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This opinion is subject to revision before final publication in the Pacific Reporter
2018 UT 30
IN THE SUPREME COURT OF THE STATE OF UTAH

ROCIO SMITH,
Appellant,
v.
KAYELYN ROBINSON,
Appellee.

No. 20160106
Filed July 5, 2018
On Direct Appeal
Fourth District, Spanish Fork
The Honorable M. James Brady
No. 150300034
Attorneys:
Sara Pfrommer, Ronald D. Wilkinson, Nathan S. Shill, Orem, for appellant
James Egan, Stephen W. Owens, Salt Lake City, for appellee
JUSTICE HIMONAS authored the opinion of the court, in which CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE, JUSTICE PEARCE, and JUDGE PETTIT joined.
Due to her retirement, JUSTICE DURHAM did not participate herein; DISTRICT COURT JUDGE KARA PETTIT sat.
JUSTICE PETERSEN became a member of the Court on November 17, 2017, after oral argument in this matter and accordingly did not participate.
JUSTICE HIMONAS, opinion of the Court:

INTRODUCTION

¶ 1 This case presents the question of whether a treating therapist owes a duty of reasonable care to a nonpatient parent when treating that parent’s child for potential allegations of sexual abuse. We answer this question in Mower v. Baird, 2018 UT 29, —P.3d—, a companion case that we also decide today. There, we hold that a treating therapist “owes a duty to a minor patient’s parents to refrain from affirmative acts that recklessly violate the standard of care in a manner that gives rise to false memories or false allegations of sexual abuse committed by the plaintiff nonpatient parent.” Mower, 2018 UT 29, ¶ 114. We remand this case for proceedings consistent with our opinion in Mower.

BACKGROUND

¶ 2 Rocio Smith had two children with her ex-husband, Aaron Smith.[1] Mr. Smith and his new wife (Stepmother) made several allegations that Ms. Smith had sexually abused the children. Mr. Smith filed a petition to terminate Ms. Smith’s parental rights.

¶ 3 After this, Stepmother brought the children to Kayelyn Robinson for therapy and told Ms. Robinson that therapy was being sought because of the alleged sexual abuse. Ms. Robinson improperly relied upon the information provided by Mr. Smith and Stepmother and made allegations that Ms. Smith had sexually abused the children. During treatment, Ms. Robinson also inappropriately acted as a treatment provider and forensic evaluator. Ms. Robinson worked with Mr. Smith and Stepmother to actively advocate against Ms. Smith. Despite Ms. Robinson’s clear conflict of interest, she continued providing therapy to the children.

¶ 4 At one point, the court hearing the custody dispute ordered Ms. Robinson to stop acting as the children’s therapist and to have no further contact with the children. Ms. Robinson blatantly violated this court order. Additionally, Ms. Robinson used somebody else’s key to access the children’s HIPPA-protected records and provided them to the parties, their attorneys, and the court.

¶ 5 As a result of Ms. Robinson’s actions, Ms. Smith lost visitation with her children for several years and “endured personal defamation, lost income and employment, and incurred enormous legal expenses.”[2] Ms. Smith filed suit against Ms. Robinson for malpractice and negligent infliction of emotional distress.

¶ 6 Ms. Robinson filed a motion to dismiss for failure to state a claim under rule 12(b)(6) of the Utah Rules of Civil Procedure. Regarding the malpractice claim, the district court framed the question of duty and the categorical basis as “whether a treating therapist who testifies in litigation relying on their negligent formulation of forensic opinions, owes a duty to the party against whom they are testifying.” Using the factors from B.R. ex rel. Jeffs v. West, 2012 UT 11, 275 P.3d 228, the district court concluded that no duty existed for that categorical basis and granted Ms. Robinson’s motion to dismiss the malpractice claim. That decision was largely based upon policy considerations aimed at protecting a witness from liability stemming from his or her testimony. The district court also granted the motion to dismiss Ms. Smith’s negligent infliction of emotional distress claim because Ms. Smith was unable to demonstrate the kind of harm required to sustain a claim for negligent infliction of emotional distress.

¶ 7 Ms. Smith appeals the district court’s decision on her malpractice claim but does not appeal the negligent infliction of emotional distress claim. Utah Code section 78A-3-102(3)(j) gives us jurisdiction.

STANDARD OF REVIEW

¶ 8 “The question of whether a ‘duty’ exists is a question of law . . . .” Weber ex rel. Weber v. Springville City, 725 P.2d 1360, 1363 (Utah 1986) (citation omitted). We review questions of law “under a correctness standard.” St. Benedict’s Dev. Co. v. St. Benedict’s Hosp., 811 P.2d 194, 196 (Utah 1991) (citations omitted).

ANALYSIS

¶ 9 In Mower v. Baird, the companion to this case, we directly address the question of whether a treating therapist owes a nonpatient parent a duty when treating the parent’s child for allegations of sexual abuse by that parent. 2018 UT 29, ¶ 114, —P.3d—. There, we conclude that a treating therapist “owes a duty to a minor patient’s parents to refrain from affirmative acts that recklessly violate the standard of care in a manner that gives rise to false memories or false allegations of sexual abuse committed by the plaintiff nonpatient parent.” Id. This duty not only covers physical or property harm but also severe emotional distress. Id.

¶ 10 In this case, the parties disagree about whether the district court selected the correct categorical basis and, if not, whether it was the result of invited error. The district court ultimately based its holding on a categorical basis that involved treating therapists who testify in litigation. However, Ms. Smith “concedes that a testifying witness owes no duty to the opposing party with respect to the testimony given in court.” (Emphasis omitted). Additionally, Ms. Smith asserts that she “is not suing [Ms. Robinson] for her role as a testifying witness, but rather for her conduct in the treatment of the minor children that preceded her testimony.” Indeed, Ms. Smith’s complaint is void of allegations relating to Ms. Robinson’s testimony in the custody case.

¶ 11 The district court was required to rule in this case without the benefit of our opinion in Mower. In Mower, we announce that treating therapists owe a duty to a nonpatient parent during the therapist’s treatment of the parent’s child for potential sexual abuse by that parent. Id. To the extent that Ms. Smith is alleging harms that stem from Ms. Robinson’s testimony, the duty we announce in Mower would not apply. However, to the extent that Ms. Smith is alleging harms stemming from Ms. Robinson’s treatment of the children, our holding in Mower establishes a duty.[3]

Utah Family Law, LC | divorceutah.com | 801-466-9277

1. Because this case is before us on appeal of a motion to dismiss for failure to state a claim, we, like the district court, take the factual allegations in the complaint as true. See Hudgens v. Prosper, Inc., 2010 UT 68, ¶ 2, 243 P.3d 1275; Brown v. Div. of Water Rights of Dep’t of Nat. Res., 2010 UT 14, ¶ 10, 228 P.3d 747.

2. Not all of these alleged harms are compensable. See Mower v. Baird, 2018 UT 29, ¶ 11 n.3, —P.3d—.

3. Our opinion in Mower extends the treating therapist’s duty to not affirmatively act in a manner that recklessly causes severe emotional distress. Mower, 2018 UT 29, ¶ 114. Although we recognized a path other than the zone of danger for recovery of emotional distress, we did not disturb our other negligent infliction of emotional distress requirements. Id. ¶¶ 77, 81 n.18. And we did not decide whether a cause of action for negligent infliction of emotional distress is necessary to recover those damages. Id. ¶ 113 n.21. The district court granted Ms. Robinson’s motion to dismiss Ms. Smith’s negligent infliction of emotional distress because Ms. Smith was unable to show the type of harm required for a negligent infliction of emotional distress claim. We express no opinion on whether Ms. Smith’s failure to appeal this portion of the district court’s decision precludes her from pursuing recovery under the limited emotional distress duty we announce in Mower. See id. ¶ 114. We leave this decision to the district court in the first instance.

The post Smith v. Robinson – 2018 UT 30 – false allegations of sexual abuse appeared first on Divorce Utah.

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Perspective of a Law Student: How my views on court decisions have changed after 2 years of law school

by Alyssa Miller

Before law school I perceived court cases and the decisions made to be widely within the discretion of the judge deciding the case. I knew that the judge must make determinations based on applicable law, but viewed judges as having more discretion than they actually do.

After just a few weeks of law school I realized that this perception of judges and court rulings was incorrect.

Law suits are not popularity contests nor do they hinge entirely upon who tells the best stories.

Although judges do have some discretion in making their ruling, I hadn’t realized how much judges are required to rely (or supposed to rely) upon “factors” and “elements” found in the applicable laws when making their decisions. Further, I learned that prevail in a law suit the attorneys representing each party have an obligation to “prove” or meet certain elements of a claim or defense.

When a judge decides a case, he/she must determine whether the parties have made their respective sides of a case. Depending on what is at issue in the case, the parties and their attorneys must present witness testimony and other evidence to meet certain “factors” that the judge will rely upon when making his final determination.

For example, when deciding a child custody case, it is common to hear the judge refer to “the best interest of the child” when making a determination. But what does that actually mean? In Utah, the factors that a judge must use when making a “best interest of the child” determination are found in Utah Code § 30-3-10. According to this section of the Utah Code, “The court shall consider the best interest of the child without preference for either parent . . . and shall consider, among other factors the court finds relevant,” factors that include, but are not limited to:

  • the past conduct and demonstrated moral standards of each of the parties;
  • which parent is most likely to act in the best interest of the child, including allowing the child frequent and continuing contact with the noncustodial parent;
  • the extent of bonding between the parent and child, meaning the depth, quality, and nature of the relationship between a parent and child; and
  • whether the parent has intentionally exposed the child to [harmful material].

So for a parent to effectively go through a child custody case, that parent must present evidence and a persuasive argument that it is in the best interest of their child that the court rule in that parent’s favor. The parent does so by showing that each—or at least most—of these factors are met.

Another example in the context of child custody is the determination of joint custody. The court may order joint custody (joint legal custody or joint physical or both joint legal and joint physical custody) if it determines, again, that joint custody is in the best interest of the child. In determining whether the best interest of a child will be served by ordering joint legal or physical custody, the court is required to consider another set of factors found in Utah Code § 30-3-10.2. These factors include, but are not limited to:

  • whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal or physical custody;
  • the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;
  • whether each parent is capable of encouraging and accepting a positive relationship between the child and the other parent, including the sharing of love, affection, and contact between the child and the other parent;
  • whether both parents participated in raising the child before the divorce;
  • the geographical proximity of the homes of the parents;
  • the preference of the child if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to joint legal or physical custody;
  • the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents;
  • the past and present ability of the parents to cooperate with each other and make decisions jointly;
  • any history of, or potential for, child abuse, spouse abuse or kidnaping; and
  • any other factors the court finds relevant.

In making these determinations, the court is held to a “preponderance of the evidence” standard. This means that the court must find that these factors to be more likely true than untrue (or, in other words, there is greater than fifty percent chance that the parent’s version of the facts is true). So while judges have discretion—indeed very broad discretion—in making their rulings, they are not allowed to disregard the preponderance of the evidence or to disregard the legal factors that guide their decisions. Understanding the applicable law and standard of proof are the first steps to determining how strong a case you have and how to make the best arguments in our case’s favor.

Utah Family Law, LC | divorceutah.com | 801-466-9277

The post Perspective of a Law Student: How my views on court decisions have changed appeared first on Divorce Utah.

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(See also Smith v. Robinson, Case No. 20160106, Filed July 05, 2018, 2018 UT 30, a companion case to this one)

This opinion is subject to revision before final publication in the Pacific Reporter

2018 UT 30

IN THE SUPREME COURT OF THE STATE OF UTAH

ROCIO SMITH,
Appellant,
v.
KAYELYN ROBINSON,
Appellee.

No. 20160106
Filed July 5, 2018
On Direct Appeal
Fourth District, Spanish Fork
The Honorable M. James Brady
No. 150300034

Attorneys:
Sara Pfrommer, Ronald D. Wilkinson, Nathan S. Shill, Orem, for appellant
James Egan, Stephen W. Owens, Salt Lake City, for appellee
JUSTICE HIMONAS authored the opinion of the court, in which CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE, JUSTICE PEARCE, and JUDGE PETTIT joined.
Due to her retirement, JUSTICE DURHAM did not participate herein; DISTRICT COURT JUDGE KARA PETTIT sat.
JUSTICE PETERSEN became a member of the Court on November 17, 2017, after oral argument in this matter and accordingly did not participate.

JUSTICE HIMONAS, opinion of the Court:

INTRODUCTION

¶ 1       The law isn’t good-for-nothing when a therapist causes a child to falsely accuse a parent of sexual abuse.

¶ 2 In March 2011, Thomas Mower’s now ex-wife, Lidia Mower, began taking their four-year-old daughter, T.M., to The Children’s Center for therapy. The Children’s Center provided services to T.M. through Nancy Baird. During Ms. Baird’s treatment of T.M., she allegedly engaged in practices that were both contrary to commonly-accepted treatment protocol and expressly rejected by the profession. As a result of Ms. Baird’s treatment, false allegations of sexual abuse were levied against Mr. Mower.

¶ 3       Mr. Mower sued Ms. Baird and The Children’s Center (collectively, the defendants) for the harm he suffered as a result of T.M.’s treatment. The defendants moved to dismiss these claims under rule 12(b)(6) of the Utah Rules of Civil Procedure. The district court granted the defendants’ motion on the grounds that therapists don’t have “a duty of care to potential sexual abusers when treating the alleged victim.”

¶ 4       Underlying the district court’s decision are two issues of first impression: (1) whether a treating therapist working with a minor child owes a traditional duty of reasonable care to a nonpatient parent to refrain from giving rise to false memories or false allegations of sexual abuse by that parent; and, if so, (2) whether we should extend that duty to exercising reasonable care when placing a nonpatient parent at risk of severe emotional distress. Under the framework for analyzing whether a traditional duty exists, established by B.R. ex rel. Jeffs v. West, 2012 UT 11, 275 P.3d 228, we determine that a duty to a nonpatient parent exists but limit that duty to an affirmative act: the affirmative act of recklessly giving rise to false memories or false allegations of childhood sexual abuse by that parent. Similarly, we conclude that a treating therapist owes a duty to refrain from affirmatively causing the nonpatient parent severe emotional distress by recklessly giving rise to false memories or false allegations of childhood sexual abuse by that parent. Accordingly, we reverse the district court’s dismissal of Mr. Mower’s claims and remand for further proceedings.1

BACKGROUND

¶ 5       Because this case is before us on appeal of a motion to dismiss for failure to state a claim, we, like the district court, take the factual allegations in the complaint as true. See Hudgens v. Prosper, Inc., 2010 UT 68, ¶ 2, 243 P.3d 1275; Brown v. Div. of Water Rights of the Dep’t of Nat. Res., 2010 UT 14, ¶ 10, 228 P.3d 747.

¶ 6       While married, Ms. and Mr. Mower had one daughter together, T.M. In March 2011, Ms. Mower began bringing T.M., then four-and-a-half years old, to The Children’s Center to see Ms. Baird, a Licensed Clinical Social Worker. She did this without Mr. Mower’s knowledge or consent.

¶ 7 By the end of T.M.’s initial intake assessment, Ms. Baird allegedly assumed, based on information provided by Ms. Mower and Ms. Baird’s observation of T.M., that T.M. had been sexually abused by Mr. Mower. Because Ms. Baird assumed that sexual abuse had likely occurred, she called the Division of Child and Family Services (DCFS) to make a report. DCFS told Ms. Baird that the information didn’t presently warrant a report but asked her to continue to gather information.

¶ 8 According to established guidelines regarding treatment for allegations of potential sexual abuse,2 Ms. Baird should have ended all therapy and allowed a forensic interviewer (a role for which Ms. Baird wasn’t trained) to take over to determine if sexual abuse had occurred. Ms. Baird, however, purportedly decided to act in the capacity of a combined therapist and investigator and continued with her therapy/interview sessions until October 2012. Ms. Baird allegedly conducted these sessions with methods that were tainted by confirmatory bias, diagnostic suspicion bias, and socially desired responses, and were therefore unreliable. She repeatedly asked T.M. questions “designed to corroborate claims of sexual abuse” and “that further reinforced the tainting of TM’s memory.” This type of questioning creates a high risk that a child will “confuse what she has heard through repeated questioning as something she actually experienced.” Compounding this problem, Ms. Baird failed to electronically record the initial sessions or take adequate notes of the questions and answers given, which might have made it possible to later determine the accuracy of T.M.’s statements.

¶ 9       During Ms. Baird’s treatment of T.M., The Children’s Center purportedly provided little to no training, supervision, or oversight. Ms. Baird had “no knowledge of or training in false memory, confirmatory bias, diagnostic suspicion bias, or social desirability responses.” Ms. Baird disregarded standardized test results when diagnosing T.M., kept insufficient records of the sessions, repeatedly questioned T.M. about the same events, and served an inappropriate dual role: therapist for T.M. and investigator for DCFS.

¶ 10 Mr. Mower first found out about T.M.’s therapy from papers Ms. Mower filed in their divorce proceedings in summer 2012. Also in 2012, based at least in part upon Ms. Baird’s interviews with T.M., DCFS made a “supported” finding of sexual abuse against Mr. Mower. Mr. Mower challenged that finding in juvenile court, resulting in DCFS changing the finding from “supported” to “unsupported.” The juvenile court then found the allegations “unsubstantiated.”

¶ 11 Ms. Baird’s treatment allegedly damaged the healthy parent-child relationship Mr. Mower and T.M. once enjoyed. Additionally, the false allegations of sexual abuse have harmed and stigmatized Mr. Mower’s reputation. Mr. Mower has also allegedly suffered significant emotional turmoil and pain as a result of the defendants’ negligence.3

¶ 12 As a consequence, Mr. Mower filed this lawsuit against the defendants for the harm he allegedly suffered as a result of T.M.’s treatment, asserting causes of action for (1) medical malpractice/negligence against The Children’s Center, (2) medical malpractice/negligence against Ms. Baird, and (3) respondeat superior against The Children’s Center.4 The defendants filed a motion to dismiss these claims under rule 12(b)(6) of the Utah Rules of Civil Procedure. The district court granted the defendants’ motion, holding that therapists don’t have a duty “to potential sexual abusers when treating the alleged victim.”

¶ 13 Mr. Mower appeals this decision. Utah Code section 78A-3-102(3)(j) gives us jurisdiction.

STANDARD OF REVIEW

¶ 14 “[W]hether a ‘duty’ exists is a question of law . . . .” Weber ex rel. Weber v. Springville City, 725 P.2d 1360, 1363 (Utah 1986) (citation omitted). We review questions of law “under a correctness standard.” St. Benedict’s Dev. Co. v. St. Benedict’s Hosp., 811 P.2d 194, 196 (Utah 1991) (citations omitted).

ANALYSIS

¶ 15 The district court dismissed this case on the grounds that a treating therapist owes no duty of care “to potential sexual abusers when treating the alleged victim.” If such a duty does exist, the parties to this action disagree about whether it includes a duty to not affirmatively cause severe emotional harm. We must therefore determine whether Ms. Baird did in fact owe Mr. Mower a duty and, if so, whether it extends to emotional harm. We begin by determining that Ms. Baird owes Mr. Mower a limited traditional duty. Next, to help contextualize the disagreement between the parties, we discuss some general principles of negligence for legal context and the development of negligent infliction of emotional distress law in Utah and around the country. Then we consider whether we should adopt a limited duty similar to that provided in section 47(b) of the Restatement (Third) of Torts and, if so, what the appropriate test would be. RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 47(b) (AM. LAW INST. 2012). And, after concluding that a limited duty test should exist, we go on to determine whether a limited emotional distress duty also exists.

  1. TREATING THERAPISTS OWE A TRADITIONAL DUTY TO NOT AFFIRMATIVELY ACT IN A MANNER THAT RECKLESSLY CAUSES PHYSICAL HARM TO NONPATIENT PARENTS OR THEIR PROPERTY IN THE THERAPIST’S TREATMENT OF THE PARENT’S MINOR CHILD FOR ALLEGED SEXUAL ABUSE

¶ 16 The threshold question in a negligence claim is whether the defendant owed a duty to the plaintiff. See B.R. ex rel. Jeffs v. West, 2012 UT 11, ¶ 5 n.2, 275 P.3d 228. “An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.” Id. ¶ 21 n.11 (quoting RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 7(a) (AM. LAW INST. 2012)). A duty to act with reasonable care “must be determined as a matter of law and on a categorical basis for a given class of tort claims.” Id. ¶ 23 (citations omitted). “We therefore analyze each pertinent factor in the duty analysis ‘at a broad, categorical level for a class of defendants’ without focusing on the particular circumstances of a given case.” Scott v. Universal Sales, Inc., 2015 UT 64, ¶ 33, 356 P.3d 1172 (quoting Jeffs, 2012 UT 11, ¶ 23).

¶ 17 In Jeffs, we established a five-factor test for determining “whether a defendant owes a duty to a plaintiff”:

(1) whether the defendant’s allegedly tortious conduct consists of an affirmative act or merely an omission; (2) the legal relationship of the parties; (3) the foreseeability or likelihood of injury; (4) “public policy as to which party can best bear the loss occasioned by the injury”; and (5) “other general policy considerations.”

Jeffs, 2012 UT 11, ¶ 5 (citations omitted). “Not every factor is created equal, however. . . . [S]ome factors are featured heavily in certain types of cases, while other factors play a less important, or different, role.” Id. The first two factors are considered “plus” factors used to determine whether a duty would normally exist. See id. The final three factors are considered “minus” factors “used to eliminate a duty that would otherwise exist.” Id.

¶ 18 In this case, we’re required to determine whether a treating therapist owes a duty of care to a nonpatient parent in the treatment of the parent’s minor child for potential sexual abuse alleged against that parent.5 Applying the Jeffs factors, we find that a treating therapist does owe such a duty, albeit a limited one, to nonpatient parents.

  1. The Jeffs “Plus” Factors Favor Creating a Duty

¶ 19 When determining whether a duty exists under the Jeffs factors, the two “plus” factors “are interrelated”. Id. ¶ 7. The first factor stems from “[t]he long-recognized distinction between acts and omissions—or misfeasance and nonfeasance.” Id. “Acts of misfeasance, or active misconduct working positive injury to others, typically carry a duty of care.” Id. (citation omitted) (internal quotation marks omitted). Conversely, “[n]onfeasance— passive inaction, a failure to take positive steps to benefit others, or to protect them from harm not created by any wrongful act of the defendant”—only gives rise to a duty when a special legal relationship exists. Id. (citation omitted) (internal quotation marks omitted).

¶ 20 In cases of misfeasance, the “plus” factor analysis almost always rests on the first factor—the affirmative misconduct creates a duty of care and a special legal relationship isn’t required.6 See id. ¶¶ 6–7, 10. If, however, a duty isn’t established under the first factor, as in cases of nonfeasance, the second factor can be “used to impose a duty where one would otherwise not exist.” Id. ¶ 5.

¶ 21 By providing therapy to a minor child, a treating therapist may engage in “active misconduct” if he or she “uses inappropriate treatment techniques or inappropriately applies otherwise proper techniques.” Roberts v. Salmi, 866 N.W.2d 460, 474 (Mich. Ct. App. 2014) [hereinafter Roberts I];7 cf. Scott, 2015 UT 64, ¶ 36 (“By placing inmates in the community, the County engaged in ‘active misconduct’ if its screening procedures were inadequate to discover obvious dangers work-release participants might pose to the public.”). We’re not asking whether a treating therapist “has a duty to ensure that a patient’s allegations are true before reporting them or to otherwise protect a patient’s parents from potentially false allegations of sexual abuse.” Roberts I, 866 N.W.2d at 470. Rather, it’s a question of misfeasance—such as “the negligent use of therapeutic techniques on a patient that actually cause the patient to have a false memory of childhood sexual abuse.” Id. (citations omitted). Thus, this isn’t a case of passive inaction that results in an injury to another; this conduct involves an affirmative act that establishes that a duty would normally exist.

¶ 22 For this reason, a special legal relationship need not exist for a treating therapist to owe a duty to a nonpatient parent; the treating therapist’s affirmative acts are sufficient. But, as we explain below, while the “minus” factors don’t favor entirely eliminating this duty to exercise reasonable care when undertaking the affirmative act of providing therapy, they do warrant limiting this duty to refraining from recklessly giving rise to false memories or allegations of sexual abuse.

  1. The Jeffs “Minus” Factors Weigh in Favor of Creating a Limited

Duty

¶ 23 The defendants and their amici ask us to conclude— based mainly on policy considerations—that a treating therapist doesn’t owe a duty to anyone other than his or her patient. We find no basis for categorically excluding all treating therapists from liability for carelessly providing therapy to a minor child in a manner that affirmatively harms the nonpatient parent. Instead, we hold that such a duty exists, but policy considerations advise limiting the duty to a recklessness standard.

  1. Foreseeability

¶ 24 The foreseeability analysis for duty is distinct from that for breach or proximate cause. Jeffs, 2012 UT 11, ¶ 24. “[F]oreseeability in [a] duty analysis is evaluated at a broad, categorical level.” Id. ¶ 25. This analysis focuses on “‘the general relationship between the alleged tortfeasor and the victim’ and ‘the general foreseeability’ of harm” rather than “‘the specifics of the alleged tortious conduct’ such as ‘the specific mechanism of the harm.’” Id. (quoting Normandeau v. Hanson Equip., Inc., 2009 UT 44, ¶ 20, 215 P.3d 152).

¶ 25 Thus, “[t]he appropriate foreseeability question for [a] duty analysis is whether a category of cases includes individual cases in which the likelihood of some type of harm is sufficiently high that a reasonable person could anticipate a general risk of injury to others.” Id. ¶ 27.8 Here, the relevant category of cases includes treating therapists who carelessly provide therapy to a minor child patient for potential sex abuse in a manner that injures the nonpatient parent through false allegations or memories of sexual abuse. “And the foreseeability question is whether there are circumstances within that category in which [treating therapists] could foresee injury.” Id. We conclude there is.

¶ 26 There are undoubtedly circumstances within this category which present highly foreseeable risks, such as a treating therapist using rejected therapeutic methods that create a significant likelihood of implanting false memories of abuse into a minor child’s mind or convincing a child to levy false accusations of abuse. “It is indisputable that being labeled a child abuser . . . often results in grave physical, emotional, professional, and personal ramifications.” Hungerford v. Jones, 722 A.2d 478, 480 (N.H. 1998) (emphasis added) (citation omitted) (internal quotation marks omitted). And it’s certainly reasonably foreseeable that a parent, upon learning of allegations of sexual abuse committed against his or her child by another person, might become violent and attack the accused or the accused’s property. Cf. United States v. Kupfer, 68 F. App’x 927, 930 (10th Cir. 2003) (the defendant shot a man that “had allegedly sexually assaulted [the] defendant’s sister”); United States v. Lofton, 776 F.2d 918, 919 (10th Cir. 1985) (the defendant shot her husband while arguing about allegations that he had sexually abused her daughter).9 Such a reaction in this circumstance is even more foreseeable given the importance of the parent-child relationship and the emotions involved. Cf. In re K.S., 737 P.2d 170, 172 (Utah 1987) (“The parent-child relationship is constitutionally protected, and termination of that relationship is a drastic measure . . . .” (citations omitted)); In re J.P., 648 P.2d 1364, 1373 (Utah 1982) (“[T]he most universal relation in nature . . . [is] that between parent and child.” (second alteration in original) (citation omitted)); In re P.L.L., 597 P.2d 886, 889 (Utah 1979) (recognizing “our general reluctance to sever the natural parent-child relationship”).10

¶ 27 Because this category includes circumstances where a risk of physical injury to nonpatient parents or their property is reasonably foreseeable, the foreseeability factor doesn’t weigh against imposing a duty on treating therapists to conduct a minor child’s therapy in a manner that “refrain[s] from affirmatively causing injury to nonpatient[]” parents. Jeffs, 2012 UT 11, ¶ 28.

  1. Who Best Bears the Loss

¶ 28 The next factor requires determining which party is in the best “position to bear the loss occasioned by the injury.” Id.

¶ 29 (citation omitted) (internal quotation marks omitted). “The parties’ relative ability to ‘bear the loss’ has little or nothing to do with the depth of their pockets.” Id. Instead, the determination is based on

whether the defendant is best situated to take reasonable precautions to avoid injury. Typically, this factor would cut against the imposition of a duty where a victim or some other third party is in a superior position of knowledge or control to avoid the loss in question. . . . because [the defendant] lacks the capacity that others have to avoid injury by taking reasonable precautions.

Id. ¶ 30 (footnotes omitted).

¶ 29 When sexual abuse has actually occurred, the treating therapist isn’t in the best position to avoid the potential harms. The third-party abuser is in a better position to avoid the potential harms, namely by not committing the abuse in the first place. But the same cannot be said when memories or allegations of “abuse” emanate from the practices or techniques in the therapy sessions themselves. Because only the therapist has control over the instrumentality that creates the nonexistent “abuse,” treating therapists are “in the best position to avoid the harm caused by the introduction of false memories.” Roberts I, 886 N.W.2d at 472. The therapist “alone is responsible for the methods used in treatment.” Id. “[T]he patient must trust that the [therapist] will pursue a course of treatment guided by competent professional judgment” and the parents “have a right to expect that a [therapist] will not cause the patient to have false memories of childhood sexual abuse.” Id. at 472–73 (citation omitted). Thus, this factor doesn’t weigh against the imposition of a duty in circumstances (such as those alleged in this case) where the alleged abuse has not in fact occurred. In combination with the policy considerations set forth below, this factor supports limiting a treating therapist’s duty to that of not affirmatively giving rise to false memories or false allegations of sexual abuse by the plaintiff parent.

  1. General Policy Considerations

¶ 30 Finally, the defendants and their amici raise several general policy arguments to counter the imposition of a duty on treating therapists. These policy considerations must be analyzed against this backdrop:

Concluding that no duty exists means that, “for certain categories of cases, defendants may not be held accountable for damages they carelessly cause, no matter how unreasonable their conduct.” But recognizing a duty does not itself mean that a defendant will incur liability; a plaintiff must still prove the other elements of negligence (breach of the duty, causation, and damages).

Guerra v. State, 348 P.3d 423, 429 (Ariz. 2015) (Bales, C.J., dissenting) (citations omitted).

¶ 31 We find the policy considerations raised are insufficient to reject a duty on a broad categorical basis. However, the policy considerations are sufficient to warrant limiting the duty to conducting treatment in a manner that doesn’t recklessly give rise to false memories or allegations of childhood sexual abuse.11 See RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 7(b) (“In exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that the defendant has no duty or that the ordinary duty of reasonable care requires modification.”); cf. Roberts I, 886 N.W.2d at 473 (limiting the “duty to ensur[ing] that the professional’s treatment does not give rise to false memories of childhood sexual abuse”).

¶ 32 The defendants and their amici first raise the social utility of treating and eradicating sexual abuse and allege that a duty would “chill” a therapist’s treatment of a minor child’s sexual abuse trauma. We recognize the strong social importance of providing children therapy for sexual abuse. See, e.g., Althaus ex rel. Althaus v. Cohen, 756 A.2d 1166, 1170 (Pa. 2000) (“The need for prevention of child abuse is unquestionable, as is the importance of adequate psychological treatment for children who have been sexually abused.”) It’s this importance and social utility, along with the concerns discussed in paragraph 29, which lead us to limit a treating therapist’s duty towards nonpatient parents to acting in a manner that refrains from recklessly causing false memories or allegations of childhood sexual abuse by that parent. 12

¶ 33 But we don’t share the concern that any duty to nonpatient parents would impact a therapist’s treatment. “[T]o entertain this argument is to accept the facile notion that one will not engage in conduct unless he can do so recklessly and with impunity.” Guerra, 348 P.2d at 432 (Bales, C.J., dissenting). In reality, “the standard of care by which a therapist’s conduct is measured is not heightened.” Hungerford, 722 A.2d at 481–82. The duty we announce today “will not burden the therapist with a standard of care more onerous than that under which he or she is already required to act in treating his or her patients.” Sawyer v. Midelfort, 595 N.W.2d 423, 435 (Wis. 1999). As a result, “the therapist’s treatment choices need be limited only by the duty of care the therapist..

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Noncustodial Parents: Understanding Parent-Time

When going through a divorce, one of the most common issues is child custody. A common misperception about child custody is that it is simply who your children will live with after you and your ex-spouse have divorced. That’s only part of the story.

In Utah, there are two kinds of child custody to be addressed and resolved: “legal custody” and “physical custody”.

Legal custody

Legal custody deals with the rights, responsibilities and authority of a parent to make decisions for the child(ren). This includes decisions regarding school and extra-curricular involvement, religious or moral upbringing, and health and general welfare decisions for the child(ren).

Physical custody

Physical custody is where the children will reside following a divorce. This type of custody may be “joint custody” or “sole custody”.

Joint Physical Custody

Whether you are awarded joint or sole physical custody depends not upon the number of hours a parent spends with the child(ren), but on the number of “overnights” the child will spend at the noncustodial parent’s residence). You might think that “joint custody” means that each parent has an equal or near-equal number of overnights with the children. Not so. In Utah, joint physical custody “means the child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support[.]” (Utah Code § 30-3-10.1(3)(a)) Translated, § 30-3-10.1(a) means that if a parent has 111 overnights or more per year with his/her child(ren), he/she is a joint physical custodian.[1]

Sole Physical Custody

Under a “sole custody” arrangement, the parent who is not awarded sole custody is referred to in the court orders as “the noncustodial parent”. But don’t let the term “sole custody” mislead you. Even under a “sole physical custody” arrangement, the other parent (the noncustodial parent) will still be awarded visitation or what is now known as “parent-time”.

Parent-time

Parent-time is the amount of time the child(ren) will spend with the noncustodial parent.

The parent-time schedule in Utah Code Section 30-3-35 provides a suggested minimum number of overnights[2] that a noncustodial parent be awarded.

Under the provisions of § 30-3-35, the noncustodial parent is awarded the following overnight periods with the child(ren):

  • Every other Friday and Saturday night (alternating weekends beginning at 6 p.m. on Friday until 7 p.m. on Sunday), and
  • Certain specified holidays that overlap with and/or extend certain weekends, with the net effect being some additional overnights the noncustodial parent exercises.
    • During odd numbered years, the noncustodial parent is entitled to overnight parent-time on the following holidays:
      • Martin Luther King, Jr. beginning 6 p.m. on Friday until Monday at 7 p.m. unless the holiday extends for a lengthier period of time to which the noncustodial parent is completely entitled;
      • subject to Utah Code § 30-3-35(2)(i), spring break beginning at 6 p.m. on the day school lets out for the holiday until 7 p.m. on the evening before school resumes;
      • July 4 beginning 6 p.m. the day before the holiday until 11 p.m. or no later than 6 p.m. on the day following the holiday, at the option of the parent exercising the holiday;
      • Labor Day beginning 6 p.m. on Friday until Monday at 7 p.m., unless the holiday extends for a lengthier period of time to which the noncustodial parent is completely entitled;
      • the fall school break, if applicable, commonly known as U.E.A. weekend beginning at 6 p.m. on Wednesday until Sunday at 7 p.m. unless the holiday extends for a lengthier period of time to which the noncustodial parent is completely entitled;
      • Veterans Day holiday beginning 6 p.m. the day before the holiday until 7 p.m. on the holiday; and
      • the first portion of the Christmas school vacation as defined in Utah Code Subsection 30-3-32(3)(b) including Christmas Eve and Christmas Day, continuing until 1 p.m. on the day halfway through the holiday period, if there are an odd number of days for the holiday period, or until 7 p.m. if there are an even number of days for the holiday period, so long as the entire holiday period is equally divided.
    • During even numbered years, the noncustodial parent is awarded every other Friday and Saturday night (alternating weekends beginning at 6 p.m. on Friday until 7 p.m. on Sunday) and certain specified holidays:
      • President’s Day beginning at 6 p.m. on Friday until 7 p.m. on Monday unless the holiday extends for a lengthier period of time to which the noncustodial parent is completely entitled;
      • Memorial Day beginning at 6 p.m. on Friday until Monday at 7 p.m., unless the holiday extends for a lengthier period of time to which the noncustodial parent is completely entitled;
      • July 24 beginning at 6 p.m. on the day before the holiday until 11 p.m. or no later than 6 p.m. on the day following the holiday, at the option of the parent exercising the holiday;
      • Columbus Day beginning at 6 p.m. the day before the holiday until 7 p.m. on the holiday;
      • Thanksgiving holiday beginning Wednesday at 7 p.m. until Sunday at 7 p.m.; and
      • the second portion of the Christmas school vacation as defined in Utah Code Subsection 30-3-32(3)(b), beginning 1 p.m. on the day halfway through the holiday period, if there are an odd number of days for the holiday period, or at 7 p.m. if there are an even number of days for the holiday period, so long as the entire Christmas holiday period is equally divided.
    • The custodial parent is entitled to the odd year holidays in even years and the even year holidays in odd years.
    • Also, under Utah Code § 30-3-35, each year the noncustodial parent may exercise “extended parent-time” which is up to four consecutive weeks (28 days) when school is not in session at the option of the noncustodial parent, including weekends normally exercised by the noncustodial parent, but not holidays.

This means that the total number of overnights, including weekends, holidays and extended summer time that a noncustodial parent will receive under Utah Code Section 30-3-35 is:

  • 89 overnights during odd number years (when parent-time begins on the first alternating weekend of the year);
  • 93 overnights during odd number years (when parent-time begins on the second alternating weekend of the year);
  • 88 overnights during even number years (when parent-time begins on the first alternating weekend of the year); and
  • 92 overnights during even number years (when parent-time begins on the second alternating weekend of the year).

So a noncustodial parent subject to parent-time under the statutory minimum schedule in § 30-3-35 would be awarded approximately 90 overnights per year.[3]

Although § 30-3-35 is not binding on judges, many will use this—shamefully—as a “standard” for assigning parent-time, unless there is reason to deviate from the standard, or if the parents agree on a different arrangement.

Another option for parents and the court to consider is Utah Code § 30-3-35.1. Under this section, the court has the option of awarding time greater than the minimum parent-time schedule of § 30-3-35.

Under § 30-3-35.1, a parent who might otherwise have been relegated to parent-time under § 30-3-35 can be awarded 145 overnights per year by imposing a schedule that consists of:

  • Every Wednesday (or some other mid-week day, other than Friday or Monday)
  • Every other Friday
  • Every other Saturday
  • Every other Sunday
  • Additionally, the holiday schedule in § 30-3-35 will apply, except that in all instances that would under § 30-3-35 end after 6:00 p.m. instead end the morning after the holiday period when the child returns to school that morning, or at 8:00 a.m. if there is no school that morning.
  • Under 30-3-35.1, each year the noncustodial parent may also exercise “extended parent-time” which is up to four consecutive weeks (28 days) when school is not in session at the option of the noncustodial parent, including weekends normally exercised by the noncustodial parent, but not holidays.

Under Utah Code § 30-3-35.1. then, the noncustodial parent will have the following number of overnights:

  • 157 overnights during odd number years (when parent-time begins on the first alternating weekend of the year);
  • 165 overnights during odd number years (when parent-time begins on the second alternating weekend of the year);
  • 158 overnights during even number years (when parent-time begins on the first alternating weekend of the year); and
  • 163 overnights during even number years (when parent-time begins on the second alternating weekend of the year).

As you can see, although Utah Code § 30-3-35.1 provides that a parent awarded shared custody receives 145 overnights, that parent actually receives closer to an average of 160 overnights, depending on the year and when the noncustodial parent’s alternating weekend falls. Don’t forget to take that into account when calculating child support. Why? Because child support is based upon the number of overnights the children spend with each parent.

Utah Family Law, LC | divorceutah.com | 801-466-9277

[1] Remember also that parent-time does not include merely overnights with the child(ren). Under Utah Code § 30-3-35(2)(a), noncustodial parents get, in addition to the overnights awarded, one weekday (per week, not every other week) for several hours; either from the time the child’s school is regularly dismissed until 8:30 p.m. or from approximately 9:00 a.m. when school is not in session that day. Noncustodial parents also get to celebrate the child’s birthday (either on the actual birthdate or the day before or the day after) beginning at 3 p.m. until 9 p.m., and get to spend Halloween on October 31 or the day Halloween is traditionally celebrated in the local community from after school until 9 p.m. if on a school day, or from 4 p.m. until 9 p.m.

[2] While the schedule in § 30-3-35 is followed by many parents and court, remember this: § 30-3-35’s schedule is a statutory guideline, not a mandate. Parents can create and agree upon their own “custom-made” custody and parent-time schedule, and your divorce case judge can also create a “custom-made” custody and parent-time schedule, if your judge feels it appropriate.

[3] Note: the exact number of overnights a parent will have may vary based on the length of the child(ren)’s school breaks.  The number of overnights listed here were calculated with a child having two days off school for fall break, two days off school for spring break, and two weeks off school for winter break.

The post Noncustodial Parents: Understanding Parent-Time appeared first on Divorce Utah.

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How can you win child custody during a divorce if your spouse puts a restraining order against you, based solely on verbal testimony and not pertaining to the children themselves?

1. The odds are against you, even if you are innocent. It doesn’t matter if you are innocent if the court believes the false allegations against you (and you’d be amazed how willing courts are to believe a good (even a bad) sob story, especially one coming from a woman against a man).

a. If the court believes the false allegations against you, despite the preponderance of evidence against those false allegations, you may have the option of filing an appeal, but most people don’t appeal because the odds are against you winning on appeal, and appeals are too costly and discouraging for most people.

2. The best way I know to get a wrongfully issued restraining order dismissed or reversed is to prove that it was wrongfully issued. And how do you do that?

a. By providing—as early in the process as possible—evidence to the court that:

i. that you have an alibi;

ii. your spouse is lying;

iii. that your history and good character simply make your spouse’s claims unbelievable.

b. by getting a lawyer (and cooperating fully with that lawyer) who knows the legal system and how to work it (ethically) to your advantage.

c. You will surely be tempted to fight fire with fire and resort to lying and cheating to be vindicated. Don’t. Two wrongs don’t make a right, and if that’s not reason enough for you, lying and cheating in your defense usually backfire. If you have children, getting down into the muck will do them irreparable damage.

3. The next best way to get rid of a restraining order: be penitent (even if you’re not guilty). This is a hard pill to swallow (as well it should be), but it may be your only viable option, if you value getting rid of the protective order over your pride. Don’t get me wrong: it’s unfair for innocent people to have to grovel and suffer the indignity, and many may interpret your groveling as an “admission” of guilt, but it may be the only way out. So what might this entail?:

a. jump—cheerfully and timely—through all the hoops the court sets in your path toward getting the restraining order lifted;

b. go to counseling or therapy and complete courses and read books (and report on reading them) that teach “parenting skills” and “anger management” and “conflict resolution”;

c. go to church. You should do this anyway. A good church does wonders for cheering you up and encouraging you and showing you how to be a better person (no matter how great you may be already), but if the only reason you go is to show the court that you’re a “changed man/woman,” so be it.

4. Even in the face of this injustice, count your many, many other blessings. Don’t let evil win by losing hope. Keep the faith. If you are going through hell, keep going. Lean on your friends and loved ones for support.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/How-can-you-win-child-custody-during-a-divorce-if-your-spouse-puts-a-restraining-order-against-you-based-solely-on-verbal-testimony-and-not-pertaining-to-the-children-themselves/answer/Eric-Johnson-311

The post Overcome Prejudice from a Bogus Restraining Order in Divorce appeared first on Divorce Utah.

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Are divorce courts biased towards either gender?

Yes.

It’s not usually motivated by animus toward men or women (although there are some judges who are clearly biased against men or women), primarily it’s culturally motivated.

Culturally in the U.S. there is a deep-seated belief that:

Child Custody
  • children need the care and attention of their mothers more than they need the care and attention of their fathers;
  • women are better parents than men;
  • mothers take a greater interest in their children’s welfare than do men;
  • children fare better when they spend most of their time in one place, as opposed to “bouncing back and forth” between two parents’ separate homes;
  • asking children how they feel about their parents and what their desires are for child custody and visitation is a bad idea—they are too immature, too easily coached, and will be traumatized by telling the court what they desire.
Alimony
  • wives are dependent upon men for their financial support and well-being;
  • men can bounce back from the economic and financial setbacks of divorce easier than women can.

To be sure, some of these beliefs hold true in many divorce situations (but not in all of them!). The problem arises when legislators and judges confuse these beliefs with universal principles that apply to every family.

Thus, whether they realize they are doing it, far too many legislators and judges fall prey to cultural biases when deciding divorce and child custody cases. They substitute a thorough and impartial analysis of each particular case with “eh, odds are that the kids are better off with Mom” and/or “eh, odds are wife deserves alimony” and/or “the kids will somehow miraculously stay emotionally close to the noncustodial parent by relegating the noncustodial parent to “visitor” status every other weekend and a few other times throughout the year.” Children get short shrift because the courts usually (at least in the state in which I practice) ignore their input when crafting the child custody award.

Don’t misunderstand me. Frankly, in my experience and as a general matter, women often are the better parents, frequently when children are infants. Women frequently (though less frequently with each generation) are financially dependent upon their husbands. Sometimes one parent is the more organized and disciplined custodian than the other.

But too many legislators and judges craft laws, policies, and decrees around rules of thumb that simply do not apply universally (or fairly) to all families and people. The result is inequity and injustice for a parent and for the children. They deserve better than laws and decrees that derive from gut feelings.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Are-divorce-courts-biased-towards-either-gender/answer/Eric-Johnson-311

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Being the best client helps ensure you have the best lawyer. In trying to express this in greater detail I came across this article from an Australian divorce lawyer that states the case well. While I do not agreed with every word in this article, the perspective and the advice are sound. I see no reason not to give credit where credit is due, so I have reproduced it here as written (with the exception of one part that I cut because that part doesn’t apply to Utah divorce law):

Communicating with your family lawyer

By Alan Weiss, Aussie Divorce

March 9, 2018

Although you want to have open and easy communication with your lawyer, you must remember to stay focused on the issues your lawyer wants you to address.

Do not overwhelm your lawyer with inappropriate demands and superfluous information. For your pocket’s sake, avoid taking up your lawyer’s time in non-productive ways.

Treat any request from your lawyer for information as an urgent matter. Provide it promptly because proceedings will be stalled until you do. Always tell your lawyer the truth and give a complete picture of events.

Do not try to make yourself look better than you are. Your lawyer needs to know the whole truth about you, warts and all. Why?

Because it is your lawyer’s job to make you look good and they cannot do that without knowing about your flaws, shortcomings, and any skeletons you may have in the closet.

The sooner your lawyer knows of the weaknesses in your case, the sooner they can start developing a plan to overcome them. If the other side has the information and springs it on your lawyer at trial the Judicial officer will think either that your lawyer is incompetent or, more probably, that your lawyer has a dishonest client.

Either way, it does not help you. Remember that your spouse knows a lot about your past and will be feeding all sorts of negative information about you to his or her own lawyer.

Do not risk your lawyer’s credibility (or your own) by withholding potentially damaging information. Better to get everything out in the open so the damage can be controlled.

The stress of a divorce and especially the behaviour of your spouse can put you on edge. Because financial and childcare arrangements are up in the air, and because spouses can be uncooperative regarding these matters, planning anything is extremely difficult.

It may feel as if your life is not your own. If you have a job, you probably go to work each day wondering how much of the money you are earning will be taken away and given to your spouse; whether you will have any funds left after paying the spouse, the child support, and the lawyers.

If you are at home looking after children, you may be wondering whether you will continue to have a roof over your head and over your children’s heads.

It is not surprising then that whenever your spouse acts unexpectedly or something happens that could worsen your plight, you feel like calling your lawyer and passing along the information.

Events will occur that you might think are legally significant but are not. There may also be issues that you consider insignificant on which your lawyer will place great emphasis. In litigation, things that start out as irrelevant details sometimes wind up, years later, being the crux of the case.

The best way to keep track of details, both significant and insignificant, is to keep written records of everything. Keep journals recording each day’s events. Let your lawyer know that you are keeping it so he or she can ask for it if needs be.

Your journal may be used as evidence at trial. Keep it as factual as possible and do not put private thoughts into it.

Keep copies of everything you send your lawyer and everything you get from your lawyer. It is helpful to file the papers in date order so that you can find them when necessary.

For example, if your lawyer was not in when you called, and you were told that your call would be returned later that day, write that information down. Include the name of the person you spoke with. That way, when the lawyer does return your call, you can go to your log and remember why you called.

When a call is returned, make the appropriate entries in the last two columns—the date, time, and duration of the return call. By using a phone log, you will be able to keep track of whether your calls are returned, how long calls lasted (to verify the accuracy of your bills), and what each call was about.

If your lawyer repeatedly fails to return your calls, the log will serve as documentation when you write to the lawyer or to a disciplinary body about the problem.

Legal representation is something you are entitled to. And if you are buying this service, you must pay for it as you receive it, just as you pay for food, clothing, utilities, and car repairs. You would not expect a towing service to tow your car for free if you broke down on the highway but could not afford the fee.

Nor should you expect your lawyer to represent you for free just because you are in a messy divorce and cannot afford to pay. Your financial planning strategy will dictate the position you can afford to take.

Your attitude about your legal bills is extremely important. Lawyers do not want to wait to be paid any more than you want to wait to have your phone calls returned. Show that you understand the value of your lawyer’s time by paying their bills promptly. You will find that your lawyer respond to your legal needs with the same consideration.

*****

Common sense tells you to be polite to your lawyer, but as your case goes on, you may find this difficult. Often, divorce lawyers come to be a target for clients’ hostility toward their spouses and the judicial system.

The longer a case goes on, the more frustration and hostility mount. The temptation to lash out at the lawyer, who bears bad tidings, is great. Resist the temptation. It will have the same effect on your lawyer’s attitude toward you as not paying your bill.

Although a good lawyer will be able to help you through minor crises and should be able to let a certain amount of negative emotion roll off his or her back, making a habit of being hostile to your lawyer will only undermine your case.

Use the same manners with your lawyer that you would like him or her to use with you. Remember that your lawyer is a person with feelings, and if you make his or her life too difficult, you may find yourself shut out of it.

Utah Family Law, LC | divorceutah.com | 801-466-9277

The post Being the Best Client Helps Ensure You Have the Best Lawyer appeared first on Divorce Utah.

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QUESTION: Is it unreasonable for me to assume my kids would have their own clothes at their dad’s place?

He has been requesting that I send specific items with the kids for his weekends (stuff like swim shirts, church clothes, extra socks), and since he has been in a tight spot I have obliged. It’s come to the point where he has failed to return the borrowed items and I have to replace them, as he refuses to either compensate or return the items. Would it be wrong of me to tell him that I will no longer send the kids with anything?

ANSWER:

No, it IS NOT unreasonable for you to assume that the kids would have their own clothes at Dad’s place.

Yes, it IS wrong to send the kids to him without clothes. The kids suffer, and they won’t understand that Dad’s to blame. Dad’s a bum, but the kids need clothes.

SUGGESTIONS:

Dad should buy the kids some clothes for their use when they are at his house. Sunday clothes are a good example (that way they don’t get lost in transit back and forth). They aren’t that expensive (if you buy from a thrift shop, and the stuff at thrift shops is perfectly, perfectly good–no one can tell it’s from a thrift shop, if you shop carefully).

It only makes good sense for Dad to have some (not a lot, but enough) clothes on hand so that if the the clothes the kids packed aren’t wearable (stains, mud, rips, tears, loss, etc.), Dad has something for them to wear instead. Dad could easily buy a week’s worth of clothing for each child (not including shoes, and even then, he can get some flip flops or cheap sneakers in a pinch) for under $100 per child, and he can build up the “Dad’s place” wardrobe over time. Even starting out with just a single “outfit” for each child is a prudent emergency backup plan that Dad should follow.

Going forward, however, you can take reasonable, pragmatic steps to ensure he doesn’t hoard clothes in the future (these may seem kind of weird or inconvenient, but they aren’t; your attorney will thank you for doing this):

1) Take a photograph of each item of clothing you purchase, along with a photograph or copy of the receipt for the purchase;

2) Photograph everything you pack for the kids that you send over with them to Dad’s;

3) If the kids return with less than they left with, you can e-mail Dad the photographs of everything you packed, along with the photographs of everything you purchased, with proof of purchase, and tell him that you own these clothes, that Dad has them and has not returned them, and that if he does not return them, you will report them stolen and will seek to have him sanctioned by the divorce court.

Give the idea some thought.

Utah Family Law, LC | divorceutah.com | 801-466-9277

The post Is it unreasonable to insist Dad/Mom provide clothes for the kids at his/her place? appeared first on Divorce Utah.

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QUESTION:

What can I file in court for custodial interference? Is it just a matter of filing a motion for order to show cause? Or is there more to it?

ANSWER:

Custodial interference is a crime, so you cannot file a custodial interference action yourself (only a prosecutor can do that). The custodial interference law is found at Utah Code § 76-5-303.

To get the ball rolling on a custodial interference prosecution you need to report the custodial interference to the police or to the local county or city attorney. It almost certainly won’t do you any good, however. Why? Because the police and prosecutors hate the custodial interference law. No, really. I’m not kidding. Rarely, rarely, rarely will the police make an arrest or issue a citation for custodial interference, and rarely will the prosecutor file charges. They simply refuse to enforce the law. “Oh,” you may say, “but my case is so egregious that the police will surely help me.”

No, they won’t.

Is that legal? No. Is that right? No. But they get away with it.

Don’t believe me? Call the police and/or prosecutor; tell them your story. See if they do anything.

You can, however, file against your ex a motion for order to show cause as to why he or she should not be held in contempt of court for his noncompliance with parent-time  and/or custody orders. Utah law has specific laws that provide for sanctions for parents who fail or refuse to comply with custody and/or parent-time orders:

Utah Code § 78B-6-316. Compensatory service for violation of parent-time order or failure to pay child support.

(1) If a court finds by a preponderance of the evidence that a parent has refused to comply with the minimum amount of parent-time ordered in a decree of divorce, the court shall order the parent to:

(a) perform a minimum of 10 hours of compensatory service; and

(b) participate in workshops, classes, or individual counseling to educate the parent about the importance of complying with the court order and providing a child a continuing relationship with both parents.

(2) If a custodial parent is ordered to perform compensatory service or undergo court-ordered education, there is a rebuttable presumption that the noncustodial parent be granted parent-time by the court to provide child care during the time the custodial parent is complying with compensatory service or education in order to recompense him for parent-time wrongfully denied by the custodial parent under the divorce decree.

(3) If a noncustodial parent is ordered to perform compensatory service or undergo court-ordered education, the court shall attempt to schedule the compensatory service or education at times that will not interfere with the noncustodial parent’s parent-time with the child.

(4) The person ordered to participate in court-ordered education is responsible for expenses of workshops, classes, and individual counseling.

(5) If a court finds by a preponderance of the evidence that an obligor, as defined in Section 78B-12-102, has refused to pay child support as ordered by a court in accordance with Title 78B, Chapter 12, Utah Child Support Act, the court shall order the obligor to:

(a) perform a minimum of 10 hours of compensatory service; and

(b) participate in workshops, classes, or individual counseling to educate the obligor about the importance of complying with the court order and providing the children with a regular and stable source of support.

(6) The obligor is responsible for the expenses of workshops, classes, and individual counseling ordered by the court.

(7) If a court orders an obligor to perform compensatory service or undergo court-ordered education, the court shall attempt to schedule the compensatory service or education at times that will not interfere with the obligor’s parent-time with the child.

(8) The sanctions that the court shall impose under this section do not prevent the court from imposing other sanctions or prevent any person from bringing a cause of action allowed under state or federal law.

(9) The Legislature shall allocate the money from the Children’s Legal Defense Account to the judiciary to defray the cost of enforcing and administering this section.

There are also these sanctions available to the court to impose for contempt of court:

Utah Code § 78B-6-310.  Contempt — Action by court.

(1) The court shall determine whether the person proceeded against is guilty of the contempt charged. If the court finds the person is guilty of the contempt, the court may impose a fine not exceeding $1,000, order the person incarcerated in the county jail not exceeding 30 days, or both. However, a justice court judge or court commissioner may punish for contempt by a fine not to exceed $500 or by incarceration for five days or both.

(2) A fine imposed under this section is subject to the limitations of Subsection 76-3-301(2).

 Utah Family Law, LC | divorceutah.com | 801-466-9277

The post How Do I Get My Ex Prosecuted for Custodial Inteference? appeared first on Divorce Utah.

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“There are two ways to be fooled. One is to believe what isn’t true; the other is to refuse to believe what is true.”
― Søren Kierkegaard

“A great deal of intelligence can be invested in ignorance when the need for illusion is deep.”
― Saul Bellow, To Jerusalem and Back

I recently read this from Seth Godin, a marketing expert, which explains why people chase the cheap or free legal services mirage. If you want to cut to the chase, then read the paragraph highlighted in red below, but if you really want to understand this phenomenon, read the whole thing (you’ll be glad you did):

The shortcut crowd

(http://feeds.feedblitz.com/~/554881190/0/sethsblog/posts~The-shortcut-crowd/)

[M]arkets have segments. There are people who enjoy buying expensive wine. There are people who will save up their money to have a big wedding. There are people who pay to have a personal trainer…

And within segments, there are careful consumers, traditional consumers, consumers who seek out the cutting edge. There are bargain hunters, luxury snobs and people who measure the way Consumer Reports does.

Often overlooked, though, is the fact that in many markets, particularly involving personal finance, small business and relationships, there are people who are obsessed with the shortcut.

They want something that’s too good to be true.

They respond to big promises that offer magical, nearly instant results.

They want a squeeze page, a tripwire offer, a hard sell.

They respond to these messages because they’re a signal that a shortcut is on offer.

My grandmother, who never exercised a day in her life, bought an exercise machine from a late night TV commercial. When it sat gathering dust, she explained that she thought it would do the exercise for her, and was disappointed that it didn’t magically make her fit for $99.

Or consider the victims of ‘plastic surgeons to the stars’ who pay for radical surgery only to discover that it doesn’t change their social life.

Or the hardworking people who fork over money for a get rich internet ICO, based on technology that they (and the promoter) don’t understand.

There are complicated reasons for wanting this sort of engagement. It might be that the promise and the pressure of these pitches create endorphins that are pleasing. And it might be that deep down, this market segment knows that things that are too good to be true can’t possibly work, and that’s fine with them, because they don’t actually want to change–they simply want to be able to tell themselves that they tried. That the organization they paid their money to failed, of course it wasn’t their failure.

Once you see that this short-cut market segment exists, you can choose to serve them or to ignore them. And you can be among them or refuse to buy in. But you do have to choose.

Take your medicine. Face reality. Yes, good professional services are rarely free or cheap (and when they are, most of us aren’t don’t qualify for them). Sure, you can try to believe or delude yourself into believing that you can and will somehow get good legal representation free, or even cheap, but deep down you know you’re only fooling—and ultimately hurting—yourself.

Utah Family Law, LC | divorceutah.com | 801-466-9277

The post There is no cheap or free legal services shortcut appeared first on Divorce Utah.

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