What Is Reasonable Visitation?

child custody attorneys
What Is Reasonable Visitation?

What is reasonable and liberal visitation? It is a time-sharing arrangement in which the specifics of child visitation are essentially left up to the parents to agree upon.

Many couples going through a divorce believe “reasonable and liberal visitation” is better than a strict schedule, but it can lead to problems in all but the most amicable divorces. If you are facing a child custody action, it is helpful to know the benefits and drawbacks of this option before visitation is formalized.

Who Determines Child Visitation

Whether you are going through a divorce or a child custody determination outside of a divorce proceeding, there are a few issues that will need to be resolved. Either you or your ex can agree on these issues, or the court can decide them for you. The primary issues to decide include:
Child support
Legal custody
Physical custody
Visitation or time-sharing

When it comes to visitation, states have adopted standard schedules such as every other weekend plus two weeks during the summer. Some couples adopt these standard schedules or use them as a starting point, and some abandon them to come up with something that works better for them. When the parents cannot agree, the court will hold a hearing to determine what is in the best interest of the child.

What is Considered Reasonable Visitation?

After a divorce, the children generally live with one parent or the other. The parent that the children lives with is called the custodial parent; the other is called the noncustodial parent. (Sometimes today the noncustodial parent is called the visiting parent.) In the interests of the children, the noncustodial parent is usually then granted the right to visitation with the children because courts believe children should have contact with both parents. The law calls this “reasonable” visitation.

“Reasonable” visitation generally means the parents of the child must come up with a schedule – a parenting plan, which is a schedule with days and times — for visitation. When the parents cooperate, this regime works better because it allows the parents to work around their respective schedules. In practice, however, the parent who has custodial rights generally has more power and influence over what is considered reasonable in terms of times and durations. The custodial parent has no legal duty to agree to any proposed visitation scheduled. However, an inflexible or malicious parent does not escape the notice of the judge who remembers his or her intransigence later on.

In most cases, the two former spouses will be able to work out a schedule together that they can both live with. Although the custodial parent has the power to decide what is or is not reasonable visitation, his or her decision making power is not absolute. For example, the custodial parent can refuse visitation in the middle of the night or while the other parent is intoxicated. However, the custodial parent cannot deny visitation just because he or she is upset with the noncustodial parent, or because the children do not want to visit with the other parent, or because the noncustodial parent is behind in support payments.

If a parent suspect that a loosely defined reasonable visitation regime won’t work, he or she should request on a fixed schedule and save time, and aggravation. If an existing reasonable visitation isn’t working out — for example, one parent is consistently late, skips scheduled visits, or doesn’t inform the other parent where he or she is planning on taking the children – a party can go back to court and ask that the arrangement be changed.
When parents cannot come to an agreement on their own, the judge makes one for them.

A common schedule may look something like this:
> Visitation with the non-custodial parent every other weekend;
> Visitation on either Easter and New Year’s, or alternatively, Thanksgiving and Christmas;
> Five continuous weeks with the non-custodial parent during the summer;
> Unlimited written and electronic communication with the non-custodial parent.

In order for a reasonable visitation schedule to work, parents must be communicate with each other in civil, sane, rational manner.

Reasonable Visitation versus Fixed Visitation

When you are involved in a Dissolution of Marriage proceeding and minor children are involved, child custody and visitation agreements or orders will need to be implemented. Here is an example of the difference between “reasonable visitation” and “fixed visitation”.

Reasonable Visitation: If the Court-Ordered visitation to the non-custodial parent is set forth as “reasonable visitation”, it is an open-ended visitation schedule with no specific periods of times, including holiday periods of time, being guaranteed to the non-custodial parent. Reasonable visitation should only be implemented between parents who prove to be flexible and exhibit good and reliable co-parenting habits between them. If one or both parents are, or will become, resistant to sharing the children by agreement, reasonable visitation is probably not a good option. Under reasonable visitation, the custodial parent maintains the final say in a visitation dispute. Flexibility is of the utmost importance in reasonable visitation orders. Each parent will be guaranteed to face certain circumstances that will cause them to want to deviate from an agreed-upon visitation schedule. If each parent can remember this and be willing to allow the other parent spur-of-the-moment visitation rights for special events such as weddings; opportunities to visit with relatives not often available with little prior notice; or special outings and events, just to name a few, then reasonable visitation will be successful. Your child(ren) will also appreciate each parent’s willingness to work together more than you will ever know. Make-up time to either parent can also be agreed upon when out-of-the-ordinary occurrences arise. However, if a disruption to the normal child-sharing schedule is likely to be met by resistance by the either parent, a Court hearing may become necessary to resolve any such disputes.

Fixed Visitation: If the Court-Ordered visitation sets forth specific days and times of day, which can include a Holiday visitation schedule, you have a “fixed visitation schedule”. A common example of a fixed visitation schedule would allow the non-custodial parent alternate weekends with the specific commencement and return dates incorporated into the order. Additionally, a mid-week visit lasting approximately four hours is often included so that the non-custodial parent can share a dinner, or other chosen event, with the child (ren) mid-week to ensure ongoing and frequent contact with the child (ren) between weekend visitation periods. A specific Holiday schedule can also be included in a fixed visitation order. This allows both parents and the children to be able to make holiday plans on an alternating-annual basis. Holiday schedules often prove to be of great assistance in ensuring that each parent will share equal time with the child (ren) during all holidays. Extended family members are also able to see and visit with the child (ren) when holiday events are able to be planned in advance.

Only you and the other parent know the best visitation plan that will work for you. When choosing the best option for you and your children, keep in mind such future possible actions as each parent entering into new relationships. If you choose a reasonable visitation option, make sure you believe that each parent will continue to work together, exclusively, to promote the best interests of their children absent undue influence from disinterested third parties. Upon a change of circumstances, however, any child custody and visitation orders entered can be modified until the child(ren) attain the age of 18.

When The “Reasonable” Approach Doesn’t Work

Flexible visitation rights can be tremendously helpful for busy parents who are still civil with one another, but these flexible arrangements don’t work for everybody. Many parents don’t get along after a divorce. In some cases, the parent with primary custody of a child may even try to keep his or her ex from ever seeing their child, simply out of spite.

Even parents who once co-parented amicably can have a falling out, but that doesn’t mean non-custodial parents have to give up their parental rights. If the custodial parent (referred to as the primary conservator in Utah) strays from what the two initially agreed to as what are reasonable visitation rights, it’s usually best for the non-custodial parent to seek legal advice on next steps. For example, if you end up in a situation where your ex stops cooperating and makes it difficult for you to see your child, you may need to seek a custody modification with a visitation schedule that is more clearly defined. As a parent in Utah, you typically do have a legal right to spend time with your child, and an experienced family law attorney can help you regain your parental rights.

What If Non-Custodial Parent Does Not Exercise Visitation?

While Utah courts will step in when a parent denies another parent court-ordered visitation, the courts cannot force a parent to spend time with his or her child. However, if the non-custodial parent routinely misses visitation, the parent with primary custody could petition the court to modify the visitation agreement but limiting visitation may do more harm than good.

Unfortunately, the child is the one who ends up suffering in these situations. Children often blame themselves when a parent promises to pick them up for visitation then doesn’t show up. We strongly encourage the primary parent NOT to disparage the no-show parent and seek guidance from a family counselor instead.

How Long Does It Take To Get Visitation Rights?

Establishing visitation rights can go much faster when a child custody suit is filed in conjunction with a divorce. Temporary orders—including visitation—are put in place pretty quickly once a divorce is filed. How soon you can finalize official custody and visitation arrangements depends on a variety of factors and how badly parents want to resolve their divorce and custody issues.

On the other hand, it may take longer for parents who never married to get visitation rights nailed down. Again, it all depends on the circumstances and how well the unmarried parents get along. An attorney experienced in child custody disputes can help you weigh your options.

Allowing Too Much Flexibility In Visitation Rights Can Be Problematic

Sometimes life and unforeseen circumstances force parents to alter schedules and end up caring for their children more or less than their possession schedule dictates. We saw this happen to many parents during the pandemic and strongly encourage parents to speak with an attorney about steps to take when drastic changes to work and life circumstances occur.

Due to COVID-19, many non-custodial parents ended up working from home (or were home due to job loss) and caring for and home schooling their kids who couldn’t go to school. In addition, many primary parents were forced to work long shifts on the front lines (doctors, nurses, first responders, etc.) and had to rely on non-custodial parents to keep children for extra hours or days.

These “temporary” schedule adjustments often lasted for several months. Some custodial parents worried they would lose custody, while many non-custodial parents were left wondering why they were still paying child support since they were sharing custody 50/50. Other parents hoped to be legally granted more possession time—since they had their kids more anyway—and called us about custody modifications.

Changes in circumstances may give some parents the grounds to request a modification, so it’s important to speak with a family law attorney about potential consequences and how to protect your visitation rights BEFORE these changes become “routine.”

However, it does NOT give a parent the right to stop paying child support. In fact, even getting a legal 50/50 custody arrangement in Utah doesn’t automatically mean you won’t have to pay child support—in most cases you will still have to pay something. Don’t assume anything—contact an attorney.

Implementing “reasonable and liberal visitation”

A reasonable and liberal visitation arrangement may come about by agreement or by order of the court. When the parenting plan specifies that visitation shall be reasonable and liberal, rather than stating specifically when the non-custodial parent may spend time with the child or children, it puts the responsibility on the parents to cooperate and continually agree on visits as they come up.

This solution makes the most sense when the parents are exceptional co-parents who communicate well and do not let any personal differences interfere with their parenting decisions. In the real world, even when parents have the best of intentions and consciously focus on their children’s best interests, the predictability of a predetermined schedule typically serves the family better.

Drawbacks Of A Liberal Visitation Arrangement

Most co-parenting relationships are not suited for the non-specific nature of a “reasonable and liberal visitation” situation. The flexibility that seems appealing at the beginning can lead to endless disagreements. If you and your ex do not have substantially similar ideas of how often visitation should take place and how long it should last, neither of you will have something separate, like a court-approved parenting plan that spells out whose idea controls in any specific situation. Even if you and your co-parent more or less agree, the custodial parent will have more power in the relationship. Since there are two opinions in every decision, there is no formal tiebreaker. The parent who has physical custody of the child, however, is an informal tiebreaker because he or she can, practically, veto the other parent’s wishes.

Perhaps the most concerning problem is that there is nothing to enforce. If one parent does not provide or return the children on time, the other parent cannot request police intervention because there is no violation of a specific time-sharing plan.

Modification Of Visitation

If you have a parenting plan that states that the non-custodial parent may exercise reasonable and liberal visitation and you run into conflicts with the other parent because of it, you may be best served by asking the court to change it. Revisions to visitation take place in a modification hearing when one or both parents allege that a change to the schedule is necessary due to a material change in circumstances. If you are going through an initial custody determination, it is helpful to be aware of the visitation options and to choose an experienced family law attorney to represent your interests. Effective representation in the early stages can save you the hassle and cost of requesting a modification later on.

Free Initial Consultation with Lawyer

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 Is Child Custody?

Types of Child Custody
What Is Child Custody?

The term “child custody” refers to the legal and hands-on relationship between a parent and his or her child. Custody includes the parent’s right to raise, care for, and make decisions regarding the child. The natural state is for the child’s biological parents to make all decisions involving the child’s residence, healthcare, education, and religious upbringing. However, when couples separate, all of these issues may become contentious. When a child’s custody and upbringing are in dispute, the child custody laws and the court becomes involved. To explore this concept, consider the following child custody definition.

History of Child Custody

As far back as ancient Roman law, children were viewed as property belonging to the father, who had the unilateral power to sell them, or enter them into slave labor. Mothers had no rights to their children, even if the father died. This possessive attitude continued through to 19th century English common law, in which fathers had the sole obligation to support, protect, and educate their children as they saw fit, and mothers had very limited access to their children in the event of a divorce.

Landmark British legislation in 1839 directed the courts to award to mothers custody of children under the age of seven, and to give mothers visitation rights for older children. The original goal of this “tender year’s doctrine” was to give over the care of children to the mother only until they were old enough to be returned to their father’s custody. It was, however, the first stepping stone to shared custodial rights.

In the early 1900s, thoughts on gender-based custody did an about-face, the courts determining that mothers were better suited to raise children. This was based in part on a Freudian theory on infant attachment and relationships, though it also took into account the more practical aspect of the father’s frequent absence as he worked to support the family.

In the 1960s, fathers began asserting their parental rights, and courts began considering “the child’s best interest” in determining issues of child custody and new child custody laws. From primary residency, to visitation, to decision-making authority, the American family court system has expanded and refined this system, placing a gender-neutral focus on what is in the child’s best interest.

Uniform Child Custody Jurisdiction and Enforcement Act

The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) was enacted in 1997 to combat the issue of parents filing custody actions in other states, in an attempt to get around the jurisdiction and orders in the child’s home state. The UCCJEA states that a child is under the jurisdiction of the court in the child’s home state. The child’s home state is defined as the state in which the child has lived since birth, or for six consecutive months immediately prior to the custody action. Other provisions of the Act outline how the child’s home jurisdiction is determined in other circumstances.

Types of Child Custody

Parents navigating the mine field of child custody laws often become confused, as there are many legal terms bandied about. For instance, legal and physical custody are separate issues, visitation, rights to attend a child’s functions, and even financial support are issues decided by the court in the event parents cannot agree. The court-ordered custody arrangement often becomes part of the divorce decree, though it may later be altered if there is a change in circumstances.

In all states, joint custody is preferred, as the courts feel that it is important for children to have contact with, and be parented by, both parents. Circumstances, however, may necessitate other arrangements. A child custody and support order includes which parent the child will live with, how visitation will occur, who gets to make critical decisions regarding the child, and who will provide financial support.

Legal Custody

Legal custody is a separate issue from physical custody, as it has nothing to do with where the child lives, and everything to do with who has the right and obligation to make important decisions regarding the child’s care and upbringing. Legal custody entails making decisions about such issues as the child’s daily routine, schooling, daycare, healthcare, and religious upbringing. In most cases, parents share joint legal custody, which means they must consult one another regarding major decisions. If one parent makes a habit of making such decisions without consulting the other parent, he or she may have legal custody rights taken away.

In many cases, hostilities between the parents, or abuse on the part of one parent, makes such communication impossible, or is not in the children’s best interest. This is a situation in which sole legal custody may be granted to one parent, based on which parent is seen as being the most reasonable, and able to make the proper choices.

Physical Custody

Physical custody refers to the day-to-day care of a child, and where the child will primarily live. Even when joint physical custody is ordered, primary physical custody usually resides with one parent (the “custodial parent”), and the other parent (the “non-custodial parent”) will get visitation rights.

Joint Physical Custody is often worked out between the parents, according to their schedules, allowing the children to stay with the parent when he or she is available to take care of their needs. This is referred to as a “parenting plan.” In the event parents cannot agree, the court imposes a custody and visitation schedule. While the goal of joint custody is equally shared custody, reality has caused the courts to order “significant periods” of physical custody to ensure children have “frequent and continuing contact” with both parents.

Sole Physical Custody may be ordered in cases in which one parent is seen to be unable to provide a healthy and stable living environment for the children. This may occur when one parent abuses drugs or alcohol, is actively engaged in a criminal lifestyle, or is violent or abusive towards the children or others. Sole physical custody may also be awarded to one parent when the other parent is seen to be keeping the children from, or alienating them against, that parent.

Example Of Custody Situations

Amicable Joint Custody Arrangement

When they get divorced, Mary and James decide to work out shared custody of their two children. Both parents work, but because James has moved across town, and Mary is staying in the family home, they decide the children will live primarily with their mother, where they can remain in their neighborhood school. The children will stay with their father every other weekend, as well as spending time with him two evenings a week until bedtime. Mary and James also share joint legal custody, consulting with one another to make decisions regarding the children.

Joint Physical/Sole Legal Custody

Chloe and Bryan have a turbulent divorce, and cannot agree on issues regarding their 3-year old son. Bryan argues about every daycare provider Chloe proposes, and when he has their son for visitation, he often fails to return him as scheduled. In addition, friends report hearing Bryan tell their son “Mommy is mean,” and “Mommy is bad, she makes Daddy sad.” When Chloe asks the court for a change in custody arrangements, the judge determines that Bryan is uncooperative, likely to disobey the custody order, and is actively alienating the child against his mother. The court orders primary physical, and sole legal, custody to the mother, with the father having weekend visitation with strict orders to return the child on time.

Sole Custody/Supervised Visitation

When Helen and Zack divorce, Zack seeks sole custody of their daughter, stating Helen is an alcoholic, and leaving the little girl with her unsupervised would be dangerous. After speaking with the parents and the little girl, and after completing an investigation into the mother’s behavior, the court representative determines that the mother’s alcoholism indeed makes her unfit to care for the child. Zack is awarded sole legal and physical custody, and Helen is allowed to visit the little girl only at a supervising agency. The mother is ordered to attend AA meetings, or to enter rehab, after which she may apply for a change in custody status.

How to Get Custody of a Child

In situations in which the parents simply can’t agree on custody and visitation issues, they must go through the process of obtaining a court order. Most states use some form of alternative dispute resolution (“ADR”) or mediation to come up with a parenting plan before the matter is taken to the judge. During the ADR process, each parent submits a reasonable plan for custody and visitation to the mediator, who then sits down with both parents to work out an agreement.

If the parents cannot come to an agreement during this meeting, the mediator, who also meets privately with the children, creates a parenting plan that is in the best interests of the children. It is the mediator’s job to weed through heated arguments and allegations, as well as to determine whether one parent is trying to keep the children from the other for no valid reason. While the judge has some discretion, the mediator’s recommendation most often becomes the court order.

Common Considerations in Making a Custody Order

When a court is making an order for child custody and visitation, it must determine what is in the child’s best interest. To do this, the judge considers a number of factors, including:
• The length of time the child has been in the actual care of one parent or the other
• Any agreement reached by the parents regarding custody and residence of the child
• The child’s adjustment to home, school, daycare, and community
• Each parent’s ability and willingness to respect and promote the relationship between the child and the other parent
• Any allegation or evidence of spousal abuse
• Any allegation or evidence of child abuse, whether involving this child or any other
• Whether either parent is required to register as a sex offender, or resides with a person who is required to register as a sex offender
• Whether either parent has been convicted of abuse of any child, or resides with a person who has been convicted of child abuse

Common Ways to Sabotage Custody or Visitation

Divorce and child custody often become hot-button issues when any relationship ends. Letting anger toward the other spouse get in the way of the parent-child relationship is a sure way to lose custody, or to get an order for limited visitation. Common mistakes include:

Alienation of Affection – occurs when one parent puts down or disparages the other parent, either directly to, or in the presence of the children. This also includes attempting to keep the children from the other parent.
Physical Confrontations – engaging in physical contact with the other parent or children in anger instills fear, if not physical injury. Making physical contact with another person in anger is considered battery, and is illegal.
Criticizing the Other Parent – criticizing the other parent to family members, friends, co-workers, case workers, or others is likely to get back to the other parent, the children, and the court. This may be seen as alienation of affection, or a sign of non-cooperation.

Using Child Support as a Weapon – failing or refusing to pay child support because of custody and visitation disagreements not only shows contempt for a court order, but is likely to be seen as combativeness and non-cooperation.

Denying Telephone Contact – keeping children from contacting the other parent by telephone during visitation is generally considered to be keeping the children from the other parent, and thus alienation.

Removing Children from School – the removal of children from school or daycare without permission from, or notice to, the custodial parent triggers suspicions of non-cooperation or even risk of flight.

Related Legal Terms and Issues

Alternative Dispute Resolution – The resolving of disputes by means other than litigation. In a family court environment, this refers to mediation of custody and visitation.

Child Custody Mediation – The process by which a court-appointed mediator helps parents reach a custody and visitation arrangement that is in the best interests of the child.

Allegation – An assertion or claim that someone has done something wrong or illegal, typically made without actual proof.

Sex Offender – A person convicted of a crime involving sex, including rape, molestation, and production or distribution of child pornography.

Free Initial Consultation with Lawyer

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 Factors Are Considered When Determining Child Custody?

During separation and divorce, the most heated argument between the couple is always who takes custody of the child, if the marriage has been blessed with child after this comes the argument of sharing and splitting property; who takes what. The court takes custody of the child seriously and treats it with utmost care and priority because this is what determines the future of the child. If the judge grants the physical custody of a child to a parent it means that the parent has the right to have a child live with him or her for the amount of time determined by the judge. The judge, in some instances, can grant primary custody of a child to a parent. In this case, the child lives with the parent and the parent makes the decision on the upbringing of the child in exclusion of the other parent. In some other instances, the court may also grant joint custody of the child to both parents. In this arrangement, the child spends a significant amount of time with both parents at different times and both parents contribute to the upbringing of the child physically, emotionally, and financially.

Joint custody may be joint legal custody i.e. both parents have joint legal custody of the child. Legal custody of a child simply means having the legal rights to make decisions about a child’s wellbeing and upbringing. Joint custody may also be joint physical custody i.e. the child spends some amount of time with each parent at different schedules and times. Finally, joint custody may also be joint physical and legal custody.
It should, however, be noted that a parent may have legal custody of a child and not have physical custody and vice versa while a parent can have both legal and physical custody of a child, and both parents although divorced or separated can have both joint legal and physical custody of the child.

There are some factors the court considers while granting custody of a child; whether sole custody i.e. custody to a parent or joint custody

The critical factor that the judge first puts into consideration before granting the custody of a child to any of the parents is what is referred to in law as ‘The best interest standard’. The court uses this best interest standard to determine what would be best for the child. The child’s best interest comes first before that of the parents. What is best for the child is prioritized. Although, it is inarguable that both parents definitely have good and genuine intention towards the child in question and definitely want what’s good for the child the judge applies the best interest standard where what the court feels will be the best for the child comes first and outweighs the interest of the parents.

In determining the child’s best interest, the court looks into these crucial factors which can be said are the essential factors that the judge considers in granting custody of a child and they include; The court considers if there is confirmed evidence of domestic violence, domestic abuse, or neglect or negligence by either parent of the child? The court will definitely not going to grant custody of a child to a parent who is negligent, violent, or abusive.

The court weighs each parent’s ability to provide for the child’s physical needs, emotional wellness, and medical care. The court will not grant physical custody to a parent who is incapable of financially and physically catering to the needs of the child.

The court will also check the psychological effect the custody will have on the child. The court will ask themselves if the child is okay where he or she is currently is or if the child doesn’t mind a change in physical environment and custody. The court will also consider the wishes of the child. The court will ask the child where he or she would like to stay or which of the parent would the child like to be with at the moment. This will only the done if the child is considered old enough to make his or her own decisions.

The court also considers the living conditions and accommodations of each parents’ home. The court is interested to know if the child will have his or her own room in a parent’s house and have a spacious and conducive environment for him or herself.

The court will also evaluate the mental and physical health of each parent and ascertain which of the parents is more mentally and physically fit to be granted custody of the child. The court is definitely not going to grant custody of a child to a mentally unstable parent or physically unfit parent.

The court will also consider the quality of the relationship the child enjoys with each parent. The court puts into consideration which of the parent does the child have a more cordial and loving relationship with. The court is more akin to granting custody of a child to a parent a child has a blossoming relationship with. While these are some of the factors the court considers before granting custody of a child to a parent, there may be other extenuating factors the court will also look into in granting custody of a child to a parent depending on the peculiarity of each case.

The Best-Interests Standard

Many parents find this legal jargon confusing. Don’t all parents want what’s best for their children? For the most part, yes. However, in the majority of contested child custody cases, the judge determines what would be best for the children, despite both parents’ good intentions and competing wishes.

Other Factors That Could Affect Child Custody Arrangement

The Wishes of the Parents

The court does indeed take into account the wishes of each parent. Of course, when that becomes a problem is when both parents want full custody, or have not agreed on terms. Then, it is up to the court to decide what is best for the children based upon the other factors that they take under consideration. Often, if an amicable agreement, including child support, can be reached by both parents beforehand, the court will uphold that agreement unless there is some other factor that makes the court think that the arrangements are inappropriate.

The Wishes of the Children

Although the court does not put as much weight on what the child wants as what each parent does, or what the recommendations of social worker or other professional are, the court does take into consideration the child’s wishes. Children are not always the best judge of what is best for them and if the child wants to stay with one parent because they are more lenient or because they spoil them, the court will likely make a different recommendation. The court will also consider the age of the children before deciding how heavily to weight the wishes.

The Relationship Between Children & Each Parent

The court does look at the very important relationship between each parent and each child. If one parent has been an absentee parent most of the time and the child has developed a much stronger relationship with the other parent, then it will likely be the absentee parent that is awarded visitation rather than custody and must pay child support and other obligations. The court will often use a professional social worker to determine how strong the relationship is between parent and child in order to make the best custody choices for the child possible.

Mental & Physical Health of Children & Parent

If one parent is physically disabled and will have a harder time taking care of the children, this is something that the court will look at. Although most of the time disabled parents are as capable of taking care of their children as a non-disabled parent, the court must look at this when deciding who will get full-time custody, which will have partial custody or visitation, or pay child support. This is the same – and even more so – with mental disabilities. If one parent is mentally disabled in some way or suffers from an emotional condition, the court may decide to award custody to the other parent instead.

The Willingness of Parents to Work with Each Other

Each parent will be interviewed to find out just how willing they are to work with the other parent. The court does not want to deprive children of either one of their parents, and if awarding custody to one parent will severely restrict the amount of time they get to spend with the other parent, this will be a strong determining factor. The best way to avoid this problem is to make sure that each parent realizes that the other parent has the right to see their children as well and try to work out an amicable settlement beforehand.

The Majority Caregiver Up Until This Point

The court will consider which parent has been providing for the child the most. This doesn’t just mean providing financially because financial support is often done through child support. The court will consider all types of care such as transportation, teaching, feeding and, in general, parenting. The court will also consider factors such as the household set-up – where one parent works and cannot spend as much time with the children as the parent who is not employed or is only employed part-time.

The Parent’s Living Accommodations & Ability to Provide for the Child

The court will always consider the parents ability to provide for the child when deciding custody and child support. The court will look at the living arrangements first and foremost, to find out if the parent has room for the children, if the home is in a safe neighborhood and if it is clean and well-managed. Also, the court will look at where the residence of the parents are, and how close they are to other family members, schools, and places where the children have developed a normal routine.

How Much of an Adjustment Will be Required

Obviously, divorce will cause some adjustments to be made but the court wants to make as little of an impact on the child’s life as possible. That’s why the court will look at how much the child will have to readjust if they live mostly with one parent or another, or even with shared custody.

Allegations & Actual Instances of Abuse or Neglect

The court will not only consider any actual incidents of abuse or neglect when it comes to awarding custody, but they will consider allegations of neglect or abuse as well. If one parent has made allegations that turned out to be false, the court will weigh this heavily when deciding how to arrange custody.

Physical And Mental Wellbeing

The physical and mental health of your children is a key component of their overall best interests. If there is any sign of abuse, violence, mistreatment or even abandonment, a judge could remove a parent’s custodial rights. Similarly, if the judge notices signs that a parent is unfit to have the responsibility of a child or presents a potential risk to the child’s wellbeing, it could impact the custody decision.

The court will also consider how dedicated each parent is to the kids. If one parent makes it clear that the wellbeing of his or her children comes first, it can signal to a judge that this individual has the best interests of the children in mind.

Parental Strengths And Weaknesses

As the judge hears from both parents, he or she will also be listening for signals that indicate strong character and communication. Keeping the best interests of the children in mind, the judge will typically want children to remain in the custody of a parent who knows how to appropriately communicate and foster positive relationships with others. The judge will also consider which parent will act as a positive role model for the kids.

Family Instability – Causes And Consequences

Family instability is any factor that creates additional challenges within a family unit that ultimately affects a child/children’s cognitive, behavioral and emotional development, and places their development at significant risk due to the parents’ inability to effectively manage the home and the living environment.

Family instability can come in many forms; economic, emotional, social, and physical. The challenges and struggles of family instability can be passed on from generation to generation if the instabilities are not corrected or the family and children do not receive appropriate physical and emotional assistance when needed.

Types Of Family Instability

Economic or financial instability can come from a layoff, job loss, job change, or significant financial burden such a mortgage, car payment or medical debt. It impacts the families’ ability to meet the financial needs required to maintain a safe standard of living which includes sufficient food, shelter, medical and utility needs to have a safe and functional home. Children living in an economically unstable home may not have sufficient food, clothing, or utilities; if old enough they may be forced to work to help make ends meet in the home.

Emotional instability in a family is often expressed through neglect, anger, anxiety and fear. Parents that are working demanding jobs or multiple jobs may not have time to adequately show attention and affection toward their children. They may overly express anger and frustration toward the children due to fatigue and share fears with children about adult concerns placing undue stress and anxiety on children. Love can also be an emotional instability when it becomes excessive and or inappropriate. Social instability in a family is expressed through neglect of tasks around the home and through anger and anxiety expressed by adults. The adults fail to express healthy social interactions which impact how the children will interact with each other and with other adults. They do not receive appropriate social training and this leads to dysfunction in the educational setting among peers, teachers and greatly impacts academic success.

Physical instability in a family can come in two forms; the first one is the physical setting in which the family resides. The child may reside in a home that is not physically safe or supportive; it may have no heat, electricity, water, sewer disposal. The house may be in general ill repair. The second physical instability comes from the physical interactions that occur between family members. A child may be exposed to a physically threatening environment where items are thrown, broken, or used to demonstrate fear and anger.

Causes Of Family Instability

While family instability focuses on these four forms of economic, emotional, social, and physical the cause of these instabilities can be numerous. Job loss, economic hardship, divorce, separation, infidelity, incarceration, extended family, unexpected pregnancy, sexual abuse, physical abuse, substance abuse, foreclosure, medical situation or emergency can all contribute to family instability. Certain socio-economic demographics and cultural groups experience higher levels of family instability.

Consequences Of Family Instability

Children living in homes that experience family instabilities may experience extreme emotional expressions and extremes; they will suffer cognitively and often struggle in school. They will often have difficulty socializing and expressing age-appropriate social behavior. They will often show higher levels of anxiety and have irrational ideas and fears. Children may have clothing that is dirty or doesn’t fit; they may show signs of malnutrition or have eating disorders.

Free Initial Consultation with Lawyer

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 Do Common Time Sharing Arrangements Look Like

Child Custody Law

Are you wondering what a typical visitation schedule looks like? Especially if you’ve just recently learned that your request for sole custody, or even shared custody, has been denied by the courts, you probably want to know what your visitation options look like.

Child Visitation Schedule Options

In many states, typical planned parent-child visitation accounts for approximately 20% of the total parenting time (which does not include time spent at school or in day care).

While there’s no one-size-fits-all routine, a typical visitation schedule may include:
• Overnights every other weekend
• One weeknight visit or overnight per week
• An extended visit during the summer, such as two to six weeks
• Some (but not all) holidays and birthdays

Visitation Considerations

It’s important to establish a regular visitation schedule that works well for your entire family. Especially if your children are young or your separation is fairly recent, your whole family will benefit from a predictable, consistent routine.

Generally, it’s best to start with a modest schedule you can all agree on and build on it from there. For example, start with overnights every other weekend, combined with one mid-week evening visit. Then transition to an overnight midweek or tack an extra day onto the front or end of a weekend. It may feel outside your comfort zone initially, but it’s important for your kids to spend time with both parents. In fact, some states require parents to establish visitation schedules that allow both parents to enjoy approximately as much parenting time as they did before the separation or divorce. So if you both saw your kids daily before the break-up, it’s reasonable to think contact once or twice a week is difficult for everyone involved.

Customizing the Visitation Schedule

Consider 20% a starting point. Many families make arrangements that allow for far more visitation time by including additional weekday visits or longer extended summer vacations with the non-custodial parent. If you live in different states, this can be especially difficult to arrange, but it’s worth the effort to create a visitation schedule that works for all of you in the long run. It may be hard to imagine your kids as teenagers, but that day will come—and when it does, you may be grateful that you made an investment early on in encouraging your ex’s relationship with your kids.

Balancing Consistency and Flexibility

Consistency is important, but so is flexibility. Emergencies, last-minute schedule changes, and work-related issues will come up—guaranteed. As long as they don’t become the norm, try to give your ex as much flexibility as you would like him or her to give you.

As much as you may consider it unthinkable at this point in time, chances are that you’ll one day be calling your ex with a last-minute request, too. Allowing one another a small degree of flexibility can go a long way toward helping you develop a more effective co-parenting relationship, as well.

Putting It in Writing

Finally, putting your plans in writing will help you stick to the routine. Work on developing a formal parenting plan with your ex and consider filing it with the state, as well. This will help you to establish standards concerning visitation schedules, pick-up, and drop-off routines, communication guidelines, and more.

Creative Options for Parents to Develop Time Sharing Schedules

Choosing a time sharing schedule that works for you, your children, and your ex is one of the most important decisions you’ll make as a single parent. Sure, you can try the ever-popular “alternating weekend” option, but it may not be the best choice for your particular needs.

Whether you’re drafting an initial parenting plan, or you’re trying to make sense of the schedule presented to you by the court, the sample calendars displayed here will help you better understand your kids’ visitation schedule options.

1. Alternating Weekends Routine
With this child visitation schedule, the kids reside with the custodial parent and spend alternating weekends with the non-custodial parent. In the example shown here, weekend visits begin at 6:00 p.m. on Friday and end at 6:00 p.m. on Sunday.

This is probably the most popular child visitation schedule, especially for newly separated parents. It’s often a good option for situations in which the non-custodial parent works a typical 9 to 5 Monday through Friday schedule. But it’s not your only option!

2. Weeknight Plus Weekend
When families live near one another, it’s possible to spend just an evening together. In this scenario, in addition to alternating weekends, the children spend one evening per week with the non-custodial parent.
For example, the children visit with the non-custodial parent every Wednesday night from 6:00 – 8:00 p.m., and again on alternating weekends from 6:00 p.m. Friday to 6:00 p.m. Sunday.

Another version of this approach has the children coming to the non-custodial parent right after school, giving that parent the opportunity to help with homework or attend after-school activities.

3. Extending Weekends Through Monday
If the custodial parent travels for work or other reasons, it can be tough to be home at 6:00 every Sunday evening. A good way to manage this difficulty is to extend the children’s stay through Monday.

This sample child visitation schedule resembles the alternating weekend plan but extends through Monday. In this case, alternating weekend visits would begin at 6:00 p.m. on Friday and end at 6:00 p.m. on Monday. Another option is simply to have the children stay through Sunday night and head to school the following morning.

4. Make it a Midweek Overnight
With this routine, the children visit every other weekend, along with one mid-week overnight. As you can see from the calendar, this schedule allows the children to enjoy significant chunks of parenting time with both parents.
Of course, a schedule like this can get tricky when children have late afternoon or evening obligations. Parents must share not only schedule information but also directions for drop-offs and pickups, and contact information in case of unexpected delays.

5. A Wider Range of Visitation Options
Not every parent works Monday through Friday. And not every parent works 9 to 5. When parents’ schedules are unusual, visitation schedules may need to reflect what’s possible. In some cases, parents can cover for one another’s work schedules by choosing a more flexible approach to visitation. For example, children might live with custodial parent Friday through Monday, and stay with the non-custodial parent Tuesday through Thursday. What if the non-custodial parent works the swing shift? In that case, the swing shift parent might be responsible for picking up kids after school each day, helping with homework, handling carpools, and providing dinner. Then the non-custodial parent might deliver the kids to the custodial parent’s home.

50/50 Custody: What Does It Look Like – And Which Is Best For Your Family?

When going through a divorce, one of the biggest questions parents must answer is how they will be handling physical custody of their children. As a quick refresher of the different types of child custody, physical custody refers to with whom the child will be living and the parenting schedule they will be following. This is different than legal custody, which determines who will be responsible for making major decisions about the child’s upbringing, such as their medical care or religious education.

If you and your co-parent have decided on shared or joint physical custody, you’ll still need to work together to determine which parenting schedule fits your family the best. 50/50 schedules are one of the most common forms of joint physical custody, but parents should not default to this arrangement without thinking critically about whether it’ll work for their situation.

What To Ask Before Pursuing 50/50 Custody

For many families, children having robust and healthy relationships with both parents is a top priority after a divorce. Some see the simplest way of achieving this goal as maintaining a 50/50 split in their parenting time. In order for it to be the best child custody arrangement, however, co-parents must be able to commit to the particulars of a 50/50 custody schedule.

Distance between co-parents

Depending on which schedule parents choose, 50/50 custody can require frequent exchanges between parents. If co-parents live a few blocks or neighborhoods away from each other, those increased exchanges may not be an issue. But if significant distance separates co-parents, incorporating multiple exchanges per week may not be ideal.

Communication

For 50/50 custody schedules that require more frequent exchanges, communication needs to be on point and conflict needs to be contained. Traffic jams happen, meetings run late, and if parents are unable to communicate productively and civilly with each other, these bumps in the road can turn into major issues. If you and your co-parent struggle to maintain peaceful communication, choose a 50/50 schedule with a minimum number of exchanges or consider choosing a different split in parenting time.

Work and activity schedules

You and your co-parent’s work schedules will play a big part in whether or not certain 50/50 custody schedules are feasible. But it’s not only your schedules that have an impact. Your children’s activity and extracurricular schedules must also be taken into account when formatting your parenting time.

Common 50/50 custody schedules

Not all 50/50 custody schedules are created equal. Each has its pros and cons, so think about your own scheduling needs when determining which repeating pattern best fits your situation. To help get you started, here are 5 of the most common 50/50 custody schedule templates for you to consider. For ease of explanation, we’ll be referring to co-parents as Parent A and Parent B.

Template #1: Alternating weeks

Alternating weeks are one of the simplest 50/50 child custody schedules. In this pattern, one week is spent with Parent A while the following week is spent with Parent B. This keeps parenting exchanges to an absolute minimum while still allowing both parents to have robust relationships with their children.

This schedule is best suited for older children who are better able to handle extended periods of time without seeing one of their parents. For younger children, having to wait a whole week before they see their other parent may sometimes be too long of a time interval.

Template #2: Alternating weeks with a mid-week overnight

For parents who want a simple schedule but do not wish to go a whole week without seeing their children, alternating weeks with a mid-week overnight can provide a happy compromise. For this schedule, parents include a single night of parenting time mid-week in their schedule. This mid-week exchange may not be suitable for parents who live long distances from each other. Children may also have a hard time settling in when they have a single night with one of their parents mid-week.

Template #3: 2-2-3

In a 2-2-3 parenting schedule, children spend two nights with Parent A, two nights with parent B, and then three nights with Parent A. The schedule than proceeds with the opposite: two nights with Parent B, two nights with Parent A, and then three nights with Parent B.

This schedule can be ideal for families with young children because it allows for more frequent contact between parents and their kids. However, this frequency comes with an increase in exchanges of which parents should be aware. Also, while the pattern of 2-2-3 is consistent, week by week parents will be alternating which days they have their children. For busy schedules with numerous activities and other events, not knowing immediately who will be with the children on any given Monday can make things a little more complicated.

Template #4: 3-3-4-4

3-3-4-4 schedules allow for frequent contact between parents and children while providing greater stability week to week. For example, if the schedule begins on a Sunday, Parent A will always have Sunday through Tuesday. And Parent B will always have Wednesday through Friday. The only day that alternates back and forth between parents is Saturday. This can simplify scheduling as parents immediately know whether a future date falls in their or their co-parent’s parenting time.

Template #5: 2-2-5-5

2-2-5-5 schedules are similar to 3-3-4-4 schedules in that they maintain greater consistency week to week. For example, if the schedule begins on a Sunday, the only days that alternate between parents are Thursday through Saturday. Parent A will always have Sunday and Monday, while Parent B will always have Tuesday and Wednesday. Schedules that provide this type of consistency can be easier for children as well, as it’s simpler for them to understand when they’ll be with either parent.

Once You’ve Chosen Your Custody Schedule

Whichever parenting schedule you choose, make sure you document it in your co-parenting plan and track it on a calendar shared by both you and your co-parent. It’s also important to remember that the schedule that works for you now may not be the best solution as your children grow. Don’t be afraid to periodically reassess your scheduling needs and work with your co-parent to maintain a schedule ideal for your family.

NOTE: Many state and federal laws use terms like ‘custody’ when referring to arrangements regarding parenting time and decision-making for a child. While this has been the case for many years, these are not the only terms currently used to refer to these topics.

Free Initial Consultation with Lawyer

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 Are The Factors That Courts Can Not Use To Decide Child Custody

child custody attorney in utah

In most cases, the court prefers to award joint custody because children benefit from spending as much time with each parent as possible. When parents can work together to develop a parenting plan that benefits the entire family, the parents and the children are generally happier with the situation. However, what happens when one parent is unfit?
What Does It Mean To Be An Unfit Parent?

You do not need to be a perfect parent to have custody of your child. Courts recognize that some individuals may be better at parenting than other individuals. The court does not penalize parents for being imperfect. Judges consider the child’s best interests to resolve custody cases. However, that consideration is weighed against parental rights. A judge is not likely to deny custody or revoke parental rights if a parent is trying their best.
However, if a parent’s conduct could place a child in danger or cause them emotional or mental harm, the court might find that the parent is unfit. Being an unfit parent means that you are incapable of caring for your child and ensuring your child’s welfare.

Factors Judges Use To Determine If A Parent Is Unfit

When deciding whether a parent is unfit to have custody of a child, a judge considers the following factors and circumstances:
• The safety, health, and welfare of the child

• Evidence of a history of abuse or violence against the child, another child, the child’s other parent, or another romantic partner

• A parent’s history of substance abuse, including drugs and alcohol

• The amount and nature of contact between the child and each parent

Although Family Code 3011 requires judges to consider the above factors, they may consider all relevant factors to decide whether a parent is fit to have custody. For example, the judge may order a 730 child custody evaluation to assist in their decision.

Things that the evaluator may consider when preparing a report and recommendation for the court include:
• Whether the parent sets age-appropriate restrictions for activities, television, bedtimes, etc.

• How well a parent handles conflict with the child and between the child and other individuals

• If a parent can understand and provide for a child’s needs

• The parent’s level of involvement in the child’s life

• A child’s feelings toward each parent

• Whether a parent has a history of mental illness or instability

• History of neglect or abandonment

• Whether the parent obtains medical and dental care for the child

• A parent’s ability to provide a safe, clean home, including adequate food and clothing for the child

• Allegations of parental alienation by either parent

Neither the court nor the evaluator has a presumption or preference for either parent. As stated above, custody is often granted jointly to both parents according to the child’s best interest. The court and the child custody evaluator objectively review the information and determine the child’s best interest based on a parent’s fitness to care for the child.

Evidence Used To Prove A Parent Is Unfit

Proving a parent is unfit can be difficult. A judge is not likely to strip a parent’s legal rights based on the allegations of the other parent. The parent alleging unfitness must have evidence to substantiate the allegations.
A court-ordered child custody evaluation can be extremely helpful. The evaluator is an independent investigator, so any evidence obtained by the evaluator may be viewed with great authority by the court.

Other evidence that could be used to prove that a parent is unfit might include:
• Testimony from counselors, therapists, teachers, coaches, and other people who are familiar with specific instances in which the parent displayed unfit behavior

• School and medical records

• Police reports detailing domestic violence

• Photographs and videos of the parent’s home

• Details of home visits and inspections

• Criminal records

The evidence proving a parent is unfit depends on the specific allegations made against the parent. A child custody lawyer with experience handling these types of custody cases will guide the parent through the process of gathering evidence and presenting a compelling case to the judge.

A judge may find that the allegations against the parent are unfounded.

If the judge finds that a parent is unfit, the judge may order sole custody to the other parent. Depending on the allegations, the court could order supervised or restricted visitation. In extreme cases, the court could involuntarily terminate the parental rights of an unfit parent.

Children feel the impact of divorce even in the most amicable situations. The process and outcome of determining custody, which is the rights and responsibilities of each parent in terms of child-rearing after separation, is easily the most impactful for children. In California, courts look at a variety of factors to determine custody and always keep a child’s best interest in mind.

Types of Child Custody in Utah

Like most states, Utah recognizes two forms of custody: physical custody and legal custody.

Physical Custody

Physical custody in Utah refers to the physical location of a child, specifically which parent a child lives with. In Utah, physical custody can be sole, primary, or joint.

Sole physical custody means a child lives with one parent and rarely, if ever, visits or spends time with the other parent.

Primary physical custody means a child lives with one parent most of the time and the other parent has visitation rights, such as every other weekend.

Joint physical custody means a child lives with both parents and goes back and forth based on an agreed-upon schedule approved by the court. Even with joint physical custody, families find it difficult to evenly split time because of work and school schedules. Children often spend more time with one parent than the other.

Legal Custody

Legal custody in Utah refers to a parent’s right to make decisions about the well-being and future of their child. Legal custody may be joint or sole, where either parents or only one parent makes significant choices about education, health, and welfare for a child. Some common decisions those with legal custody must make or decide with the other parent include:
• Type and location of childcare or school, such as will the child go to public or private school? What classes does the child need?

• Religious activities, such as attending church, going to a synagogue, or attending prayer service at a mosque

• Therapy needs to cope with divorce or other growing pains, including visiting a family therapist, child psychologist, or another mental health specialist

• Medical and dental needs including taking a child to a pediatrician, dentist, orthodontist, or another healthcare provider

• Participation in extracurricular activities such as sports, music lessons, school clubs, and summer camp

• Travel whether with the other parent, with other family members, or with friends

• Location the child calls home or the child’s primary place of residence

Factors that Judges Review Before Deciding Custody

Utah courts consider a wide array of factors when deciding child custody. Their decisions are guided by the best interests of the child and the idea that spending time with both parents benefits the child. Courts do not simply look at one factor but evaluate the entire situation to determine custody. Some of the most common factors that impact a child custody decision include:
Age and sex. It’s not true that courts automatically put a child with the same-sex parent when deciding custody, but sometimes sex factors into a custody decision depending on the age of the child. For example, infants who are still breastfeeding will need to be with their mother.

Health of the child. If a child has health issues that require regular medical treatment, the court may favor the parent who provides care when both parents are not involved.

Special needs. Courts carefully consider who provides needed care when children have special needs such as autism, cerebral palsy, or any other physical or mental health condition.

Physical and mental health of parents. A parent who has physical and/or mental health struggles might not be able to make the best decisions or provide care for a child.

Emotional ties with each parent. Courts hesitate to cut or damage emotional bonds between a child and parent unless they have a good reason.

Ability for parent to provide care. Those with physical custody, especially when it is not joint, need to be able to physically and financially provide care for a child.

Family history of domestic abuse. In the event of a proven family history of domestic abuse, it’s highly likely a judge will physically place a child with the abuser.

History of substance abuse. Much like physical and mental health, parents who struggle with addiction also struggle to provide the care their children need. Substance abuse issues don’t automatically mean a parent loses custody, but the court will take time to evaluate whether a parent has been through treatment and how long they have been sober.
Child abuse, including physical, emotional, and verbal abuse. Proven child abuse can lead to the non-abusive parent receiving sole physical and legal custody.

Child’s ties to school and community. If awarding custody to one parent negatively impacts a child’s ties to their community, it could factor into a judge’s decision.

Child’s wishes. All children have the right the express their wishes in terms of physical custody. Courts listen and especially take into account the wishes of an older child who demonstrates the maturity to make a decision about where to live.

Relationship with siblings. It’s highly unlikely a court will make a custody decision that separates siblings. Yet, if sibling relationships are damaging or abuse has been involved, they might factor into a Utah judge’s decision.
Interaction with extended family. Courts like to keep children near extended family when possible. Extended family also provides a support system for the custodial parent. Unless the court has a compelling reason, a judge is unlikely to make a custody decision that isolates a child from their grandparents and others.

Factors That Do Not Affect Your Child Custody Arrangement

When it comes to child custody, there are some pretty standard factors that a court looks at when deciding the nature of custody arrangements and child support. Knowing what these factors are can give you an advantage when fighting for full or shared custody.

Here are the things that a court will be looking at when deciding custody arrangements.

The Wishes of the Parents

The court does indeed take into account the wishes of each parent. Of course, when that becomes a problem is when both parents want full custody, or have not agreed on terms. Then, it is up to the court to decide what is best for the children based upon the other factors that they take under consideration. Often, if an amicable agreement, including child support, can be reached by both parents beforehand, the court will uphold that agreement unless there is some other factor that makes the court think that the arrangements are inappropriate.

The Wishes of the Children

Although the court does not put as much weight on what the child wants as what each parent does, or what the recommendations of social worker or other professional are, the court does take into consideration the child’s wishes. Children are not always the best judge of what is best for them and if the child wants to stay with one parent because they are more lenient or because they spoil them, the court will likely make a different recommendation. The court will also consider the age of the children before deciding how heavily to weight the wishes.

The Relationship between Children & Each Parent

The court does look at the very important relationship between each parent and each child. If one parent has been an absentee parent most of the time and the child has developed a much stronger relationship with the other parent, then it will likely be the absentee parent that is awarded visitation rather than custody and must pay child support and other obligations. The court will often use a professional social worker to determine how strong the relationship is between parent and child in order to make the best custody choices for the child possible.

Mental & Physical Health of Children & Parent

If one parent is physically disabled and will have a harder time taking care of the children, this is something that the court will look at. Although most of the time disabled parents are as capable of taking care of their children as a non-disabled parent, the court must look at this when deciding who will get full-time custody, which will have partial custody or visitation, or pay child support. This is the same – and even more so – with mental disabilities. If one parent is mentally disabled in some way or suffers from an emotional condition, the court may decide to award custody to the other parent instead.

The Willingness of Parents to Work with Each Other

Each parent will be interviewed to find out just how willing they are to work with the other parent. The court does not want to deprive children of either one of their parents, and if awarding custody to one parent will severely restrict the amount of time they get to spend with the other parent, this will be a strong determining factor. The best way to avoid this problem is to make sure that each parent realizes that the other parent has the right to see their children as well and try to work out an amicable settlement beforehand.

The Majority Caregiver Up Until This Point

The court will consider which parent has been providing for the child the most. This doesn’t just mean providing financially because financial support is often done through child support. The court will consider all types of care such as transportation, teaching, feeding and, in general, parenting. The court will also consider factors such as the household set-up – where one parent works and cannot spend as much time with the children as the parent who is not employed or is only employed part-time.

The Parent’s Living Accommodations & Ability to Provide for the Child

The court will always consider the parents ability to provide for the child when deciding custody and child support. The court will look at the living arrangements first and foremost, to find out if the parent has room for the children, if the home is in a safe neighborhood and if it is clean and well-managed. Also, the court will look at where the residence of the parents are, and how close they are to other family members, schools, and places where the children have developed a normal routine.

How Much of an Adjustment Will be Required

Obviously, divorce will cause some adjustments to be made but the court wants to make as little of an impact on the child’s life as possible. That’s why the court will look at how much the child will have to readjust if they live mostly with one parent or another, or even with shared custody.

Allegations & Actual Instances of Abuse or Neglect

The court will not only consider any actual incidents of abuse or neglect when it comes to awarding custody, but they will consider allegations of neglect or abuse as well. If one parent has made allegations that turned out to be false, the court will weigh this heavily when deciding how to arrange custody.

Free Initial Consultation with Lawyer

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

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Utah Code 78A-6-511

Utah Code 78A-6-511

Court Disposition Of Child Upon Termination—Post-termination Reunification

1. As used in this section, “relative” means:
a) an adult who is a grandparent, great-grandparent, aunt, great aunt, uncle, great uncle, brother-in-law, sister-in-law, stepparent, first cousin, sibling, or stepsibling of a child;  and
b) in the case of a child defined as an “Indian” under the Indian Child Welfare Act, 25 U.S.C. Sec. 1903 , “relative” also means an “extended family member” as defined by that statute.
2. Upon entry of an order under this part the court may:
a) place the child in the legal custody and guardianship of a licensed child placement agency or the division for adoption;  or
b) make any other disposition of the child authorized under Section 78A-6-117 .

3. Subject to the requirements of Subsections (4) and (5), all adoptable children placed in the custody of the division shall be placed for adoption.
4. If the parental rights of all parents of an adoptable child placed in the custody of the division have been terminated and a suitable adoptive placement is not already available, the court:
a) shall determine whether there is a relative who desires to adopt the child;
b) may order the division to conduct a reasonable search to determine whether there are relatives who are willing to adopt the child;  and
c) shall, if a relative desires to adopt the child:
I. make a specific finding regarding the fitness of the relative to adopt the child;  and (i)
II. place the child for adoption with that relative unless it finds that adoption by the relative is not in the best interest of the child.
5. This section does not guarantee that a relative will be permitted to adopt the child.
6. A parent whose rights were terminated under this part, or a relative of the child, as defined by Section 78A-6-307 , may petition for guardianship of the child if:
(a) following an adoptive placement, the child’s adoptive parent returns the child to the custody of the division;  or
i. the child is in the custody of the division for one year following the day on which the ii. parent’s rights were terminated, and no permanent placement has been found or is likely to be found;  and
(b) reunification with the child’s parent, or guardianship by the child’s relative, is in the best interest of the child.

Final Determination And Best Interests Of The Child

In the simplest terms, a disposition is a court’s final determination in a criminal charge. On a criminal background report, disposition may refer to the current status of an arrest or the final outcome of an interaction with the court in relation to a criminal matter. For example, was the person tried in court and found guilty, not guilty, or was the case dismissed? When running a criminal background check on a candidate you’re considering for a job, dispositions give you a high-level view of any convictions, non-convictions, and pending cases that may be relevant to the position.
Here are a few common terms you might come across when reviewing dispositions, along with their meanings:

• Convicted: The person has been found guilty or has pleaded guilty.

• Deferred Adjudication or Diversion: A court has deferred judgment, typically as part of a plea agreement, to give the defendant the chance to meet requirements such as drug and alcohol treatment, probation, or community service, in order to have their case reconsidered and possibly dismissed.

• Acquitted: The person has been found not guilty. As for the difference between being acquitted vs. not guilty, the terms acquitted and not guilty are often used interchangeably. Being found not guilty is not a determination of innocence. A person may be found not guilty because there was not enough evidence for a conviction. An acquittal may also happen when a judge or appeals court decides there is not enough evidence to go to trial.

• Charges Dismissed: A prosecutor or judge has dropped charges against the person the case did not move forward.

• No Charges Filed: The person has been accused or arrested for a crime but a prosecutor has decided they will not move forward with a case.

• Sentence Vacated: A guilty plea or guilty verdict has been set aside. When a sentence is vacated, the guilty verdict is erased as if the person had never been convicted of the crime.

• Pending: The case against this person is ongoing. They are still under investigation or subject to prosecution.

• Suspended Sentence: The person’s sentencing has been delayed, often because they have been offered a chance to complete probation, community service, or a treatment program.

If you’re wondering, what does court disposition mean? And what does disposition of the offense mean? These are other disposition terms that may be used on a background check, but have a similar meaning. Dispositions always relate to a specific offense. For example, an individual can be charged with three offenses in the same criminal proceeding, and have two of them be dismissed and the other one be a conviction.

Sentencing

Sentencing is the legal consequence of a conviction. To understand the difference between disposition vs. sentencing, think of disposition as the indication of a crime (or the absence of it) and sentencing as the punishment. Sentencing doesn’t apply to every disposition: Clearly, if a case is acquitted or dismissed and the person is not found guilty sentencing does not apply. As far as what shows up on a criminal background check, sentencing information may not be clear at first glance. In some cases, a report will clearly show the sentence date and term. In others, you may not see the sentence given. However, using the date of disposition, you should be able to review a candidate’s history of incarceration and match the sentence to the disposition and offense. A criminal background check will also reveal any pending cases. Keep in mind that the disposition will change in a pending case if the person is convicted or acquitted in the future and a final disposition is made. The same applies to dispositions with suspended or delayed sentencing. If the person fails to comply with the terms of their probation or treatment program, for example, they may be subject to sentencing in the future.

For prospective employers, the information revealed in dispositions may have a significant impact on hiring decisions. If a report shows that a candidate has a serious conviction or even multiple convictions the perceived risk in hiring them may rise substantially. Additionally, the outcome of a pending disposition could affect a candidate’s ability to do a job in the future. It’s important to note that criminal records and their resulting dispositions may only appear on a candidate’s criminal background check report for a limited time. While felonies and misdemeanors may continue showing up on a person’s record permanently in some states, other states limit this reporting to seven years for felonies, and five or seven years for misdemeanors. Infractions are limited to seven years under federal law. Depending on the types of searches ordered, a criminal background report may contain results from national, federal, state and county databases. It’s a common misconception that a non-conviction means that a person will not have a criminal record on their background check report. A non-conviction in relation to a criminal matter in the court will always result in a criminal record and may appear on a background check for up to seven years; however, the disposition, or outcome of interaction with the court, is what’s important to understand.

Business Disposition

Businesses also dispose of assets, and very often, of entire business segments or units. This is commonly known as divestiture and can be done through a spinoff, split-up, or split-off. The Securities and Exchange Commission (SEC) has very specific guidelines on how these dispositions must be reported and handled. If the disposition is not reported in the financial statements of a company, then pro forma financial statements are required if the disposition meets the requirements of a significance test. “Significance” is determined by either an income test or an investment test. An investment test measures the investment value in the unit being disposed of compared to total assets. If the amount is more than 10% as of the most recent fiscal year-end, then it is considered significant. The income test measures if the “equity in the income from continuing operations before taxes, extraordinary items, and cumulative effects of changes in accounting principles” is 10% or more of such income of the most recent fiscal year-end.1 In certain situations, the threshold level can be increased to 20%.

The Disposition Effect

Behavioral economics also has something to say about one’s propensity to sell a winning vs. losing position based on the concept of loss aversion. The “disposition effect” is a term that describes investor behavior in which they have a tendency to sell winning investments too early before realizing all potential gains while holding on to losing investments for longer than they should, hoping that the investments will turn around and generate a profit.

Reinstatement of Parental Rights After Termination

Depending on where you live, you may be able to have your parental rights reinstated after they have been terminated by a court. While all states have provisions in the law for the termination of parental rights, most states do not allow for the reinstatement of these rights. But even in states that allow reinstatement, parents must be able to show an extraordinary improvement in their ability to properly care for a child before a court will grant such a request.

Termination and Reinstatement of Parental Rights

When a court orders the termination of parental rights, the legal relationship between a parent and child ceases to exist. It is very rare and only occurs in especially serious cases, such as those involving child abuse or severe child neglect. And even though a parent may petition the court to voluntarily give up his or her parental rights, the main consideration is always the child’s best interests. Laws allowing reinstatement were drafted generally in response to older children who were aging out of foster care and wanted to re-establish family ties. Since this process is handled in state courts, the laws and procedures vary from one state to the next. At least nine states have laws allowing for reinstatement following termination of parental rights, including. Usually, reinstatement is available only on the condition that the child has not been permanently placed with a foster home within a given period of time. In states where this is available, a parent must file a petition with the court that originally terminated his or her parental rights. The court will determine whether the parent is fit to provide a safe and nurturing home for the child. Most states that allow for the reinstatement of parental rights require “clear and convincing” evidence that the parent is fit to care for their child.

Some states’ laws have a much lower standard of proof (“preponderance of the evidence”) (like Nevada), while other states law even allows hearsay evidence in court proceedings if it is considered relevant, reliable and necessary” to determine a child’s best interests. The qualifications for petitioning the court for reinstatement also vary from state to state. For instance, Alaska law restricts this remedy to only those who voluntarily relinquished their parental rights; Louisiana law allows children in foster care over the age of 15 to petition for reinstatement of their parents’ rights; and Washington law doesn’t specify who may or may not petition the court.

Get Started on Reinstating Your Parental Rights by Talking to an Attorney
Few things are as painful as losing one’s parental rights. But reinstatement of parental rights after termination is definitely a possibility for those who have made the necessary life changes. Get started today by talking to a local family law attorney about your particular situation and learn more about the process to reinstate your parental rights. Informing an attorney to take up the case is the best thing to do.

Child Custody Lawyer

When you need legal help with reunification, child custody and other areas of family law, 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

Ascent Law LLC

4.9 stars – based on 67 reviews


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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

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

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).

Child Custody Attorney Free Consultation

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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Mothers and Child Custody

Mothers and Child Custody

In years past, it was usually a given in Utah courts that child custody went to the mother upon divorce. The tender years of a child coupled with a cultural norm carried the day for mom. This may still be true in some cases—but usually not without a fight.

Today more fathers are seeking custody of their children. The best custody arrangement supports the relationship of children with both parents. However, from years of experience litigating and winning tough child custody cases, our family law attorneys understand some fathers just want to fight, or even seek custody only to reduce child support payments.

Presumption of maternal custody by courts has given way to the best interests of a child. Instead of finding a parent unfit, litigants must now prove, and courts must find, that custody with one parent or the other is in the best interests of the child.

In shifting toward best interest factors, courts now consider the history of care giving. Was the mother the primary caregiver? Did parents split parenting equally? Which parent has a more flexible work schedule?

Regardless of economic and technological changes, the roles of mothers and fathers will always be different in the world of a child. The majority of older children expressing a preference choose to stay with mom.

But custody for mothers is no longer a given. Do not make the mistake of assuming it is. Hire experienced attorneys who will fight without hesitation to protect the well-being of you and your children.

How a Child’s Age Can Influence Custody Disputes

In the past, many jurisdictions in the United States relied upon the tender years doctrine in child custody cases. This doctrine essentially created a presumption in favor of the mother in custody disputes involving children under a certain age.

Most states, including Utah, have departed from this doctrine as an officially recognized principle of law. Nevertheless, as a practical matter, it is very common for family courts in Utah to hold an unspoken and unofficial preference for the mother in custody cases involving young children.

As a general rule, the younger the child is, the stronger the preference for granting custody to the mother. For fathers seeking joint or sole custody of a young child, this can be a difficult hurdle. Because this preference is not an official point of law, it is difficult to attack directly. There is no roadmap delineating how a father can overcome the presumption in favor of the mother. The best option for a custody-seeking father is to retain an experienced lawyer to see to it that his interests are fully represented.

Our knowledgeable family law attorneys can help facilitate negotiation and settlement prior to trial on custody matters—the stage at which an agreement granting joint custody is more likely. For cases where the other parent is unwilling to negotiate or where a client seeks sole custody, we use our extensive trial experience to zealously and effectively advocate on his or her behalf in the courtroom.

Free Consultation with Child Custody Lawyer

If you have a question about child custody question or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will aggressively fight for 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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When is it Right to Seek Full Custody?

While Utah Family Courts consider many factors when making a determination about child custody, the ultimate decision rests on what is in the best interests of the child.

When is it Right to Seek Full Custody

Ideally, both parents are awarded joint or shared child custody so they can play an active role in important activities, milestones, and decisions in the lives of their children. We’ve written about this before here. However, in certain circumstances, the court decides to award sole legal and physical custody, giving the legal authority to make major decisions for the children to one parent alone.

If a parent alleges that the other committed domestic violence or sexual abuse against any household member, and there is sufficient evidence to prove it, the court will deny child custody to the abusive spouse. But if the allegations are unfounded, the alleging parent could lose custody.

Parents can also seek and receive full custody of the children if any of the following grievances apply to their spouses:

  • Unwillingness to honor their parenting time
  • Unauthorized relocation or abduction of the child to a distant location
  • Substance abuse or other conduct that jeopardizes the safety of the children
  • Religious beliefs that threaten the health and welfare of the child

While Utah child custody applies to children under 18, the courts often consider the preferences of minor children, provided they are old enough to have an opinion.

Custodial Interference Can Be a Game Changer

In a decision entered in June , the Appellate division, Third Department, upheld a Family Court finding that interference by a custodial parent was a significant change in circumstances sufficient to alter a designation of primary custody.

In Keefe v Adams, a 2007 order provided joint legal custody to the parents of a son born in 2002. After divorce, primary physical custody was awarded to the mother, with alternating weekends and holidays with the father.

In 2009, the father petitioned for modification of child custody based on alleged interference by the mother and included the following complaints:

  • Child was relocated 42 miles away without notice to the father or agreement, hindering the relationship of father and son, and requiring the child to change schools
  • The mother was routinely 15 minutes to two hours late for visitation exchange, and verbally disparaged the father in front of the child
  • Evidence existed that the boyfriend of the mother was promoted as a substitute for the father

As a result, the Family Court found the behavior of the mother was damaging to the child and deleterious to the relationship of father and son. In the best interests of the child, the lower court ordered, and the Appellate Court affirmed, a change of custody awarding the father sole legal and physical custody with visitation to the mother.

This dramatic family law case underscores the necessity of vigorous legal representation if the parent of your child is being hostile or interfering—or if those charges are being leveled against you.

Fathers — A Matter of Rights

Without question, a father seeking sole or even joint custody of his children without agreement of the mother has a tough case ahead of him.

Utah courts[H1] decide child custody matters based on the best interests of children. Historically, payment of custody support and visitation was allocated to fathers while child custody was awarded to mothers. Even today—make no mistake—many settled and litigated cases fall along those lines.

But cultural perspectives and family law are changing. With a focus on father’s rights, our firm has participated in an upswing of victories on Long Island for fathers who want to be parents, not just visitors.

If you want to support or restore your position in the life of your children, take note of the following approaches we have successfully used to enforce the rights of men:

  • Relationship matters: In relying on best interest factors, a court looks for quality of relationship between parent and child. Do not let legal counsel overlook the close and warm ties you have with your child.
  • Preference: By teen years, courts give greater weight to living preferences expressed by children. Arranging an in camera interview between child and judge can help the court understand the real needs and desires of your children.
  • Flexibility helps: Flexible work schedules can give fathers a better shot at custody.

Despite changing times, fathers’ rights cases are still complicated. Make sure your attorney is not afraid to protect your rights aggressively—and those of your children—when necessary.

Free Consultation with Child Custody Lawyer

If you have a question about child custody question or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will 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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Divorce Lawyer

Child Custody and Taxes

When you and your spouse decide to call it quits, you’re more worried about you’re your children will think than what the IRS will think. That’s only natural — when parents are dealing with custody issues, often the furthest thing from their minds is how it will affect their tax status. When is comes to child custody, you want to make sure you do things right. So, if you want to avoid serious tax penalties, or reap significant tax benefits, it’s better to figure it out sooner than later.

Child Custody and Taxes

Tax Benefits For Claiming a Dependent Child

There are numerous standard tax benefits to claiming a child as a dependent:

  • The exemption for the child;
  • The child tax credit;
  • Head of household filing status;
  • The credit for child and dependent care expenses;
  • The exclusion from income for dependent care benefits; and
  • The earned income credit.

However, the rules are more complicated for divorced or separated parents. If you claim your child as a dependent, you cannot split these benefits with the other parent, even by your own agreement.

Can Both Parents Claim a Dependent Child?

The dependency exemption cannot be split. Generally, the custodial parent is treated as the parent who provided more than half of the child’s support. This parent is usually allowed to claim the exemption for the child if the other exemption tests are met. However, the noncustodial parent may be treated as the parent who provided more than half of the child’s support if certain conditions are met.

The custodial parent can sign a Form 8332 Release of Claim to Exemption for Child of Divorced or Separated Parents, or a substantially similar statement, and provide it to the noncustodial parent who attaches it to his or her return. Please beware that if the custodial parent releases the exception, the custodial parent may not claim the Child Tax Credit.

How Does the IRS Decide Which Parent Gets the Benefits?

To determine which parent can treat the child as a qualifying child in order to claim tax benefits, IRS rules employ the following tiebreakers:

    • If only one of you is the child’s parent, the child is treated as the qualifying child of the parent;
    • If you do not file a joint return together but both of you claim the child as a qualifying child, the IRS will choose the parent with whom the child lived for the longer period of time during the year. If the child lived with both of you for the same amount of time, the IRS will choose the parent who had the higher adjusted gross income (AGI) for the year;
    • If no parent can claim the child as a qualifying child, the child is treated as the qualifying child of the person who had the highest AGI for the year;
    • If a parent can claim the child as a qualifying child but no parent does so claim the child, the child is treated as the qualifying child of the person who had the highest AGI for the year.
    • However, please remember that although the IRS has these standards, a State Court Order can trump who gets to claim the child for tax deduction purposes.  For this reason, you need to speak with a family lawyer before you make a mistake and end up having contempt charges brought against you for violating a court order.

How Do Court Custody Orders Affect Deductions?

IRS Publication 504 covers who may claim a dependency exemption, and how, following a divorce or separation. Regardless of what the custody orders the court has issued, federal law determines your federal tax status. Therefore, the IRS requirements supersede a county or state court order.

More Child Custody Information

It is never easy navigating child custody or tax matters. You might find it valuable to talk with an experienced tax attorney or child custody attorney about your particular case.

Free Consultation with Child Custody Lawyer

If you have a question about child custody question or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will aggressively fight for 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

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