Month: November 2014

Is Custody of Your Children Possible if You Have a Criminal Record?

Is Custody of Your Children Possible if You Have a Criminal Record?

A criminal record can have drawbacks when it comes to matters like finding a job or being approved for a loan — but could your rights as a parent also be affected?  Can you be awarded child custody in Utah if you are convicted of a crime?

To determine custody a judge has one ultimate goal in mind: What is in the best interest of the child? The courts will try and select the custody plan most likely in the childs best interest which means asking difficult questions about each parent.  Are the parents willing and able to work together and cooperate toward the child’s best interests?  Do the parents both have the financial means to provide necessities like food, clothing, and shelter? Does either parent have a criminal record?

If the answer is yes?  Does that mean you automatically lose all chance of obtaining custody?  NO.However, it does mean it may be more difficult to be successful.  Just how difficult depends on the specific facts and circumstances surrounding the crime you were convicted of.

Some of the specific factors the courts must consider when making custody decisions are outlined inU.C.A. Sec. 76-3-10.  Under this statute, the courts may rule in favor of sole custody if certain factors which might endanger the child are present — including “domestic violence in the home or in the presence of the child.”

What counts as domestic violence?  By Utah definitions, domestic violence means “any criminal offense involving violence or physical harm or threat of violence or physical harm… when committed by one cohabitant against another,” with “cohabitant” meaning a spouse, relative, or housemate.  In accordance with U.C.A. Section 77-36-1(4), domestic violence can include:

  • Assault (Simple or Aggravated)
  • Child Abuse
  • Harassment
  • Homicide
  • Kidnapping
  • Sex Crimes
  • Stalking
  • Robbery and Burglary

Pursuant to U.C.A Section 30-3-10.10 “The court shall consider evidence of domestic violence, if presented.”  So you need to be prepared to provide to the Judge answers to questions like: what sort of evidence, if any, exists against you?  Were you actually convicted, or just accused?  If you were convicted, how long ago did the crime take place?

Depending on the answers to these and more questions, and the evidence you have to support them, the Judge may be more or less inclined to believe you could pose a threat to the safety and best interests of your child.

Thus it is important to work with an experienced attorney who can represent you in court.  To schedule a free legal consultation, call us today.

What is the Law in Utah for Driving and Cell Phones?

On May 13, 2014, Utah amendments to the Distracted Driving law will take effect.

The new changes place restrictions on the use of a “handheld wireless communication device” while driving a car.  A handheld wireless communication device includes a cell phone, ipod, tablet, laptop, smart phone, kindle, nook, or “any substanitally similar communication device that is readily removable from the vehicle and is used to write, send, or read text or data through manual input.”

Here’s a list of some things you cannot do with your phone/device while driving a car:

write, send, or read a written communication, including:

a text message

an instant message

an e-mail

dial a phone number

access the internet

view or record video

enter data

However, while driving your car you can still do the following:

use the handheld communication device for voice communication

use the handheld communication device for GPS navigation

use during a medical emergency

use when reporting a safety hazard

use when reporting criminal activity

use hands-free or voice operated technology

use a system that is physically or electronically integrated into the motor vehicle

If you’re found guilty of violating this law it’s a class C misdemeanor with a maximum fine of $100.00.  But, if your violation of this law results in injury to someone else or if you have a prior conviction within three years it’s a class B misdemeanor.  See Utah Code Ann. 41-6a-1716.

Here’s a few more things that are defined as careless driving:  searching for an item in the vehicle; or attending to personal hygiene or grooming.  See Utah Code Ann. 41-6a-1714, et seq.

While I am an attorney who spends a great deal of time on the roads and on the phone, I think this law will create more safety onour roads and I support it.   If you have specific questions or concerns about Utah’s distracted driving law, please give us a call at our office at 801-436-5757


How to Divide Retirement in a Divorce

How to Divide Retirement in a Divorce

The Supreme Court of Utah in June, 2014, specifically addressed the question of “how to properly determine the amount of the employee spouse’s monthly benefit subject to equitable distribution.” See Johnson v. Johnson (2014 UT 21). Divorce lawyer in utah

To clarify a bit,  In a divorce, if you or your soon to be ex-spouse has retirement, the marital portion of that retirement may be divided as part of the marital estate.  That means that any retirement you earned while married is considered marital property and can be subject to being split. Attorneys in ogden utah

In some cases a person does not know what the monthly benefit from his/her retirement will be until the date of retirement.  Which date could be years away. Attorneys in ogden utahAttorneys in salt lake city

This raises a few questions, most importantly how much of the monthly benefit will be awarded to the nonemployee spouse, but also what is the “marital portion” of this retirement benefit, and to calculate that we need to know the time of the marriage and the amount of the benefit. Divorce attorneys in utah

In previous cases the Supreme Court has used the time rule formula to determine the percentage of the retirement that the nonemployee spouse will receive based upon the length or duration of the marriage. Attorneys in ogden utah

How to Divide Retirement in a Divorce

To determine the percentage you divide the number of years (or months) employed and earning toward pension during the marriage, by the number of years (or months) of total service (employment) in which the pension was accruing. Divorce utah right to know

Example: Let’s say you were married for 7 years, and worked for 10 years, and during all of this time you were accruing a pension. Then the percentage would be:

84 months / 120 months = 0.70 or 70%

But you would be wise to ask 70% of what amount? And will the amount include any INCREASES to the monthly benefit that happen after the divorce?

The Supreme Court provided an answer to this question.  The court stated that a Context Specific Approach was required to answer this question or in other words a case by case basis.  The Court went on further to explain that in determining the monthly benefit amount courts should consider the followoing:

  • The extent to which the property was acquired during the marriage.
  • The ultimate source of the property.
  • How the employee spouse’s career intersected with the marriage.
  • The extent to which the marriage contributed to the employee spouse’s pay grade at retirement.

In other words, the monthly benefit amount could be the amount at the time of divorce OR the amount at the time of retirement, including any or all increases to the benefit, depending upon the circumstances of your case.

It is important to remember that if you are negotiating an agreement with retirement division that requires a future percentage and monthly benefit amount, you should consider the above factors and stipulate to the benefit amount that will be used in any calculations.  This may be a number, or this may include a way to determine that number in the future after retirement.

Why does this matter?

Using the example above, if the monthly benefit amount is determined at the time of divorce and your pay grade allows you a $100 monthly benefit upon retirement, then the amount the nonemployee spouse will receive is:

$100 x 70% = $70 per month

On the other hand, if the monthly benefit amount is determined at the time of retirement and there have been increases which increase your pay grade to a $200 monthly benefit, then the amount the nonemployee spouse will receive is:

$200 x 70% = $140 per month

These calculations can be tricky and confusing, but it is so important to consider in the division of the marital assets and debts.  If you have questions about the division of retirement in your case, please schedule a free consultation with one of our attorneys with Stevens & Gailey, P.C.

How to Divide Retirement in a Divorce

Child Pornography

Federal and state laws make it a crime to produce, possess, distribute, or sell pornographic materials that exploit or portray a minor (under the age of 18). Increasingly, child pornography laws are being utilized to punish use of computer technology and the Internet to obtain, share, and distribute pornographic material involving children, including images and films.

Federal laws addressing child pornography are:

18 U.S.C. § 2251– Sexual Exploitation of Children

  • (Production of child pornography)
  • 18 U.S.C. § 2251A– Selling and Buying of Children
  • 18 U.S.C. § 2252– Certain activities relating to material involving the sexual exploitation of minors (Possession, distribution and receipt of child pornography)
  • 18 U.S.C. § 2252A– Certain activities relating to material constituting or containing child pornography
  • 18 U.S.C. § 2260– Production of sexually explicit depictions of a minor for importation into the United States

First-time offenders found guilty of producing child pornography may be sentenced to fines and between 15 and 20 years in prison. Offenders may be prosecuted under federal, state, or both jurisdictions for any child pornography offense.

Utah’s Legal Definition of Sexual Exploitation of a Minor  U.C.A. Sec. 76-5b-103

(1) A person is guilty of sexual exploitation of a minor:

(a) when the person:

(i) knowingly produces, possesses, or possesses with intent to distribute child                                 pornography; or

(ii) intentionally distributes or views child pornography; or

(b) if the person is a minor’s parent or legal guardian and knowingly consents to or                        permits the minor to be sexually exploited as described in Subsection (1)(a).

(2) Sexual exploitation of a minor is a second degree felony.

(3) It is a separate offense under this section:

(a) for each minor depicted in the child pornography; and

(b) for each time the same minor is depicted in different child pornography.

(4) It is an affirmative defense to a charge of violating this section that no person under 18 years of age was actually depicted in the visual depiction or used in producing or advertising the visual depiction.

(5) In proving a violation of this section in relation to an identifiable minor, proof of the actual identity of the identifiable minor is not required.

(6) This section may not be construed to impose criminal or civil liability on:

(a) any entity or an employee, director, officer, or agent of an entity when acting within                the scope of employment, for the good faith performance of:

(i) reporting or data preservation duties required under any federal or state law; or

(ii) implementing a policy of attempting to prevent the presence of child pornography                   on any tangible or intangible property, or of detecting and reporting the presence                     of child pornography on the property; or

(b) any law enforcement officer acting within the scope of a criminal investigation.

Renumbered and Amended by Chapter 320, 2011 General Session

If you are aware that you may be accused of a sex crime, you should contact an experienced Utah criminal lawyer with the Law  Office of Stevens & Gailey to advise you even if you are not currently charged. Once a child porn possession or other sex crime investigation is underway, you need a lawyer to help prevent charges from being filed or to make sure you do not make missteps in dealing with law enforcement officers. You want to minimize the disruption to your every day life as you fight the charges in court.

We can assess the strength of the case against you, inform you of the consequences of a conviction. The simple accusation of a sex crime like child sex abuse or possession of child porn can destroy someone’s life even if the allegation does not end in a conviction.

It should be noted that if you are a witness in some cases, a Lawyer is advised, specifically if you are a witness who wants to claim spousal priviledge. If you believe you may incriminate yourself if you testify, you need an lawyer to advise you as to whether you may appropriately refuse to testify based on your Fifth Amendment rights.

Contact the lawyers with Stevens & Gailey, we are here to help you.