Order Appointing Guardian Ad Litem - Utah Courts: Fill & Download for Free

I can answer your question specifically in the context of Utah divorce law, as I practice divorce law in Utah, but the law of your jurisdiction is likely similar to Utah’s and my answers may lead you to solutions in your own jurisdiction.You are not powerless. You are not without options. You may have an uphill battle ahead of you, but you are not powerless.I am not aware of any law in Utah that would prevent you from filing a petition to modify the child custody award in your parents’ divorce action. So there’s that option. It’s easier said than done; there will likely be many (including your judge and/or commissioner) who will claim that you don’t have standing to petition to modify, claim that you are not “competent” to petition, that you have been “manipulated” into trying to petition for a modification, etc. But none of those arguments should deter an earnest person.If your father is willing to go to bat for you, then he can file a petition to modify the child custody award. This is much easier for a number of reasons: 1) the court cannot challenge a parent’s standing to petition to modify the child custody award; 2) courts will listen to a petitioning parent much more readily than they will listen to a child; 3) adults can more easily contract with (and afford) a lawyer to represent them in a petition to modify than can a child.Advice to speak with your school’s counselor and/or your own therapist or counselor (if you are seeing one) is good, but won’t begin to change the custody arrangement if your experiences, observations, feelings, opinions, and desires are not made known to the court, and the best way for that to happen—assuming you are old enough to articulate those experiences, observations, feelings, opinions, and desires clearly and credibly—is to have your own testimony given on the record.Believe it or not, getting your own unfiltered, unadulterated, unparsed voice heard by the court is extraordinarily difficult in Utah because commissioners and judges (inexplicably) believe that virtually any and every child who wishes to speak out on the subject of his own custody is too vulnerable, gullible, fickle, naive, suggestible, immature and incompetent to have much of anything of any evidentiary value to say in his or her own behalf. ‘Course, that’s a self-fulfilling prophecy if and when a court never gives a child the opportunity to be heard and to have his/her competence and credibility determined and weighed.The court (and likely the parent whom you are seeking to get away from) will probably want to appoint a lawyer for you known as a guardian ad litem. A guardian ad litem is a lawyer ostensibly appointed by the court to represent the interests of minor child, but my personal experience with guardians ad litem (GALs) is that they are among the least competent, least diligent, least analytical, least perceptive, least objectively zealous and least articulate attorneys.Don’t count on a GAL to be much help to you. Indeed, a GAL may do your cause more harm than good. The real reason GALs are appointed are not to “speak for a child” but to silence that child, to prevent the child him- or herself from speaking on his/her own behalf in the first place, to keep that evidence from ever being made part of the record.The court may advocate having a “custody evaluation” performed. The Utah courts' own website describes a custody evaluation thus:A custody evaluation provides the court with information it can use to make decisions about custody and parent-time. This is done by evaluating the parties' ability to parent, the developmental, emotional, and physical needs of the child, and the "fit" between each party and child.As with the appointment of a GAL, the appointment of a custody evaluator results in someone else ostensibly speaking “for” a child who is more than capable of speaking for himself. I’ve moved for a custody evaluator’s interviews with a child to be recorded by sound-and-visual means or at least audio recorded and I have, with only two exceptions in 21 years of practice, had those requests denied. The courts would literally rather have second hand information about a child’s experiences, observations, feelings, opinions, and desires! Why they never explain (because they cannot rationally or sincerely explain it). Perversely, all too frequently a custody evaluation is ordered for the purpose of preventing the court from hearing directly from the child who is the subject of the evaluation.Fight to be heard (and you will have to fight) in your own words.See Utah Code Section 30-3-10(1)(d)-(f):(1)(d) A child may not be required by either party to testify unless the trier of fact determines that extenuating circumstances exist that would necessitate the testimony of the child be heard and there is no other reasonable method to present the child's testimony.(1)(e) The court may inquire of a child and take into consideration the child's desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the child's custody or parent-time otherwise. The desires of a child 14 years of age or older shall be given added weight, but is not the single controlling factor.(1)(f) If an interview with a child is conducted by the court pursuant to Subsection (1)(e), the interview shall be conducted by the judge in camera. The prior consent of the parties may be obtained but is not necessary if the court finds that an interview with a child is the only method to ascertain the child's desires regarding custody.From another perspective, once a child reaches the mid to late teens, then that child’s preferences can be expressed and enforced by the child himself/herself. He or she can “vote with one’s feet.” A child is not a law unto himself, but as a practical matter courts are reluctant to try to force a child in his/her late teens who can run away and “take the custodial parent in a fight” to live with a parent with whom that child refuses to live in peace and cooperation. I do not (I cannot) advocate that a child defy a court’s custody order, but I am acknowledging that a child who dares to defy a court’s custody order is often successful in having his/her choice respected, whether or not a particular parent or the court approves.

How can I call my 10-year-old as a witness in family court to say where she would like to live, and why?My answer applies to the State of Utah, where I practice law:First, you may want to re-think your question. Do you really want your child to testify as a witness? Do you really want your child to be placed in the position of being made to choose which parent he/she prefers or “loves more”? That kind of thing could really scar some (I emphasize some, not all) children emotionally.Let’s assume for the sake of this response, however, that you have legitimate and compelling reasons for the child to testify on the subject of the child custody and/or parent-time orders. By way of historical note, few people know that before 1969, the Utah Code provided that children ten years of age “shall have the privilege of selecting the parent to which they will attach themselves.” Not anymore.Now the Utah Code provisions regarding child testimony on the subject of custody and parent-time (visitation) are found in Utah Code § 30–3–10(1) and read, in pertinent part, as follows:(e) The court may inquire of a child and take into consideration the child's desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the child's custody or parent-time otherwise. The desires of a child 14 years of age or older shall be given added weight, but is not the single controlling factor.(f) If an interview with a child is conducted by the court pursuant to Subsection (1)(e), the interview shall be conducted by the judge in camera. The prior consent of the parties may be obtained but is not necessary if the court finds that an interview with a child is the only method to ascertain the child's desires regarding custody.Now you may ask (and if you weren’t thinking of asking, you should), “So how frequently does a Utah court ‘find that an interview with a child is the only method to ascertain the child's desires regarding custody’?”The answer is: almost never, and for the reason I stated at the beginning of my response to your question, i.e., most judges believe (wrongly, in my opinion) that a child should never be questioned on the subject of his/her desires regarding future custody or parent-time schedules because of concern that placing the child in the position of having to choose could be emotionally agonizing.While the desire to avoid traumatizing a child emotionally is valid, it is often too convenient an excuse not to question children under any circumstances, no matter how compelling (and thus saves time and allows the court greater discretion in deciding the issue, since the child’s testimony never gets heard).Another valid concern, but one that is also often abused as a convenient excuse, is whether a child’s testimony is all that credible, given that a child may have been unduly influenced by a parent to say what the parent wants the child to say, rather than what the child honestly observed, feels and desires.Some judges will avoid a child interview by claiming to be “unqualified” to question a child on the subject of custody and parent-time. That argument is lame; the legislature has clearly and expressly deemed the judge qualified to question a child by authorizing the judge by statute to interview the child. Thus, if a judge still feels unqualified, that judge either needs to read up and/or get trained up to the point of finally feeling qualified or resign from the bench for choosing to remain unqualified.Some judges claim that they can avoid questioning children, yet still solicit their desires by having someone else (such as an attorney appointed for the child—who is called a “guardian ad litem”—or having a social worker or psychologist) interview them and then report that to to judge. This strikes me as unnecessary at the very least. Even with a GAL appointed, the child interview still takes place. The questions still get asked and answered, they just aren’t asked by or heard by the judge directly. Appointing a GAL for this purpose is just court-sponsored hearsay. There’s a reason we have witnesses testify in the presence of the judge: so that the judge can hear the testimony first-hand and without filtration or bias from a second-hand source, so that the judge can truly ascertain the witness’ credibility. When all a judge does is get testimony through a “child whisperer,” the integrity of the fact-finding process is needlessly undermined.Additionally, the guardian ad litem and/or psychologist isn’t an expense the court bears; one or both parents have to pay for these people’s “services,” which ends up costing the parents a lot of money, wasting a lot of time, and needlessly raising hearsay concerns. I have no problem with an expert supplementing the evidence when warranted, but at bottom, wholesale delegation of the interview responsibility is passing the buck, pure and simple.Personally, I don’t see why the overwhelming majority of Utah district court judges are so unwilling to question children on the record on the subject of custody and parent-time. First, children testify in all kinds of court settings without wrecking their lives. Second, it’s not as though the only way to solicit the children’s testimony is by subjecting them to the same kinds of brutal interrogation techniques used with hardened criminals or spies. It’s the children who will be affected most by the child custody and parent-time orders, so I cannot see how an intellectually honest judge could claim that a child’s observations, experiences, feelings, opinions, and desires on the subject are not key to reaching a custody and parent-time order that subserves that child’s best interest. Where there’s a will, there’s a way. Fortunately, judges in Utah appear to me to be coming around to my way of thinking in this regard, albeit slowly and reluctantly.So if you were hoping to have the judge interview the child to inform the judge of the child’s custody and parent-time preferences, I wouldn’t count on it, at least not in Utah.

Can a minor remove a restraining order that has been imposed on one of his/her parents by the other parent? If so, how?Great question. My answer will disappoint you. I will answer your question based upon the law and my experience where I practice divorce and family law (Utah).In my experience, courts that handle domestic relations cases (i.e., district courts; I am not including juvenile courts in this group) hate to hear from children, even when the children are the subject of the lawsuit. Courts will inexplicably and inexcusably bend over backward and tie themselves up in knots to ensure that a child does not testify directly to the court, on the record. Instead, courts will appoint a guardian ad litem (GAL) and/or custody evaluator for the weird and counterproductive purpose of deliberately obtaining secondhand information about the children’s experiences, observations, opinions, and preferences.If a child seeks to intervene as a party in a child custody case, the courts will do everything in their power to ensure this does not happen, even though the laws on the books permit intervention by a minor in the very case of which he/she is the subject.Now I’ve overstated the point a bit, but just a bit. The excuses that the courts will give for refusing to allow children to testify and participate as a party in cases involving disputes over custody of that very child or very children are essentially: “children testifying and participating as parties unduly traumatizes them.” While this could be true of certain children in particular cases, treating every minor child who now exist and who will exist in the future as though they will inexorably be harmed by testifying on the record and/or participating as a party and unduly and/or irreparably harmed by such involvement is, with due respect, obvious utter bilge. Such determination should be made on a case-by-case basis.So, if you’re a child who wants to come to a parent’s defense and claim that the restraining order that the other parent has obtained against your parent is bogus and unnecessary, good luck with that. You’re going to need it, and a lot of it. Because I don’t know how you’d ever be able to win such a battle as a minor child. believe me, I’ve tried, and so far, I’ve failed despite my best efforts.