What Rights Do Non-parents or Grandparents Have If They Are Awarded Custody?
All of the rights that a custodial parent would have especially in a divorce case. The legal parents or the biological parents may have the right to visitation depending on what the court says, they might have visitation rights but it would be similar to a parent who is awarded full custody in a divorce case. So, the right to make decisions regarding the child’s health, welfare, care, education, religion, extracurricular activities, all the decisions that a parent would normally make.
If the Division of Child and Family Services (DCFS) Is Already Involved When A Grandparent or Non-parent Steps In, Does It Further Complicate The Case?
If a division of child and parental services has already made a finding that a parent has abused or neglected the child, of course that strengthens a non-parent’s case. If DCFS is investigating and makes a finding that nobody actually files a petition in juvenile or at the attorney general’s office on behalf of DCFS, then really it doesn’t affect your case at all. If DCFS has investigated and made an unsupported finding or was unable to conclude that abuse or neglect has occurred, that doesn’t mean that abuse or neglect didn’t occur. It just means that with the steps that they undertook to investigate the matter, they didn’t find it.
It means that they’ve necessarily looked under every rock or availed themselves of other ways of finding out information that an attorney would have in a lawsuit. For example, DCFS often will have interviews with parties or with parents or with collateral witnesses, but they’re not allowed to issue subpoenas. They’re not allowed to depose a party until they’ve already determined abuse or neglect. They are not allowed to do other forms of discovery such as expert discovery UNTIL abuse or neglect has been determine. Sometimes they will try to use experts at the investigation stage, but they usually rely on their case workers rather than having somebody conduct psychologically testing, having a parental fitness evaluation, substance abuse evaluation, psychological evaluations and or psychosexual evaluation.
Once you have filed the petition, once a non-parent has filed the petition, they have the right to engage in the discovery process and to find out information in ways that DCFS cannot during their usual investigative process. Thus, DCFS may impact the case, but not necessarily. If they make a finding of abuse or neglect, that definitely impacts the case. If they do not make a finding, that does not the end of the investigation because you can do your own investigation, using sometimes more powerful tools than what are available to DCFS during their normal investigative process.
Are The Actual Parent Required To Pay Child Support If Non-Parents Are Awarded Custody?
Yes, the actual parent is required to pay child support if non-parents are awarded custody. Under the Utah Child Support guidelines, they would have to provide support to the non-parent or to the grandparent who has custody.
Is That Ever A Challenge In These Situations?
Yes, collecting the child support is a different story. Judgments can accrue against parents. If they don’t pay, then those judgments will continue to accrue against them and the grandparent or non-parent can contact the Utah Office of Recovery Services (ORS) and ask that office to collect child support on their behalf. If the parent owes the non-parent child support and there is a child support arrearage, that service may be at no cost to their custodian of the child. Alternatively, the non-parent custodian or grandparent custodian may engage in their own collection efforts as they would in any case where they have a judgment against another person.
When Is A Guardian Ad Litem Involved In Non-Parent Custody Cases?
A guardian ad litem is involved in a non-parent custody case only when the court appoints one. In the state of Utah, it used to be that anytime there was an abuse or neglect allegation, the court would reflectively appoint a guardian ad litem either in district court or in juvenile court. But in 2013, the legislature changed the law and said that the public office, the Utah office of Guardian Ad Litem could only be appointed in district court cases under very narrow circumstances. So it’s unlikely in district court for a guardian ad litem to be appointed. The court has the discretion to appoint a private guardian ad litem (a private attorney with some “GAL” training) but the fees of the private guardian ad litem would likely have to be paid by the parties in the case.
The court is often reluctant to saddle the parties with additional attorney’s fees in district court, if it can be avoided, so Private GAL’s are appointed only sparingly. In juvenile court, a guardian ad litem would more routinely be appointed if a petition for custody was filed there.