More and more, I have clients who come to me with questions regarding step-parent visitation. The sad fact is this - second marriages have a much higher rate of divorce than first marriages (60% -70%), and third and forth marriages end in divorce at much higher rates still. (See http://answers.google.com/answers/threadview?id=363986). As a consequence of the high divorce rate and high re-marriage rate of divorced parents, step-parents are often involved in the raising of their spouse's children. So, what happens if the second marriage ends in divorce? What rights does the step-parent have?
In Utah, the case law on this subject has a somewhat colorful and contradictory past. In the 1978 case of Gribble v. Gribble, 583 P.2d 64 (Utah 1978), the Utah Supreme Court interpreted a prior version of the divorce statute (Utah Code Ann. 30-3-5) as granting step-parents standing to petition for visitation with their spouse's children. See 583 P.2d at 68. The supreme court reasoned that if a stepparent stands "'in loco parentis, he [or she] should be considered a parent for purposes of [section] 30-3-5' because a stepparent who has 'assumed the status of one in loco parentis to the child . . . [is] in a different position' than other persons unrelated to the child. (The term 'in loco parentis' means in the place of a parent, and a 'person in loco parentis' is one who has assumed the status and obligations of a parent . . . .). Id. In so reasoning, the supreme court also stated that only a stepparent or a child could terminate the in loco parentis relationship at will (i.e. as the parent chooses). Or, in other words, so long as the step-parent had acted in the role of a parent during the marriage and so long as the step-parent wanted to continue to have visitation with their spouse's child the spouse could not unilaterally cut off visitation. Of note, Gribble did not specifically answer the question of whether a step-parent could seek custody of their spouse's child.
In 1990, the Utah Supreme Court revisited the issue in the case of In re J.W.F. (Schoolcraft), 799 P.2d 710 (Utah 1990), when it again addressed the issue of a stepparent's rights with respect to his or her spouse's children. In Schoolcraft, the supreme court concluded that a stepfather had standing to petition for custody of a child not biologically his own but born to the mother during the mother and stepfather's marriage. See id. at 716. The Schoolcraft court contemplated several bases for standing but reasoned that standing should be determined in light of a "person's legal relationship to the child," such as being "married to the child's natural . . . parent." Id. at 715-16
The Utah Supreme Court yet again revisited the issue of whether a person legally unrelated to a child has standing to petition a court for visitation in the case of Jones v.
Barlow, 2007 UT 20, 154 P.3d 808. The facts of the Jones were unique in that the step-parent was the lesbian partner (the parties entered into a civil union in Vermont) of the biological mother. From birth until the parties separated when the child was two years old, Jones filled the parental role for the minor child. (For a more complete discussion of the implications of Jones see Marx, Shane A. "A Best-Interest Inquiry: The Missing Ingredient in Utah Family
Law For Children of Alternative Families—Jones v. Barlow", 11 JOURNAL OF LAW & FAMILY STUDIES 157.
In that case, the Utah Supreme Court held "that the doctrine of in loco parentis . . . does not independently grant standing to seek visitation after the in loco parentis relationship has ended." In essence, just because you stepped into the role of a parent does not mean that you have the right to request visitation or custody. The supreme court distinguished Jones from Gribble, noting the stepparent's "standing in [Gribble] arose out of an interpretation of statutory law granting such rights, not from an independent common law source." In addition, the supreme court corrected a "misstatement of law" made in Gribble regarding the at-will termination of the in loco parentis relationship, stating, "[T]here is nothing in the authorities we cited in Gribble justifying the conclusion that the in loco parentis status may be terminated by only the surrogate parent or the child." In plain English, the court was saying, that when we said that the child's legal parent could not unilaterally withhold visitation to the step-parent, we were wrong. The court clarified that "a fit legal parent[] . . . . may freely terminate the in loco parentis status by removing her child from the relationship, thereby extinguishing all parentlike rights and responsibilities vested in the former surrogate parent."
As a result of the Jones ruling, not only did Jones lose visitation rights to the minor child, but the Utah Supreme Court's ruling potentially could have had widespread impact on step-parent rights. Indeed, in the 2008 Utah Court of Appeals decision of Strauss v. Tushman,
2009 UT App 215 that court applied the reasoning of Jones to a stepfather seeking visitation of the minor child he helped raise during an eight year marriage. The court held that while the father had in loco parentis relationship with the minor child while he was married to the child's mother, his legal relationship with the child ended when the parties divorced, at which time Mother could terminate Stepfather's in loco parentis status at will. "Because the legal relationship between the parties ended in divorce and Mother in fact terminated Stepfather's status, Stepfather lost the standing to petition for visitation with Child." Id. In other words, upon divorce of the step-parent from the child's parent, the ex-spouse could cut off visitation for any reason.
As a result of the potentially wide spread impact of the Jones case on traditional step parent relationships, in 2008 the Utah State Legislature enacted the Custody and Visitation for Persons Other Than Parents Act (the Act). See Utah Code Ann. §§ 30-5a-101 to -103 (Supp. 2008) (effective May 5, 2008). Even though the statute was enacted prior to the Strauss decision, because the Act was not retroactive, it was inapplicable to the Strauss decision. Accordingly, the clarification announced in Strauss applies to only a narrow time frame - only to cases arising after Jones but before the Act's effective date.
In summary, the availability of visitation for step-parents (and grandparents and other close relatives) now appears to be governed by the Custody and Visitation for Persons Other Than Parents Act, which establishes a rebuttable presumption that the parent's decisions are in the best interest of the child. However, this presumption can be overcome by the step-parent showing (by clear and convincing evidence) all of the following:
(a) the person has intentionally assumed the role and obligations of a parent;
(b) the person and the child have formed an emotional bond and created a parent-child type relationship;
(c) the person contributed emotionally or financially to the child's well being;
(d) assumption of the parental role is not the result of a financially compensated surrogate care arrangement;
(e) continuation of the relationship between the person and the child would be in the child's best interests;
(f) loss or cessation of the relationship between the person and the child would be detrimental to the child; and
(g) the [other] parent: (i) is absent; or (ii) is found by a court to have abused or neglected the child.
This statute has some built in definitional curiosities. First, the definition of a "person other than a parent" includes both grandparents and "current or former step-parents". Also of note, it includes step-grandparents, step siblings, step-aunts or uncles. What is unclear, is how 30-5-2, the existing section on grandparent visitation rights, should be read with the new Act (a subject for another day perhaps).
Also, potentially problematic is the definition of "parent". In all of the case law on in loco parentis, the other biological parent is no longer in the picture. For example, it would appear that in most of the cases discussed above the other biological parent had presumably waived their parental rights or was no longer in the picture. Subsection 2(g) requires a showing that the parent is absent or is found by a court to have abused or neglected the child. In the case of the step parent seeking visitation or custody, is the "parent" being referenced the non-spouse, or the spouse? If a situation were to arise where the other biological parent (the non-spouse) is still in the picture, does the step-parent also have to show by clear and convincing evidence the elements set forth in the statute as to the spouse and non-spouse parents? It would appear from an interpretation of the in loco parentis case law is that the "parent" referenced in subsection 2(g) is the non-spouse parent.
Because the appellate courts have yet to interpret this statute, it is not absolutely clear how this statute will be applied to step-parents. However, one thing seems to be clear from the plain language of this new statute: gay and lesbian partners are not included in the definitional sections as a person other than a parent entitled to petition for custody or visitation, and accordingly, the Jones case would still govern those cases and the biological parent can unilaterally sever the relationship without much recourse by the other domestic partner.
Thursday, August 20, 2009
Thursday, January 15, 2009
Utah Appeals Court decision - Leppert v. Leppert
A cautionary tale: Courts need to be very, very specific when deciding alimony, attorney's fees, and division of property. - Leppert v. Leppert, 2009 UT App 10. (Decided January 15, 2009).
This case is one of those prime examples of just how complex divorce cases can get and just how tough a Judge's job can be in deciding them. The parties in the case were married in 1972 and filed for divorce in 2004. In the process of the divorce action temporary orders were entered that divided the debts and awarded the wife alimony during the pendency of the divorce (in other words, from the time of the temporary orders until the final order or stipulation). The husband later asked the judge to modify the temporary orders to change the alimony and debt distribution. The trial was no small event and included a cast of witnesses that included not only the parties but also several medical doctors, a vocational expert, a certified public accountant, and several other experts and lay witnesses. The wife's primary aim in bringing in all the witnesses appeared to be to prove that she was unemployable, and therefore, the court should attribute no income to her for purposes of deciding alimony.
Judge Dever in Salt Lake's Third District ultimately made a very detailed decision, including fairly detailed findings of fact and conclusions of law, where he imputed the wife income at $9 an hour (meaning that the wife did not actually make this amount but the Court determined that she could make this amount) and other income from royalties. Judge Dever ordered alimony to be paid to the wife in the amount of $2,358 per month until the husband retired, at which time the alimony would decrease, and with alimony ending when the wife turned sixty-six and would be eligible for social security.
The wife appealed just about everything about the Court's decision, including the decision to impute her income, the amount of the alimony award, the Court's decision to decrease the alimony amount upon the husband's retirement, and the duration of the alimony. The wife also appealed the division of personal property, debts, and royalties (a form of residual payments made over time for patent rights (in this case)). Not to be outdone, the husband cross-appealed arguing that the Judge Dever did not divide the royalties properly. They both argued that the Judge was wrong in ordering that the husband pay $8,000 towards the wife's attorney's fees.
This case is one of those prime examples of just how complex divorce cases can get and just how tough a Judge's job can be in deciding them. The parties in the case were married in 1972 and filed for divorce in 2004. In the process of the divorce action temporary orders were entered that divided the debts and awarded the wife alimony during the pendency of the divorce (in other words, from the time of the temporary orders until the final order or stipulation). The husband later asked the judge to modify the temporary orders to change the alimony and debt distribution. The trial was no small event and included a cast of witnesses that included not only the parties but also several medical doctors, a vocational expert, a certified public accountant, and several other experts and lay witnesses. The wife's primary aim in bringing in all the witnesses appeared to be to prove that she was unemployable, and therefore, the court should attribute no income to her for purposes of deciding alimony.
Judge Dever in Salt Lake's Third District ultimately made a very detailed decision, including fairly detailed findings of fact and conclusions of law, where he imputed the wife income at $9 an hour (meaning that the wife did not actually make this amount but the Court determined that she could make this amount) and other income from royalties. Judge Dever ordered alimony to be paid to the wife in the amount of $2,358 per month until the husband retired, at which time the alimony would decrease, and with alimony ending when the wife turned sixty-six and would be eligible for social security.
The wife appealed just about everything about the Court's decision, including the decision to impute her income, the amount of the alimony award, the Court's decision to decrease the alimony amount upon the husband's retirement, and the duration of the alimony. The wife also appealed the division of personal property, debts, and royalties (a form of residual payments made over time for patent rights (in this case)). Not to be outdone, the husband cross-appealed arguing that the Judge Dever did not divide the royalties properly. They both argued that the Judge was wrong in ordering that the husband pay $8,000 towards the wife's attorney's fees.
It is important to note the standard of review for this type of case. For those not familiar with legal speak, a standard of review is the guideline for any appellate court's decision (In Utah, there are two appellate courts for most cases filed in district court - the Utah Court of Appeals, and the Utah Supreme Court). Beware! An appeal is not another bite at the apple, but more of a review of the trial court's decision. You don't get to put on your witnesses again and re-argue the case - the appellate court's decision is made based on transcripts of the trial, a review of the documents filed in the trial court, written briefs, and in some cases, oral argument before a panel of appellate judges.
With most issues involving divorce cases the appellate court can only overturn a trial court's decision if they find "abuse of discretion" by the judge. Practically speaking, what an "abuse of discretion" standard means is that it is very rare that an appellate court will overturn a trial court when this is the standard. In most cases, you are facing an uphill battle to get the decision overturned. The reason for this is that the appellate judges defer to the trial court judge because he/she is the one who actually hears all the testimony, looks at all the evidence, and has to make the tough calls. In other words, the appellate judges don't want to be armchair quarterbacks, but act as a kind of referee who can make everyone go back and do a play again but only in cases when the rules are not followed. (See, even I can make a sports analogy).
As the Court of Appeals noted in this case, when a trial judge enters detailed findings of fact that support its decision to impute income to a party, the Court of Appeals will generally hold that the court did not abuse its discretion by imputing income. Similar rules apply to other issues as well, as long as the trial court addresses the factors required by case law and statute. In this case, the Court of Appeals ruled that because Judge Dever's findings of fact (specifics rulings regarding the facts based on the evidence presentede) as to why he imputed the wife income were sufficiently detailed, they would uphold his decision. In contrast, because the judge did not explain why he decided that some of the parties' monthly living expenses were not reasonable, the Court of Appeals decided to reverse and remand the case for additional findings. Basically, the Court of Appeals kicked the case back down for Judge Deve to make more specific findings as to why he decided as he did. Similarly, the Court of Appeals determined that Judge Dever's findings for why he decided to reduce the wife's alimony upon the husband's retirement and why he decided to cut off the wife's alimony at age 66 were not sufficiently detailed, and consequently, reversed and remanded those issues. Ditto on the issue of division of personal property, future royalty payments, and debt division. While the Court of Appeals also determined that they did not have sufficient findings of facts for the attorney's fee award, the Court of Appeals did find that the Court's reasoning to deny an award of costs to the wife for an appraisal were sufficient and upheld that part of the decision.
Long and short, this case is still not done! This case will go back to Judge Dever and he will have to make new findings of fact. If he does not have enough evidence to make his decision, he may even take more evidence. The parties filed for divorce in 2004, and while a bifurcated divorce was granted, over the next two years the parties duked it out over alimony and other issues, and Judge Dever's final decision was not made until February 2007. The last two years the case has been before the Court of Appeals, and on January 15, 2009 they issued their decision. (You can read the entire eleven page decision at http://www.utcourts.gov/opinions/appopin/leppert011509.pdf.) The only bright side, in my opinion, is that the wife she was awarded her attorney's fees for the appellate portion of the trial. Silver lining? You decide.Monday, December 29, 2008
Not Legal Advice
In creating this post, my intention is to provide average people a little education and insight into the law that governs (in the State of Utah) divorce actions, paternity actions, and the related matters of enforcing a divorce, child support, or custody order, and the modification of existing orders. This blog will cover topics regarding the statutes and case law on family law issues, including pending legislation, as well as providing reader's with a guide to some of the legal terminology used in this area. Accordingly, I will attempt to give "layman" explanations for terms that mean a lot to lawyers and judges, but for most people just sounds like gobbly goop.
Please note, however, that this blog is for informational purposes only, and should not be considered, or be used instead of, legal advice from a licensed attorney with experience with your type of case. If anything, one thing you may learn from this blog is that there are times and occasions when "doing it yourself" just isn't a good idea. Simply put, there are pitfalls of handling certain matters on your own, and if you find yourself in such a situation, I strongly encourage you to obtain competent legal counsel. That being said, the second purpose of this blog is to inform readers with alternative resources for dealing with some family law issues, including most importantly, mediation. I personally am a big proponent of mediation, collaborative law, and other forms of cooperative resolution, and have become a huge fan of the potential inherent in this methods to really help people move beyond the conflict.
Given the scope of this blog, I will not respond to questions or comments regarding the particulars of actual facts or your or anyone else' situation. I have adopted this restriction for several reasons, but perhaps one of the most compelling reason is that without the attorney-client relationship, your communications on this website are not privileged. What that means in non-lawyer speak is that should you make a comment on this blog, the information could be used against you in a later Court hearing. In contrast, when you met with an attorney, she/he can provide you answers specific to your situation and your communications will be protected from use against you in a Court action. Also, while I am an attorney, I am not your attorney unless and until we have a signed client agreement. At which time, ask away!
Please note, however, that this blog is for informational purposes only, and should not be considered, or be used instead of, legal advice from a licensed attorney with experience with your type of case. If anything, one thing you may learn from this blog is that there are times and occasions when "doing it yourself" just isn't a good idea. Simply put, there are pitfalls of handling certain matters on your own, and if you find yourself in such a situation, I strongly encourage you to obtain competent legal counsel. That being said, the second purpose of this blog is to inform readers with alternative resources for dealing with some family law issues, including most importantly, mediation. I personally am a big proponent of mediation, collaborative law, and other forms of cooperative resolution, and have become a huge fan of the potential inherent in this methods to really help people move beyond the conflict.
Given the scope of this blog, I will not respond to questions or comments regarding the particulars of actual facts or your or anyone else' situation. I have adopted this restriction for several reasons, but perhaps one of the most compelling reason is that without the attorney-client relationship, your communications on this website are not privileged. What that means in non-lawyer speak is that should you make a comment on this blog, the information could be used against you in a later Court hearing. In contrast, when you met with an attorney, she/he can provide you answers specific to your situation and your communications will be protected from use against you in a Court action. Also, while I am an attorney, I am not your attorney unless and until we have a signed client agreement. At which time, ask away!
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