(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)

Yes, there can be many criminal aspects involved in international custody cases. In my particular case, the husband was charged with federal kidnapping in Brazil. One of the arguments he tried to make was that he cannot return to Brazil because there is a warrant for his arrest for kidnapping. The judge was unsympathetic, stating that he cannot reasonably expect the court to provide relief from a problem that he himself created.

I have handled cases in which there was concern that a parent was going to take a child across the border into Canada. In these situations, there are numbers to call and people to contact. In one case, a father attempted to bring his child across the border into Canada. Consequently, the child was picked up by Canadian Border Patrol and the father was criminally charged because he had violated the Federal Parenting Kidnapping Act by crossing state lines.

In another case, a father took a child out of school and drove out of state to Florida. We filed for an emergency restraining order which the court granted, and then I actually served it to the father via email. He responded later, stating that he was someplace halfway across the country. He ended up returning to the state and received the restraining order. If he had not returned to the state and if we knew he was located in or heading to Florida, we would have registered the order in Florida and had Florida law enforcement agents locate and detain him.

Most states have criminal statutes for parenting kidnapping, but they are usually misdemeanors. However, once a parent crosses state lines with a child, it is a whole different situation because a federal statute has been violated. If a parent takes a child internationally, they still violated a federal statute for kidnapping and will have to deal with the case on an international and civil level.


There is a uniform child custody enforcement act as well as a uniform child support enforcement act that has been enacted in every state in the country. International cases are handled in the exact same way as interstate cases. So, in our case for Brazil, let us assume that the mother came to the United States to enforce the Brazilian decree and that we were at a point before the court allowed her to leave. The court ruled that Utah terminate its jurisdiction and the Brazilian decree be in effect, which meant she got custody because the Brazilian decree gave her custody. Had the mother stayed in Utah long enough, any support orders in the Brazilian decree would have been enforced by the state of Utah. Under the child custody act that every state has enacted, foreign countries are to be treated just like any other state. The trick is getting it registered in the state without objection or else getting the objections overruled. Once it is registered, it is treated like a local order. And since it is a foreign order, it can be enforced but not changed.

For more information on Criminal Aspect Of International Custody Cases, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (801) 396-2967 today.



(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)

Yes, I have handled other international custody cases. Early on in my career- about fifteen years ago- I handled a case that dealt with an American father and a Swedish mother. The two got married in America, and when they divorced, the mother stole the child and fled to Sweden. The father went to Sweden and stole the child back. Both parties filed in their own country of origin, and both countries found the other parent in contempt. Warrants for their arrests were issued. Then, the mother came to the United States, obtained an attorney, and became the first person to file under the Hague Convention. By the time she filed, the child had been gone for more than a year, so that was a problem for the father. However, the federal court ordered that the mother could visit with the child for two weeks prior to the next hearing.

While she had the child with her, she stole the child and returned to Sweden. She then pursued the case all the way to the Supreme Court of both countries. The United States concluded that it had jurisdiction and that the father should have custody, while Sweden concluded that they had jurisdiction and that the mother should have custody. Sweden would not let the father back in the country and the mother could not go to the United States without getting arrested. The father actually took the case all the way to Hague Court in the Netherlands which found that the United States was correct; Sweden did not have jurisdiction. However, this finding was denied by Sweden, and the father never saw his daughter again. This case exemplifies the high stakes of international custody battles and underscores the importance of obtaining an attorney who knows what they are doing and can do it quickly.


If there is an international custody dispute, my law firm can take over in any capacity. However, we can only litigate in the United States. If a person wants to litigate in a foreign country, they would have to find counsel in that country. I suspect that the consulate and the state departments of other countries also keep a list of attorneys who are versed in this sort of law, but I wouldn’t just pick a name arbitrarily. Instead, I would interview several of them in order to determine how many cases they have handled and whether or not they have been successful.


Whether or not the other party would be required to hire an attorney in an international custody case depends on where the case started. Both the United States and the Hague Convention have rules on which country has jurisdiction. For example, if the parties were married and living in Brazil, and the father took the child to the Unites States, the mother could file for divorce in Brazil and attempt to have the father served, in which case they may have to litigate in Brazil. However, if the father had residence in the United States and waited long enough, he could file in the United States. An international dispute over which country had jurisdiction would ensue, which would be a very different fight. In any case, depending on who files what and where it is filed, a situation involving attorneys in both countries is possible.

It is important to know that these cases are huge financial undertakings. My client created a GoFundMe account, and fundraisers were held all over the country for her. If a person is really going to engage in this kind of a fight, they need to be aware of the financial cost. However, it ends up being worth it for many of our clients.

For more information on More International Child Custody Cases, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (801) 396-2967 today.



(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)

While handling the international custody case, I learned a great deal about the interplay between federal and state law. In general, custody and family law are considered state law issues. However, when dealing with international cases, the federal law, the federal treaty and ICARA are also involved, so it becomes rather complex. Frankly, I was hoping that the case would move forward with the appeal because there are only one or two other cases in the whole country that have addressed this issue. One was a Colorado case which fell under the same jurisdiction as our case (10th Circuit), so that was helpful. The judge concluded the same theory that had prevailed in our case: the Hague Convention determines which country has jurisdiction, and state law determines what happens after that.

It is important to obtain a very competent attorney when dealing with these types of cases. The U.S. Department of State has a website that lists the names of attorneys that are supposedly qualified to handle Hague Convention cases. However, choosing an attorney from this list does not necessarily guarantee that they will be an expert in the field, or that they will listen and be able to understand the client’s concerns. In fact, having been involved in a single Hague Convention case without any other qualifications is sufficient to receive an invitation to the list. In regards to the custody case referred to, I am unsure that there is anything the mother could have done differently aside from obtaining a different attorney to begin with; the attorney that she had was not incompetent, but carried a reputation for being uncooperative. Furthermore, our client said that she wouldn’t listen to her defenses for many of the claims. Language is always a problem. Our client did not speak English, so it is important to have an attorney that is both willing and able to understand the client’s concerns.


If a child has been taken out of the United States, it is important to pursue the situation as quickly as possible. If a parent fails to take action within one year from the day the child was taken, then an argument can be made that the child is well-settled in the other country. Then, the parent would have to hire a competent attorney in that country in order to continue pursuing the case. Frankly, I believe that the Hague Convention is better understood by more attorneys in foreign countries than it is in the United States. It is important to get an attorney that really knows what they are doing, because this is a very complex area of the law, the parties must move quickly, and thorough documentation of all evidence must be maintained. The parties must be committed and prepared for a long fight, and should work with the state department. I was involved in another case dealing with a similar yet reversed situation: our client was living in the United States, and his Brazilian wife took their child to Brazil.

The father has been trying to regain custody of the child for four years, and to this day remains unsuccessful. If a person is dealing with this problem, they should check with the state department on that country’s record of compliance. Brazil has a lower rate of compliance than some of the other countries- not necessarily because they are unwilling to comply, but because their court systems are backed up, causing everything to take longer. It is definitely not a fight for the weak of heart; it will take money and time, so it is important to have an attorney that really knows what they are doing.

For more information on Handling International Child Custody Cases, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (801) 396-2967 today.


(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)

Yes, I have handled international child custody cases. Recently, I handled a case that involved a mother who was from Brazil and a father who was from the United States. The parties had married in the US, had a child and then decided to move to Brazil. The father ended up filing for divorce in Brazil, which was followed by two years of litigation. The Brazilian court ultimately granted custody to the mother, but on the following day, the father kidnapped the child and fled to the United States through Paraguay. The mother did not know where the child or the father were for approximately four months. Finally, the mother located the father and child in Utah, where she filed a petition under the Hague Convention- an international court in the Netherlands under which the United States has treaties with other countries.

One such treaty is the International Custody Treaty which is formalized by an act of congress called the ICARA. The mother filed the petition in state court and requested that the child be returned to her. Originally, the father’s family denied that the child was in their custody, but after the judge explained the consequences of perjury, the location of the child was revealed and deputies were dispatched to the residence. The judge gave the child back to the mother, and the father objected.

Under these circumstances, there are only two exceptions in which the court would not give the child back to the mother on a permanent basis: (1) there is a great risk of harm to the child, or (2) the child is well-settled. A child is usually considered well-settled if they have resided in the given location for over a year. There is also an exception for fundamental unfairness and violation of due process in the originating country, but that exception has never been successfully pursued. In this case, the father claimed that the child was under great risk of harm and a trial followed within one month.

During that trial, the court found that the mother had abused the father, allowed abuse to occur and had potentially abused the child. Therefore, the mother lost the case. It was at that point that she sought the assistance of our firm. A lot of international custody cases end once having reached this point; however it became our job to determine the next steps to take. First, we filed a motion to attempt setting aside the finding of abuse, but the judge did not concede. Then, we directed the case into quite a technical legal dispute over which court had jurisdiction over the case; since the father had filed the petition to modify the Brazilian divorce in Utah, we objected that in fact Utah does not have jurisdiction to modify a foreign divorce decree. We filed the motion to register the foreign divorce decree in Utah so that Utah could enforce it. The important distinction here is the difference between having jurisdiction to enforce something and having jurisdiction to change something; it was our position that while Utah had jurisdiction to enforce the Brazilian divorce decree, but they did not have jurisdiction to change it. The judge agreed with us, dismissed the father’s petition to modify or change the divorce decree, and ordered temporary emergency jurisdiction under the finding of grave risk of harm.

Next, we used precedent and the legal theory of rehabilitating and helping to reestablish the connection between a child and an abusive parent rather than automatically terminating a parent’s rights to a child. At our request, the judge ordered an assessment of the mother for domestic violence and required her to abide by any recommendations the assessment made. The mother completed several years’ worth of therapy in just three or four months, and then we filed a motion to terminate Utah’s jurisdiction since the temporary emergency jurisdiction had ended.

After an oral argument and about a two week wait, the court ruled that the mother had complied with the assessment and that they had no reason to continue jurisdiction in Utah. Thus, they would terminate jurisdiction and allow the mother to return to Brazil.

However, the father filed a motion for stay, which is a request for an injunction to keep the mother from leaving the state with the child until he could appeal. There was an oral argument on that as well, and the court denied the injunction, stating that the mother could pick up passports that Friday. On Thursday, however, the father filed a notice of appeal and filed a motion for an injunction with the Court of Appeals. The Court of Appeals denied the injunction as well, and the mother returned to Brazil with the child.

The whole process took approximately one year. The case was very interesting and legally complex, and we were very pleased with the outcome.

For more information on International Child Custody Cases, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (801) 396-2967 today.



(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)

In an easement case, I was representing a family. They had a family cabin in the mountains since the1900’s, and in the sixties, they had lost a portion of their historic family farm. They lost three-quarters of their property to the bank. Their house was on the quarter piece they had retained. It is a wonderful piece of property, because it is surrounded by a national forest. They were on an island surrounded by national forests, and the three-quarters part of the property was in front, so they retained a quarter on the back of the property. They had lived in harmony with their neighbors for a long time.

There was a forest service road that went to the front of the property, and as soon as they got into the property, there was a road. The road forked to two houses. One was their house. About six years ago, a man had bought the three-quarters property. He lived in sufficient harmony with them until about three years ago when he got married. His new bride decided that she did not like her neighbors driving up and down their road, and in an effort to make his new bride happy, the man put a gate across it, and said stay out. Our clients said, “How do we get to our house?”, and the man said “that’s not my problem”. Therefore, most real estate cases will begin with a complaint being drafted, which, in this case, I drafted the complaint.

In the end, we went to mediation, and we limited the easement a bit, but we pretty much got them exactly what my clients wanted, and we were able to resolve some water rights issues quite favorably for my clients as well. I do not think the other attorney understood water rights law, and the law of appurtenance. Water passes through appurtenance if the deed is silent.

The three-quarters property in this case was entitled to three quarters majority of the water, we were entitled only to a quarter, but through mediation, and because the other attorney did not understand what he was doing, I was able to get them half of the water and the easement. We actually came out a lot better in the mediation than we would have if we had gone to trial.

I had a boundary by acquiescence case, there was a town in Utah in 1980’s which had a big flood. A mud slide came and created a lake, so the entire town was under about one-hundred feet of water. It was the first national disaster where we had a lot of news footage about the area, and I was able to go through some news footage and all kinds of things. It was under water for quite a few months. Anyway, all the geological survey monuments (“monuments”) in the area had been buried by the mud when the lake was created. So all the monuments were off, but in recent years, the county had been doing dredge work, and they found some of the old monuments. They had calculated where the old monuments probably were and they had found most of the monuments.

The calculated monuments were off a few feet while the deeds prior to 1980’s were based on real monuments. None of the boundaries matched, there were overlaps, and some lots did not even exist. The United States Geological Survey has incredible records on monuments. Every monument placed, you can go back, and find the journal in which it was placed, and they will tell you, “…walked 150 feet, were unable to set a monument because of a cliff. Set monument 5 feet to the right by big pine tree.” Sometimes they are vague like where they say the big pine tree was, and you go there and there is not a pine tree for a hundred miles, but it was incredible to get back into some of those old geological journals, and figure out where the monuments were supposed to be set.

In addition, the railroad line had been disbanded, and that changed everything, because many of the calls on the deeds were for the railroad right of way, and the railroad right of way was now gone. The railroad monument was gone, the actual section monuments were gone, buried underwater, or had been recently found, and ripped off. There were all kinds of problems. I felt confident in my position, and I would have been able to win, but my client actually bought the quarter section next to the property we were fighting over. If I had won the lawsuit, it would have moved the property over to his new quarter section. Therefore, he would have the whole lot put onto his quarter section.

We ended up resolving it. The client took half of the lot. They split it right down the middle, and left it where it was, and my client took half of it, so his quarter section remained free. We ended up doing an informal mediation on that one, and did not go to trial. That one would have been fun to go to trial. There were just so many historical documents.

For more information on Examples Of Real Estate Cases, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (801) 396-2967 today.


Thomas J. Scribner, Esq.

(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)

Perhaps the biggest issue in a real estate transaction is dealing with expectations. The parties have differing expectations when they go into it, and that can be a wide range of things. For instance, you represent that you are selling nine acres. When the survey comes back, however, the actual property is eight and a half acres. There are different things that you can do to deal with that. You can file a quiet title, and see if you can get that other half acre, or maybe the price needs to be renegotiated based on not having that half acre.

Terms and timing are big things. Sometimes the other side ties to sneak terms in there that nobody agreed to. Timing is crucial. Sometimes the seller needs cash tomorrow, and the buyer needs financing. If the buyer expects the seller to finance them, it won’t work with a cash-out seller, or terms will have to drafted to make it acceptable to the seller.

In the past recession, we saw this many times. If you, as a buyer, put something under contract you give yourself two years to do the due diligence and close. When the economy is bad, that is great, because you are contracted for nothing, and then put yourself two years out, and hope that the property comes up in value. If you put property under contract in 2015, and the seller gave you two years to close, the property has probably increased twenty to thirty percent difference in value. Great for the buyer. Not so much for the seller.

In such a case it is not uncommon that the seller wanted out of the contract because now, two years later, his property is worth a lot more. He wants that increased value. He starts looking for parts of the contract that the buyer has not followed, and get out of the contract so they can sell it for the increased price. I have seen that several times. It is the difference in expectations, but lots of litigation comes out of those sales documents. It is at the time of preparing and signing those documents that a real estate lawyer is needed. Properly drafted sales documents can greatly lessen later litigation.

What Is A Clear Title? How Can It Affect The Sale Or Purchase Of Property?

A clear marketable title means that the property is what you say it is. It does not have liens or other items clouding up your title, such as easements, notices of interest, or lis pendens. A title company creates a report that shows the issues that must be resolved prior to closing. It then gives an insurance policy to the lender regarding those issues. There are several things that a title insurance policy will not cover, however. Perhaps, when you look at the property, there might be a fence that goes down the middle of the property, and you need to know if somebody else has a claim to that. Adverse possession is a very real doctrine in Utah and if, after seven years, someone has paid the taxes, and has openly used the ground as hers, she could bring a lawsuit claiming the property was hers and would have a very good chance of winning.

Boundary By Acquiescence Case or Establishing An Easement Case?
A boundary by acquiescence case is a lawsuit to determine if a fence or other boundary that is not the surveyed property line but has been used as the boundary line for so long that the court will determine it should be the boundary line. To win this case, there has to be a recognized boundary between the neighboring landowners. Typically this boundary is a fence, but it could be a row of trees, a river, or it could be something that people would recognize as a boundary for a long period. The courts have held that a long period is defined as twenty years that you “acquiesced” that boundary to be the boundary.

For easements, there are several different doctrines, but the most common one that I see is probably a prescriptive easement. In a prescriptive easement, you need the use of an easement for a long period of time, which has been deemed twenty years, and your use has to be continuous in a pattern that is not sporadic. Therefore, you cannot use the road for a month, and then come back ten years later, and use the road for a month, and have a prescriptive easement survive. For instance, in a recent case we’ve had, one issue was that the road was used to drive into a summer cabin. Were they limited to just drive a car up there in the summer, even though the road was historically used as a farm a long time ago? A much better solution to the problem would have been to get a written and recorded easement to remove such issues.

For more information on Issues In Real Estate Transactions, a free initial consultation is your next best step.

Get the information and legal answers you are seeking by calling (801) 396-2967 today.



(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)

Obviously, the most easily established easement is a deeded easement. You have a deed that says you have a right to do something, and you can do that. Oftentimes the conflict comes when somebody says that you cannot. There is also easement by necessity, and a prescriptive easement. For a prescriptive easement, you must have a “use” that you were doing for twenty years. Oftentimes, we see this happen like this. Billy and John were neighbors, and John crossed Billy’s property to get to his own property which he has had for twenty years. Then Billy dies, and John goes to cross the property, and the new owner says, “No, you do not own this you do not own anything”. Then John has to file an action for a prescriptive easement to show that he was using it for all those years, and that he has the right to do so. That was actually one of my more complicated cases last year. It seemed to take a long time to finish, but we finally reached an agreement with mediation.

Society wants property to be used every now and again people will deed property that has no outside access. Therefore, creating a landlocked piece of property does society no good. Nobody can use it. It has no value to society if you cannot use it for farming, housing, or whatever the use. Society really frowns on that piece of property not being able to have access. They will have the elements for an easement by necessity, and one of the things we look at for that is the property that land locks said property, because every property comes off a larger piece of property. Oftentimes, the government granted sections, or quarter sections, and we look at the chain of title to see at what point the property became landlocked. So now we know where the access will be.

Essentially, what that says is that the bigger piece of property is meant to give access to the landlocked piece of property they just forgot. You will look at that, and be able to give them access. One element is that the landlocked parcel needs access. Another would be that Bill is the one that sold you this piece of property, and landlocked it, and now you are trying to get access through Jeff’s property which the law does not like. It likes to punish those that create their own burden, like Bill. The law does not want to burden others.


I have a wide variety of roles in the sale or purchase of a property. For instance, the current business that I am selling, the seller who I represent, wants to know what deal the buyer has proposed. I am not inputting anything, I am just telling him these are the expectations, and this is what the contract states. This is the amount he will give you, this is what he expects, and then I will help the seller negotiate the deal, because it is not what the buyer, and the seller agreed on. We have another attorney for the buyer giving his interpretation on the deal.

The buyer’s attorney is adding a bunch of verbiage. I quoted this particular seller $200 to look at his particular contract, then I got a forty-page contract from the buyer, and I told my person, “I cannot look at this for $200. He said, “Go ahead and spend the time”, and asked if he needed a forty-page contract, and “I said we do not.” I can be involved in negotiations, which is one thing I, as an attorney, am very good at. Attorneys seem to have a unique perspective when it comes to negotiations. Sometimes you throw an easement in there, and it makes the property worth a little bit less, but maybe your buyer needs a little bit less, or maybe you need an easement.

The other thing that an attorney can do is look at zoning and due diligence work. Speaking with the city and see what zoning is possible, or what is not possible, and see if we can get zoning changed. Just looking at a title and making sure what they are representing and selling is what they are actually representing and selling. That is huge too. There are just so many things that an attorney can do. I am happy to do as minimal work as simply drafting deeds or documents to negotiating the whole deal and due diligence. It is a wide range of issues that I can handle for you.

For more information on Establishing Easements In Utah, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (801) 396-2967 today.



(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)

I deal with real estate cases. Often times it is neighbors that have a dispute. For example, it could be a boundary line dispute or an easement that they have used the driveway together for a long time since they were neighbors, and now all of a sudden you get a new owner, or the neighbors get mad at each other, and they put a gate across a driveway, or a boundary line. Oftentimes we do not have to litigate those cases; we put it into litigation posture, and then go to mediation. We can often resolve these issues outside of litigation, because they are incredibly expensive to litigate, and the value of the property is not that much.

For example, an easement to land might be worth $5,000 to $10,000 and it would cost $5,000 to $10,000 to litigate, but if we mediate this issue, we can get them done for a few thousand. Sometimes those boundary disputes are bigger. I was working on a case a couple of years ago, where the parties were fighting over a quarter acre of land. It got resolved in a conference room without a mediator. Knowing the law really helped to settle things. If we had taken the case to litigation we do not know what the judge would decide and so it is better to settle these issues, if you know where the law is on these issues, the outcome becomes much easier.


I am not necessarily involved in purchases unless there is an issue, and we are clearing up a title or something. I am more involved in leases; I do many residential leases and commercial leases. When I am selling a business for a client, I have to look at the contracts and the schedules and get that completed. As far as purchasing, a few times I have had parties that more or less had the deal done, and just wanted their documents drafted. I can do that cheaper than a real estate agent, because the real estate agent charges a percentage, and I am hourly, so I might be able to do all the paperwork for several hundred dollars, far less than a realtor would charge.


The best reason to retain a real estate lawyer is to make sure that the matter is handled and is done properly. It is easier to do things right the first time than to try to fix a problem. I also do divorce work, and I see this most often with divorces. People will do their own divorce and then they do not understand what they drafted in the court provided document. It may not say what they thought it said at all, and when they come to me, I have to try to enforce what the document said. What they put in the document was not what they meant, so I do my best, and I can try to get the judge to interpret it the way that the parties meant it. I cannot guarantee that. I can do an uncontested divorce for $1500 and get it right the first time. To do an Order to Show Cause after the fact, it might be $1500 to $2500 to fix the mistakes. Therefore, it will be more than the initial decree would have been, had it been done the correct way.

Leases particularly, most people do not draft their leases correctly. They do not have fees in place, or the proper fee structure. They do not think of general legal clauses that are needed, and they do not think how people will be served if the lease is broken, or who will serve it, or that a military affidavit needs to be executed. I just know what needs to be in a lease, so I can look at their lease, or give them one of my own leases that have all of the language needed. Oftentimes people come to me with a lease that they want to take to court. I will look at it, and say you will be able to win on paragraph one through three, but what you really want is X, and X is not in any of your lease terms. Therefore, you will not be able to get X. It is the same with deeds.

Deeds work the same way, and you need to get your deeds done correctly. Make sure that if you want an ownership in common, or a joint tenancy, you put the right information in the document. One has the right of survival, and one does not, which is critical if you are signing with a partner. You obviously do not want the surviving partner to get the whole piece of property. However, if you are joining with your spouse, you probably do want your spouse to get the entire property. There are things like that where you need to get the wording correct. If there are easements involved, you make sure you get the easement listed correctly. You are not granting a license when you meant to grant an easement, or when you have bought an easement, you are not getting a license.

Many times people think, “I am supposed to be able to travel across this ground forever”, but the language they used is “you can travel across this forever, as long as I say so”. That is not an easement.

For more information on Real Estate Cases In Utah, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (801) 396-2967 today.