Thursday, April 14, 2011

Right to Counsel in Child Welfare Case is Not a Constitutional Right

State in Re: J.R.G.F., R.F and R. G. v. B.A.F. and T.F. 2011 UT App 97 (Utah Court of Appeals, March 24, 2011).
The trial court terminated Mother’s and Father’s parental rights.  Mother and Father appealed and claimed that they were not informed of their statutory right to counsel prior to trial.  The court also denied their request for counsel mid-way through trial. 
The Court of Appeals found that even if what Mother and Father claimed was true, they must show that the denial of counsel prejudiced their case.  The statutory right to counsel under the child welfare act is different than a constitutional right to counsel.  With a statutory right to counsel, there is no presumption of prejudice when counsel has been denied.  To demonstrate prejudice the party must show a reasonable likelihood of a different outcome if the error had not been made.  Mother and Father failed to meet the burden because of the substantial evidence against them, including: both parents had lengthy criminal histories; both had failed to pay child support; both failed to consistently visit the child.  Conversely the adoptive placement provided a stable loving home, and the individuals were the only consistent parental figures in the child’s life.

Wednesday, April 13, 2011

Subject Matter Jurisdiction Under UIFSA is Based on Domicile

Lilly v. Lilly, 2011 UT App 53 (Utah Court of Appeals, February 25, 2011).
Father physically resides in California due to his active duty service in the military.  The parties were divorced in California and subsequently mother and child moved to Utah.  Father filed a Petition to modify the child support order in Utah because Utah was the resident state of the child, Mother and Father.  The trial court denied the Petition based on a lack of subject-matter jurisdiction because father physically lived in California. Father appealed.
The Court of Appeals found that Utah has subject matter jurisdiction because Father is domiciled in Utah.  Under UIFSA, a state that enters the child support order maintains jurisdiction over child support if the child, obligor, or obligee continue to reside in that state.  The Court of Appeals found that ‘reside’ under the statute refers to a person’s domicile, the place at which the person has been physically present, and where he intends to return, and which he regards as home.  Because the trial court had failed to determine Father’s domicile, the Court of Appeals Reversed and Remanded the case to determine Father’s domicile to determine whether Utah has subject matter jurisdiction to modify the child support.

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