IN THE FOURTH DISTRICT JUVENILE COURT OF UTAH COUNTY, STATE OF UTAH

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IN THE FOURTH DISTRICT JUVENILE COURT OF UTAH COUNTY, STATE OF UTAH

) STATE OF UTAH, )

)

in the interest of: )

) Case No. 1170844 KW, (11/26/2018) )

) (Partial transcript) Person under 18 years of age. )

)

) Hearing

Electronically Recorded on March 12, 2019

BEFORE: THE HONORABLE F. RICHARDS SMITH III Fourth District Juvenile Court Judge

Transcribed by: Natalie Lake, OCT

8020 W. 3500 N.

Abraham, UT 84635 Telephone: (435) 590-5575

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APPEARANCES

For the State: Gary Bell

UTAH ATTORNEY GENERAL

350 North State Street Suite 230 SLC, UT 84114

Telephone: (801)366-0260

For the Mother: Terry Spencer

140 West 9000 South, Suite 9 Sandy, UT 84070

Telephone: (801)566-1884

For the Father: Mitchell Olsen

8142 S. State Street Midvale, UT 84047

Telephone: (801)255-7176

Guardian ad litem: Daniel Gubler

OFFICE OF THE GUARDIAN AD LITEM 32 W. Center Street

Provo, UT 84601 Telephone: (801)

For the grandparents: Jeff Rifleman

408 Indian Summer Way

Saratoga Springs, UT 84045 Telephone: (801)510-0503

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1 P R O C E E D I N G S

2 (Electronically recorded on March 12, 2019)

3 THE COURT: Okay. Mr. Bell, anything further?

4 MR. BELL: Your Honor, basically just this is clearly

5 a custody battle is what it is.

6 THE COURT: Yeah.

7 MR. BELL: The issue here is does this Court have

8 emergency jurisdiction. The State argues that it had emergency

9 jurisdiction at the time we got the warrant. Mr. Rifleman is

10 even questioning now whether or not we had jurisdiction to get

11 that warrant, so if that’s the case, it -- it also argues to

12 the point, I would state, your Honor, that this Court does not

13 have jurisdiction any longer under the emergency. There isn’t

14 an emergency. There is clearly a custody battle.

15 THE COURT: Uh-huh.

16 MR. BELL: But this Court should not be getting

17 involved in a custody battle when the only party that’s in

18 Utah right now hasn’t even filed their petition. That’s the

19 grandparents. We’re being told that they’re going to file

20 something, but there isn’t anything there. The only petitions,

21 the only custody orders that are in place right now is that out

22 of the State of New York and the State of California. The

23 State of Utah, I don’t believe, and the juvenile court

24 especially does not have the jurisdiction to get involved in

25 that custody battle.

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1 So it’s our position at this point, your Honor, that

2 there’s not an emergency. The statute that says a child should

3 be returned to a parent, it doesn’t say the child should be

4 returned to the custodial parent. It says the child should be

5 returned to the parent. There’s a paternity action that has

6 been done. That DNA test, this is a parent. He’s the father.

7 So there’s not an emergency. We’ve done a background

8 check on this father. We cannot find anything that says the

9 child would be unsafe in his care and custody. So it’s our

10 belief, your Honor, that the Court should just basically

11 dismiss the action and let the parents fight it out however

12 they’re going to do it in whatever court is ultimately

13 determined to be the appropriate court.

14 THE COURT: All right. Mr. Gubler?

15 MR. GUBLER: Well, and I agree with what Mr. Bell

16 just said, and the statute about getting custody back to the

17 parent, that would be -- well, the father is the custodial

18 parent. He’s got an order where he has custody, so the Court

19 doesn’t need to restore custody. Really, nobody -- well, the

20 State and I are not asking for any sort of changes to custody.

21 We’re asking that it be dismissed and the Court not issue any

22 orders, and -- yeah.

23 Let’s see, I wanted to clarify, so the New York order

24 that’s been entered is a protective order against -- from mom

25 against dad, and so the child is not even mentioned in that

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1 order. That’s not something that I think really even plays

2 into the jurisdiction for the child. Really, this -- what’s

3 before the Court today is a petition or request to remove the

4 child from mom, and so all of these other things that are being

5 argued aren’t on that issue.

6 So the reason that the mother would need to ask for a

7 continuance is to be able to be heard on the child, whether the

8 child should be removed from her. That’s not what’s being

9 asked for. What’s being asked for is that the child -- that

10 she be given child -- custody of the child, even though there

11 are these other orders, or that the grandparents be given

12 custody of the child, even though there are these other orders,

13 and that’s not what is before the Court with the petition. The

14 petition is asking for a removal from the mother, and there’s

15 no reason for the Court to remove from the mother because the

16 mother doesn’t have custody based on the California court.

17 THE COURT: All right. Mr. Olsen?

18 MR. OLSEN: Your Honor, if you’ll indulge me for a

19 second, just to give you some background. There’s been a lot

20 of allegations that have been made in terms of what’s been

21 filed, what hasn’t been filed, so if I can just give the Court

22 a brief background. The child was born in November of 2018.

23 Mom goes to Los Angeles County and she files a -- I think what

24 we would call in Utah a child support action. When she files

25 that child support action, my client goes down and he -- he

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1 obtains the paperwork so that he can file an answer. He files

2 an answer that says that I’m not the dad because she had always

3 claimed there was another potential father.

4 Under California courts, then, he’s automatically

5 forced to go do paternity testing, which the two parties do

6 together on January 31st of 2018 -- of 2019. So he goes down,

7 he does the paternity test and he is deemed the father.

8 That test comes back, your Honor, on February 11th of

9 2019. On February 12th, February 13th and February 14th there

10 are certain text messages that are posted by mom that cause my

11 client serious concern. That’s when he goes on February 15th

12 and files his temporary restraining order in San Francisco.

13 The Court grants that temporarily, and they schedule a hearing

14 for March 6th.

15 In the meantime, your Honor, mom goes to New York.

16 We hear a lot that mom is here. Well, on February 19th, mom

17 went to New York and filed both a paternity action and a

18 request for protective order in New York against my client.

19 The protective order was denied. The paternity action is

20 pending. My client then has his hearing in San Francisco on

21 March 6th. That was an evidentiary -- not an evidentiary

22 hearing, but it’s a hearing before the Court. Ms. Wang even

23 calls in for a short period of time during that hearing, and

24 the Court, your Honor, makes very specific rulings after that

25 hearing takes place.

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1 Your Honor, if I can read from the transcript, just

2 so you know exactly what the Court had mentioned, it was this.

3 The Court says, “I will modify the temporary restraining order

4 to provide petitioner” -- which is my client -- “sole legal and

5 physical custody of the child on the evidentiary basis that you

6 have just provided to me here. Number 1, that he is the parent

7 based on the genetic testing. Number 2, that this is the

8 child’s home state and a basis of -- on the basis of both the

9 birth certificate statements by the respondent in the birth

10 certificate where she claimed Los Angeles was her residence,

11 and 2) that her initiating of a parentage action in Los Angeles

12 that is currently pending, which would require her to assert

13 and show that this is the home state.”

14 Those are the findings that he makes on jurisdiction,

15 and afterwards he then says that my client’s awarded sole

16 legal, sole physical custody of the child. Based upon, your

17 Honor, the allegations that were set forth, he even orders that

18 there is no visitation to mom until the court hearing on April

19 10th. So he makes very specific findings, your Honor, about

20 what is going to take place with this child, about the state

21 that has jurisdiction and where this child is going to be.

22 THE COURT: And if I understood you correctly, the

23 mother participated telephonically in that hearing?

24 MR. OLSEN: So your Honor, the transcript is somewhat

25 interesting. So they had a morning hearing, and then mom

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1 called in at some point in time and participated, and then the

2 clerk can’t get back -- get her back on the line.

3 THE COURT: Oh, okay. Okay.

4 MR. OLSEN: So she had some participation, but not

5 full participation.

6 THE COURT: Okay.

7 MR. OLSEN: But at the conclusion of that hearing,

8 the judge makes these findings. He makes this order that was

9 in place. As soon as my client gets that order, your Honor, he

10 comes to Utah because there was also a writ of assistance

11 included in that order to be able to obtain the child, and

12 that’s exactly what he did.

13 So the fact that we continue to hear arguments that

14 mom is in Utah and mom has been taking care of this child in

15 Utah, it really raises questions, your Honor, of her own

16 credibility. She’s filed something in New York on February

17 19th. Once this hearing was scheduled, she then filed a new

18 protective order in New York on March 8th, which was granted as

19 the GAL had mentioned. That protective order does not include

20 my cli -- does not include the child in any way. It does not

21 make any custody rulings. It does not make any parent time

22 rulings. The only ruling, the only order we have before the

23 Court today is the one that you have which is simply that my

24 client was awarded sole legal, sole physical custody of this

25 child, and that the parent time and custody was going to be

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1 resolved on April 10th.

2 Your Honor, there’s no petition pending for mom

3 in Utah. There’s no petition for guardianship from the

4 grandparents here in Utah. The grandparents have no custodial

5 rights. They have no parental rights. We have the parental

6 presumption in Utah. So your Honor, there’s no need for a

7 continuance. The Court has enough before it today based upon a

8 ruling coming out of California to simply allow the child to go

9 back to California where mother initiated this parent time and

10 custody action and let the California courts take care of it

11 there.

12 THE COURT: All right.

13 MR. OLSEN: Do you have any questions for me?

14 THE COURT: I don’t. Thank you. Mr. Spencer?

15 MR. SPENCER: Thank you, your Honor. Just to

16 reiterate, we don’t have an order from California that’s been

17 investigated. The piece of paper that you have is meaningless

18 until he goes through that process. Second, there’s no court

19 order establishing him as the father anywhere, California,

20 Utah, New York, anywhere.

21 THE COURT: Well, about the sentence that was just

22 read to me from that California order?

23 MR. SPENCER: Again, there’s no order that

24 establishes him as the father. There’s been no paternity

25 action filed in the State of California by anybody. This is a

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1 protective order document.

2 MR. OLSEN: Your Honor, that’s simply not true.

3 That -- there was a paternity action filed by mom in Los

4 Angeles County on December 11th that requested paternity.

5 That’s exactly what’s been filed, and --

6 THE COURT: That’s kind of what I heard.

7 MR. OLSEN: -- if she wants to dispute that --

8 THE COURT: Okay. Go ahead.

9 MR. SPENCER: And my client will dispute that when

10 she testifies. That’s why we’re asking for a continuance. She

11 filed a child support case, not a case involving custody of the

12 child, but child support. So she filled out the forms. She’s

13 not an attorney, but she did the best that she could trying to

14 protect this child and his right to have some support paid,

15 which none had been paid in four months.

16 Again, I return to paragraph 9(a). If the child is

17 in the custody of the Division, the Court shall order that

18 child to be returned to the custody of the parent. It doesn’t

19 say to be awarded to another parent if he’s indeed the parent,

20 and allow that child to be removed from the state. It doesn’t

21 say any of that stuff.

22 I believe your -- again, your hands are tied that the

23 child needs to be returned, not be awarded to someone else. If

24 the legislature wants to change the language, great, but it

25 says what it says as of this point. To allow anything other

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1 than a continuance for having the child go back with the

2 grandparents until mom can get back here doesn’t preserve the

3 right of a party, which is required in paragraph 8 of that same

4 statute.

5 So I -- we believe, your Honor, that this Court,

6 if you are going to not grant a continuance, are required to

7 return the child to where the child came from pending an order

8 from someone else that’s been domesticated, a finding that this

9 guy that got this order in California is actually the father of

10 the child. We have none of that, not a single domesticated

11 order in Utah from the State of California has been done. It’s

12 as if that document that was provided to you, even though it’s

13 a certified copy, isn’t relevant until it’s domesticated.

14 The domestication system is -- was put in place

15 to give people due process protections. If you take the

16 California court order as it says without that domestication --

17 you’re allowed a hearing on a domestication issue -- then my

18 client’s due process rights have been violated. I don’t want

19 that to happen. We don’t want this child to leave the State of

20 Utah.

21 If dad wants custody of the child for a day or two

22 until mom gets back, great. If they want to get an order in

23 place and domesticate it, great, but none of that stuff has

24 been done, so all the stuff from California is premature at

25 this point in time, notwithstanding the fact it was based on

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1 false information. We can get to that at some other time, but

2 again, I think a continuance here in order to protect the due

3 process rights of mom is required. So we’re asking the Court

4 to do that.

5 THE COURT: All right. Thank you. Mr. Olsen, what

6 about the issue of domestication?

7 MR. OLSEN: Your Honor, we understand that hasn’t

8 been done. We do have a valid court order that’s been

9 certified by the California courts. It does deem my client

10 the father. It does deem him the custodial parent.

11 THE COURT: Is it enforceable in this state prior to

12 domestication?

13 MR. OLSEN: Your Honor, we would say that it is. As

14 the Court -- your Honor mentioned, the full faith and credit

15 clause. I mean that’s the reason we have this. If the Court

16 thinks it has emergency jurisdiction with both -- which both

17 the State and the guardian ad litem are saying this Court

18 doesn’t -- this Court wouldn’t even have jurisdiction to make

19 those rulings, and so then it goes back to California where mom

20 commenced the action for that Court to deal with it.

21 THE COURT: Okay.

22 MR. OLSEN: Mr. Spencer mentions, your Honor, the

23 return to the custodial parent. There’s only person who has

24 been deemed the custodial parent in this case, and that’s my

25 client coming out of California.

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1 THE COURT: All right. Thank you. Mr. Rifleman,

2 anything further?

3 MR. RIFLEMAN: Your Honor, only that my understanding

4 of full faith and credit is understood, what Mr. Olsen raises

5 is in the event there is an emergency to be able to use that.

6 However, the State has just said there’s no emergency reason to

7 remove the child, so I believe the full -- the domestication

8 process should be followed.

9 Again, that’s why I think it would be appropriate to

10 be able to have calmer heads and clarify a few more issues. I

11 heard some things Mr. Olsen has presented I’d like to discuss

12 with him, as far as with the grandparents are involved, is that

13 there are different rights to the child to some extent, and

14 we’d like to discuss that potential. I see no reason why a

15 continuance for a few days wouldn’t -- it would allow the

16 parties to discuss this a little more. The grandparent’s

17 interest is actually in the child, (inaudible).

18 THE COURT: All right.

19 MR. OLSEN: Can I address that just briefly, your

20 Honor?

21 THE COURT: Yes.

22 MR. OLSEN: Just in terms of a continuance, my client

23 is here. His parents are here. They’d like to get back to

24 California. They do have their own lives. They’re ready to do

25 so. He can take care of the child. That’s where the original

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1 jurisdiction and the continuing exclusive jurisdiction of this

2 case is under the UCCJEA. It’s in California. So it’s those

3 courts that should be taking care of this case, not courts here

4 in Utah.

5 THE COURT: Okay. All right. Well, it is -- the one

6 thing that is apparent to me is that I don’t have jurisdiction.

7 I think that’s very clear. There was a basis for an emergency

8 action taken by the State, and I find that that was reasonable

9 and appropriate, but an emergency situation does not exist. I

10 do not have jurisdiction in this matter. I don’t have

11 jurisdiction to hear anything more, to address issues that have

12 been raised here. Those things need to be raised and pursued

13 in other forums.

14 There either is no pending action in this state

15 that -- other than the one that’s here that I no longer have

16 any jurisdiction regarding. There are various actions pending

17 in various other locations, but I have -- you know, this isn’t

18 the forum that I could address any of those issues. If there

19 are issues that need to be addressed here in the State of Utah,

20 that would have to be done in the proper forum, in the district

21 court, but not in this court.

22 So with that, then the only issue is what happens to

23 this child? My under -- my understanding of the statute is

24 that the child is returned, and so that’s my direction today is

25 that the State is to return the child to where the child was

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1 removed from pursuant to the statute. You’ll have to file in

2 district court, do whatever things you’re going to need to do

3 to enforce the California order, but I don’t have jurisdiction

4 to any -- to do anything other than that. So that’s the order

5 of this Court. That concludes the matter. Thank you.

6 MR. SPENCER: Thank you, your Honor.

7 MR. OLSEN: Your Honor, just to --

8 THE COURT: Yes.

9 MR. OLSEN: So the Court is saying it’s going back to

10 grandma and grandpa?

11 THE COURT: That’s -- I -- I don’t -- I -- my reading

12 of the statute is that when an emergency situation no longer

13 exists, that we restore the situation as it was before. Are

14 you saying that that’s not what it was?

15 MR. OLSEN: That’s exactly what -- well, I’m not --

16 they weren’t with mom.

17 THE COURT: Okay.

18 MR. OLSEN: Grandma and grandpa don’t have parental

19 rights.

20 THE COURT: Right. That’s true.

21 MR. OLSEN: My client has the child right now. So

22 the child has been with my client for the last five days, and

23 if he’s the --

24 THE COURT: By placement from the Division; is that

25 right? So go ahead, Mr. Gubler.

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1 MR. GUBLER: Well, placement by the Division, but

2 it’s my understanding he also had a writ of enforcement to --

3 MR. OLSEN: Court order.

4 MR. GUBLER: -- get custody of the child. The

5 grandparents is where the child was removed from. The

6 grandparents were essentially just babysitters. They didn’t

7 have any sort of custodial rights, and I -- I don’t think it’s

8 appropriate for the Court to now order that the child be

9 returned to them when they don’t have any sort of enforceable

10 custodial rights.

11 THE COURT: Mr. Bell?

12 MR. BELL: Well, and I agree with Mr. Gubler on

13 that one. The -- the grandparents have no legal custodial

14 guardianship rights of the child. The mother basically left

15 the child with them.

16 THE COURT: Yeah, that’s true.

17 MR. OLSEN: I’ve got a writ of assistance, your

18 Honor, from California that allows my client to get the child,

19 and so that -- that creates another conflict if the Court is

20 going to return to grandparents.

21 THE COURT: You’re right.

22 MR. OLSEN: And so we would ask that the child go

23 with my client, and then they can start their action back in

24 California. We can try to get this resolved.

25 THE COURT: Okay. Go ahead.

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1 MR. SPENCER: Again, your Honor, it doesn’t give the

2 Court an option of where to return the child to. Awarding the

3 child to someone else is not what the language of the statute

4 says. It’s there to protect everybody with the status quo

5 until there’s an order from somewhere else.

6 Nothing has been domesticated in the State of Utah.

7 Nothing is enforceable until it is. Dad’s not even been

8 adjudicated to be the father in Utah. So he can’t be a parent

9 under the meaning of Section 9 of that -- of the statute that

10 I’ve been citing all morning.

11 Therefore, the child should go back to mom’s

12 residence. Mom lives with the grandparents. That’s where the

13 child needs to go pending an order from someone else that says

14 hey, the child -- the status quo has now been returned. Here’s

15 what we want. To do anything else prejudices my client

16 substantially, because my clients don’t have the resources to

17 fight a big legal battle in both California and Utah. The

18 UCCJEA looks at this situation and has judge from Utah and

19 judge from California have a telephone call with each other --

20 THE COURT: If --

21 MR. SPENCER: -- and make a decision.

22 THE COURT: If there’s a pending action in this

23 state, and there is not.

24 MR. SPENCER: I understand if, but I was retained

25 yesterday afternoon.

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1 THE COURT: Gotcha.

2 MR. SPENCER: This was an emergency jurisdiction on

3 the part of the State. Return the child to the status quo,

4 give me a date to get that thing filed, then I can request

5 under the UCCJEA to have the two judges make a decision.

6 Nothing of this child is in California, no doctor, no dentist,

7 no, you know, pediatrician, no nothing. To send the child to a

8 different person rather than return the child pursuant to the

9 statute is a big mistake, in my opinion, for what that’s worth.

10 THE COURT: Gotcha.

11 MR. SPENCER: And again, if they want to have an

12 order from California domesticated, they can certainly do it.

13 That domestication process gives my client due process rights

14 to file an objection, to have a hearing. It’s not an automatic

15 domestication.

16 THE COURT: Okay.

17 MR. SPENCER: So we’re just asking to return the

18 child to the status quo before the Court -- or before the State

19 got involved.

20 THE COURT: All right. Mr. Spencer? (Sic)

21 MR. OLSEN: Just briefly, your Honor. One thing is

22 this is that she just filed a paternity action in New York.

23 She’s now filed three actions in New York. They keep talking

24 about Utah and that Utah is her home state and that she lives

25 here. She’s filed three actions. If it’s anything like Utah,

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1 I’m assuming she’s got to have residency in New York to file a

2 paternity action in New York. So I don’t know why we keep

3 hearing that she’s living in Utah because she’s now filed two

4 different things in New York over the last three weeks. My

5 client is the dad. They should return there and finalize this

6 litigation in California where it commenced.

7 THE COURT: Okay. All right. Mr. Rifleman, was

8 there something else?

9 MR. RIFLEMAN: Your Honor, only the situation if

10 it’s -- I understand the arguments.

11 THE COURT: Yeah.

12 MR. RIFLEMAN: I believe (inaudible) with the

13 grandparents (inaudible) they were, the term was used

14 “babysitters.” They were a little more than babysitters in

15 this situation. If the Court were to grant the continuance,

16 maybe it could be resolved. The child would remain here,

17 enough time for mom to come back. They’re arguing mom’s not

18 here to take custody and dad could do it because mom is in New

19 York. She needs time to come back, so maybe during that time

20 the Division takes -- takes care of the child during that time.

21 The mom can come back and take custody of the child.

22 However, in the child’s best interest it’s been

23 grandma and granddad who has been caring for the child, is

24 intimately associated with the child’s needs. They could take

25 care of the child until mom comes back and takes -- takes her

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1 custody.

2 THE COURT: Okay.

3 MR. RIFLEMAN: I don’t see why there would be a

4 problem otherwise, allowing the five days and leave him here,

5 and maybe that’s the (inaudible).

6 THE COURT: Okay. All right. The -- the emergency

7 process is available to the Division in the event of an

8 emergency. It cannot be used to circumvent the proper

9 procedure of domestication and an enforcement of foreign

10 court orders, and I -- I simply cannot allow that. I -- I

11 lack jurisdiction to do anything more, and so my order stands

12 that --

13 MS. THYGESEN: Your Honor? Your Honor, can I just

14 offer one piece of information to --

15 THE COURT: Tell me who you are again. Remind me.

16 MS. THYGESEN: My name is Terry Thygesen. I’m

17 Christoffer’s father -- Christoffer’s mother, and I’m the

18 baby’s grand --

19 THE COURT: Go ahead.

20 MS. THYGESEN: I’m the baby’s grandmother.

21 THE COURT: Go ahead.

22 (Ms. Thygesen stands away from a microphone, and some

23 of her statements are inaudible)

24 MS. THYGESEN: Christoffer and I have been taking

25 care of the child since he was removed. We are offering that

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1 child very good care. We have become intimate with (inaudible)

2 of the child’s medical care, because I took the child

3 immediately to see a pediatrician. I got access to all the

4 child’s information.

5 Moreover, I would like to also say that there is

6 ample evidence that that child is in imminent danger if that

7 child is in any place other than with my son, because Ms. Wang

8 has been posting things online that are clearly the postings of

9 someone who is mentally ill, and most recently after -- after

10 we obtained -- my son obtained an order for -- you know, with

11 findings that California is the home state, that my son is

12 the father, and that he is to have sole legal and physical

13 custody --

14 THE COURT: Okay. I’m --

15 MS. THYGESEN: -- and wait, let me -- I have to tell

16 you --

17 THE COURT: I’m going to --

18 MS. THYGESEN: I want to tell you one more thing.

19 THE COURT: No.

20 MS. THYGESEN: One more thing.

21 THE COURT: I’m going to --

22 MS. THYGESEN: One more thing.

23 THE COURT: Okay. I’m the judge.

24 MS. THYGESEN: I’m sorry. I’m sorry.

25 THE COURT: Thank you.

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1 MS. THYGESEN: I’m sorry.

2 THE COURT: Mr. Bell, the question is raised, and

3 I think it’s a valid one. You’re telling me -- you told me

4 earlier that an emergency does not exist because the child is

5 with father. If this child goes back to where I think under

6 the statute I would have to do is restore the situation as it

7 existed before, does that recreate the emergency?

8 MR. BELL: It could if mom comes back.

9 THE COURT: There you go.

10 MR. BELL: That’s -- that’s our concern --

11 THE COURT: There you go.

12 MR. BELL: -- is mom’s situation.

13 THE COURT: Okay. All right. All right.

14 MR. BELL: But the fact of the matter is, and this

15 is another reason why I don’t think the emergency exists, is

16 because at the time that we got the warrant, we didn’t have any

17 information on the father. He was not available to us. So it

18 was an emergency because the only care taker that we were aware

19 of at the time was mom.

20 THE COURT: Right.

21 MR. BELL: Okay. Once we got the warrant and we

22 found out about mom, we did a check on him and we found there

23 is no basis for us to be concerned, and so it’s our position

24 that now that he is available and he’s not a risk, the

25 emergency doesn’t exist because he’s available for the child,

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1 but I am not asking the Court to enter a custody order at this

2 time. I’m just basically saying the emergency doesn’t exist.

3 THE COURT: So if I understand you correctly, the

4 emergency no longer exists because you -- because DCFS placed

5 the child with the other parent, and thereby eliminated the

6 emergency?

7 MR. BELL: Well, there -- we now have another parent

8 who --

9 THE COURT: Right.

10 MR. BELL: -- is available to care for the child.

11 THE COURT: Right. Right. Thus by so doing, there

12 is no emergency, no need to file a petition.

13 MR. BELL: Basically, yeah.

14 THE COURT: Mr. Gubler?

15 MR. GUBLER: Well, for me it’s the California court

16 order giving the father custody that eliminates the emergency.

17 Without that order and without that being enforceable and the

18 child being able to go with the father, I do believe the child

19 is at risk, and it’s -- I’m very concerned about the mother,

20 and we really didn’t get into the evidence of that, but she has

21 been threatening to kill the child on social media. It’s my

22 understanding that the grandparents’ position has been that

23 that wasn’t really her and that she’s not a risk, and law

24 enforcement was trying to do a welfare check on the child, and

25 the grandparents lied to law enforcement and said that the

(24)

1 child was in New York when the child was in their custody.

2 So I’m -- I’m very concerned that if you were to send

3 the child back with the grandparents, that if the mother comes

4 that they will allow the child to go with the mother, and I

5 wouldn’t be surprised, based on them lying to law enforcement,

6 if they were part of helping hide the child and keep the child

7 from going with the father.

8 The Court just talked about returning things to the

9 position that it was, and the position that it was is that

10 there was an order out of California that the father was the

11 father and that he was the custodial parent. There have been

12 no orders entered giving the mom custody, and we do have an

13 order giving the father custody. So while the child physically

14 wasn’t with the father when the removal happened, the father

15 legally had custody of the child.

16 So I see this no different than when we have a

17 removal where the child is with some surrogate care giver that

18 day, the child is at daycare or school or something, and the

19 child is picked up from there, but there’s another parent who

20 has legal custody. It would be returning to the parent who has

21 legal custody, which in this case is the father.

22 So if the Court were to allow the child to stay with

23 the father and to go with him to California, I see that as

24 restoring things back to where they were. Essentially you

25 would be saying I’m not going to issue any orders, I’m not

(25)

1 going to issue any sort of custody order, and the custody order

2 that’s in place would stand, and the custody order that’s in

3 place declares the father as this -- the custodial parent.

4 THE COURT: And the one complication in all of that,

5 as Mr. Spencer has pointed out, is that that order is not

6 domesticated in this state, and therefore there’s a question of

7 its enforceability and mother’s due process rights, but I hear

8 what you’re saying. Okay. So I’m --

9 MR. GUBLER: Well, and the mother doesn’t --

10 THE COURT: Yeah.

11 MR. GUBLER: -- have any enforceable custody rights

12 either because there’s no order out of Utah, and so there’s

13 nothing that’s been domesticated.

14 THE COURT: Gotcha.

15 MR. GUBLER: So neither parent would have that to be

16 able to enforce that.

17 THE COURT: Okay. All right.

18 MR. RIFLEMAN: Your Honor, object to that. The

19 mother does have enforceable rights because she is -- no one

20 has disputed she’s the natural mother, and under the Utah

21 Constitution, based on that she has enforceable parental rights

22 as far as the child.

23 THE COURT: Okay.

24 MR. GUBLER: But no one is disputing that the father

25 is the father.

(26)

1 MR. RIFLEMAN: There is a dispute of that.

2 MR. GUBLER: The mother --

3 MR. SPENCER: We are disputing that.

4 MR. GUBLER: The mother in fact --

5 MR. RIFLEMAN: (Inaudible) State of Utah.

6 MR. BELL: The mother in fact is the one that brought

7 the action in California --

8 THE COURT: Yeah.

9 MR. BELL: -- to get child support, so she

10 acknowledged he’s the father when she went to California to get

11 child support.

12 THE COURT: That is true.

13 MR. SPENCER: But again, we still don’t have an

14 order.

15 THE COURT: Okay. All right. I’m going to grant the

16 continuance instead, and let’s come back within the next five

17 work days. So if we have to go into the first part of next

18 week, we can.

19 MR. SPENCER: Mind if I call my office for a

20 schedule?

21 THE COURT: Sure.

22 MR. SPENCER: Call office.

23 TELEPHONE: Calling --

24 THE COURT: And in the meantime, I presume there’s

25 going to be a flurry of filings in other forums, hopefully.

(27)

1 MR. SPENCER: Grab my calendar, would you? What date

2 you looking at, your Honor?

3 THE COURT: Well, we’re still looking.

4 MR. SPENCER: Okay. Just a minute, he’s going to

5 give me a date.

6 (Court confers with court clerk)

7 THE COURT: We could either do it Thursday at 4, or

8 we could go Friday morning at 9.

9 MR. SPENCER: How about Thursday at 4 or Friday at 9?

10 Yeah.

11 MR. BELL: Thursday works best for the State, I

12 think.

13 MR. SPENCER: I can’t do it on Thursday, but I can do

14 it on Friday.

15 THE COURT: Mr. Gubler, could you make that work?

16 MR. GUBLER: Yeah, Friday is actually easier for me.

17 THE COURT: Mr. Bell, could you make it work?

18 MR. BELL: I can make it work.

19 THE COURT: Mr. Olsen?

20 MR. OLSEN: Your Honor, I am out on the 14th and the

21 15th. I’d have to do it next Monday, if we could.

22 MR. SPENCER: How about Monday? Monday afternoon

23 would work great with me, if that’s available.

24 (Court confers with court clerk)

25 THE COURT: How about Monday at 4?

(28)

1 MR. SPENCER: That’s fine.

2 MR. BELL: Works for the State, your Honor.

3 THE COURT: Okay. All right. We’ll be back Monday

4 at 4 o’clock and hopefully have a little more clarity.

5 MR. OLSEN: Your Honor, just to make sure, so the

6 child is going to stay with my client?

7 THE COURT: Yes.

8 MR. OLSEN: Okay. Then --

9 MR. SPENCER: In the State of Utah, I assume?

10 MR. OLSEN: -- we’ll return Monday at 4 o’clock?

11 THE COURT: Yes. Yes. Yeah, the child stays in Utah

12 with dad until Monday at 4 o’clock when we come back.

13 MR. OLSEN: Would the Court allow the child --

14 MR. SPENCER: In the custody --

15 MR. OLSEN: -- to return back if my client has to go

16 to California to come back to ensure that he’s here?

17 MATERNAL GRANDMOTHER: No.

18 MR. SPENCER: I would oppose that, your Honor.

19 THE COURT: Why?

20 MR. OLSEN: He’ll sign a promise to be here with the

21 child Monday at 4 o’clock, your Honor.

22 THE COURT: Okay.

23 MATERNAL GRANDMOTHER: No, he can’t -- can’t take

24 the --

25 THE COURT: Yeah, he can. Okay.

(29)

1 MR. OLSEN: Thank you, your Honor.

2 THE COURT: That’s fine. Thank you.

3 MR. SPENCER: It’s not a problem. All right. Monday

4 at 4. Thanks. Appreciate it, your Honor.

5 THE COURT: Thank you.

6 MR. SPENCER: Thank you.

7 THE COURT: Ms. Wang, are you still there?

8 MS. WANG: Yes, I am.

9 THE COURT: Okay. We’ll terminate the phone call.

10 Thank you.

11 MS. WANG: Thank you.

12 (Hearing concluded)

(30)
(31)

Keyword Index

1

1 [1] 7:6

10th [2] 7:19 9:1

11th [2] 6:8 10:4

12 [1] 3:2

12th [1] 6:9

13th [1] 6:9

14th [2] 6:9 27:20

15th [2] 6:11 27:21

19th [2] 6:16 8:17

2

2 [2] 7:7,11

2018 [2] 5:22 6:6

2019 [3] 3:2 6:6,9

2021 [1] 30:23

2024 [1] 30:25

3

31st [1] 6:6

4

4 [8] 27:7,9,25 28:4,10,12, 21 29:4

6

6th [2] 6:14,21

8

8 [1] 11:3

8th [2] 8:18 30:22

9

9 [4] 17:9 27:8,9 30:25

9(a [1] 10:16

A

a [88] 3:5,14,17 4:2,3,5,6,7, 24 5:3,6,14,18,19,22,23,24 6:13,16,17,17,22,23 7:8,11, 25 8:10,17 9:6,7,25 10:3,10, 11,11 11:1,3,6,8,10,13,17, 17,21 12:2,8 13:10,14,15, 16,22 14:7 16:2,17 17:8,17, 19,21,22 18:4,5,7,9,14,22 19:1,14 20:3,22 21:3 22:3, 22,24 23:1,12,23,24 24:16 25:6 26:1,19,25 27:4,5 28:

4,20 29:3 30:5

able [6] 5:7 8:11 13:5,10 23:18 25:16

about [12] 4:16 7:19,20 9:

21 12:6 18:24 22:22 23:19 24:8 27:9,22,25

access [1] 21:3

acknowledged [1] 26:10

action [18] 4:5,11 5:24,25 6:17,19 7:11 9:10,25 10:3 12:20 14:8,14 16:23 17:22 18:22 19:2 26:7

actions [3] 14:16 18:23,25

actually [3] 11:9 13:17 27:

16

ad [1] 12:17

address [3] 13:19 14:11, 18

addressed [1] 14:19

adjudicated [1] 17:8

after [3] 6:24 21:9,9

afternoon [2] 17:25 27:22

afterwards [1] 7:15

again [9] 9:23 10:16,22 12:

2 13:9 17:1 18:11 20:15 26:

13

against [3] 4:24,25 6:18

agree [2] 4:15 16:12

ahead [5] 10:8 15:25 16:25 20:19,21

all [23] 4:14 5:4,17 9:12 11:

24 12:5 13:1,18 14:5 17:10 18:20 19:7 20:6 21:3 22:13, 13 25:4,17 26:15 28:3 29:3 30:14,14

allegations [2] 5:20 7:17

allow [8] 9:8 10:20,25 13:

15 20:10 24:4,22 28:13

allowed [1] 11:17

allowing [1] 20:4

allows [1] 16:18

also [4] 3:11 8:10 16:2 21:

5

always [1] 6:2

am [4] 23:1 27:20 29:8 30:

16

ample [1] 21:6

an [32] 3:14 4:2,7,18 6:1,2, 21,21 9:16 10:13 11:7,22 13:5 14:7,9 15:12 17:2,5, 13 18:2,11,14,14 20:7,9 21:

10 22:4,18 24:10,12 26:13 30:10

angeles [4] 5:23 7:10,11 10:4

another [6] 6:3 10:19 16:

19 22:15 23:7 24:19

answer [2] 6:1,2

any [18] 3:13 4:20,21 8:20, 21,21 9:13 10:21 14:16,18 15:4 16:7,9 21:7 22:16 24:

25 25:1,11

anybody [1] 9:25

anything [10] 3:3,20 4:8 10:25 13:2 14:11 15:4 17:

15 18:25 20:11

anywhere [2] 9:19,20

apparent [1] 14:6

appreciate [1] 29:4

appropriate [4] 4:13 13:9 14:9 16:8

appropriately [1] 30:11

april [2] 7:18 9:1

are [24] 3:21 4:20 5:4,11,12 6:10,10 7:14 10:22 11:6,6 12:17 13:12,13,23 14:16,19 15:13 20:15,23,25 21:8 26:

3 29:7

aren't [1] 5:5

argued [1] 5:5

argues [2] 3:8,11

arguing [1] 19:17

arguments [2] 8:13 19:10

as [20] 8:9,9,18 9:19,24 10:

25 11:12,16 12:13 13:12,12 15:13 22:6 24:23 25:3,5,22, 22 30:10,20

ask [2] 5:6 16:22

asked [2] 5:9,9

asking [7] 4:20,21 5:14 10:

10 12:3 18:17 23:1

assert [1] 7:12

assistance [2] 8:10 16:17

associated [2] 19:24 30:

19

assume [1] 28:9

assuming [1] 19:1

at [23] 3:9 4:1 8:1,7 11:24 12:1 17:18 22:16,19 23:1, 19 24:18 27:2,7,8,9,9,25 28:

4,10,12,21 29:4

attorney [1] 10:13

audible [1] 30:15

authorized [2] 30:9,11

automatic [1] 18:14

automatically [1] 6:4

available [6] 20:7 22:17, 24,25 23:10 27:23

awarded [4] 7:15 8:24 10:

19,23

awarding [1] 17:2

aware [1] 22:18

away [1] 20:22

B

baby's [2] 20:18,20

babysitters [3] 16:6 19:

14,14

back [26] 4:16 6:8 8:2,2 9:9 11:1,2,22 12:19 13:23 15:9 16:23 17:11 19:17,19,21,25 22:5,8 24:3,24 26:16 28:3, 12,15,16

background [3] 4:7 5:19, 22

based [7] 5:16 7:7,16 9:7 11:25 24:5 25:21

basically [5] 3:4 4:10 16:

14 23:2,13

basis [5] 7:5,8,8 14:7 22:

23

battle [5] 3:5,14,17,25 17:

17

be [44] 3:16 4:3,3,4,9,13,17, 21 5:7,7,8,10,11 7:21 8:11, 25 10:18,19,20,23,23 13:5, 8,9,10 14:3,12,19,20 16:8 17:8,8 19:16 20:3,8 22:23 24:5,20,25 25:15 26:25 28:

3,20 30:20

because [16] 5:15 6:2 8:

Figure

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References

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