Child’s Decision With Which Parents To Live

Child's Decision With Which Parents To Live

Is a legal term regarding guardianship which is used to describe the legal and practical relationship between a parent or guardian and a child in that person’s care? Child custody consists of legal custody, which is the right to make decisions about the child, and physical custody, which is the right and duty to house, provide and care for the child. Married parents normally have joint legal and physical custody of their children. Decisions about child custody typically arise in proceedings involving divorce, annulment, separation, adoption or parental death. In most jurisdictions child custody is determined in accordance with the best interests of the child standard.


Legal custody involves the division of rights between the parents to make important life decisions relating to their minor children. Such decisions may include choice of a child’s school, physician, medical treatments, orthodontic treatment, counseling, psychotherapy and religion.

Legal custody may be joint, in which case both parents share decision-making rights, or sole, in which case one parent has the rights to make key decisions without regard to the wishes of the other parent.


Physical custody establishes where a child lives and who decides day-to-day issues regarding the child. If a parent has physical custody of a child, that parent’s home will normally be the child’s legal residence (domicile). The times during which parents provide lodging and care for the child is defined by a court-ordered custody parenting schedule, also known as a parenting plan.

Can a Child Decide?

In some states, children above a certain age are allowed to determine for themselves which parent they would prefer to live with. But a preference isn’t the final word and it doesn’t give the child the actual decision. Child custody laws in Utah allow judges to ask children’s preferences with any children who seem old enough to make a reasonable decision. Children age 16 and older are given “considerable weight” in determining which parent they will live with, but no child’s decision is final. In all cases, the judge will use the child’s wishes as a factor in awarding child custody, but not the sole determinant. A law is currently being proposed in Utah that would give children as young as 14 the right to decide where they live, but it has not yet been passed. Keep an eye on recent political news developments to make sure you understand the current status of the law.

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.
To read more information about custody decisions in Utah, see Child Custody in Utah: The Best Interests of the Child.
Best Interest of the Child
Utah family courts, like those in most states, determine child custody matters using the “best interests of the child.” The factors considered by the judge include:
• Past conduct and demonstrated moral standards of the parties
• Parent most likely to act in the best interest of the child, including allowing child frequent contact with non-custodial parent
• Bonding between each parent and the child
• If a parent has intentionally exposed the child to pornography or other harmful sexual-related materials
• Physical, psychological, and emotional needs of the child
• Both parent’s ability to reach shared decisions for the child and prioritize the child’s welfare
• If both parents participated in raising the child before the divorce
• The geographic proximity of the parents’ homes
• The child’s preferences
• Parents ability to protect child from their conflict
• Past and present ability to cooperate with each other in parenting and making decisions
• Any history of child abuse, domestic violence, or kidnapping
• Any other relevant factors
When parents can’t develop their own parenting schedule, the court can establish an appropriate schedule more or less than the statutory minimum parent-time based on the following best interest of the child factors:
• How parent-time would negative impact child’s physical health and emotional development
• Distance between child’s home and the non-custodial parent’s home
• Allegations of child abuse
• Lack of demonstrated parenting skills when there’s no safeguards to ensure child’s safety
• Financial inability of non-custodial parent to provide food and shelter during parent-time
• Child’s preference, if sufficiently mature
• Parent’s incarceration
• Shared interests of the child and non-custodial parent
• Non-custodial parent’s involvement in the child’s school, community, religious, or other related activities
• Non-custodial parent’s availability to care for the child when the custodial parent is working or has other obligations
• Chronic pattern of missing, canceling or denying regularly scheduled parenting time

• Parent-time schedule of siblings
• Lack of reasonable alternatives for nursing child
• Any other criteria the court feels is relevant to the best interests of the child

Joint Child Custody in Utah

A court in Utah will always consider joint physical or legal custody if both parties have completed a parenting plan and if joint custody serves the best interests of the child. In reaching a determination for joint custody, the court will consider the following factors:
• The geographical proximity between the parents
• Each parent’s ability to place the needs of the child first in reaching appropriate decisions
• Whether both parents have always participated in the child’s upbringing
• The child’s wishes, if the child is of an age to express a reasonable preference (generally age 12 or older)
• Any history of child abuse, spousal abuse or kidnapping
• Each parent’s maturity and ability to avoid conflict for the sake of the child
• The parents’ ability to cooperate with one another
• Any other factors deemed relevant by the court

Modification of Child Custody in Utah

Upon request by one parent, a Utah family court may modify or terminate a custody arrangement if:
• A modification will positively affect the best interests of the child
• There has been a material and substantial change of circumstances in the child or one of the parents’ lives
• Both parents have complied with the dispute resolution process, prior to taking the case to a court hearing
For more information about child custody in Utah, speak with a qualified attorney in Utah or refer to the Utah Code.

When Will the Court Consider a Child’s Preference?

Whether a Utah court will consider a child’s preference when deciding custody depends on the child’s age and maturity. Judges will give more weight to older children’s preferences (14 and older), and disregard the opinion of children under ten. Children between ten and 14 can have limited input on custody decisions. In one case, an 11-year old boy stated a preference to live with his father, but the judge specifically stated that an 11-year old shouldn’t have control over where he lives.

Judges will also look at the reasons a child prefers to live with one parent over the other. In one case, a father with custody of two boys moved them from their hometown and away from their school, friends, and other family members. The children wanted to live with their mother to be close to friends and family, and to continue going to the school they knew. The court found that these were valid reasons to want to live with their mother and gave the children’s preferences significant weight in the custody decision. On the other hand, if a child’s reasons for wanting to live one parent are immature, for example, because one parent is more lax with discipline or gives them lavish gifts, the judge won’t give the child’s preference much weight.

Even if a child has a strong custodial preference, it won’t be the controlling factor in a court’s decision. A judge can always overrule a child’s preference if it’s in the child’s best interest to live with the non-preferred parent.

Judges will also watch to see if parents have coached their children. In one case, a judge questioned the children and discovered that their mother had told them to lie about her boyfriend’s overnight visits in their home. The mother’s coaching was a major factor in the judge’s decision to transfer custody to the father.

There is specific language in Utah divorce law regarding when a court will give added weight to a child’s preference about where to live and what type of time to spend with each parent.

The language is found in Utah Code, section 30-3-10(1) (e):

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 is not the single controlling factor.

So, there is a line at fourteen where a judge will give a kid’s opinion added weight, but it will never be the single controlling factor in the judge’s decision.

Of course, all this assumes the judge even considers a child’s preference. Like it says in the law, the judge doesn’t have to (“[t]he court may inquire”).

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.

If you have additional questions about the effect of children’s custodial preferences, contact a Utah family law attorney for help.

When a kid turns sixteen, he or she pretty much chooses where to live.
At that age, kids have cars, they have friends, and they don’t like being told what to do. All of that ads up to freedom, and with that freedom comes the de facto freedom to choose with which parent they want to spend their time.

Is there a Bottom Line to the Question: At What Age Can a Child Decide Which Parent to Live with in Utah?

If there’s a bottom line, it might be something like this: if a judge takes in to account a child’s preference about custody, it probably won’t be before that child is fourteen, unless there’s a guardian ad litem on the case; but, when the child hits sixteen, the child’s going to choose where to live, no matter what the judge says.

Utah Code § 30-3-10(1)(e)

This statute states that the child’s desires regarding a custody award may be taken into consideration by the court, but the child’s desire is not controlling.

If there is a current order, the child must follow it. The parent will be held in contempt if the child does not follow it.

Please note, there is a common argument that if a child over the age of 14 doesn’t want to exercise parent-time with “Parent A,” Parent B can’t be forced to move the child. It’s arguable that the child is too big or strong to force him or her to the other parent. This argument is inadequate. If that child wished to go to a friend’s house for drugs, most parents would find ways to stop it (whether as small as “grounding” the child, restricting privileges, or taking a cell phones, to the extremes of calling the police). The court expects each parent to take parent-time just as seriously.

For custody battles, the age of 14 is mentioned as the age at which a child’s desires may be given added weight, but even then, the child’s desires are not the controlling factor. The court takes many other factors into consideration, always with the best interests of the child in mind. These additional factors for consideration can be found in Utah Code §§ 30-3-10(1) (a) and U.C.A. 30-3-10.2.

Interestingly, a child’s preference at any age can be considered by the court, assuming the child is at a sufficient age to legitimately have a preference (i.e., a three-year-old’s “preference” is never considered, but a 12-year-old’s preference would be).

Just as a 14-year-old’s preference is explicitly given “added” weight, a 17-year-old’s preference would be given even more weight. The older a child gets, the more weight his/her preferences have. These preferences are never the sole factor (and never a reason to modify a custody arrangement alone).

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It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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What Rights Do Men Have?

What Rights Do Men Have

With marriage rates declining, there is an increase in children being born to unwed couples. There is no “apparent” stigma and society seems to have embraced this as a norm. Indeed, in the past a child born out of wedlock was called “illegitimate”.

However, now our society recognizes that there is nothing illegitimate about any human being and all children recognized rights of a person independent of whether or not their parents are married. This positive shift has however, resulted in questions being raised regarding the rights of parents, especially fathers, with respect to their offspring.
What rights does the father have when he believes that another woman (his lover; girlfriend; or unmarried partner) is carrying his child? Does he have the right to ask his partner to stop smoking? Does he have the right to insist on a specific type of birth (hospital; midwife; water birth; natural birth; or otherwise)? Does he have the right to stop his lover from having an abortion or even engaging in dangerous activities or experiences while pregnant? Does he have the right to have the baby bear his last name or the name of his choice when the baby is born? Does he have the right to stop or insist on a circumcision at birth in the hospital?

In our firm we have handled over 15,000 cases over the years and we have seen all of the above situations. In fact, we are contacted regularly by men seeking answers to these questions. More specifically, how can any man know whether or not the child in another person’s (a woman) womb is his? The only way to determine this would be from a paternity test during the pregnancy, a procedure known as a “Pre-natal Paternity Testing”.
It is only through pre-natal paternity testing that the man could even hope to assert a plan as putative father. In other words, a man is precluded from asserting his rights pending the results of a paternity test. This begs the question: Does a man have the right to order pre-natal paternity testing? No.

Even though there are genetic marker tests and blood tests, whereby the fetus is undisturbed, (there is no intrusive or risky Amniocentesis, there is no testing of the amniotic fluid or the fetal tissues;) it is simply a pin prick test of the mother. The mother’s right to privacy together with the HIPAA Laws prevent ordering a woman to submit to pre-natal paternity tests.

The law is confusing in this area because the new state law allows a specific law suit and it also states that the matter must be adjourned until the birth of the child.

Nowhere in the article is there a provision for the testing of the fetus. The child must already be born even though the action for the genetic testing can be done while the woman is pregnant. Unfortunately, even though the scientific reliability of a pre-natal test is, for all reasonable purposes, conclusive, the Court does not have the statutory authority to order such testing. This is compounded by a woman’s right to control her own body within the parameters of Federal and State Law outside of Family Law. Accordingly, even if the Family Court Act in the local and State Law was to be amended to allow some pre-natal paternity testing after six months of pregnancy to deal with issues such as a pregnant mother’s recklessness; drug use or smoking; choice of delivery methods; circumcision’s remain selective. This would not be something that could effectively survive challenges under HIPAA Privacy Laws and Personal

Privacy Laws under the United States Constitution.

The reality of the situation is that a man who believes he is the father of a unborn child, has no rights until the child is born. It is our experience that 85% of the cases when a man is seeking to obtain pre-natal testing or otherwise interfere with a woman’s pregnancy it is because that man wants to set himself up as an exceptional father and therefore must be more involved and caring than the average man. Only 15% of the cases where the pre-natal testing is sought do we find a man is seeking our advice due to an ulterior motive such as control; options of fleeing the jurisdiction before the birth; and financial planning.

The above being said, motherhood involves sacrifices that cannot be shared or understood of people who are not mothers. Motherhood and pregnancy are a very special time and children are not only our future, they will be our replacements. How parents treat each other during their children’s lives will affect not only this child, but it will have cumulative generational affect from one child to another. Families come in all different sizes and shapes in this day and age. It is important that people take care of themselves and each other especially when there is a child involved.

Men’s Rights Lawyers Free Consultation

When you need legal help with child custody, divorce, separation, and family law for men, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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4.9 stars – based on 67 reviews

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What Happens If A Married Couple Divorces And Neither Wants Custody Of The Child?

What Happens If A Married Couple Divorces And Neither Wants Custody Of The Child

They have to share custody or one of them will receive custody. These parents have a child and they are going to be held to care for their child under the laws of the State of Utah.

When a married couple makes the decision to pursue a legal separation, they are looking to have a legally recognized transition in their marriage…one that involves similar characteristics and considerations seen in divorce (e.g., custody, visitation, support, property, debt, etc.).

Child Custody During Separation

If the decision to legally separate has been made and the couple has minor children from their marriage, separated parents rights, child custody, visitation rights, and support will have to be addressed. As with divorce, neither parent has the right to deny visitation rights of the other parent from their children, unless a court determines otherwise. When married couples with children separate, they usually fall into one of two scenarios…the first involving separation prior to filing for the legal separation and separation after filing for legal separation. When the spouses decide to separate prior to the filing, both parents have equal visitation rights to visit and spend time with the children without legal restrictions. Even when one spouse moves out and makes no efforts to continue to care for the children in the other spouse’s care, the spouse caring for the children must still afford the same rights and provide better child support while separated, as if the moving spouse was providing continued care. Thus, to change the structure and address parental rights to custody, visitation, and support, a petition for child support and custody will need to be filed. As with divorce, there are times when emergency or temporary order for child custody and visitation as well as support is necessary. When this is necessary, the court can issue orders to address these needs. If you are seeking an emergency court order, you will generally be required to demonstrate that any contact from the other spouse will result in serious risk or harm to the children. Temporary orders, on the other hand, involves establishing child custody and visitation rights and terms until the court has the opportunity to hear the matter and issue subsequent orders.

Different types of custody in Utah:

• Legal custody

• Physical Custody

• Sole Custody

• Joint Custody

When it comes to making the decisions about and for the minor child, the court will assign legal rights child custody to one or both of the parents. These are decisions impacting the child’s environment such as where they will go to school, their religious activities, and medical care. If the court wants both parents to be involved in this decision making process, they will most likely order joint legal custody. On the other hand, if the court feels that one parent should be the decision maker, they will likely order sole legal custody to that parent.

When it comes to making decisions about with whom the child will live with, this is known as physical custody. This is distinguishable from legal custody as it focuses on the day to day responsibility of caring for your child. Like legal custody, the court may order joint or sole physical custody and visitation rights for both. In many states, the laws are intended to ensure that both parents are involved with their children after divorce. Thus, absent certain reasons (e.g., criminal history, violence, drug and alcohol abuse, etc.) that may place the child in danger, courts will often look towards a joint physical custody model.

If sole physical custody is ordered, the parent with physical custody will be referred to as the custodial parent, while the other parent will be the noncustodial parent. In these situations, the noncustodial parent will have visitation rights. So, in the event of separation and child custody, there will be an agreed to schedule where the noncustodial parent will be able to spend time with their child.

Visitation rights in a legal separation

In some visitation schedules, if the noncustodial parent has a history of violence, abuse, or drug and alcohol abuse, there will be some restrictions added to their visitation rights such as they may be required to have someone else present during their visitation time. This is referred to as supervised visitation. The individual overseeing the visitation will generally be appointed by the court or in some situations, be decided by the parents with the court’s approval. If possible, it is generally beneficial if the spouses can decide who gets custody during a separation; negotiate a separation and child custody as well as visitation rights agreement without requiring a court hearing. If both spouses agree to the terms, the court can review the plan, and if accepted, will be incorporated into a custody order and separation legal rights for the estranged parents. Ultimately, the plan will need to be created in the best interest of the children.

It is important to understand that every legal separation is different, but that the above information is a general overview of child custody and visitation rights in a legal separation. Laws for child custody and visitation will vary from state to state, so it is recommended that you seek the guidance of a qualified family attorney to ensure that you take the appropriate steps, understand the parental rights during separation and get proper visitation rights so as to protect yourself during the process.
If you and your former spouse agree on custody, the court will normally ratify your agreement without considering the details of how you lead your life. A judge won’t know (or necessarily ask) whether one of you is living with another person unless your ex brings it to the judge’s attention. If you and your spouse are battling over custody, however, the traditional advice is to not live with a new partner and to be discreet in your sexual activity, at least until the court makes a decision. This advice applies to both fault and no-fault divorces, as a parent’s living arrangement is always admissible in a custody dispute on the theory that a court needs as much information as possible to determine “the best interests of the child.” We use the word “traditional” to describe the “no sex, no living with anyone” advice. This is because many states now have more relaxed legal attitudes toward living together.

While we can’t say that most judges are enthusiastic about granting custody to a parent who is part of an unmarried couple, judges will not necessarily deny custody to a parent solely because the parent lives with someone else, especially when the new relationship is stable and nurturing. Therefore, the decision to live or not live with someone (other than a platonic roommate) while fighting over custody should be decided situation by situation, state by state. Especially if your former spouse is likely to make an issue of it, you should consult with a family law attorney to find out about local practices and prejudices.

In all states, child custody and visitation issues are decided according to “the best interests of the child.” This means that the judge who hears the case will consider all evidence before deciding who will provide the better home. Although mothers are more often granted physical custody than are fathers, particularly for young children, there is no longer an automatic preference in favor of women. Today, many men win physical custody of their children.

Frequently asked questions about custody and visitation include:

• If I live with a man, can my children be taken from me?

• If my husband is an alcoholic (or a recently recovering alcoholic), will he be able to get custody of (or visitation with) the children?

• I was once arrested for possession of marijuana; does this mean I can’t get custody?

• My income comes from Social Security disability and other public programs, while my husband has a well-paying job. Does this mean he’ll get custody of the kids?

The answer to all of those questions is, “It depends.” The law doesn’t say that adultery, smoking marijuana, or even being involved in antisocial conduct means you can’t win, or will lose, custody. In addition, the fact that one parent’s income is much larger than the other’s isn’t necessarily a reason the court will use to award the more affluent parent custody. Many factors not just whether or not you’re living with someone else are related to what is in a child’s best interest. The court’s decision will normally favor the parent who will best maintain stability in the child’s life. The way each parent lives can be an important factor when a court decides custody issues. In any given case, the judge may consider one person’s lifestyle to be more in the best interest of the child than the others. In a few states, a judge can use a parent’s cohabitation to deny custody. Courts in a few other states have similarly disapproved of cohabitation and have forced a change in custody, especially where the children were aware of their custodial parents’ intimate conduct. In general, however, the bottom line is that the judge, as a human being, will apply his or her own standards and prejudices when deciding which parent gets custody. Some judges don’t like unmarried persons living together, even though society no longer considers living together the “no-no” it was 30 years ago.

Custody Issues If You Have Been Divorced for Some Time

Now suppose you have been divorced for some time and have custody of your children. You want to move in with a new partner, but want to be sure this won’t give your former spouse legal grounds to challenge your custody of your children. The question of child custody can always be reexamined by the court. If a judge finds that it’s in the best interest of your children to change the custody of your kids to the other parent, then the judge can order this. State law varies as to whether a judge can consider your living with someone to be a negative factor in deciding whether or not custody arrangements should be modified.

Anatomy of a Contested Custody Case

In many places, fighting over custody is no longer as simple as going into court with your arguments at the ready. Now, parents with custody disputes usually must attend court-ordered mediation sessions to try to work out a parenting plan, before they’ll be allowed to see a judge. In some places, the mediator will make a report to the judge with a recommendation of how custody should be decided. In others, the mediator simply works with the parents, but doesn’t report to the court afterwards. Some courts may also order an evaluation of the family, which might be performed by a social worker employed by the county or by a private social worker or therapist with training in child custody evaluation. A child custody evaluation will include interviews with parents and the children, background checks, and sometimes psychological testing. Once all the mediation and evaluations are completed, you’ll then have your day in court. The judge isn’t compelled to follow the recommendations of the mediator or evaluator, but as a practical matter most do. If the social worker or mediator recommends that you get custody, you’ve won more than half the battle. If not, you’re at a serious disadvantage, but you can still proceed to the trial, and you may ask the social worker or mediator to come to court to be cross-examined about the report. This is especially important if the report contains factual inaccuracies. At the trial, the judge may ask your children where they want to live. Some judges ask only older children; other judges never ask any children. Most judges will pay little if any attention to the opinion of a child under seven, but will probably respect the wishes of a teenager if the chosen parent is otherwise suitable. Judges also tend to keep brothers and sisters together unless there is a strong reason not to. Keep in mind that a judge has the power to deny custody to both parents. During a divorce proceeding, a judge need not award custody of the children to either the mother or the father if he or she finds them unfit. Instead, the judge can award custody to a relative, a friend, or even the local juvenile court.

How to Create a Custody Agreement

Even though you may never want to speak to your former spouse or partner again, it is vital for you both to sit down and decide how you will continue to raise your children. Because the two of you know your children best, forming a parenting plan or custody agreement together makes the most sense. Also, it will save you from the risk of a drawn-out court battle. It is common for custody agreements to be much more detailed, covering when parents will spend time with the children, how to handle holidays, vacations, and birthdays, the role of each parent in the children’s education, health care and more. This agreement may serve as a placeholder while you work out the details of a more thorough one. While some parents can make agreements on their own without outside help, many turn to mediators or family law counselors to help them resolve one or more problem areas.

Negotiating a Custody Agreement

Negotiating a custody agreement that is fair to both you and your former spouse makes great sense. While it may seem impossible, try to put aside your anger and hostility to create a parenting plan that puts your children’s best interests first. Choose a setting that is neutral and prepare yourself by writing a list of all the important factors you want to discuss regarding the custody of your children. Obviously, this will include your children’s living arrangements, education, medical care, and emotional needs. Listen to all the requests your ex makes and be willing to compromise. If you strongly disagree on a particular issue, set it aside and concentrate on the things you can work out. Often, if a spirit of compromise develops over the course of your negotiations, it will extend to solving even your most difficult problems.

Some factors are common in the best interest analysis used by the individual states, including:

• Wishes of the child (if old enough to capably express a reasonable preference);

• Mental and physical health of the parents;

• Religion and/or cultural considerations;

• Need for continuation of stable home environment;

• Support and opportunity for interaction with members of extended family of either parent;

• Interaction and interrelationship with other members of household;

• Adjustment to school and community;

• Age and sex of child;

• Parental use of excessive discipline or emotional abuse; and

• Evidence of parental drug, alcohol or sex abuse.

Divorce Attorney In Utah Free Consultation

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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Child Custody Law

Child Custody Law

When parents get divorced (or have children outside of marriage), one of the most important determinations is who gets custody. But getting custody of your child requires an understanding of the various factors considered by family courts. What follows are some of the most frequently asked questions we get regarding child custody, joint custody, child visitation, and family law.

When considering who should get custody of a child, what factors does a court look at?

In almost all situations, a court will keep one primary question in mind when deciding a custody case, namely, what is in the best interests of the child? To answer this question, courts generally look at a number of different factors, such as:
• A parent’s financial and physical ability to provide a child with essentials like food, medical care, shelter and clothing
• A parent’s medical history, both physical and mental
• The child’s age, sex and medical history, both physical and mental
• A parent’s vocation and habits, including things like excessive drinking or smoking
• The child’s choice if the child is of a certain age, normally 12 years old
• The emotional bond between child and parent
• The wishes of both parents
• The willingness of each parent to support the child’s relationship with the other parent
• The level of adjustment needed from the child if forced to move to a new school, city, or state, and
• The quality of life the child enjoys in the child’s current status quo, and
• Whether any parent has brought false or malicious charges of child abuse on the other parent.
If, upon looking at all of these factors, a court cannot decide what is in the best interests of the child, courts normally tend to look closely at which parent would most likely provide the child with a stable household. This can vary depending on the child’s age. If the child is young, custody may go to the primary caregiver. However, if the child is older, custody may be awarded to the parent that is better situated to provide the child with access to education, friends, and social development.

Does it hurt my chances of getting custody of my children if I move out of the home and leave the children with their other parent?

In short, yes, it probably will hurt your chances of getting custody of your children. Parents that leave the home, even for good reasons, may have a lesser chance of getting custody of the children when it comes time to go to court. By leaving, the judge will see an implied message from the parent’s actions. Also, assuming that the parent left the family home, a judge will probably be more inclined to grant custody to the parent that is currently residing in the home so as to disrupt the children’s status quo as little as possible.
However, if you take the children when you leave the home, this may send a message to the judge that you are trying to protect your children. If you do move away from home and take the children with you, you need to be sure to go to court as soon as possible so that it does not look like you are attempting to take the children away unlawfully. If you do not set up a court appointment soon after taking the children away from the home, the other parent may ask the judge to take the children away from you as you took them without court authorization.
Who is more likely to be awarded custody of a child, mothers or fathers?
Although it has not always been so, today’s courts will generally award custody to whichever parent would be in the best interests of the child. However, in the past, custody of young children (typically under 5 years old) normally went to the mother of the child if the parents divorced. This rule has been phased out in almost every state, and instead, judges must decide on the merits of the case which parent having custody would be in the best interests of the child.

However, just because the rule has been phased out, that does not mean that parents cannot ask a judge to award custody to the mother. Sometimes parents will agree that the mother has more time and inclination to raise the children, and will stipulate to such an order. However, some fathers may only stipulate to this arrangement because they believe that the court already favors the mother, which is not true.
These days, both men and women commonly enter into the workforce full-time, meaning that the custody decision could be as simple as which parent could spend the most time with the child, all other factors being equal. For example, if a father works from home while the mother works a 60+ hour a week job as a corporate attorney, a judge may decide that the best interests of the child are to be with the parent that can spend the most time with the child, which would be the father in this example. Fathers are just as willing and able to be parents as mothers, and they can present that argument in court.

Why is custody always awarded to just one parent?

In short, no. It is very common for a court to award partial custody to both parents, otherwise known as joint custody. This type of custody arrangement normally falls into one of three forms. First, joint physical custody is where a court orders a child to spend a substantial amount of time with both parents during the course of the year. Second, joint legal custody is where, although one parent may have full physical custody, both parents must agree on any decisions that impact the child, such as their education, medical care and spiritual matters. Lastly, both joint physical and legal custody is a combination of the first two.
It is ultimately up to the court to decide whether any type of joint custody is in the best interests of a child. However, you, as a parent, have the right to argue for joint custody if you so wish it.
I am a gay or lesbian parent seeking child visitation rights, are there any special considerations I need to take into account?
There are some states that expressly forbid a judge from considering a parent’s sexual orientation when deciding a custody dispute. In these states, the best interests of the child must be considered without giving weight to the sexual orientation of either parent.
However, other states do not have such express laws, and gay and lesbian parents may suffer for it. Judges may impose their own community expectations and biases onto a custody dispute involving gay and lesbian parents. It is often the case that a judge will weigh various factors in favor of a non-gay or non-lesbian parent when considering the best interests of the child.
Do judges or courts even consider race to be a factor in child custody hearings?
Courts are not permitted to consider race as a factor when deciding the best interests of the child.

Who will be the person deciding how much child visitation is fair and reasonable?

In general, the parent with primary custodial rights over a child will get to decide what kind of visitation for the other parent is fair and reasonable. In many situations, this works out well for both parents and they can often come to an amicable arrangement regarding visitation hours and days.
However, what is often in the news and on TV is a result of breakdown in communication between the parents. This usually happens when the parent with full custody of a child decides to be vindictive and uses the child as a weapon. To this end, the parent with custody will set the other parent’s visiting rights at a bare minimum, often only for a few hours each week during the most inconvenient times.
Some courts are allowing parents to make custody and visitation plans that the judge will sign into law. Parenting agreements, as they are called, are agreed upon visitation schedules and times where the child will be. These parenting agreements can also include plans that deal with how decisions about the child will be made. For example, the agreement could include language that dictates that the parent with custody at the time of a medical emergency can make a decision about the child’s health without consulting the other parent first. Parenting agreements are a great idea and you should look into it more carefully if you want to take full advantage of them.

Is mediation better than a court setting for determining child arrangements and getting custody?

Mediation is a great way to come to terms for a custody agreement instead of child custody lawsuits. The process of mediation works when the two parties, most of the time both parents in child custody situations, agree to sit down with a neutral third-party mediator. The mediator’s job is to invoke discussion between the two parties and help them come to some middle ground on which to settle.
There are some great advantages to using mediation over litigation. First and foremost, it is a lot cheaper. Mediation often does not require either side to bring an attorney with, not does it require witnesses or other court time. This can save lots of money on both sides. Second, mediation by itself improves communication between the two disputing parties. By opening an honest discussion, many times problems can be resolve and the child will benefit the most by having both parents thinking along the same lines. Lastly, mediation is much faster than litigation. Litigation can often run for several months of court time, during which the fate of your child’s upbringing causes you considerable stress. Mediation, on the other hand, often ends in settlement in as little as ten hours of discussion spread over two weeks.

Child Custody Lawyer Free Consultation

If you have a question about child custody question or if you need help with custody, please call Ascent Law at (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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