Navigating Divorce with Children: Insights by Ascent Law

Utah courts encourage separated or divorced parents to agree on a parenting schedule that is in the best interests of their child. Schedules should include where the child will live and which parent the child will be with during weekends, school vacations, and holidays. Parents may decide that the child will live at each parent’s house for one week at a time, or with one parent every other weekend, or any other schedule that they think will work for the family. They may also decide whether the other parent will have visitation during the week, and who will transport the child to and from each visit. A parenting plan should also address special occasions such as birthdays, Father’s Day, and Mother’s Day. And, even though it is not required by the court, parents may decide how they will share costs such as medical expenses, school supplies, and expenses for extracurricular activities.

If parents are unable to agree on a parenting schedule, the court will order a schedule that it believes is in the child’s best interests. This means the court will look at various factors to determine what is best for the child’s health, safety, and well being. Generally, the parent with whom the child lives for the majority of the time will have primary custody. The other parent is the noncustodial parent. The noncustodial parent will still be able to make decisions for the child together with the primary parent such as where the child will go to school, what activities the child will participate in, and what doctor the child will see. (This decision-making authority is called legal custody, while having the child live with a parent is called physical custody.) The court then uses advisory guidelines set by law to schedule the minimum visitation time that the noncustodial parent will have with the child–but a judge may order more or less time for that parent depending on the circumstances.

The following factors help a judge determine what is in the best interests of a child: the child’s school, community, religious, or other activities, the availability of both parents to care for the child, the developmental needs of the child, and the child’s emotional bond with each parent. The judge may also look at each parent’s parenting skills, the shared interests between the child and parents, the distance between the parents’ homes, and the preference of the child. Younger children may have a different parenting schedule than older children, but the court will also look at the parent-time schedule of siblings and whether the younger child is nursing.
Factors that may have a negative impact on custody and visitation include allegations of child abuse, inability to financially provide for the child, incarceration of a parent, or a parent’s lack of involvement in the child’s life. Potential endangerment of the child and a pattern of missing or canceling visitation time may also have a negative effect. Once the court makes a custody order, it generally cannot be changed unless the parents agree or there has been a change in circumstances–for example, the child needs to attend a different school, or one parent’s work schedule has changed significantly in a way that affects the parent’s ability to care for the child.

What Are the Different Types of Custody?

When determining custody arrangements, there are two types of custody to consider:

• Legal custody

• Physical custody

Physical custody relates to where the child will live. Legal custody determines which parent will be responsible for making important decisions for the child.

Physical custody

Parents can divide or share these two types of custody in a variety of ways following their divorce. Physical or legal custody may be sole or joint. Sole physical custody means the children live with one parent at least 225 nights each year, whereas joint physical custody agreements mean the children live with each parent at least 111 nights per year.

Legal custody

As for legal custody, typically if a couple shares physical custody they will also share legal custody of the children. When one parent has sole physical custody of the children, the court could also decide that joint legal custody is inappropriate. Joint legal custody requires parents to be able to communicate to make the important decisions regarding their children’s upbringing. These issues can include medical, religious and academic decisions among many others.
In addition, when a divorcing couple has more than one child, custody may be split. In these situations, each parent has sole physical custody of at least one of the couple’s children. Parents may maintain either sole or joint legal custody.

Can Children Express Preference in Utah Custody Proceedings?

What age does a child have to be to choose with which parent they want to live?

This is probably the most common question I get from parents. It’s also probably the most misunderstood topic out there in custody law here in Utah. Most of the time people ask me to confirm what they heard out there. Many people believe that a child can simply pack up and move by choice at age 12, 14 or 16. However, the correct answer is that at no age. So, the age 18 the age that a child emancipates and becomes an adult.

Here in Utah a child is never given the choice to choose with whom they want to live. In other words a child does not get to or better said they don’t have to choose between their parents, the parents decide. And if they can’t decide you can have the court decide this for you. The law of Utah like every other state provides the custody is determined by what is in the child’s best interest which may be in line or out of line with what the child prefers. Preference is taken to an account with the other factors such as the primary caretaker status, flexibility of schedules, domestic violence, stability of the environment and many other factors that the court uses.

However, there are laws in Utah about what age a child’s preference is taken into consideration and how much weight is given to a child’s preference when a court decides. The weight that a child’s preference receives from a court depends on the child’s age, intelligence, and maturity.

Utah Code section 30-3-10 subsection 1 E is the controlling statute and states quote: “The court may inquire of the children and take into consideration the children’s desires regarding future custody or parent time schedules. But the expressed desires are not controlling and the court may determine the children’s custody or parent time otherwise. The desires of a child 14 years of age or older shall be given added weight but it’s not the single controlling factor.”

Overview of Custody Decisions in Utah

Utah courts decide child custody whenever parents can’t come to an agreement on their own. Judges must consider a number of factors when making custody decisions, including each of the following:

• the parents’ past conduct and moral standards
• which parent is most likely to act in the child’s best interests, including allowing the child frequent contact with the other parent
• the child’s relationship with each parent
• either parent’s history of domestic violence
• the child’s special needs, if any
• the distance between the parents’ residences
• the child’s preference, if the child is old enough, and
• Any other factor the court deems relevant to custody.

Custody Process

The process starts after either parent files a motion for custody of a child or children. The motion can be the result of divorce, in which case the motion is filed in a Utah juvenile court. If the parents are on the same page, they may file a motion together. After the court reviews the motion, he or she will decide if it is in the best interest of the child. If the parents do not agree on the conditions of custody, each parent will submit their own plan. The court will look them both over and decide which is in the best interest of the child.

What is the best interests of the child?

How does the court decide what is the best interest of the child? The court will generally conduct relevant research, which could include:

• Medical, psychiatric and psychological evaluations of the parents and children

• Finances of both parents

• Family relations

• Character

• Past conduct

Tax issue: In the case of divorce, who gets to claim the child on their income tax forms? The parent who lives with the child in a sole custody arrangement gets to claim the child for income tax purposes. Of course, there are situations where a judge may issue an order stating otherwise. The tax arrangement could be modified for your specific situations, with options such as alternating years or creating a buyout clause, allowing one parent to reimburse to the other parent the amount that they would receive if they were the parent taking the deduction.

Do Children Have to Testify About Their Custodial Preferences in Court?

In Utah, children can’t testify in court unless there are extenuating circumstances, and there’s no other way to obtain their testimony. Instead, judges usually interview children in court chambers to determine their custodial preferences. Normally, the court will ask the parents for permission to interview a child, but parental consent isn’t necessary if the judge decides that an interview is the only way to figure out the child’s custodial desires.

Parents can’t attend the in-chambers interview. The judge may or may not allow the parent’s attorneys to be present. Often, a court reporter will record the interview.

Courts can determine a child’s preference in other ways as well. In one case, the judge deciding custody considered letters written by two boys to their mom, stating that they wanted to live with her. Courts may also allow custody evaluators or mental health professionals to testify about what children have told them regarding their custodial preferences.

Parenting Time decision in Utah?

In Utah, a “parent-time schedule” spells out visitation rights. Utah law also guarantees noncustodial parents a minimum amount of parent-time with their children, depending on the ages of the children.

For children under five years of age, Utah law outlines minimum, required parent-time for the noncustodial parent depending on the specific age of the child. For instance, if the child is under 5 months old, Utah law requires a minimum of six hours, divided into three separate visits, each week. In addition, noncustodial parents receive a minimum of two hours on holidays. It is preferred that visitation with babies and toddlers occur in the home where the child regularly lives, an “established child care setting,” or in some other “environment familiar to the child.”

The minimum amount of parent-time required by law increases as the child grows older. For children between 5 and 18 years old, the parent-time schedule is complicated. The schedule must take into account after-school activities during weekdays, while still allowing the noncustodial parent at least one weekday evening visit. As the laws concerning custody and parent time are complex, divorcing parents disputing these arrangements should consult with an experienced family law attorney to ensure their custody rights are protected.

Impact of Domestic Violence on Child Custody Orders in Utah

In determining the best interests of the child, evidence of domestic violence is one of several factors considered and weighed in a custody decision. A single, unreported incident of domestic violence does not automatically mean a parent will lose visitation rights. However, a chronic history of abuse or a parent’s failure to protect his or her children from domestic violence could result in restrictions on custody and visitation or a complete termination of parental rights.

Supervised visitation

Supervised visitation may be required in cases of chronic or recent domestic violence; it requires the presence of another adult at visitation sessions between the child and abusive parent. Although restrictive, a supervised visitation order does not mean that the abusive parent will only ever receive supervised visits with their child. Nevertheless, before the supervised visit requirement can be lifted, the abusive parent must prove to the court that the child would be safe in his or her care and there is no likelihood of ongoing abuse.

Termination of parental rights

When a judge decides to terminate a parent’s custodial rights, including all rights to visit with or otherwise parent his or her child, the decision is permanent and cannot be undone by a parent’s subsequent good behavior. A judge will only terminate parental rights in the most extreme circumstances. Some reasons a Utah court would terminate parental rights include sexual abuse of any child, causing a disabling injury of or disfigurement of the child, murder or attempted murder of any child and intentionally or recklessly causing the death of the child’s other parent.
If you have additional questions about the effect of domestic violence on custody rights in Utah, contact a local family law attorney for advice.

Divorce brings separation. No matter who suffers in spouses? The matter is about the suffering of the people associated with it .there is no win or loss in divorce. So, before going for a divorce you should consider all those aspects which are going to be affected by your divorce.