Divorcing parents often find it challenging to decide custody and visitation matters. Parents should work together to decide what arrangements work best for their family, but if they can’t agree, a court will decide.
What Is Custody?
A parent who has legal custody has the right to make decisions regarding the child’s education, health, and general welfare. Some common issues that arise during legal custody disputes often include the child’s:
- education, and
- major medical decisions.
The court may award sole legal custody (to just one parent) or joint legal custody (where it's shared between both parents). In Utah, the court presumes that it's in the child’s best interest for the parents to share legal custody. If one parent objects to joint custody, that parent may be able to overcome this presumption by showing any of the following:
- a history of domestic violence or child abuse
- the child has special physical or mental needs
- the physical distance between the parent’s homes makes joint decision making impractical.
Physical custody generally refers to the parent’s time with the child and includes where the child will live and which parent will be responsible for the child’s daily needs. Like legal custody, the court can award sole or joint physical custody.
Even if the court awards joint physical custody, a judge can still designate one parent as the primary caretaker and one home as the primary residence.
An award of joint custody generally means:
- the child stays with each parent overnight for more than 30% of the year, and
- both parents contribute to the expenses of the child, in addition to paying child support.
What Is Parenting Time?
If a court awards one parent most of the parental responsibilities, the next step is to determine a parenting schedule (also called a visitation schedule) for the noncustodial parent and the child. Parents should work together to determine a schedule that will work best for their family. Many families want the court to make a parenting time schedule for them, but in the end, neither parent may like the result. So, when creating a calendar for your family, together, you should consider:
- school breaks
- mid-week and weekend visitation
- pick-up and drop-off locations and responsibilities, and
- who will pay for transportation costs.
If parents can’t agree, Utah offers a standard (statutory) parenting time schedule for children ages 5 through 18. This schedule includes one mid-week visit, alternating weekends, and alternating holiday visitation. For families with children under the age of 5, the recommended schedule is slightly different.
The court considers the statutory schedules to be in the child’s best interest unless a parent can prove otherwise. If a parent can show any of the following, by a preponderance of the evidence (more than 50%), courts in Utah may create a unique parenting time schedule:
- parenting time would endanger the child’s physical or emotional health
- the distance between the parents’ homes makes it difficult to follow the schedule
- there is a history of child abuse or a history of false allegations of abuse
- a parent lacks the parenting skills necessary to properly care for the child during parenting time
- the noncustodial parent can’t provide adequate food and shelter during parenting time
- the child’s preference
- the noncustodial parent is incarcerated
- shared interests between the child and noncustodial parent
- the involvement or lack of involvement of the noncustodial parent in the child’s school, community, or religious activities
- the availability of the noncustodial parent to care for the child when the custodial parent is not available
- a substantial and chronic pattern of missing, canceling, or denying regularly scheduled parenting time
- the parents’ relationship was of short duration and lacked significant bonding
- the sibling’s parenting time schedule
- the lack of reasonable alternatives to the needs of a nursing child, and
- any other factor the court considers to be relevant.
How Do Courts Determine Custody?
Courts recommend and prefer that parents work together to determine their ideal custody arrangements. If parents can’t agree, a court will decide custody based on the best interests of the child. When determining custody, a judge will evaluate what is best for the child using the following general factors:
- each parents’ past conduct and moral standards
- which parent is most likely to act in the best interest of the child
- the bond between each parent and the child, and
- whether a parent has intentionally exposed a child to pornography.
Utah assumes that joint custody is in the child’s best interest, but during a custody hearing, the court will still need to evaluate each family individually to ensure the child’s best interest is protected. In addition to the above factors, the court will also consider:
- whether the child's physical, psychological, and emotional needs and development will benefit from joint legal or physical custody
- if each parent has the ability to give priority to the child’s welfare and reach shared decisions for the child’s benefit
- whether each parent can encourage and accept a positive relationship between the child and the other parent
- whether both parents participated in raising the child before their divorce
- the location of each of the parent’s home from one another
- the child’s preference, if the child is old enough
- the parent’s maturity and their willingness and ability to protect the child from any conflict that arises between them
- the past and present ability of the parents to cooperate with each other and make joint decisions about the child
- any history of, or potential for, child abuse, spousal abuse, or kidnapping, and
- any other factor the court considers relevant.
In addition to the various factors and evidence presented during the hearing, judges in Utah may give more weight to a child’s opinion regarding custody if the child is at least 14 years old. When children want to express a custodial preference, they can request to meet with the judge without their parents. The judge will consider the child’s opinion as one factor, and will never disclose to the parents what that opinion is.
Once the court creates a parenting plan, both parents must follow it. If either parent wants to change the arrangement, they will need to prove there has been a substantial change in circumstances and that it is in the child’s best interest to modify custody.