Le Knapp: Divorce Lawyer Tooele Utah

If you are seeking a divorce in Tooele Utah, speak to an experienced Tooele Utah divorce lawyer. Each state including Utah has developed a statute that set forth the specific grounds that would be permitted in that state. Although there was some variation, typical fault grounds included:

• adultery (sexual intercourse by a married person with anyone other than one’s own spouse);

• mental or physical cruelty (including severe physical or emotional abuse but not quarrelsomeness, extravagance, laziness, undue strictness with children, lack of companionship, or callous indifference);

• intoxication (habitual drunkenness) as defined by state law;

• nonsupport (husband’s failure to provide suitable maintenance for his wife or family, assuming financial ability);

• impotency (inability to perform sexually, as defined by an individual state law);

• imprisonment for felony conviction

• insanity (as legally defined by state law, whether or not confined to an institution).

Although either party to a marriage could initiate a divorce action, in reality the large majority of those seeking fault-based divorces were men. The reasons for this were probably many, but two, in particular, are often cited. First, men were less stigmatized for being divorced, and many quickly remarried anyway. Second, and perhaps more significant, more married men could “afford” to get divorced while most married women, with little earned income and often children to be cared for, did not have the luxury of being unhappy in their marriages and seeking fulfillment elsewhere. Of course, in extreme cases some women were compelled to leave a marriage, and some did. But in most cases it was the men who sought to be divorced, and often a suitable ground had to be fabricated.

Because of the nature of the fault system of divorce, a wife typically had substantial leverage over a husband seeking divorce because he often needed her cooperation to try to demonstrate the presence of fault grounds in order to obtain his divorce. Assuming that the wife was not guilty of a genuine fault ground, she would use her leverage to coerce a desirable financial settlement in the divorce proceeding. Child custody was rarely an issue since everyone assumed, in the usual case, that the mother would retain custody. At the same time, however, she also had a greater need for support for herself and the children. Thus the wife might offer to cooperate with a consent decree if her husband was willing to meet certain financial conditions. This meant that she would not contest that there were statutory grounds for the divorce, but rather consent that they were, in fact, present. In essence, the man would buy his wife’s agreement to the divorce by offering her an adequate economic package.

The practical consequence of fault-based divorce was that it provided the wife with an important bargaining chip when negotiating for economic security for herself and her children.

Development Of No-Fault Laws

In 1970, California became the first state in the country to adopt a no-fault-based ground for divorce. Since that time, virtually every other state has passed some form of no-fault legislation. Now commonly known as no-fault divorce, any married person seeking a divorce can file such a petition with or without the consent of a spouse. The petition alleges, in essence, that there has been an “irretrievable breakdown” of the marriage and that a divorce is sought on that basis. The traditional “fault” grounds may or may not be present, and when the case is heard both parties have an opportunity to complain of the misdeeds of the other.

The no-fault system has developed as a part of a significant divorce-law reform whose purpose was to end the charade of perjured testimony and falsified evidence that permitted consent decrees under the fault system. In practice, no-fault has had a significant negative economic impact on the women and children of divorce. When a husband who wants to end his marriage can simply file a petition alleging that the marriage is irretrievably damaged, he leaves his wife without a defense to such an allegation and without a bargaining tool to provide for herself and her children.

Although initially hailed as a rational and responsive measure to an issue that substantially affected the lives of many, no-fault divorce resulted in many unanticipated consequences, primarily for children and those women whose occupation was that of a homemaker. In fact, the fallout of no-fault divorce has been so disastrous for women and children that in many cases it has severely reduced or totally eliminated their ability to obtain the financial security customarily granted to them.

Another major consequence of the reform of the divorce laws has been that child custody practices have changed. In earlier days, child custody was almost automatically awarded to the mother unless she was deemed unfit. This favored stay-at-home mothers whose “occupation” was to raise their children. The mothers and children were generally assured of a support award, primarily because mothers were the primary caretakers, and maternal custody resulted in continuity of child care.

Today women who seek to stay at home and be supported by their ex-husbands face an uphill battle. First, economic circumstances often make it prohibitive, because many divorced fathers cannot even support themselves, let alone pay adequate child support and support two households without a second income. The consequence has been that mothers must return to the work force, at least on a part-time basis. Second, many men are now contesting the assumption that women should automatically become the sole custodians of children. Alternative arrangements, such as joint child custody, challenge the need for mothers to be full-time homemakers, even if their ex-husbands can afford to maintain them in that role.

A third factor in the difficulty women have in continuing as homemakers following divorce is their ex-husbands’ resentment. Women have almost always been awarded custody of their children under both the fault and no-fault based systems of divorce because the “fault” or “innocence” of a party still has a bearing on child custody. Courts make custody decisions on the basis of what is best for the children. Any allegations against either party of cruelty, intoxication, desertion, or any of the other legal grounds will likely affect the court’s award of child custody. In many cases, the wife is the “innocent” party, at least with respect to the legal grounds that courts recognize. (Men perpetrate most of the physical and/or psychological abuse; men more often desert a family, etc.) As a result, women have always had an advantage in retaining child custody, but more often today, men resent paying support without a fair opportuntity to assert custodial rights.

No-Fault In Practice

The mechanics of no-fault law are that either spouse is entitled to assert that irreconcilable differences have caused an irretrievable breakdown of the marriage. Exactly what constitutes an irretrievable breakdown under a particular no-fault statute is unclear, but generally one or both parties will allege serious marital discord that makes it impossible to continue to function as husband and wife. In most states including Utah a no-fault divorce can be granted even if one party does not agree to it, or indeed, if only one party shows up at the hearing. The implication is that no fault is ascribed to either party, i.e., the breakdown of the marriage was not precipitated by cruelty on the part of either partner nor did other fault grounds exist. In practice, the designation of the grounds for a divorce is often negotiated by the parties. It is not uncommon, for example, for one partner to file for divorce based upon a fault grounds and ultimately reach a settlement of the financial issues and change the petition for divorce to a no-fault proceeding.

The apparent purpose of the no-fault laws was not to require people to somehow justify their desire to get divorced but only to require that they provide for the dependents of the marriage.

Traditional divorce laws based upon fault required the courts by statute to make dispositions of property as well as awards of child custody and support on the basis of what they deemed just and fair under the circumstances. Courts would use their discretion in allowing evidence of fault, because being found guilty or innocent in a divorce action had important consequences for alimony, property division, and child custody. In fact, under traditional law, the purpose of alimony was to financially “reward” an innocent spouse and to “punish” a guilty one. In practice, a wife found guilty of adultery might not be awarded alimony, while a husband found guilty of adultery might be ordered to pay excessive punitive alimony to his ex-wife. The same would be true for desertion. Since, historically, most cases involved a husband abandoning his wife, the wife, as the innocent spouse, would receive a larger alimony award if her husband was at fault.

If you are seeking a divorce under Utah no fault laws, consult with an experienced Tooele Utah divorce lawyer.

More than twenty years after the first no-fault laws went into effect, it appears that no-fault reform, instead of resulting in economic equality between spouses, has instead yielded economic detriment to women, sometimes with a windfall to men. No-fault has escalated the incidence of female heads of household and has substantially lowered the economic resources available to divorced women and their children. In fact, women and children now seem to get much fewer assets and support under no-fault laws as compared with settlements under the fault systems, although even under the fault regime, a woman’s economic status ended up substantially lower than that of her husband.

Specifically, under no-fault, alimony is granted less frequently; it is awarded in smaller amounts and for shorter duration; child support awards are smaller and not necessarily always granted (depending upon custody); property settlements awarded to the wife have decreased; and, at the same time, the percentage of family debt awarded to the wife has increased.
Under traditional fault rules, courts usually awarded alimony to an “innocent” spouse for life. Fault-based awards would generally be increased periodically to reflect the increased cost of living and, if necessary, would be modified if the original award was insufficient to support the dependents.

Under no-fault law, the court’s greatest emphasis is on two factors: (1) the wife’s employability, and (2) the duration of the marriage. Temporary (“transitional” or “rehabilitative”) alimony has become much more common than permanent alimony. This type of award is frequently granted to wives (usually) who may have left the work force or a training program to assume the responsibilities of being a married woman and mother. With few or outdated skills, she is given a limited period of time and support to “rehabilitate” herself and re-enter the work force. Under the nofault system, modifications and increases in support are the exception.
Today transitional awards are common and are intended primarily to enable a dependent spouse to get back on her feet and obtain the education or training necessary to return her to the work place. In reality, that purpose is rarely accomplished, particularly in the relatively short period of time that is allocated.

Under the no-fault divorce laws, the average awards are smaller. In part, this may be the result of the altered bargaining position of women in no-fault divorce situations, but it is also likely that many judges presume that many women will, in fact, secure suitable employment after the divorce; the awards are set accordingly. Here again, in reality more often than not the courts underestimate the difficulty that a homemaker faces in finding a job that will make her self-sufficient.

In many instances, alimony is virtually unheard of for women who are divorced in the early years of marriage (i.e., short-term marriages) under the current no-fault laws. Unless a woman has children at home and her husband is willing and able to maintain her as a primary caretaker, even women with children (except, perhaps, very young ones) will usually be expected to be self-supporting within a short period of time. Professional women in particular are rarely awarded alimony, even if they choose to be at home with the children and their husbands can afford to support them. The consequence is that motherhood is no longer a secure occupation, even in a household that can afford it, and stay-at home mothers have no guarantee that they will continue to be supported in that role after a divorce.

A generation ago when women naturally expected that they would assume custody of their minor children, they also expected that their former husbands would be obligated to support the family. Many single-parent families were able to live on the alimony and child support obtained from ex-husbands, at least while the children were dependent. Their standard of living markedly decreased in many cases, as the economic burden of divorce has always affected women and children disproportionately. But if a man wanted a divorce, alimony and child support were part of the package. Today the realities are different. In the large majority of cases, women continue to be the primary caretakers of minor children. The difference is that today few families can live on the support provided by ex-husbands, even when court-ordered payments are made, which is all too often not the case. This problem reached crisis proportions by the early 1980s, when it was considered a “national scandal” that so few fathers were required to pay adequate support and so few children were receiving the support that was ordered. What had happened was that courts were awarding inadequate amounts of support and, even more disturbingly, they were failing to enforce the awards that were made.

Federal Laws That Address Child Support

In response to great political pressure, Congress intervened in the area of child support, which is almost exclusively within the domain of individual states. In 1975 Congress approved title IV- D of the Social Security Act. title IV-D was responsible for the development of a federal enforcement agency known as the Office of Child Support Enforcement. It also charged each state with establishing local offices for child support enforcement. The services that became available under the title IV-D program included:

• parent locator services (to locate parents who disappear without fulfilling child support obligations;

• paternity (or parentage) establishment (to help determine who the financially responsible parents are);

• modification of support mechanisms (to keep awards current with the needs of the children and the ability of the parents)

In response to escalating costs and a child support system seemingly out of control, Congress amended the IV-D program with the Child Support Enforcement Amendments of 1984 and the Family Support Act of 1988. The purpose, of course, was to improve the services available in each state. Congress ordered every state to set forth (for individual courts) specific statutory guidelines to determine child support and to beef up mechanisms for collecting it. The laws required that states set forth specific formulas in order to ensure a substantial amount of uniformity among awards to prevent different courts from imposing inconsistent obligations on similarly situated individuals.

The guidelines vary from state to state, but generally three different models are used. For example, in about fifteen states courts are to award a flat percentage of the noncustodial parent’s (usually the father’s) income. It can be calculated in terms of gross or net income, as long as the courts are consistent.

More than thirty states use an income share guideline. This is more complicated, because it takes into account the income of both parents as well as child care and other expenses. The support amount is figured by looking at both the income of the noncustodial parent and that income’s relationship to the combined income of both parents. Determination of the award also takes into account the fact that as total family income increases, the percentage allocated to childrearing expenses usually decreases.

Finally, a few states use a formula that accommodates many more factors, including the obligations of the payor (such as financial responsibility for another family). In general, a court will determine the amount necessary to meet the basic needs of the children and then add a standard-of-living adjustment to the extent that additional income permits. Courts may be given more or less discretion to deviate from the guidelines, but once again the awards must be consistent.

AFDC

As part of the Social Security Act, the federal government has long provided funds to assist financially needy families with children through its Aid to Families with Dependent Children (AFDC) program. AFDC is, in essence, a federally funded child support program that provides support for families with (a) dependent children and (b) an absent parent. In 1984, Congress decided that it would try to reduce AFDC obligations by pursuing delinquent fathers and making them support their dependent children. With this incentive, Congress made sweeping changes to the federal laws, specifically the 1984 Child Support Enforcement Amendments and later the Family Support Act of 1988.

With the enactment of these federal programs, the federal government assumed an active role in the enforcement of child support. For example, under title IV-D the Office of Child Support Enforcement (OCSE) was established. Significantly, however, the role of the federal government continued to be limited to overseeing states’ administration of their own plans. The federal government assisted by coordinating cooperation among states, but a major problem with the present system has always been that once a deadbeat dad leaves the state, interstate enforcement of awards is difficult to enforce.

OBRA

Another effort of the federal government to help the states deal with the child support crisis has been through the Omnibus Budget Reconciliation Act (OBRA), passed in 1993. The most relevant directive of OBRA is that states — if they wish to receive federal funding — must establish “expedited” procedures for determining paternity (or parenthood). The states were already required to have expedited procedures for enforcing child support orders. For example, the new regulations require that once the parent is located, the paternity procedure and the support order are to be in force within one year or less, regardless of whether the parent is in or out of state. One consequence of trying to expedite the process has been that states now use decision makers (sometimes known as “masters” or “referees”) other than judges in order to comply with the federal requirements without overburdening the state court systems.

There are other important facets of OBRA that help determine a child’s parents and establish a support order. In particular, OBRA requires hospitals to establish various outreach programs designed to encourage the fathers of children born to unmarried women to voluntarily acknowledge their fatherhood. One such program is to make genetic testing available (at the hospitals where children are born) to any man who does not know, but is willing to find out, whether in fact he is the father of the child and is willing to be tested. The test may be offered at little or no cost. Another is to establish a mechanism for men to “sign up,” i.e., indicate that they recognize being a child’s father. This requires that the father understand the rights and obligations of parenthood. If, after being so informed, a man freely claims a child as his, a support order might then be based upon that acknowledgment.

AFDC and State Mandates

The federal guidelines were designed in response to some startling statistics concerning the support of children in single-parent homes. For example, it is estimated that 87 percent of families receiving AFDC end up on the public dole because they do not get sufficient child support from the natural fathers. It is also estimated that less than 60 percent of children of divorce have been awarded any support at all and that less than half of those receive full payment and nearly a third of those receive nothing at all. It is also estimated that, after divorce, the standard of living of mothers and children declines by up to 70 percent, while the standard of living of fathers tends to increase up to 40 percent. There is no question that the breakup of a family is responsible for a great portion of the poverty in this country, and that failure to get or enforce child support awards is a major contributing factor.

The enforcement programs that Congress developed and required states to adopt in some form (in order to keep getting AFDC for its residents) have a number of standard provisions. One is that each state must adopt some form of standardized child support guidelines to ensure that the awards are fair, adequate, and consistent; a second provision requires that states implement specific mechanisms to help track down delinquent parents when a support order is in effect and is not being honored. A third major requirement is that states provide collection services for families on AFDC. This not only helps get families off of public assistance, but it also reimburses AFDC for the money that it paid out in the event that delinquent parents are found and child support payments are collected.
Finally, current laws require that states also assist non-AFDC families who request help in enforcing and collecting child support payments. This is Congress’ attempt to prevent welfare dependency in the first instance by helping dependent families to collect the child support that is due. Prior to 1984, the states were only required to help families collect delinquent support payments if they were on AFDC (so that AFDC would be reimbursed). The direction of this new law is toward requiring parental responsibility in all instances, leaving the welfare system as a course of last resort.
States on their own have set up other services to assist families in locating absent parents through records, employment, and other leads.

States have also developed specific tactics for collecting and distributing child support payments in specific cases and for getting delinquent fathers into court, establishing appropriate awards, modifying child support awards where necessary, and, most important, getting payments made. Each state has developed and implemented its own specific measures to try to fulfill the various objectives. For example, some states now draw their information from such sources as the Department of Motor Vehicles, credit bureau reports, property listings, and even quarterly wage statements from the Internal Revenue Service. To support these activities, the federal Office of Child Support has established a Parent Locator Service, which is able to access data contained within a number of the federal agencies and to use that information to assist custodial parents in collecting child support.
In making the states conform to its requirements, Congress attempted to give each state a substantial amount of leeway in creating and implementing processes and procedures that would work best in each system. Congress did make some specific requirements, one of which was to establish a national, centralized system for tracking and monitoring child support payments to eliminate many of the disputes over such questions as how much is due, when it is due, whether it was paid, etc.

Support While Living Apart

Many states including Utah have simplified their procedures for helping both married and unmarried persons living apart to obtain child support. To obtain an order for temporary support, for example, the petitioning party need only establish that (1) paternity is not contested, (2) the parties are living apart, and (3) one or more children are living with the parent seeking support. If everything is in order, many courts will issue a temporary order, and it does not even matter whether the other parent shows up in court.

How Support Awards Can Be Enforced

Virtually the most difficult part of the child support process is in enforcing the order, a detail Congress recognized when it set about to overhaul the child support system. As part of the 1984 Act, Congress required that states implement certain specific measures and undertake to establish and fund the programs that required federal participation. Still other measures were suggested but without a clear mandate that the states adopt them:

• Income or wage assignments. If there is a support order in effect and payments have been delinquent for a period of time, and if the court believes it is necessary to ensure timely payments, it can order a wage assignment. The support money is deducted by the employer from the employee’s paycheck along with all other payroll deductions. Depending upon the court order, the money may be forwarded directly to the custodial parent. If for any reason this is unacceptable or unworkable, it can be sent by the employer to the court or to the state department of revenue, whatever the court decides. According to the 1984 Act, wage assignments can be applied to any type of “periodic income,” specifically including disability benefits, pension benefits, annuities, workers’ compensations, insurance proceeds, partnership profits or interest, dividends, or trust income. The important provision is that a stream of income be regular and periodic and that it be paid by someone who will be responsible and accountable for getting the money to the dependent children, the court, or the state department of revenue, whichever is ordered.

• Direct wage withholding. One of the most effective methods of collecting child support related to wage assignments is through wage withholding. This is used in those cases in which child support payments are delinquent in an amount equal to one month of support. The law requires that the employer be notified and ordered to withhold the employee’s wages in accordance with a “provisional wage withholding order.” If the employer should fail to do so, it can be held responsible for the amounts that were not withheld. In fact, in some states employers are fined for failing to withhold wages in accordance with a proper order. This type of order can be used in several types of proceedings — including divorce, paternity, and separation — and is useful because it can be instituted in the shortest possible time frame.

• W-4 reporting of new hires. While all states now have mechanisms for wage withholding, if an absent parent moves out of state, it is estimated to take between thirteen and twenty weeks for a withholding order to take effect with a new employer. During this time support is often not paid, and some delinquent parents simply move on to a new job once the order does catch up with them. In order to expedite the process of establishing new employment, some states have implemented a mechanism whereby new hires would indicate on their W-4 forms whether or not they have an outstanding child support obligation, the amount of the order, and the payee, in which case the withholding begins immediately. If an employee fails to report his support obligation, he is subject to a criminal penalty.

• Tax refund intercept. In cases in which the person ordered to pay child support is an employee who has state and/or federal taxes withheld from his pay and a refund is generally due, it is possible to intercept either a state or federal refund. It is available to AFDC and non-AFDC parents. Although this process is not realistic against all delinquent parents (because of various procedural obstacles and eligibility requirements), it has proved to be valuable recourse for those custodial parents who are owed support and when delinquent parents meet the intercept requirements.

• Attachment of property. If a delinquent parents owns real property (i.e., a home or real estate) or has a valuable asset (e.g., a car), it may be possible to “attach” the property (which means to “hold” it to secure the debt) and ultimately to have it taken and sold to pay the debt. This requires a court proceeding but is relatively straightforward as long as valuable and marketable assets can be found.

• Liens on property. Similar to an attachment, alien can be placed on real or personal property, which prevents it from being sold until the lien is satisfied (and thereby discharged). These are useful in those cases in which wage assignment or withholding was not possible but the delinquent parent does have assets that can be found.

• Trustee process. Like attachments, this requires that the custodial parent who is owed support be able to find property. In this case the property must be a bank account, stock brokerage account, or other liquid asset that is within the control of a third party (e.g., a bank). The actual procedure is similar to that of attachments and requires that a court order be secured after the account is located. As is also true of attachments, the process is more complicated if the asset is located out of state.

Additional remedies that might be available, particularly against self-employed and professional deadbeats, include revocation of professional or occupational licenses or mandatory credit bureau reporting. Attachments and liens on property may be possible when a delinquent parent is self-employed and it is difficult to reach income in other ways.

For the most part, these collection methods are similar or identical to those used to collect any debt. In fact, in recent years, a number of custodial parents who are owed substantial sums of money in uncollected support are turning to private collection agencies to try to obtain the money due. Although the same mechanisms are available through the appropriate state and federal agencies, some people find that private collection services are more effective in accomplishing the task.

Interstate Enforcement of Child Support

Among the most troublesome aspects of collecting child support today is trying to obtain and enforce a support order against a delinquent parent who has left the state. The law provides many uniform acts that are set forth as models to promote similar and consistent laws that affect people who are trying to engage in transactions across state lines. Although no state is obligated to adopt a uniform act, most states do so in some form (unless it is contrary to some important state policy). These acts generally contain provisions for cooperation and reciprocal enforcement so that if state A and state B pass similar statutes (as suggested by the uniform act), each is likely to provide the other with whatever assistance it may require to enforce its provisions when residents move from state A to state B or vice versa.

The federal government has, through various programs, attempted to coordinate interstate support. In 1950, the Uniform Reciprocal Enforcement of Support Act (URESA) was created in order to assist a custodial parent in enforcing a child support award across state lines. Its primary purpose is to secure support payments for dependent children whose legally obligated parents have left the state that ordered they pay support. URESA provides, in general, that once an order of support is set initially by one state (the “initiating” state) and the parent moves to another state (the “responding” state), the responding state will not change the order but will enforce it in the same amount previously set by the initiating state. The major purpose of URESA is to prevent “forum shopping.”

Under URESA, states are forbidden from entering a support order that supersedes or changes an order from a previous court. The one issue that either parent can contest, however, is whether the initiating court had the right to enter a judgment in the first place (i.e., whether the court had jurisdiction). If ultimately the determination is that the support order was rightfully created by the initiating court, the order is thereafter entitled to “full faith and credit,” meaning that the responding state is bound to accept and enforce it.

It is also important to realize that a lawsuit brought under URESA only operates to enforce an existing child support order. All remedies under the act are in addition to whatever other remedies may be available under either state’s laws. URESA, therefore, does not create an order for support; it only provides another potential avenue for enforcing a support decree that has already been ordered.

While URESA has gone a long way in helping interstate enforcement of existing support orders, there is at least one major problem that URESA has not been able to address: there is little coordinated networking for communication between states to keep track of cases once they are referred to another state. Most communication that does occur is between one local court and another. As a result, there is not a systematic procedure for keeping track of the large number of cases that come through. Recent federal legislation has attempted to remedy this problem, proposing that states establish interstate computerized databases and clearinghouses to record such information as the name, address, income, and support order of a delinquent parent. Ideally, each state would have a Registry of Support Orders to store an abstract of all case information, even though it would not be responsible for collection. Each state would register all incoming and outgoing requests for enforcement of child support from one state to another and would use and register such mechanisms for collection as wage withholding and other similar measures. The current law also requires states to make their wage assignment systems available for interstate support orders.

Enforcement Of Last Resort: Contempt And Criminal Non-Support

If civil collection methods are not effective in helping custodial parents of dependent children receive their child support, the custodial parent may be able to institute an action for civil or criminal contempt. Contempt is a separate proceeding (distinct from obtaining the original support action) and usually requires the services of an attorney. A defendant will be subpoenaed to go to court and will be given the opportunity to explain why the support is not being paid. Unless he has a good explanation, however (e.g., he has lost his job and has no income), he will be held in contempt. Technically, he can be held in contempt even if he does have an adequate explanation, because if he is unable to pay, his remedy is to go back to court and seek a modification of the decree, not simply to stop paying. In any event, even if the defendant is adjudged to be in contempt, he might be jailed or fined, but usually the collection remedies are only those that are already available to support recipients.

Criminal nonsupport is a remedy of last resort, primarily because it results in the defendant’s having a criminal record and subjects him to criminal penalties. Under the Child Support Recovery Act of 1992, it is now a federal crime for a parent who lives in a state that is different from that of dependent children to willfully fail to pay child support. While it is estimated that currently at least 500,000 cases could be prosecuted based on these terms, without the judicial resources to do so, in many cases the result has simply been that the law has not improved the probability of collecting the delinquent payments. Yet under the right circumstances the criminal law has proven to be a very effective tool. If a parent has the ability to pay and simply refuses, the threat (or reality) of criminal prosecution may encourage payment where no other method has worked.

Criminal laws vary from state to state, but criminal nonsupport generally requires (1) abandoning a minor child (or spouse) without making reasonable provisions for his or her support and (2) willfully failing to comply with an order of support rendered by a proper court for reasons other than inability to pay. The criminal penalty if a defendant is found guilty of nonsupport also varies from state to state. In some states it is a misdemeanor (i.e., a minor criminal violation); in others it is a felony (i.e., a serious criminal offense). Penalties can include fines and imprisonment or both. Many states impose harsher penalties in cases of interstate nonsupport where it appears that a defendant has fled a state specifically or primarily in order to evade a support obligation.

Defendants in cases of criminal nonsupport can be arrested and extradited as child support delinquents. This means that state authorities take responsibility for apprehending and sending a defendant back to the state that ordered the support obligation. This is significant because defendants in civil cases can ignore summonses if they are out of the state, and it is virtually impossible to serve them across state lines. Without a summons, a defendant cannot be legally compelled to appear in court.

This criminal procedure is typically used only as a last resort in those cases involving defendants with long histories of nonpayment who have the ability to pay and who have left the state and refuse to comply with a local order of support. Offenders can be listed in the National Crime Information Center (NCIC), which is a national register of individuals charged with a criminal offense.

Child Custody Alternatives and Their Impact on the Payment of Support
In the days of fault-based divorce, mothers expected that they would assume the custody of their minor children and fathers would provide support. The law had indoctrinated a “maternal preference” for child custody, particularly when the children were “of tender years.” Unless the mother was proven to be unfit, it was virtually impossible for a father to contest his traditional role. This arrangement provided some measure of predictability for the children and minimized the likelihood of what is known as “custody blackmail” — bitter parents using child custody to win financial concessions in the divorce settlement. With the advent of nofault divorce, however, divorcing couples no longer had to negotiate the grounds for their divorce, and the fate of the children was no longer certain.
The reasons for the traditional rules of child custody were many. Fewer women were employed outside the home, and there was a natural continuity of child care for a woman to retain custody. Men participated minimally in the day-to-day care of children, and they were generally considered to be less nurturing and less suited for child care. Few men contested the issue, since male role models didn’t teach men that child care was an important part of the male tradition.

In recent years, domestic relations law has evolved considerably and a number of changes have occurred. First, the unofficial “maternal preference rule” and “tender years doctrine” were challenged. They were said to discriminate against men, and the courts agreed. At least in theory, courts must give both men and women a fair opportunity to make their bid for custody. Second, the assumption that most women stay at home and fathers earn most of the household income is no longer borne out by the evidence. Today women are regularly employed in the work force. Whether through necessity or because of a desire for a better standard of living, more than half of all mothers no longer assume the traditional role of homemaker. Third, the assumption that women are somehow more nurturing and better overall custodial parents, even of young children, has been challenged. Many men in the 1990s are more comfortable with the male image of devoting large blocks of time, even stalling careers, to participate more actively in the upbringing of their children. Some feel that traditional male roles have deprived them of showing their “mothering” qualities.

Finally, with the collapse of the traditional fault-based divorce schemes, which required men to negotiate for the right to obtain a divorce, more men have challenged the courts’ universal habit of awarding sole custody to the mother. Many such challenges have been successful.

The result of these changed conditions is that increasing numbers of men are seeking to become the primary custodians of their minor children when the decision to divorce is made. Of course, not all men are motivated by the strong desire to parent or even by the best interests of their children. Nevertheless, more and more are actively pursuing custody and forcing courts to take a hard look at what is best for the children. Forced to abandon their automatic preference for maternal custody and faced with serious challenges by fathers, courts confront difficult custody choices with little guidance as to what is best for the separating family.

The evolution, however, has only come so far. Often with good reason, courts are skeptical when men seek sole custody of their children. They are sensitive as to whether their desire for custody is sincere or whether it is a ploy to gain financial concessions.

It is not uncommon for women, in particular, to “give in” to custody blackmail and forego a more suitable financial settlement for themselves (and their children) when faced with the possibility of losing custody. Of course, women, too, have been known to extract concessions by using custody as a bargaining chip when they want to give up custody. Furthermore, some men (and women) are simply more willing to gamble with custody when that is the cost of cutting their best deal. In most cases women can still count on being favored for child custody when they want it. As a result, even when both parents are fit for the task, men still have to expect to compromise.
Today the most common compromise is a cooperative parenting arrangement known as “joint custody.” Joint custody was first introduced when equal rights for men and women started to become a serious issue in the courts. Legally, joint custody means that each parent gets substantially equal access, authority, control, and responsibility for the children and assumes that each parent will share in raising the children. It is not a quasi-legal “shared parenting” agreement, nor does it require an equal division of responsibility. It is merely an arrangement that gives both parents substantially equal legal rights and responsibilities as to the care, custody, and responsibility for the children.

Joint custody is often implemented under conditions that have many of the hallmarks of sole custody (e.g., the children live with the mother during the week and with the father on weekends). What is important is that parents are able to share in the amount of time spent with the children and retain shared control over the major decisions and obligations that affect their lives. For example, parents may both retain joint legal custody but have the children live with one parent, usually the mother. In some cases children may spend weekends and/or vacations with the father. In other cases the parents may alternate custody: children can spend blocks of days, weeks, or even months in one place and then transfer to the other place. The longer the time interval, however, usually the more disruptive it is for the children. In rare cases, children may actually spend half of the year in one place and half of the year in the other, especially if the parents are separated by a large distance and no other practical remedy is feasible. Many courts consider these arrangements highly disruptive for the children and even prefer no visitation to this type of arrangement.

Still another possibility, and one that is rarely approved by the court, is separation of the children, with each parent assuming virtual sole custody of one or more children, with visitation to the noncustodial parent. Many courts require compelling reasons for separating the children because it is another disastrous separation for them that can have severe psychological consequences.

Today most states have enacted some type of law that provides for joint child custody. Many courts seem to favor such an arrangement if it appears that the parties are willing to try to make it work. In particular, it requires that the divorcing couple be able to cooperate with each other in making decisions that affect the children and in implementing the mechanics of joint custody (e.g., transporting the children back and forth).

There are numerous benefits to joint custody in those cases achieving a workable arrangement. For the courts, it relieves them of the burden of making difficult custody choices, which they are usually not equipped to address. All too often custody battles become a battle of the experts, each claiming that one parent is likely to be the better custodian but with little evidence to back up the claim.

For parents, the long-range outcomes of joint custody have been somewhat better than sole custody arrangements, reducing the need for parents to return to court to enforce visitation and support awards. It also appears to affect the way that parents view their participation with the children after the divorce. In some cases it lessens the additional burden of care that falls on the custodial parent. In other cases it seems to diminish the likelihood that a noncustodial parent (usually the father) will not pay child support. In still other cases it seems to reduce the potentially damaging strain on the relationship between the noncustodial parent and children.

In many cases, however, it is difficult to know what is best for the children. Only hindsight can determine for certain whether divorced parents, when relieved of the burden of the deteriorating marriage, will interact with each other and the children in a way that allows the children to maintain a stable relationship with both. Joint custody is not indicated when there is continuing conflict and hostility between the parents that is exacerbated by the interaction necessary to implement this arrangement. Yet the court has only the short time of the hearing to observe and evaluate each of the parents and to speculate about what would be best for the children. For this reason, divorcing couples are urged to negotiate their own custody arrangements. Joint custody, in particular, is rarely an optimum solution if both parties will not agree to it themselves.

Guardian Ad Litem

In cases of contested custody, courts in most states including Utah can appoint a guardian ad litem (temporary guardian) to represent the interests of the minor children. A guardian may be an attorney whose function is to seek out information concerning the needs and welfare of the children and to report the findings to the court. A potential guardian can be suggested by either parent or the judge and is ultimately appointed by the court to represent the children during the divorce proceeding.

Guardians perform a number of important functions. They talk to the children’s parents, teachers, caretakers, relatives, guidance counselors, physicians, psychologists, or anyone else who may have knowledge about what is best for the children. They talk to the children. They must be willing to make an impartial inquiry and act on behalf of the children. Ultimately, their function is to report back to the court (i.e., testify) on behalf of the children.

One of parents’ greatest fears about divorce trials is that the children may be asked to testify. A guardian can ensure that the children do not get in the middle if the custody battle gets bitter. In virtually all cases, children will not testify in open court. If they are old enough to express a preference, the judge may ask them to speak in camera, i.e., the judge will take their “testimony” privately, in his chambers, and what is said remains confidential. Very young children are rarely questioned at all, both to spare them the trauma of having to choose between their parents, and because their preferences are not given much weight anyway.

Sole Or Joint Custody?

The relative merits of joint and sole child custody have been widely debated, and there is still much controversy about which is a better model and under what circumstances. Since the custody standard is always “the best interests of the children,” courts are forced to evaluate the merits of the various options. Of course, not all parents seek custody and there are few cases that reach trial with child custody still contested. But when they do, courts are faced with difficult choices, often ones they must base upon subjective considerations. Assuming that both parents’ desire for custody is sincere and not a tactic to coerce financial advantage, the court must consider, on a case-by-case basis, how joint or sole custody would operate for the particular family.

It has been argued that sole custody provides a permanent and unconditional placement of children, which is an essential factor in healthy child development. Advocates of this position urge courts to seek out and consider all factors, psychological as well as physical, that affect the question of which parent would best look out for the interests of the children. However, after making such a determination of who that sole custodian should be, some experts recommend the placement should be immediate, permanent, and unconditional. All decisions concerning the children should then be made by that parent. He or she should decide how, and under what conditions, the children should be raised, even including visitation by the noncustodial parent. The reason for this unilateral decision making is that despite good intentions, too many parents are just not able to cooperate with one another, and never-ending conflicts arise when decisions need to be made concerning the children.

Courts generally do not adopt such a radical position, particularly with respect to visitation. Recognizing the companionship rights of the absent parent, visitation is usually liberally granted to a noncustodial parent, primarily because it ensures an ongoing relationship with the child. As a practical matter, however, joint custody does sometimes create problems later on when inevitable changes occur. It is difficult for divorcing parents to predict what might happen in the future and what adjustments will need to be made. This is particularly difficult with joint custody.
It is not only residual hostility but also the practical problems of remarriage, change of residence, and return to the work force that disrupt mutual planning and decision making. Moreover, continued negative interactions between the former spouses often frustrate efforts to preserve the child’s health and positive parent-child relationship that was at the heart of joint custody rationale. A serious danger for the children is the sense that they do not “belong” in either place or that neither parent is fully committed to their upbringing.

There is another school of thought that views joint or shared custody and the needs of the children differently. Its advocates argue that joint custody, in appropriate cases, more intimately involves both parents in the raising of their children and prevents the child’s sense of loss of the noncustodial parent. By alleviating some of the burden of care on the custodial parent, joint custody may result in a less stressful environment. Support payments are more regular, and typically not held hostage by a parent who is unable to visit with the children. Finally, joint custody may lead to a better sense of well-being because it may reduce the children’s sense of being abandoned by the noncustodial parent.

How Is Custody Determined?

When child custody is contested, the parties are always encouraged to reach an agreement between themselves since it has been consistently shown that both the divorcing couple and their children adjust better to the divorce and are less likely to return to court with complaints of custody violation. Regardless of what the court decides, it is inevitable that at least one party (and sometimes both) will be unhappy with the court’s decision and will be less willing to fulfill obligations to the children. In fact, bitter custody disputes outlive all other aspects of the divorce and no one ever really wins — certainly not the children.

At the same time one of the greatest fears of a woman facing divorce is the possibility that she could lose custody of her children. It is the unusual case, however, where a mother seeking custody will not at least be given joint custody. Only if she has a severe mental, emotional, or personality disturbance; a drug or alcohol dependency; a history of child abuse or neglect or a pattern of severe, erratic behavior toward the children would she be likely to lose sole custody to her husband. Nevertheless, the court is bound to award custody in the best interest of the children and to consider seriously a father’s bid.

In those cases that custody just cannot be agreed upon, either because the parents are simply unwilling to compromise or because they cannot work out an agreeable solution, the court will be forced to decide for them. The question of what, exactly, the court looks for is not entirely clear. It is required to determine “the best interests of the children” but nobody really knows, in a particular case, what the deciding factors may be. There are certain circumstances, however, that are likely to be studied.
The court will inquire about who the primary caretaker is and what each parent does in terms of child rearing. Are the children physically cared for (food, clothing, schooling, age-appropriate activities)? If not, what is lacking and how would that be provided? The court will inquire about what ability and arrangements each parent would make to meet the physical and day-to-day needs of the children if custody were awarded to him or her.
The court will also inquire about the present relationship that each parent has with the children. It will need to know how each parent currently meets the needs of the children in terms of their existing parent-child relationship. Are the children well adjusted? Are they performing in school consistent with their capabilities? Do they interact well with friends and peers? The court will inquire about any problems that may relate to the child-rearing practices of either parent and the stability of the environment that has existed thus far.

The court will inquire about the physical and mental health of each of the parties. In particular, it will want to know if there is anything that is likely to cause a future disruption in the custodial arrangement once it is ordered. In this regard it is usual for both parties to provide a psychological expert — one who has examined that person and will report on his or her fitness to be a custodial parent. Since the linchpin of the custody determination is the “best interests” of the children, it is often critical testimony for each party that they be able to prove reasonable parenting skills. In cases where actual fitness is an issue, the court will appoint its own psychiatric expert to evaluate the parties.

The court will inquire about what major changes for the children would be required if sole or joint custody were awarded to either parent. How would present child care arrangements be disrupted? Is either parent planning to move away? Do the parents have the physical space for the children? And what type of plan would the custodial parent make for the children’s visitation with the noncustodial parent? Courts often believe that they can determine whether the motives of parents vying for custody are sincere on the basis of their willingness to make the children available for visitation with their other parent.

If the children are old enough to express a preference, the court will usually allow them to do so in private. While there is no set cutoff for age, as mentioned earlier, very young children are usually not allowed to testify even if they choose to express an opinion.

Finally, the court will look at the overall home environment that each parent is likely to maintain. Are step-families currently involved and is either parent planning remarriage? What will that mean to the well-being of these children? What has the past environment been like? Has each parent maintained a stable presence or has past behavior been erratic? In many cases the answers to these questions will help determine whether each parent’s desire for custody is sincere or whether the contest is being waged to gain some other concessions.

What Factors Are Not Considered

In addition to all of the factors that the court will look at in making a custody determination, there are a number of issues that many parents, particularly mothers, become anxious about that usually will not affect the custody award. Among them are the fact that the primary caretaker up until that point will probably need to go back to work or has been working all along. The court will, of course, look at these factors, but generally it will not view in a negative light a woman’s need or desire to be employed outside the house, as long as she makes reasonable provisions for the children. Interestingly, what a court will look at is whether she makes time for the special needs of her children while she also works. Does she take time off when the children are sick or have an appointment with the doctor? Does she participate in the children’s recreational activities? Does she make their meals, shop for their clothing, and pay attention to their homework and schoolwork? The court usually will not be deterred from awarding custody to a woman who works as long as she actively cares for the children as well.

Another factor that courts generally will not consider is the fact that one parent, usually the father, can provide more material advantages for the children. The fact that the father will live in a bigger home, a better neighborhood, or simply has more disposable income to provide for the children is usually not important. In fact, if the court finds that one parent has been using his superior financial status (e.g., buying expensive gifts) to entice the children to express a preference, it is more likely to find that this is manipulation rather than an indication of superior or even sincere parenting.

Courts do not look favorably on adulterous relationships before the spouses are divorced, but they primarily look at how the relationship affects the children. If it is causing them confusion or distress, then obviously that factor will be viewed negatively. Courts recognize, however, the inevitability of new relationships and marriages after the divorce and they do not necessarily cast aspersions on such a parent. In fact, if evidence of adultery or even a boyfriend or girlfriend has already been presented, a parent seeking custody may try to demonstrate the stabilizing effect that it would have on the children.

When Custody Can Be Changed

In Utah, even after a child custody arrangement is agreed upon by the parties or ordered by the court, the court retains control (jurisdiction) over the case unless the children are lawfully removed from their residence to another state. The parties cannot agree to divest the court of its continuing control and either party can return to court at any time if the custody or support order is being violated or if a change in the order is warranted. As a result, even parents who are awarded custody often live under a continuing threat that the children might be taken away from them. But only rarely does it happen.

Changes in custody (or support orders, for that matter) can only be sought when a clear change of circumstances can be proved. In most states including Utah this requires that a new proceeding be initiated and it is usually costly since lawyers must once again get involved and start afresh. Court actions for modification are different from return visits to court to enforce an existing order. If a sole custodian refuses, for example, to adhere to the visitation schedule, the remedy is to go to court to enforce the order, not to modify it. If, however, there are repeated offenses by one parent, a modification of the original decree may be indicated.
The most common reason to seek modification today is that joint custody is not working or visitation is repeatedly denied. Often when visitation is denied, the noncustodial parent holds back support (which, incidentally, is illegal). If a custodial parent is denying the other access to the children, the remedy is to return to court to enforce the order or modify the decree, not to deny the child the support that is due. The court will then evaluate the circumstances and will issue a strong warning or hold that party in contempt of court, depending on the nature and frequency of the offense.

What will the court do if it appears that joint custody is not working? With an action for modification the court is required to review the circumstances anew, particularly in light of why the arrangement is not working. If either parent is clearly at fault, that parent is at greater risk for losing custody at that point. What happens more often is that the circumstances of joint custody, which appeared workable at the time of the order, are no longer satisfactory. Often when children get older, they object more to moving back and forth or living in two different places. At other times one or both parents has had to move. And sometimes the arrangement was simply ill advised and did not work from the start. If the court is satisfied that its original custody order is not in the best interests of the children, the parties will once again be encouraged to reach their own agreement or the court will impose its judgment on them. There are no easy answers, and they become tougher the second time around.

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