Sunday, 9 December 2018

Intestacy Law

Intestacy Law

When a person dies without having a valid will in place, his or her property passes by what is called “intestate succession” to heirs under probate law. In other words, if you don’t have a will, the state will make one for you. All fifty states have laws (or “statutes”) of this kind on the books.

The purpose of intestate succession statutes is to distribute the decedent’s wealth in a manner that closely represents how the average person would have designed his or her estate plan, had that person had a will. However, this default can differ dramatically from what the person really would have wanted. Even where it is known what the person intended, no exceptions are made where no valid will exists. Nor are there any exceptions made based on need or special circumstances.

The Uniform Probate Code

The 1990 Uniform Probate Code (the Code) serves as the starting point for many states’ laws. Nevertheless, the laws of different states can vary greatly from each other and from the Code itself. However, the Code represents the best reference for a general discussion.

Under the Code, close relatives take property instead of distant relatives. The classes of relatives whose members receive property under the Code include the decedent’s surviving spouse, descendants (children, grandchildren, etc.), parents, descendants of decedent’s parents (siblings, nieces and nephews), grandparents, and descendants of grandparents (aunts and uncles and cousins). Adopted descendants are treated the same as biological descendants. If none of the above-named classes of relatives include any persons qualified to take the estate, the property “escheats” (meaning it goes automatically) to the state of Utah.

The Surviving Spouse’s Share of the Intestacy Estate

Under the Code, a surviving spouse is either entitled to the entire estate (after expenses and taxes of the decedent) or a substantial part of it. For example:

  • The surviving spouse is entitled to the entire net estate if the decedent is also survived by children who are all children of the decedent and the surviving spouse.
  • The surviving spouse is also entitled to the entire net estate if the decedent is not survived by descendants and parents.
  • If parents survive but no descendants survive, a surviving spouse takes the first $200,000 of the net estate plus three-fourths of anything exceeding that amount.
  • If the decedent is survived by descendants who are also the descendants of the surviving spouse, and by descendants who are not descendants of the surviving spouse, the surviving spouse takes the first $150,000 of the net estate plus one-half of anything exceeding that amount.
  • If the decedent is not survived by any descendants who are also descendant of the surviving spouse but is survived by descendants who are not descendants of the surviving spouse, the surviving spouse takes the first $100,000 of the net estate plus one-half of anything exceeding that amount.

The Descendants Share of the Intestacy Estate

Under the Code, if no spouse survives but descendants of the decedent survive, the descendants take the entire net estate by “right of representation.”

Do the Parents Get a Portion of the Intestacy Estate?

Under the Code, if a decedent is not survived by a spouse or descendants, the entire net estate passes to the decedent’s parents equally or, if only one survives, to the survivor.

What do Other Relatives Get?

Under the Code, if a decedent is not survived by a spouse, descendants, or parents, the entire net estate passes to the decedent’s parent’s descendants (siblings of the decedent). If there are no siblings or descendants of siblings, the net estate goes to the decedent’s grandparents or their descendants.

What is the Net Estate under Intestacy Law?

The “Net Estate” is the amount left for distribution to heirs after all debts, family protections, taxes, and administrative expenses have been paid. “Family protections” include homestead allowances, family allowances, and exempt property allowances.

Intestacy Lawyer Free Consultation

If you are here, you probably have an estate or intestacy issue you need help with. If you do, please call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Saturday, 8 December 2018

Selling Your Business

Selling Your Business

Taking a business from inception and startup to sale is the ultimate course of action for most entrepreneurs – even those who have a small business, medium-sized business or a big business, unless they plan on taking the company public. But small business owners need to understand the true value of their company and make sure they are getting the best possible deal in any transaction. This section covers the basics of selling a business, including articles about completing an asset sale, how to determine when to sell your business, the importance of succession planning, business valuation methods, and other related topics.

How to Sell a Business

Reasons for selling a business can be highly varied and personal to the seller. There may be personal as well as business considerations that play an important part in both the decision and its timing. However, there are some important considerations that should always be among the concerns for someone contemplating the sale of their business. Ideally a business is sold when the economy is doing well, you have had a positive year financially, and the forecast for the business is positive. When these conditions exist the business can be sold for the best price possible.

Determining the value of a business can be challenging. Setting a price too high can drive away buyers, especially if the valuation is inaccurate. Hiring an appraiser can help you determine the correct price as well as giving you the opportunity to learn about the market for businesses such as yours and the commonly agreed-upon prices within the industry and region. Having a professional appraisal done gives buyers a higher degree of confidence that they are receiving a fair deal and increases the appearance of professionalism.

Finding a Buyer For Your Business

Leave yourself enough time to find a buyer. This can be challenging, though looking at who is buying similar businesses locally is a good idea. Approaching larger regional or national businesses that deal in the same industry can also help you find an interested buyer. Finally, local business peers may also have leads on potential buyers. Alternatively, you can hire a business broker or a mergers and acquisitions professional to assist you in locating a buyer and completing a sale.

Before selling it may be wise to consider how the seller will finance their purchase of the business. Banks or other institutions may do so, though in these situations you will need a qualified buyer the lender is willing to lend the capital. Another alternative is to provide seller-financing. This is extraordinarily common and if you are unwilling to finance at least a portion of the sale you may be unable to sell the business.

You Should Get A Business Valuation When You’re Selling

There are three basic methods to business valuation worth considering before you put your company on the market. These three approaches are:

  • The Market-Based Approach – This method of valuation looks at other businesses in the same or similar industry that have been sold and bases your price on the average price of similar businesses sold. This type of valuation is not always accurate since it looks to the market rather than to the specifics of your business to generate the price.
  • The Asset-Based Approach – This method of valuation calculates the value of the business’s assets and bases the price of the business on their fair market value. The drawback of this method of valuation is that it does not quantify other valuable intangible assets such as the business’s goodwill or potential for future revenue.
  • The Income-Based Approach – This method of valuation looks at the amount of money the business generates for the owner, taking into account both income and debts owed.

Getting a Business Lawyer to Help You

You should consider the benefits of having a business attorney to guide you through the process of selling your business.  You don’t want to be taken advantage of.  Even if you are selling your business to family or friends, the legal documents and contracts you sign should be drafted by a business lawyer on your side to make sure everyone is done correctly.

 

Business Lawyer Free Consultation

When you need help with Business Law in Utah, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Divorce and Dividing Debts

Divorce and Dividing Debts

Divorce calls for couples to divide their property during divorce. It also requires division of debt.

Research suggests disagreements about money are the leading predictor of divorce in the United States. Arguments about money can sour a marriage and make divorce difficult. When money is an issue during marriage, debt is oftentimes involved.

Common forms of debt carried by many couples include:

  • Credit cards
  • Mortgages
  • Home equity loans
  • Car loans
  • Tax liabilities
  • School loans

In Utah, assets and liabilities are subject to equitable distribution. Just as value acquired by a couple is part of their marital estate, so is debt. Questions arise when debt is incurred from gambling, secret investments or the use of marital funds to support an extramarital affair.

Typically a couple may have a joint account or separate credit cards used for personal and household expenses. Unless it can be otherwise shown, this type of debt is often equitably divided.

If you have debt and are considering divorce, think about the following steps:

  • Try to eliminate as much debt as possible prior to divorce. It is easier to get a fresh emotional and economic start after divorce if you are not saddled with debt.
  • Close joint checking accounts at the outset of divorce.
  • Close unused credit card and other unneeded accounts.
  • Depending on your long-term objectives, speak with your divorce attorney about reducing your debt load during negotiations for marital assets.

Don’t Endanger Your Children 

A woman has been found guilty of endangering her children after she was found living in squalor. According to the prosecutor’s office, this woman was living with her children in a house that was missing some exterior walls and part of the roof. The home also had no running water and was being powered by extension cords from another home.  If you are having trouble, get help from your family, friends, government, church.  Don’t do this to yourself and your children.  You’ll lose custody of your kids.

The case began after police found her eight-year-old son and her two- and three-year old grandchildren hiding among some of the refuse in the home. They had been investigating her son on burglary charges when they entered the decrepit home with a warrant.

The home had been badly damaged in a fire, and police feared that another fire could occur when they found the extension cords, garbage and lights set up in the way that they were. There were also buckets of excrement located throughout the home, as well as insects and other vermin.

This woman now faces up to a year in jail after being found guilty on three counts of child endangerment. The three children are now in custody of other relatives.

Even after she gets out of jail, it is unlikely that she will regain child custody, having proven herself unfit to be a guardian of these children. Her relatives will likely work with the court system to find a new arrangement that is in the best interest of the children.

Divorcing Later in Life

Divorcing after many years of marriage is a growing trend with some statistics indicating that the rate of divorce for people over the age of 50 has doubled since 1990. There is even a name for this new trend: “the gray divorce”.

Divorcing later in life can bring a complicated set of circumstances into the process. As people grow older, they often face financial stresses. Divorce places even more of an economic burden on a separating pair who must now run two households instead of one. Emotional ties to a home may make dividing the value of this asset difficult. Significant debt or mortgages can complicate matters.

Children may be grown, so custody will not be an issue, but issues such as health insurance can be a problem for couples who are not yet old enough to receive Medicare. Sometimes couples may agree to live apart pursuant to a Separation Agreement to avoid the expense of health insurance, or the effects of taxes.

Many later-in-life divorces involve a high net worth that calls for a detailed valuation of assets. Businesses grow over time and become more valuable. Retirement accounts and stock plans can increase significantly as the years pass.

Typical items to be divided include:

  • Home and other real estate
  • Trust accounts
  • 401(k), Keogh plans, pensions and other retirement plans
  • Businesses
  • Bank and stock accounts
  • Profit-sharing agreements
  • Investments
  • Off-shore or foreign bank accounts
  • Significant collectibles or other personal property

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Friday, 7 December 2018

Agreements to Arbitrate Before You Hire an Employee

Agreements to Arbitrate Before You Hire an Employee

Most business owners will encounter disputes with employees at least once throughout the life of their organization, often through no fault of their own. Regardless of the nature of the dispute, litigation can be costly and may hurt a company’s image. Arbitration agreements, often included in employment contracts, require both the employer and the employee to settle disputes outside of the court system.

Here are Some Benefits of Arbitration Agreements

Proponents of arbitration for employment-based disputes often point out that juries typically are more sympathetic to employees, even when the facts may otherwise favor the employer. After all, the majority of jurors are not business owners but most identify as employees themselves. Arbitration agreements, therefore, can be seen as a safeguard against frivolous lawsuits or at least a method of ensuring a more level playing field. Specifically, class action lawsuits have the potential to close businesses and derail entire industries.

And since court proceedings are a matter of public record, litigation can result in negative publicity for an employer regardless of whether it did anything wrong. Arbitration affords defendant employers more privacy, since the proceedings are not a matter of public record. This discretion can also play an important role in maintaining key business partnerships.

Furthermore, arbitrators’ decisions are final except in extraordinary circumstances. Unlike litigation, where the costly appeals process often leads to cash settlements, employees unhappy with the results of arbitration generally cannot have the decision reviewed by a higher authority.

Make Sure Your Arbitration Agreement is Legal

The Federal Arbitration Act allows employers to include binding arbitration agreements as a condition of employment. Such agreements usually contain language wherein both parties give up the right to go to court if they are unhappy with the results of an arbitration proceeding.

An arbitration clause may be held invalid if the complainant is able to prove that the employer designated a biased party as the arbitrator. Therefore, these clauses usually designate broadly recognized neutral organizations (such the American Arbitration Association) to broker the process. An arbitration agreement also may be held invalid if it is one-sided and allows the employer to sue in court, according to courts in California and some other states, but that is not the case in federal court.

The following sample arbitration clause comes from the Chartered Institute of Arbitrators:

“Any dispute or difference arising out of or in connection with this contract shall be determined by the appointment of a single arbitrator to be agreed between the parties, or failing agreement within thirty days, after either party has given to the other a written request to concur in the appointment of an arbitrator, by an arbitrator to be appointed by the President or a Vice President of the Chartered Institute of Arbitrators.”

What is Arbitration Like?

Binding arbitration is one form of alternative dispute resolution (ADR), which takes place outside of the state or federal court systems. The process begins when one party files a demand for arbitration with the American Arbitration Association or similar ADR organization. You can also just use a private arbitrator which will save you money. We’ve seen arbitration fees that are in the tens of thousands for a dispute over commercial real estate. The respondent (the party that would be the defendant in a court case) is notified and has a set time to file an answer or counterclaim. The third party then works with both parties to select a neutral arbitrator from its list of available arbitrators, often retired judges.

The arbitration proceedings begin with a preliminary hearing, in which each party has the opportunity to discuss the substantive issues of the case with the arbitrator. Procedures for exchanging information and disclosing witness lists also are discussed at this initial meeting. Then each party exchanges information and agree to evidence and arguments that will be presented in the hearings. Finally, each party presents testimony in a series of hearings and the arbitrator makes a decision.

Free Consultation with a Utah Business Lawyer

If you are here, you probably have a business law issue you need help with, call Ascent Law for your free business law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Thursday, 6 December 2018

Business Valuation Law

Business Valuation Law

As a business owner, present or future, you’ll want to be familiar with what business valuations are and the required accounting terminology that is used in a business valuation. Here you will find useful business and accounting terms in alphabetical order.

Accounts payable: Business debts that generally are payable within 30 days.

Accounts receivable: Money that customers presently owe the company.

Accrued payroll and payroll taxes: Accrued payroll is payment owed for employee work already done. Accrued payroll taxes are employment taxes for work already performed by employees, which have not yet been turned over to the state or federal revenue services.

Appraisal: See “Valuation.”

Assets: Anything with monetary value that a business owns. See “Current Assets” and “Fixed Assets.”

Balance sheet: A financial statement showing the assets, liabilities, and net worth of a business as of a specific date.




Book value: Total assets, without the inclusion of intangibles such as goodwill, minus total liabilities. The book value of a company is its base liquidation value.

Cost approach to valuation: This valuation approach considers the replacement cost of the company’s assets as an indication of what a prudent buyer would pay for the business.

Current assets: Cash, accounts receivable, securities, inventory, and any other assets that can be converted into cash within one year or during the normal course of business.

Current liabilities: Liabilities payable within one year. They include accounts payable, notes payable, accrued expenses such as wages and salaries, taxes payable, and the portion of long-term debts due within one year.

Current ratio: Current Ratio = Total Current Assets/Total Current Liabilities. The current ratio shows a company’s financial solvency.

Depreciation: An accounting method to take into account an asset’s physical deterioration. It allocates the asset’s cost over its useful life.

Debt/worth ratio: Debt/Worth Ratio = Total Liabilities/Net Worth. Debt/worth ratio is a measure of how dependent a company is on borrowing rather than equity.

Fair market value: A price at which a willing buyer and a willing seller, both knowing the relevant facts about the business, would transfer a company.





Fixed assets: Assets that are used to produce revenue and are not intended for sale, such as office furniture, vehicles, real property, building improvements, and factory equipment. Also called “long-term” assets.

Generally accepted accounting principles (GAAP): Accepted conventions, rules, and procedures that define accounting practice.

Goodwill: Goodwill is based on a company’s reputation and relationships with customers, vendors and the community, and its participation in trade-related activities. In broad terms, goodwill is a measure of how willing these individuals would be to continue doing business with a company.

Income approach to valuation: Any valuation method that is based on the company’s expected income stream.





Income statement: See “Profit/Loss Statement.”

Intangible assets: Business assets that are not material in nature, which have been created through time and effort. Some examples of intangible assets are patents, specialized mailing lists, and goodwill.

Inventory: Goods ready to be sold, raw materials, and partially completed goods that will be sold.

Liabilities: Debts owed by the business. See “Current Liabilities” and “Long-Term Liabilities.”

Liquidation: Selling the business’s assets rather than the entire business as a going concern.

Liquidation value: The estimated total amount that could be realized from selling the business’s individual assets, after satisfying all of the business’s liabilities.

Liquidity: How quickly and easily an asset can be converted into cash.

Long-term assets: See “Fixed Assets.”

Long-term liabilities: Debts owed by the business which must be repaid more than one year from the date of the balance sheet.

Market approach to valuation: Any valuation method that compares the company’s financial data with multiples from acquisitions of similar businesses or from stock prices of comparable publicly traded companies.

Market value: See “Fair Market Value.”

Net worth: The business owner’s equity in a company, calculated by subtracting the company’s total liabilities from its total assets.

Price/earnings (P/E) ratio: The relationship between the selling price of a company’s common stock to the company’s annual profits per share.

Prepaid expenses: The cost of goods or services already paid for but not yet fully used or consumed. Prepaid insurance premiums and prepaid rent are examples of prepaid expenses.

Profit/loss statement: A financial statement summarizing the results of business activities (income and expenses) for a given period of time. Also called an income statement.

Quick ratio: Quick Ratio = (Current Assets – Inventory)/Current Liabilities. The quick ratio shows a company’s liquidity, and helps determine whether a business can meet its obligations in hard times.

Securities: Notes, stocks, bonds, debentures, investment contracts, or any other interests or instruments commonly known as “securities.”

Under-capitalization: When available funds are consistently insufficient for a business, hampering its efficient operations.

Valuation: A value estimate or opinion, or the process of estimating value. A valuation report is usually a written document setting forth an opinion of a business’s value as of a specified date, supported by the presentation and analysis of relevant data.

Working capital: The capital available to the business on a short term, calculated by subtracting current liabilities from current assets.

Business Lawyer Free Consultation

If you are here, you probably have a business law issue you need help with. If you need help with a business valuation call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Divorce Mediation Strategy

Divorce Mediation Strategy

If you and your spouse have come to a mutual decision to seek a divorce and feel that you will at least be on speaking terms throughout the process, you might consider going through divorce mediation. In this process, you will meet with a neutral third party to discuss how you will resolve some of the issues in your divorce without having to spend as much time going through courtroom litigation.

Mediation may be the right option for you if the following apply:

  • You intend to stay on good terms with your soon to be ex. This is especially important for couples that have children together and do not want to make things more difficult on them.
  • Neither of you blames the other for the divorce. While there are some natural instances in which you might blame your ex-spouse for the unraveling of your marriage, mediation can be a good option if neither party believes the other to be completely at fault.
  • You want more control over the terms of the divorce. Messy divorces that go through litigation tend to end in divorce terms that may or may not benefit you. Both sides have more to gain through mediation because they have more control over what happens. It is easier to find compromises that actually work through mediation.




  • Neither party has abused the other. If there has been physical violence or substance abuse in your relationship, you will absolutely want to go through the court system. Otherwise, if you feel safe and are not intimidated by the prospect of meeting face-to-face with your spouse, the mediation process can be healthy and helpful.
  • You understand the financial aspect of divorce. You might need to have some level of knowledge about how finances will be handled in the divorce process to be completely comfortable with mediation. If you are confident in your knowledge in this area, mediation could be right for you.

Mediation as an Alternative Method to Divorce

In mediation, parties hire a single mediator to negotiate the terms of the dissolution of their marriage instead of going to court. A trained mediator works to resolve the same issues that must be settled in every divorce. Spousal support, property division, allocation of debt, and child support and visitation must all be addressed. The mediator represents both parties and works to have the couple communicate openly about needs and requirements.





For some couples, mediation can work to effectively and quickly resolve the terms of a divorce decree. After an agreement is reached, both parties bring the agreement to a separate attorney to review the terms and ensure that the issues are covered in a satisfactory fashion.

When choosing an attorney to act as a mediator, look for the following:

  • You need an attorney who has training in mediation. How many in mediation have the attorney handle it and what results has the attorney had?
  • Find an attorney who makes you feel at ease.
  • Seek out an attorney you can afford.
  • You need a lawyer who can explain things to you in language you understand. If English is not your main language, find someone who speaks your tongue.
  • When children are involved, you need an attorney who will fight to preserve your relationship with them.
  • Find an attorney like Ascent Law who will be available after your divorce to handle modifications to the divorce decree is finalized.

Divorce Attorney Free Consultation

If you have a question about divorce or mediation in Utah, call Ascent Law at (801) 676-5506 for your free consultation. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Child Custody and Domestic Violence

Child Custody and Domestic Violence

Domestic violence shatters families, and its aftereffects are painful and lingering. There are legal ramifications too. When a couple breaks up after domestic violence has occurred, the abuse can also have an impact on who gets custody of the children.

This article will explain what domestic violence is and how it affects child custody. If you have any questions after you read this article, you should consult a family law attorney for advice.

Domestic Violence

The people most in need of help all too often don’t get it. People who have been hurt by domestic violence may not take advantage of help from the community or seek help from the courts. So it’s important to understand what domestic violence means.

Utah law states that domestic abuse can consist of a single act or it can be a pattern or history of attacks. Domestic abuse can be written, spoken aloud, or even electronic (e.g., emailed threats). The laws also explain that domestic abuse can assume a wide variety of forms, including any or all of the following:

  • physical or sexual assault
  • threats of physical or sexual assault
  • stalking
  • harassment
  • mental cruelty and emotional abuse (including destruction of property, threats, violence to animals, yelling, screaming, name-calling, shaming, mocking, criticizing, and possessiveness)
  • intimidation
  • isolation
  • economic abuse (meaning, one partner maintains total control of all funds)
  • “coercion” (meaning, to apply pressure or to bully) against a current or past intimate (romantic) partner
  • acts of child abuse or neglect that contribute to coercion or intimidation of an intimate partner
  • cruel mistreatment or cruel neglect of an animal, or threats of such acts
  • other acts of abuse, assault, or harassment, and
  • threats of similar acts against other family or household members.

“Family or household members” includes:

  • current or former spouses
  • children
  • people who have lived together in the past
  • people who have a child together, regardless of whether they’ve been married or lived together in the past
  • people related by blood or marriage, and
  • people who are currently dating each other or have dated in the past.

Family and household members don’t include casual relationships or ordinary associations between people in a business or social context.

Help When You Need It

Utah has a number of groups that are dedicated to helping victims of domestic violence. For instance, the Utah Domestic Violence Sexual Assault Coalition will respond with 24 hour hotlines victims can call for immediate help.

Legal Aid of Utah maintains a help site that lists fact sheets, safety plans, and links to non-profit organizations that can provide direct assistance to victims of domestic violence. Similarly, the Utah Department of Health & Human Services maintains one too with information about domestic violence and groups that can help.

For immediate help, no matter where a victim lives, you should call and get help from one of these organizations throughout Utah that provide help and services to victims and even, in some cases, to perpetrators who want counseling.

Finally, victims can always call the  National Domestic Violence Hotline  at 1-800799-7233. It’s available 24 hours a day, seven days a week, or, in other words, it’s open all the time and if you need help, call  now.

Domestic Abuse and Child Custody

Utah courts take domestic abuse very seriously when making decisions about child custody.

As a bit of a reminder, there are two kinds of child custody: one is legal custody and the other is physical custody. In many if not most cases,  physical custody goes to the parent who spends more time with and provides the majority of the daily care for the children. Legal  custody, on the other hand, refers to a parent’s legal right to make important educational, medical, religious, cultural, and other decisions for his or her children. In most cases where there’s been no abuse and parents are able to cooperate, both parents have joint (shared) legal custody.

But everything is turned upside-down when family law judges are confronted with evidence of domestic abuse. The courts have to consider the best interests of a child when they make custody decisions. Those factors include:

  • the child’s relationship with each parent
  • the child’s desire about where to live, if the child is old enough to make a reasonable decision
  • the general health, welfare, and social behavior of the child
  • credible evidence of abuse inflicted on any family or household member, and
  • credible evidence of child abuse or neglect or domestic intimate partner abuse.

A judge  must  consider domestic abuse when making a custody decision. Domestic abuse  between the parents  or against a child  in the current relationship has to be considered, but domestic abuse  in other relationships  is equally important. If a parent was abusive toward a previous partner or another child, the judge may consider that behavior when deciding who should have custody of the children.

Two important cases from the Utah appellate courts provided the public and family court judges with guidance about the role of domestic abuse in custodial decisions. In  Davidson v. Davidson, 254 Neb. 357, 367 (1998), which presented difficult facts about how the children were treated by their parents, the Utah Supreme Court reiterated that a court can’t consider evidence of domestic abuse inflicted on a household or family member unless the evidence is “credible” (meaning, reliable and trustworthy).

In  State ex re. Keegan M. v. Joshua M., 824 N.W.2d 383, 391-92 (Neb. Ct. App. 2012), the court ruled that evidence of abuse against an intimate partner in a prior relationship is enough proof of abuse for a Utah family court judge to grant custody to the non-abusive parent.

Impact on Parent-Time (also called Visitation)

If the court finds, by a preponderance of the evidence (meaning, it’s more likely true than not) that one of the parents has committed domestic intimate partner abuse, then the court’s order must provide for the safety of both the child and the victim parent. The court can order supervised visitation, which means that a responsible adult will be present for monitoring purposes when the abusive parent has visitation time with his or her child.

If the abusive parent completes therapy and classes, the judge may allow a transition period with some unsupervised visitation and eventually end the supervised visitation if it appears the abusive parent has changed.

Termination of Parental Rights

The termination of parental rights means that a parent loses all rights to both physical and legal custody of his or her child.  Utah law allows for termination of parental rights where a parent has subjected a child to severe abuse, including abandonment, torture, chronic abuse, or sexual abuse, or has committed similar acts against the other parent. The termination of parental rights is fairly rare, and courts only use this remedy in the most extreme circumstances. This is also permanent, meaning a parent cannot regain parental rights once they have been lost.

Child Custody Lawyer Free Consultation

If you have a question about child custody or if you need help with visitation, please call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506