Custody of children and parent time (which used to be called visitation) is probably the most litigated issues in divorce cases.

The Utah Legislature has divided custody into two parts: legal custody and physical custody.  Legal custody determines who has a voice in important decisions about the children, such as religious upbringing, elective medical procedures (such as braces), psychological counseling or therapy, education and extracurricular activities, and similar issues.

Joint legal custody

If the parties share joint legal custody of the children, the view of both parents has to be considered.  In order to avoid constant trips back to court to resolve issues involving the children, the Legislature requires parents who intend to share joint legal custody to adopt a parent plan.  This plan describes how the parties will work together in raising the children.  From the court’s point of view, the most important provision of the parent plan is the mandatory dispute-resolution provision.

This provision must describe how the parties will resolve any disputes.  The most common provision requires the parents to go to mediation before they can bring any matter regarding the children to the court.  If they still can’t reach an agreement after mediation, they can take the matter to court and have the judge make a decision.

The Legislature has created a presumption that parents should share joint legal custody.  If either parent opposes joint legal custody, the parent who opposes joint legal custody has the burden on proving that joint legal custody would not be in the best interests of the children.  In addition, because joint legal custody requires the parents to work well together to resolve disputes about the children, some judges will not sign a decree which gives the parents joint legal custody unless the parents have a reasonably good relationship.

Physical custody

The other part of custody is physical custody.  This is very simple: where do the children sleep each night?  If the children spend more than 30% of the overnights each year with each parent, the parents share joint physical custody.

In practical terms, this means that if the children spend 110 overnights each year with the non-custodial parent, the custodial parent has sole physical custody of the children.  If the children spend at least 111 overnights each year with each parent, the parents share joint physical custody of the children.

There are three major effect of joint physical custody:

  • The children have an opportunity to develop a close relationship with both parents.  This is an important consideration because most experts believe that children do better when they have a strong bond with both parents.
  • The amount of child support is reduced in proportion to the time that each parent has with the children.
  • The parents are required to share the children’s expenses.  Although this term is not defined in the statute, most judges interpret this to mean that the parents will split the costs of required registration and school fees.  The parents also usually split the costs of extracurricular activities which the parents have agreed on.

Divorcing parents should try to work out custody and parent-time arrangements without the involvement of the courts.  The courts will approve most schedules that the parents agree to, but the court always has the right to review an agreement between the parents and reject it if the court does not believe that the schedule is in the best interests of the children.

If the parents are unable to agree on a parent-time schedule, the court will make that decision.  If the court has to make this decision, the court will frequently require the parties to get a custody evaluation.  This means that the parties must hire a psychologist or Licensed Clinical Social Worker to evaluate both parents and the children and make recommendations to the court on how to structure custody and parent time.

The evaluator makes recommendations based on the following issues:

  • The child’s preference.  Typically, however, the evaluator will not ask children under about 8 years of age for a preference.  In addition, the weight given to the child’s preference varies according to how old the child is.  The older the child is, the greater weight the evaluator and the court will give to his preference.  On the other hand, at no time do the children get to decide their own custody arrangements.  The court always makes that determination based on the best interests of the children.
  • The benefit of keeping siblings together.  The default position is that the children should stay together.  This may change, depending on the individual circumstances.
  • The relative strength of the child’s bond with one or both of the parents.  This creates a preference for having the party who provided most care for the children during the marriage continue as the custodial parent.
  • The general interest in continuing previously determined custody arrangements where the child is happy and well adjusted.  This means that if an existing custody arrangement is working for the children, the court will be reluctant to change it for the convenience of preference of the parents.

Factors relating to the prospective custodians’ character or status or their capacity or willingness to function as parents, including:

  • Moral character and emotional stability.  This opens the door for the parents to make allegations of mental illness, adultery and similar charges.
  • Duration and depth of desire for custody.  This factor creates a certain amount of inertia in custody arrangements.  If a parent wants to change the custody and parent time arrangement, the parent who wants the change will have the burden of convincing the court that the chage is in the best interest of the children.
  • Ability to provide personal rather than surrogate care.  This provision creates a preference for a parent who can stay home with the children over a parent who would have to put the children in day care.  This is, however, only one factor which the court considers.
  • Significant impairment of ability to function as a parent through drug abuse, excessive drinking or other causes.
  • Reasons for having relinquished custody in the past.  This applies only if one parent has lost or given up custody in the past.  If that has occurred, the evaluator will report the circumstances to the court.
  • Religious compatibility with the child.
  • Kinship, including in extraordinary circumstances stepparent status.  In a dispute between parents, this is not an important consideration.  Step-parents can get custody of children only if the court finds that the relationship between the parents and the children is non-existent or hopelessly broken.
  • Financial condition.
  • Evidence of abuse of the subject child, another child, or spouse.

Any other factors deemed important by the evaluator, the parties, or the court.  This provision gives the court an opportunity to have the evaluator consider additional factors which may be unique to the parties before the court.