utah 1989) (stating that “the res judicata aspect of the rule [favoring finality of judgments] must always be subservient to the best interests of the child” and that “even when an initial decree has adjudicated the best interests of a child, a subsequent proceeding [can] reopen that decree … if the circumstances pertaining to the decree [have] subsequently changed, so that a new determination should be made based on a full development of all material facts”). The Elmer court noted that “`[t]he best interests of the child should never be lost sight of, and rules on change in custody should not be so rigid that this overarching principle is not followed.'” Id. at 604 (quoting Kramer v. Kramer, 738 P.2d 624, 629 (Utah 1987) (Howe, J., concurring in the result)). The same logic applies to judgments predicated on stipulated agreements. Despite Father’s argument that the district court disturbed the parties’ settled expectations, the district court retained the statutory authority to conduct the best-interest analysis. Because the district court was required to ensure that Child’s best interest would be served by a change in custody, the district court did not err in conducting a best-interest analysis.^[10]“

So in a nutshell:  If no one challenges the agreement, it’s fine.  If one party challenges the stipulated agreement, the court is obligated to address best interest of the child, and is not bound by a stipulation, even if it purports to be in the child’s best interest.

The argument that this is a violation of parental rights is interesting, but I don’t think it will fly.  You’re looking at a case where if you rule in favor of the one parent, you’ve violated the other’s rights, and vice versa.  A possibly more solid argument would be one based in contracts–that the parties made a contract, and should be contractually obligated to abide by it.  But the court does not see child custody as something that can be the subject of a traditionally interpreted contract–it’s a violation of public policy, in that it doesn’t specifically address best interests of the child, which “should never be lost sight of…” (Elmer v. Elmer, 776 P.2d 599, 603 (Utah 1989)).

I know it’s a crummy answer. But it’s always best to be prepared, even if what you’re learning isn’t what you want to hear.  And Remember:  This is not about Fair.  Never has been, never will.

….but NOOOOOO, you mediated for six hours to come to a solution that works for your family, and now the court gets to jack it around as it sees fit. Nice. No wonder we all hate family law.