Utah Legal Blog

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Don't Talk To Police

Don’t Talk to the Police

You are walking down the street when a police officer greets you and starts a conversation. Is this an official…
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Utah Adoption Fraud

THE PROBLEM

If I was to tell you that a biological mother could lie, steal and cheat her way into placing her child for adoption, without the knowledge and consent of the biological father, you would most likely tell me I’d lost my mind.  “No!” you might exclaim. “That can’t happen in this country!”  You would surely insist, “People have rights, even unmarried biological fathers.”  They do.

REALITY

The sad truth is that Utah, unique among all the states of this nation (in many different ways), has statutorily legalized fraud in the context of adoption, when the biological parents are not married.  Under Utah Code Ann. 78B-6-106 (known as the “fraud immunity statute”), a biological mother can lie to the father, saying things like, “Oh, we are going to raise this child together, you don’t need to file a paternity action.”  Or, she might even say, “I’m sorry to let you know that the baby died.”  These are actual lies that biological mothers have told fathers in real cases.  Utah courts, at least initially, found that even if those statements were blatantly false (i.e. in reality the birth mother always intended to place the child for adoption and to not co-parent with the father; and the baby is actually alive and was placed for adoption), the father’s rights to his child would be terminated unless he had “fully and strictly” complied with Utah’s statutory requirements for him to protect and preserve his rights, and perhaps most importantly, to prevent an adoption from taking place without his knowledge and consent.  See Utah Code Ann. 78B-15-101 et seq. (Utah’s Uniform Parentage Act).

FRAUD IMMUNITY

It defies logic, defies one’s sense of right and wrong, defies basic notions of due process and justice, for Utah’s laws to insulate not only a biological mother, but anyone working with her (e.g. attorneys, adoption agencies, social workers), from being required to return a fraudulently adopted child to his or her biological father. For this reason, many have come to refer to Utah Code Ann. 78B-6-106 as Utah’s “fraud immunity” statute.  Without the knowledge and consent of a biological father, his child may be placed for adoption, even when accomplished through fraudulent, deceitful, and misleading statements by the biological mother and others who may be working with her.  The father may sue the responsible parties for money damages, but he may never be able to get his child back – money in exchange for a human life – little consolation for fathers who genuinely love and care about their child.

THERE IS HOPE

Fathers should not despair, however, as there is tremendous momentum building for necessary changes to the law by amending the problematic statutes.  In addition, current laws are being challenged as unconstitutional.  Quick-acting fathers can protect their rights under Utah laws.  (One example, Colby Nielsen, see: http://kutv.com/news/local/utah-dad-says-baby-taken-from-him-for-adoption-against-his-will).  Some fathers have had to fight long drawn-out and expensive court battles to preserve their constitutional rights to have a relationship with their child.  (Another example, Rob Manzanares, see: http://www.deseretnews.com/article/865635616/Fathers-7-year-fight-for-child-adopted-in-Utah-without-his-consent-moves-forward.html).

CONCLUSION

In short, the rights of biological parents, adoption standards and practices, statutory provisions that are supposed to govern the rights and responsibilities of all involved with adoptions and issues of paternity, are turbulent and at times uncharted waters that one is forced to navigate.  Those involved with the process, upon being exposed to the issues are left asking themselves the not-so-rhetorical question: “Huh?”  For these and many other reasons, all involved with paternity and adoption-related matters are well-advised to seek out competent legal counsel in all such matters.  The statutorily mandated “full and strict” compliance standards that come into play in these cases carry participants, virtually at light speed, across a uniquely well-delineated boundary between the land of “counsel optional” and the land of “counsel required.”

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Wills vs. Living Wills

What is a Living Will? Is it the same as a “Will” and why do I need them? Both documents, a Living Will and a Will, are important for different reasons, and it is important that when preparing them, you consult with an attorney to make sure that each is prepared according to the requirements of the state law. A Living Will and a Will are not the same document and should not be confused. A Living Will is a document that lets healthcare providers and the people making your medical decisions know what kind of medical treatment you would want, or not want, if you become unable to communicate, either due to a life-threatening injury or terminal illness. Many people are aware of the case of Terri Shiavo, a young woman who suffered from an illness that put her in a persistent vegetative state. Since she did not have a Living Will, she remained living in this state for 15 years while her family fought in court over whether continuing healthcare treatment should be provided. A Living Will could prevent this from happening since it is a legal document that sets out what life-sustaining measures you would want administered if you were to fall in to the same state. Provisions of a Living Will include whether or not to continue life support and whether or not to provide artificial nutrition and hydration if you are in an irreversible coma or a persistent vegetative state. You can also include any other healthcare provisions you would want honored if you were to fall critically ill and be unable to communicate. By creating a Living Will, you can take the pain and pressure away from loved ones who would have to make those difficult decisions should anything happen to you. Along with creating a Living Will, you should also consider creating a Medical Power of Attorney, which would appoint a person to be your “agent,” thereby allowing that person to make medical decisions for you when you are unable to communicate. A Will, on the other hand, is a legal document that comes into effect after you pass away and describes how you want your assets distributed.

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Child Custody and Support

Child Custody and Support This article provides a broad overview of Utah child custody and child support laws. If you’d…
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Increasing Parent Time

Increasing Parent-Time for Noncustodial Parents Every parent wants more time with their kids. It’s no surprise that custody and parent-time…
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Implementing an employee handbook

What are the pros and cons of implementing an employee handbook?

Often small business owners procrastinate implementing an employee handbook until they’ve experienced an issue with their employees.  These issues could be wage and compensation disputes, or allegations of workplace discrimination.  Whatever the issue is, one thing is certain; it takes your time and energy away from growing your business.

Benefits of a well-written employee handbook.

Employee handbooks can be a great tool to disseminate information regarding procedures and policies within your company.  A well-written employee handbook lays out your expectations for your employees and lets your employees know what they can expect from you and your company.  The U.S. Small Business Administration recommends[1] that your business has an employee handbook that contains at least the following things:
  • Anti-Discrimination Policies,
  • Compensation Information,
  • Standards of Conduct,
  • General Employment Information,
  • Safety and Security Information, and
  • Employment Benefits (if applicable).

Common pitfalls of a poorly written employee handbook. 

Despite the advantages to a well-written employee handbook, a poorly written one can cause some big problems for small business owners.  Small business owners run into two common pitfalls when it comes to employee handbooks. (1) The employee handbook unintentionally makes a statement that exempts employees from the traditional “at-will” employment status.  An “at-will” employee is someone who can be terminated at any time for any non-discriminatory reason.  Most states, including Utah, consider employees to be “at-will” unless their employer makes a representation that suggests otherwise.  A handbook that is not written properly can trap a business owner into retaining an employee who is not performing, or at best requires you to jump through multiple hoops of your creation! (2) The employee handbook contains management policies that may be against the law.  The National Labor Relations Board, which enforces many U.S. labor laws, has found that many policies that have historically favored management are starting to be found illegal.[2]  For example, if your handbook restricts employees’ ability to discuss pay amongst their coworkers and prohibiting employees from making negative remarks about an employer you may be at risk of legal action from the government. 

We can help! 

At Hepworth & Associates, we understand the legal issues that surround small business owners.  Our experienced attorneys can help draft your employment documents in a way that is both fair to the employee and protects you.  We know that you want to be focused on growing your business and not on managing your employees. Call today at (801) 872-2222.  Let us earn you trust and be your lawyers for life.    Written by attorney Tyler S. Call.  Copyright @ 2016 Hepworth & Associates.  All Rights Reserved.    [1] www.sba.gov/starting-business/hire-retain-employees/employee-handbooks [2] National Law Review, NLRB Issues Guidance Regarding Lawful Employee Handbook Polices (April 2015), www.natlawreview.com/article/nlrb-issues-guidance-regarding-lawful-employee-handbook-polices.   

Hepworth & Associates
140 S Main St,
Bountiful, UT 84010
info@hepworthlegal.com
(801) 872-2222
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