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How Is Child Custody Determined As Part Of A Divorce?

The court will look at a lot of factors when determining custody situations, so a person could have either physical or legal custody in the state of Utah. Legal custody means having the ability to make medical decisions on the child’s behalf, being able to access school records and be legally recognized as the child’s parents. In the state of Utah, the legislation is set by default that there should be joint legal custody of the children unless there is some reason for there not to be. Most of the time by default the legal custody will be joint, whereas the physical custody is really what most people are concerned about, in which case there is either a joint custody, a sole custody or a split custody.

Split custody happens where there are two children and one goes with mother and one goes with father. A joint custody is when the parents can get along and they live close enough that they can share time. In Utah, a child would have to have at least 111 overnights with one parent in order to be in a joint custody situation, but those things can be very widely varied if the parties can mediate the case or can work out a schedule that works for both of them. Joint custody situations can be anywhere from week on/week off to one person taking care of the children’s schooling so the other can have some visitation or come over the weekends. They can also agree to all summer with one parent or three days with one parent and the rest of the four days of the week with the other parent.

Most of the time with a custody evaluator at the trial, the court will not order a joint physical custody situation unless the parties get along. A custody evaluator is a licensed social worker or clinical psychologist who specializes in reviewing custody situations. These people have a background in social work or psychology. They have worked with children, usually have degrees in marriage and family psychology, counseling or social work, and are considered licensed therapists in the state of Utah. They basically interview the kids and then interview the parents. They meet with them, watch them and observe them in their typical situations. The custody evaluators then write up reports which they submit to the court, so they are basically expert witnesses if the matter goes to trial.

It can be very expensive to use a custody evaluator, with the minimum fee usually around $6,000. If a child custody evaluator is appointed, the court will ultimately make the parties split that cost at the end even if one party asks for it and the other does not.  Sole physical custody is when one party gets the children majority of the time. The minimum parent time under Utah law is basically one night or one evening a week and then every other weekend with the non-custodial parent. The courts look at a few different cases as a guide but there are between 20 and 30 factors for the court to take into account. The first thing they look at is the history, because they want to see who has been the primary caretaker of the children. That history plays a role so they can see if the father was working and the mother was a stay-at-home mother, or was it the other way around. Another factor that the court will consider is who spent time and gave personal care to the children and they will look at whether the child runs to the mother or the father when they are hurt.

Sometimes when the court reviews these, they find neither party to be in a superior position to the other so it then depends on the exact factual circumstances of the case as to whether one party was in a superior position to the other. The court will also look at who has had primary physical custody of the kids in the past and what has been going on and what arrangement the parties came to before they came to court. The court will also determine whether the past arrangement worked or not; if it had been for a significant period, the court will say that since the custody situation was a certain way for a year or two years and nothing was done about it, so they do not feel the need to change it now.

Another factor they look at is the integration of the child into the school or the neighborhood. They want to see if they have friends there, if they like their teachers and whether the parent has integrated into the parent/teacher association. They look at the environment and want to see which parent is teaching basic moral values and those types of things. The courts will usually still look at the Duber vs. Duber case, that took place in the State of Utah because they will want to see whether the child is being taught moral principles from a parent. The court will also look to see if drugs and alcohol are a factor in the case. A parent with a drug or alcohol addiction is something that would be considered against that parent, if that was a factor in the case. The court will also want to see whether there was any abuse or neglect of the child, and if there was, they would want to see if the other parent reported that abuse and neglect or if they had been complacent about it.

The court will also want to see if any other family members or relatives are a support system for the children, so they will take into account if there is a grandmother or grandfather, an uncle or an aunt who is assisting in the care and welfare of the children. The court also looks at what they call bonding to see whether the children have bonded to one parent more than another and evidence of that will be a child’s preference. Usually when the child is around 12 or 13 years old, their preference can also be determined by the court. The court will also look at any previous orders that it or another tribunal may have entered or if the Department of Child and Family Services had been involved with their previous orders. Ultimately, the court will want to do what is in the best interest of the child, but those are kind of the factors they look at when determining child custody.

How Long Could The Actual Custody Process Take, Several Days Or Several Months?

Usually when a case is started in the state of Utah, those things are heard on a temporary order, unless there is some type of abuse going on. The soonest they can usually get to court is about six to eight weeks depending on which judge and commissioner have been assigned. In the state of Utah it is randomly assigned so it is based on when the case was filed, but a person would have to file a motion for temporary orders.  Temporary orders basically means going before a commissioner and getting that court order put in place sooner rather than going through a full trial.

Would It Be Considered A Factor In A Custody Battle If One Parent Made Less Money Than The Other?

No, money does not play a role as far as physical custody is concerned in the state of Utah. It absolutely does play a role for child support but not for physical custody.

Would It Matter For The Custody If The Person Was A Stay-At-Home Parent?

No, it does not matter for the custody, but they will impute an income to a stay-at-home mom for child support purposes. They impute a minimum wage of 40 hours a week, which is about $1,200 a month and they will impute that to her if she is making less or nothing, but that is just for child support purposes and not for custody.

What If One Parent Feels They Should Have A Majority Of The Custody Of A Child? 

In those cases, each one of the factors is gone through to evaluate how good their case is. If they go through an evaluator and they have had a de facto relationship where they have less time and want to get more, then we try and find out why they want more, or why they think their ex or their spouse is bad or why they think their spouse is doing something wrong. They need to prove it if that is the case, so it needs to be brought before the judge. It really just depends on the factual scenario of what is going on and why they want to change. It also needs to be seen if there has never been a custody order, then why is the de facto arrangement not working and how can it be made better. They go through those factors and determine based on that how good a case they have. If they have a good case, the lawyer will present it, but, if not, there will be no reason to fight it if they will not win.

What Are Some Of The Most Common Misconceptions About Child Custody Battles?

A lot of times with newborns, there is a misperception that the mother will always end up with sole custody. Although that does normally happen if the parties were never married, it is not always a final give and take. The other misconception is that things will not change once a person gets through temporary orders, whereas there have been plenty of trials where the end result was much different than the temporary orders.

The problem is that people do not want to spend the money to fight because it does get quite expensive when more people fight, so most of the time people just give up.

At What Point In The Divorce Does Custody And Time Sharing Get Mentioned?

This will happen within the first six to eight weeks of the case if temporary orders are sought, but it will not actually be finalized until trial if temporary orders are not decided. At trial they will look at the key factors and they will look at what has been going on since the case was filed and whatever arrangement the parties had will play a very big role. It is not actually finalized until either the parties agree; mediate or go to trial. It is not final until the court enters the decree of divorce, so it is done at the very end.

For more information on Child Custody, a free initial consultation is your best next step. Get the information and legal answers you’re seeking by calling (801) 676-5506 today.

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