Utah Child Custody Overview
Custody of a minor child means the legal status awarded by a court for the care, control and maintenance of that child. In Utah, custody may be brought as a separate case or as part of divorce, separate maintenance, temporary separation, annulment, parentage, adoption, neglect and dependency, and termination of parental rights. Depending on the type of case, a custody order may be entered by a district court or a juvenile court.
Regardless of the type of case, custody is governed generally by the custody sections in Utah’s divorce statutes, even if the parties have never been married. Most orders award custody to one or both parents of the minor child. However, a custody order may award custody to another adult, like a grandparent.
Types of child custody
There are two parts to custody: physical custody and legal custody. Physical custody means where the children live; legal custody means which parent has the right to make important decisions about the children. Unless there is domestic violence in the family, or the child has special needs, or the parents live far apart, or there is some other factor the court considers relevant, joint legal custody is presumed to be in the child’s best interest. A party may overcome this presumption with suitable evidence. Utah recognizes several custody arrangements for minor children. These include:
Sole legal and sole physical
Either parent can be awarded the sole custody of the children. This means that the children live with one parent and that parent makes the major decisions about the children’s lives. If sole custody is awarded, the non-custodial parent is awarded parent time with the children.
Joint legal and joint physical
With this arrangement the children live with both parents and both parents make important decisions about their children. Joint custody is most successful when both parents communicate well with one another and are willing to work together to take care of the children’s needs.
Joint legal custody means that both parents make decisions about major issues affecting the children by working together. These issues may include, among others, what religion (if any) the child will be raised in, whether the child should receive medical treatment or undergo a major medical procedure, where the child will go to school, and permission to get a tattoo, get married, or join the military before age 18. Joint legal custody does not affect the children’s residence.
Joint physical custody means that the children live at least 111 nights a year in the home of each parent. For practical reasons, joint physical custody works best when both parents live in the same general area.
Joint legal and sole physical
In this arrangement, children live with one parent over 225 nights per year, and the other parent has regular parent time, but both parents make important decisions about their children.
This arrangement means that each parent is awarded the sole physical custody of at least one of the children when there is more than one child. Legal custody of the children by the non-custodial parent may or may not be shared as ordered by the court.
The court may order any custody or parent time arrangement created by the parents once it determines that the arrangement is in the child’s best interests. When there are disputes about custody, then the court will order the custody arrangement that is in the child’s best interests.
The court examines many factors to determine the child’s best interests. Some of those factors, identified in statutes, are listed below. However, some of these factors might not be relevant in your case. And there might be factors relevant in your case that are not listed.
General factors for determining the best interests of a child if the parents dispute custody:
- the parents’ conduct and moral standards;
- which parent is more likely to act in the child’s best interest;
- which parent is more likely to allow the child frequent and continuing contact with the other parent;
- the depth, quality, and nature of the relationship between a parent and child.
The judge may ask a child who the child wants to live with, but the desires of a child—regardless of age—are not controlling, and the court may determine custody contrary to the child’s desires.
In determining whether the best interest of a child will be served by ordering joint legal or physical custody, the court may consider the following factors:
- whether joint legal custody or joint physical custody will benefit the child’s physical, psychological, and emotional needs or the child’s development;
- the parents’ ability to give first priority to the child’s welfare and reach shared decisions in the child’s best interest;
- whether each parent is capable of encouraging and accepting a positive relationship between the child and the other parent, including the sharing of love, affection, and contact between the child and the other parent;
- whether both parents participated in raising the child before the divorce;
- the distance between the parents’ homes;
- the child’s preference (if the child can form a preference about joint legal or physical custody);
- the parents’ maturity and their willingness and ability to protect the child from conflict that may arise between the parents;
- the parents’ ability to cooperate with each other and make decisions jointly;
- any history of, or potential for, child abuse, spouse abuse, or kidnapping; and
- any other factors the court finds relevant.
Parent time, also known as “visitation,” means the time the non-custodial parent spends with a child. When parents cannot agree on a parent time schedule, state law provides for a minimum parent time schedule:
The court can order any schedule that is appropriate for the children and the parents and in the children’s best interests.
If the parents agree to any form of joint legal custody or joint physical custody, they must file a parenting plan
and the court will have to determine that the joint custody arrangement is in the child’s best interests.
Enforcing a custody or parent time order
All parties must obey court orders. Custodial parents may not withhold parent time, even if child support is not being paid. A parent may not withhold child support even if parent time is being denied. If a party does not obey a court order, the other party may file a motion asking the court to enforce the order. The enforcement order can include a judgment for money owed or extra parent time. The court may also find a party in contempt of court and order the party to pay a fine or serve time in jail.
Modifying a custody or parent time order
Either party may petition the court to modify a custody order or a parent time order if there are substantial material changes in circumstances since the order was issued and if the modification would be in the best interests of the children.
Registering a foreign order
Before an order from another state can be enforced or modified it first must be registered in Utah.
Author: Isaac Morely Esq, UT
- Parents have an Equal shot at custody rights (aboutthechildrenllc.wordpress.com)