If I Have Joint Custody, Do I Still Have To Pay Child Support?

Child Custody Law

Utah child support is based on the number of overnight visits. Utah uses overnights, or where the children sleep, as the basis for figuring custody timeshare percentages used in its child support formula. Besides income, overnight totals are a key part of the Utah child support formula. Your overnights directly affect your child support, whether you pay or receive.

Most overnight totals are estimates (and thus incorrect). Utah attorneys and judges often rely on overnight estimates, even if they are incorrect, because counting overnights is tedious and time consuming. Divorcing parents often rely on these estimates as well. Using estimates means your overnight totals are wrong when compared to your actual parenting time schedule. This means your child support amount will not be fair or exact.

How to calculate overnights instead of relying on estimates?

To calculate overnights, the easiest and most accurate way is to use software. Without software, you’re forced to count each night for a whole year, which is error-prone when you include alternating holidays, summer break, and any changes to the schedule throughout the year.

Using software, you can also tweak your schedule to see how even little changes affect your total overnights, and you can see how your overnights change each year due to holidays and other events. You can also track what actually happens, and show how many overnights you’ve actually received for any period of time. Historical information is a powerful tool when you request a child support modification or when you request more parenting time.

Child support formulas in Utah are tied to sole or joint physical custody status.

• Utah sole physical custody: The children reside with and are supervised by the residential parent, while the other parent is entitled to overnight visitations. In Utah, when the nonresidential parent has 110 or fewer overnights with the children, the family courts classify it as sole custody. Parenting time does not figure into the formula.

• Utah joint physical custody: Each parent has significant periods of physical custody, which allows them frequent and continuing contact with their children. Utah requires that each parent host more than 110 overnights per year to qualify for joint physical custody. The number of overnights affects the amount of child support.
Utah child support formulas and overnight totals

Utah family courts use different formulas for sole and joint custody child support amounts.

• Sole physical custody: Utah family courts use a physical care method, which assigns a child support amount based on each parent’s income. The nonresidential parent pays child support to the residential parent. Parenting time does not factor into the formula.

• Joint physical custody: Utah family courts use a formula that adjusts the amount of child support payment based on the number of overnights each parent has with the children. As the overnight totals increase, the amount of child support decreases.

Examples of sole custody and Utah child support

Look at a sole custody scenario for a hypothetical child support case in Utah. Robert earns $4,000 per month, while Mary earns $2,400 per month. They have two children. Robert and Mary agree that he will have fewer than 110 overnights and he will be the nonresidential parent.

See how the child support amount differs in these sole custody examples:

Scenario #1: As the nonresidential parent, Robert will pay Mary $835 in child support.

Scenario #2: If Mary got a new job with equal pay to Robert, he would pay $721 in child support.

Scenario #3: If Mary became the higher earner at $4,000 per month while a layoff forces Robert to take a lower paying job at $2,400, he would still pay a portion of his income to Mary for child support. In this scenario, he would pay $501 to Mary.

In Utah, the nonresidential parent pays child support to the residential parent, regardless of which parent earns more. If the custody was reversed, and Robert had sole physical custody of the children, Mary would pay a percentage of child support based on her income to Robert.

Examples of joint custody and Utah child support

Consider the hypothetical joint custody case of Robert and Mary. Robert earns $4,000 per month, while Mary earns $2,400 per month. They have two children.

See how the child support amounts change in these joint custody examples:

Scenario #1: Robert hosts the children for 111 overnights, the minimum required to qualify for joint physical custody. He pays $831 in child support to Mary.

Scenario #2: If Robert increases his overnights by two weeks to 125 per year, his child support amount lowers to $781 per month.

Scenario #3: If Robert’s overnights are equal to Mary’s, with 182 overnights, his child support amount lowers to $179 per month.

Scenario #4: If Robert’s overnights exceed Mary’s, such as 200 overnights, Mary pays him child support. In this case, Mary pays Robert $36 each month.

In Utah joint custody cases, the nonresidential parent pays child support to the residential parent, based on a percentage of his or her income.

Other factors in the Utah child support formula

Utah’s child support formula uses the following information to calculate your monthly amounts for joint custody child support:

• Overnights: Unlike some states, Utah does not factor in daytime visitations into a child support formula—only overnights. The nonresidential parent must host the children for 111 overnights or more to qualify for joint custody.

• Eligible children: Qualifying children in Utah must be under the age of 19 or still in high school. Disabled children who must remain with the residential parent may require child support past these limits.

• Gross earnings: Gross earnings are established based on tax records and current pay stubs. Utah law requires the use of both parents’ incomes from the equivalent of one full-time job to determine a child support amount.

How accurate child support helps your children

Paying accurate child support helps your children in several ways, primarily because it ensures their financial needs are met.

Here are some other reasons why accurate overnight numbers help you, the other parent and your children:
• It provides a fair way to determine your child support amounts
• It guarantees the child support amount reflects each parent’s responsibilities
• It allows for modifications if your actual time and scheduled time are different
• It is compliant with Utah law

Your financial obligations to your children don’t end with divorce, so whether you are paying or receiving child support, you owe it to your children to pay or receive the proper amount. Utah parenting time percentages only count overnight visits. Child visitation during the day or into the evening does not affect child support amounts. When a Utah family court awards sole custody to the residential parent, the children will spend fewer than 110 overnights with the nonresidential parent. The number of overnights will have no impact on child support. When a Utah family court awards joint custody, the children spend at least 111 overnights and probably more outside the primary residence. As the scheduled overnights increase with the nonresidential parent, the child support amount slowly lowers. Most people use estimate to calculate overnights, which can lead to inaccurate numbers in the Utah child support formula, resulting in incorrect child support amounts.

Do I Pay Utah Child Support when We Share 50/50 Custody?

When parents share 50/50 custody, they assume there won’t be any child support. This makes sense because you figure that if you share everything equally, there’s no need to pay child support. Only problem is that’s not how it works in real life.

Child support doesn’t belong to a parent. Instead it belongs to the child. This means neither parent can negotiate away child support, nor everyone’s bound by Utah’s child support guidelines.

How Utah Child Support Works at 50/50 Custody

Child support is straightforward. The more parent-time one parent has in relation to the other (i.e., the farther you are from 50/50 custody), the more child support will be paid. On the flip side, the closer you get to 50/50 custody, the less child support will be paid. Once you get to 50/50 custody, child support usually becomes pretty minimal, but there will be something, unless both parents make the same amount.

Here’s an example of what I’m mean: Husband and Wife have 1 child. Husband makes $6,000 gross per month. Wife makes $3500 gross per month. If they shared 50/50 custody, Husband would pay $141 per month in child support.
(Note: let’s assume Wife had primary custody, instead of 50/50 custody. If that were the case, Husband would pay $631 per month in child support. Pretty substantial difference.)

So, just because you share 50/50 custody doesn’t mean you won’t pay child support. You very likely will, unless incomes are the same.

Why do fathers still have to pay child support despite having joint custody?

In Utah, it could be said that child support is intended to ensure that the lifestyle to which the children were accustomed when they lived with both parents is preserved (as much as possible) once the children go back and forth between both parents’ homes. So if Dad earns 3x what Mom does, and Mom has the children with her about 75% of the year, Mom can’t possibly maintain the same standard of living as Dad does. So the court orders Dad to pay Mom money each month for her to spend on the children roughly equivalent to the amount Dad would spend on them. The law isn’t perfect, but you get the idea. So where Dad pays Mom $1,500 per month for two kids who spend 75% of their time with Mom, it makes sense that Dad would pay less child support if he were to have the kids with him 50% of the time. Remember: Dad out-earns Mom by 3:1. Just because he has the kids with him half the time does not mean Mom earns as much money as Dad does, so Dad still has to pay Mom some money (albeit less) to ensure that the kids’ standard of living can be more or less equal at both parents’ homes when the kids are there. Here’s how it works using Utah’s child support formula:

Assume that:

Mom and Dad have 2 kids.

Dad grosses (Utah uses gross income to calculate child support) $3,800 per month.

Mom grosses $1,257 per month.

This is roughly a 3:1 ratio.

If Mom had sole custody of the kids, and Dad saw them every other weekend, a few hours mid-week, and then during some holidays and part of the summer, Dad’s child support obligation would be $893 per month.

But if Mom and Dad had joint custody on an equal time-sharing basis, Dad’s child support obligation would be between $288 and $309 per month (depending upon which parent has the kids 182 or 183 days out of the year). So Dad’s obligation is now lower, but Dad still has a child support obligation to Mom. And now you know why.

Can You Divorce and Not Pay Child Support?

Utah does not allow you to waive child support. The child support is for the child and therefore, not for the parents to decide if you can or cannot pay. It is best for a child to receive financial support from both parents. If you completed a divorce without the help of a court or mediation, you may have an arrangement worked out with your ex where you do not pay child support but only if your incomes are comparable and you share 50/50 custody. Or child support is lower and you choose to waive it based on one of the four factors required in Utah. But such arrangements would be extremely unusual. For the most part, if you’re getting divorced, and you have children, and you are the higher earner, you should plan on paying child support.

How Can I Avoid Child Support?

Truthfully, the best way to get out of child support is to not have children. The other way you can get out of child support is if you petition the court to voluntarily terminate your parental rights. However, such petitions are rarely granted and they are never granted on the sole purpose of avoiding your financial obligations. If your ex has remarried and their new spouse would like to adopt your child, a judge may grant your petition to terminate rights. But if nobody wants to adopt your child in your place, you will likely be unable to terminate your rights. Some people decide to quit their jobs in order to prevent their child from getting financial support. However, since child support is based on earning potential, not actual income, a parent will still have to pay child support even if they’re voluntarily unemployed or voluntarily reducing their income. Aside from refraining from procreation, there’s no way to prevent being legally obligated to financially support your own child.

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

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Brandon M. Evans, Esq.

Brandon M Evans

Brandon M. Evans, Esq.
Attorney and Counselor at Law

When Brandon was admitted to the Utah Bar he fulfilled a dream whose inception began in his youth as a result of learning of the Founding Fathers and the Constitution. He is also admitted to the District of Columbia, Washington DC, Bar. While very grateful that he was able to fulfill this dream. Whether you are working to build, protect, or salvage your dream, Brandon can help you.

Whether you are getting married, getting un-married, creating a new business, defending your business, selling or ending your business, dealing with criminal concerns, planning your estate, seeking permanent immigration status, or recouping damages, Brandon will negotiate and litigate for you and your dreams.

Other dreams that Brandon enjoys creating and fulfilling are spending time doing activities: woodworking, gardening, board games, camping, and reading. Brandon loves that his wife and three children also enjoy those activities.

Brandon enjoys the following areas of legal practice:

  • Family Law (Child Custody, Mediation, Litigation, Parenting Plans, Divorce, Adoptions, Annulment)
  • Contract Law (drafting and litigation)
  • Criminal Defense (federal and state cases, including DUI, Theft, Domestic Violence, etc.)
  • Business Formations (LLC, Corporations, Partnerships, etc.)
  • Business Representation (Lawsuits and Litigation)
  • Real Estate (Quiet Title Actions, Evictions, etc)
  • Estate Planning and Probates (Wills, Trusts, including formation and administration, both contested and uncontested)
  • Tax Matters (IRS and Utah State Tax Commission)
  • Personal Injury Law (Car Accidents, Motorcycle Accidents, Dog Bites, Slip and Falls)
  • Collection Issues (collections; Fair Debt Collections Practices Act, etc.)
Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Parent’s Rights, Custody and Liability

Parent's Rights, Custody and Liability

There are many facets of parenting. Two of these are the rights that parents hold regarding the ability to see and raise their children and the responsibilities they have for supporting their children and their children’s actions. Not every family is the same, so determining these rights and responsibilities can be difficult. However, there are legal processes for both the creation and termination of parental privileges and obligations. Child Custody isn’t the only right you have as a parent. As you’ll discover in this article, you could be liable for what your child does.

In this section, you’ll find information on parents’ liability for the acts of their children, the termination of parental rights, and more. Whether you need to learn the basics about parental liability, need to know how parents’ rights can be formally ended, need resources to help children deal with issues such as divorce or adoption, or just want to know the basics on child related tax deductions, use the resources below to learn more. This is why you should talk to a Divorce Lawyer in Salt Lake City Utah about what’s going on in your situation.

Parental Rights

The legal concept of parental rights generally refers to a parent’s right to make decisions regarding a child’s education, health care, and religion, among other things. If parents are separated or divorce, these rights can extend to custody and visitation. While these rights can be automatic in certain family structures, such as with married parents at the birth of the child, it may be necessary for a parent to petition a court for the rights, as in cases of disputed paternity.

Parental rights can also be terminated, either explicitly or implicitly. A father who never claims paternity, or against whom paternity is never established, has no parental rights. A father can also voluntarily relinquish parental rights. A court can also terminate rights for either parent, against his or her wishes, in cases of abuse, neglect, and abandonment, or if a parent has a long-term mental illness, alcohol or drug impairment, or incarceration period.

Parental Liability

Parents can also be legally responsible for their children’s behavior. State laws can vary, but from the time a child is around 8 years old and until he or she reaches the age of majority (18 in most states), parents could be subject to civil lawsuits or even criminal sanctions for the negligent or criminal acts of a child. In civil cases, if a child’s negligence causes an injury to another, his or her parents may be ordered to pay damages or restitution. In the criminal sense, parents could be punished for their children’s delinquency or absence from school, gun crimes, or Internet crimes.

Like parental responsibility, parental liability can also be terminated. Normally, this occurs automatically when a child reaches the age of majority and is considered an adult in the eyes of the law. However, if a parent’s legal rights are terminated for any reason, their legal liability is normally terminated as well.

Legal Help for Parents

Navigating the legal rights and responsibilities of parents can be emotionally and legally challenging, especially if a parent is trying to establish rights or terminate liability. An experienced family law attorney can help you understand the relevant law or help guide you through the legal paperwork and procedures.

Free Consultation with a Custody Lawyer in Utah

If you have a question about family law or if you need to start or defend against a divorce or custody case in Utah 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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Parenting Agreement

The vast majority of child custody cases are able to be resolved before a case needs to go to court. This can happen as a result of informal negotiations between the parents or other parties (and their attorneys) or through alternative dispute resolution processes like mediation or collaborative law. Below is a discussion about parenting agreements and court approval of the same in child custody cases.

Parenting Agreement

What Is a Parenting Agreement or a Parenting Plan?

If the parents or other parties in a custody dispute (and their attorneys) negotiate and resolve all issues related to child custody and visitation, whether informally or through out-of-court processes like mediation or collaborative law, the couple’s decisions are finalized in detail in a written agreement. This agreement may be referred to as a “settlement agreement” in some states, while in other states the document may be called a “custody agreement” or “parenting agreement.”

What Should the Parenting Plan Include?

Although one should keep in mind that parenting agreements will vary widely from case to case, these agreements typically cover the key areas affecting the parents’ children, such as:

  • Where the child will live (called physical custody);
  • Visitation schedules
  • Who will be involved in major decisions related to the child’s upbringing and welfare (called legal custody);
  • With whom the child will spend major holidays, birthdays, and vacations (including schedules)
  • How contact with grandparents, family friends, and other third parties will be handled; and
  • How disputes and changes to the agreement will be handled.

Keep in mind that the above are simply some of the most common and important issues dealt with by parents who are splitting up. Parents can customize an agreement in countless ways to their and their children’s specific needs.

Parenting Agreements and Court Approval

The parenting agreement is usually submitted to a judge for final approval. If the custody agreement is part of the parents’ divorce, the agreement is filed in court in the county/district branch of state court where the divorce petition was filed. An informal court hearing may follow, during which the judge may ask some basic factual questions, including whether each party understands and chose to voluntarily sign the agreement. As long as the judge is satisfied that the agreement was fairly negotiated and that it was made with the best interests of the child in mind, the agreement will almost always receive court approval.

Violating a Court-Approved Parenting Plan

In most states, the custody or parenting agreement then becomes a binding court order or “decree,” dictating the parents’ (or other parties’) rights and obligations under the agreement. The parties to the agreement must stick to it or they may face legal consequences. For example, if a parenting agreement has been converted into a court order, and the agreement is violated by a father who repeatedly fails to return his daughter on time after weekend visits, the mother may go to court to enforce the agreement and resolve the matter.

Get Legal Help Drafting a Parenting Agreement

Having a parenting agreement can definitely save you a lot of time, money, and anxiety during a divorce proceeding. However, it’s not always easy for separated parents to speak to each other, let alone come to an agreement. That’s where family law attorneys can make a big difference as they have experience obtaining agreements even in the most contentions of separations. Get help today and find an experienced family law attorney near you.

Recent Posts

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

4.9 stars – based on 67 reviews


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Virtual Visitation

Under new child custody laws, “virtual visitation” may be changing the way children and divorced parents communicate. Read below to see how a video phone, webcam, and computer software application might change the legal landscape in family courts across the country.

Virtual Visitation

“Virtual visitation”, as the name implies, is a form of child visitation that requires the use of technology to keep in contact with a child — such as through email, video conferencing, video mail, and instant messaging – typically as part of a parenting agreement or child custody order.

Requests for virtual visitation are generally made by the non-custodial parent in situations where the custodial parents seeks to relocate or move out of the area with a child — thereby interfering with existing parental visitation rights. Virtual visitation requests may also apply to new child custody and visitation requests, including child custody and visitation in non-divorce cases and visitation requests by unmarried fathers.

Virtual Visitation Laws

Virtual visitation laws, also referred to as “internet visitation” or “electronic visitation,” are a new, but growing phenomenon. Several states, including Texas, Utah, Wisconsin, Illinois, North Carolina, and Florida, have enacted laws allowing courts to order virtual visitation in custody matters. Legislatures in many other states are currently considering passing virtual visitation laws.

Virtual visitation may also be an option in many states which don’t yet have virtual visitation laws on the books. In many states such as New York, which have not passed specific virtual visitation legislation, family courts have ruled in favor of using technology to extend parental visitation rights.

Virtual visitation laws are meant to supplement, not replace, traditional in-person parent-time. These laws generally require each parent to: 1) permit and encourage virtual visits, 2) make them reasonably available and 3) allow uncensored communication with the child.

Although the telephone is still the easiest and quickest way to communicate, the more technologically advanced ways to engage in virtual visits may include standard electronic communication tools (such as email and instant messaging), webcams, video conferencing, private document sites, social media sites (such as Facebook. Twitter, and Snaptchat), and photo-sharing sites (such as Shutterfly, Picasa, and Kodak Gallery).

Like other child visitation arrangements, courts will consider the best interest of the child in determining whether to allow parent-child virtual visitation.

In addition, because virtual visitation is similar to traditional visitation, a court will not likely afford virtual visitation if regular visitation would not have been granted.

Benefits and Drawbacks of Virtual Parent-Time

There are both benefits and drawbacks to virtual visitation. Because of the growing number of divorced parents sharing custody of their children, virtual visitation provides potentially far-reaching benefits to enrich the parent-child relationship. Not only can parents become more involved in their children’s lives, despite the distance, parents and children may arguably become better people.

Some of the examples of how virtual visitation may be used to benefit the parent-child relationship include:

  • Reading a child a bedtime story;
  • Helping with homework or a special project;
  • Seeing subtle facial expressions of a parent or child, such as a smile or frown;
  • A child showing a parent missing teeth, an award, or other special accomplishment;
  • Connecting on social media sites as a way to talk about day-to-day occurrences; and possibly,
  • Witnessing sporting events, piano recitals, and other events live as they are happening.

On the other hand, while instant messaging and other forms of electronic communication may be beneficial in those cases where the non-custodial parent is physically absent, some believe that virtual visitation may be viewed as a replacement, and not supplement, for regular in-person child visits. In addition, some fear that judges may be improperly influenced by parents seeking to move away from the ex-spouse in situations that would not otherwise warrant child custody relocation.

Should You Get Virtual Parent-Time?

Virtual visitation laws have the potential to change the child custody legal landscape. Not only will the laws create new channels of communication between a parent and child in child custody matters, virtual visitation may allow parents to participate more fully in a child’s life. Even though the availability of virtual visitation may lessen the shock when a parent moves away, virtual visits should never be viewed as a replacement for quality face-to-face time with a child.

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

Ascent Law LLC

4.9 stars – based on 67 reviews


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Psychological Evaluations in Utah Divorce and Custody Cases

There is a lot of fuss and fanfare about psychological evaluations in family law to determine child custody. The most common reason we hear for requesting a psychological evaluation in Utah family law cases (divorce, custody, visitation, shared parenting), is, “I think my ex is bipolar and I want custody of my children.”  Many clients want to have a psychological evaluation performed in their cases, but what happens in those evaluations is a big mystery to them.

When the purpose of the psychological evaluation is to determine which parent is more suitable to parent children (a Child Custody Evaluation), there are guidelines that an evaluator must use.  On February 21, 2009, the American Psychological Association revised their “Guidelines for Child Custody Evaluations in Divorce Proceedings”.  They are now known as the “Guidelines for Child Custody Evaluations in Family Law Proceedings“, an acknowledgment to the fact that the definition of family in America is changing, and psychological evaluations are no longer used only in divorce.

Contrary to what most parents believe, the purpose of a psychological evaluation is not to see if either parent has a mental health diagnosis.  The Psychologist’s contact with the parents is unlikely to be sufficient for the Psychologist to actually make a diagnosis.  At best, they may be able to observe characteristics which might be “consistent with” a certain diagnosis or disorder.

If the purpose of the examination is not to make a diagnosis, then what is it?  In a nutshell, the purpose is of the psychological evaluation, or child custody evaluation, is:

  1. Where possible, to answer the referral question that was set out in the Court’s order which required one or both parents, and the Child, to participate in the evaluation; and
  2. To determine the psychological best interests of the Child.  Where appropriate, the Psychologist can make a recommendation as to which parent is better equipped to meet the psychological needs of the Child.

Psychological Evaluations in Utah Divorce and Custody Cases

10 Things to Discuss with Your Attorney

Sometimes the Court will choose the evaluator, and sometimes the Court will allow the parties or attorneys to choose or have input regarding which psychologist will perform the evaluation.  In that case, here are 10 important things to discuss with your attorney:

  1. How much will the psychological evaluation cost?
  2. Who will pay for the psychological evaluation?
  3. Does this Expert generally prepare a written report?  If so, does the Expert generally prepare the report on time, or request multiple extensions of time to prepare the report?  If you don’t want your case to drag on, is this the Expert for you?
  4. When this Expert prepares a report, does he or she generally make a recommendation to the Court, or avoid making a recommendation to the Court?
  5. What does this Expert charge for his or her time in depositions, and for court time?  Is it a higher hourly rate or an expensive flat fee?  If your case goes to trial, you will probably need this Expert to come to court.  Can you afford to pay for that?
  6. Has your Attorney worked with this Psychologist before?  If so, what were your Attorney’s impression of his or her work?
  7. In your Attorney’s experience, does this Psychologist generally make a recommendation which favors mothers? Or fathers?  If your Attorney’s experience is that a particular psychologist almost always recommends one parent over the other, and that parent is not you, you should discuss your concerns with your Attorney.
  8. If need be, will the Psychologist participate in depositions and testify in court?  Believe it or not, some psychologists who will perform custody evaluations do NOT want to give a deposition or go to court in any way, shape or form.  Although they can be compelled to do so, discuss with your Attorney why you would voluntarily agree to hire an unwilling expert.
  9. Is the Expert willing to supply his or her information, notes, etc. in response to a subpoena, to the extent permissible by law? Does your Attorney know if the Expert has redacted information or notes when his or her records were subpoenaed?  If so, why?  Was there a legal basis for doing so, or was the Expert trying to hide something that should be discoverable?
  10. What is the Expert’s working relationship with the Guardian Ad Litem?  Does your Guardian Ad Litem always suggest this Expert?  If so, why? Does the Expert have discussions with the Guardian Ad Litem that he or she does not disclose to your Attorney?

Free Consultation with Child Custody and Divorce Lawyer

If you have a question about child custody question or if you need to get divorced, 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

Ascent Law LLC

4.9 stars – based on 67 reviews


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Change of Circumstances and Grandparent Custody

The concept of “change of circumstances” is an important on in the context of child custody, but it’s complicated concept in family law.  When a person wants to change the court’s custody orders, there has to be a change in circumstances.

The first important question is “Whose circumstances have to have changed?”  The answer to that depends on whether the order is a shared parenting decree (two residential parents), joint custody (one parent and one non-parent) or whether a person (or persons) have legal custody (aka residential parent or sole custody).  In a nutshell, the question is “Shared Parenting, Joint Custody or Sole Custody?”

Change of Circumstances and Grandparent Custody

When a person has sole custody of a child (aka “legal custody” or sole residential parent), then the change of circumstances must be a change in the circumstances of the child or legal custodian.  It does not matter if the parent who has visitation only, (or has no visitation but simply retains his or her residual parental rights) has changed his or her circumstances, even if his or her circumstances have changed substantially.

In Alexander v. Alexander, the court of appeals for found that the trial court did not abuse it’s discretion when it overruled the Mother’s Motion to Change Allocation of Parental Rights and Responsibilities regarding her three children.  The children were in the custody of their paternal grandmother as a result of the agreement of the Mother and Father during their divorce.  The Mother had visitation (parenting time).

During the trial on the Mother’s Motion to Reallocate, Mother testified that she had been working for some time to make a more stable home for the children.  Among other things, Mother testified that she was employed and had lived in her apartment for a year and a half.  The trial court found that the change of circumstances must have occurred “in the circumstances of the child, the child’s residential parent, or either of the parents subject to a shared parenting decree“.  In this case, the changes were in the Mother’s circumstances.  In addition, the trial court found that the children have become more stable in the grandparents’ home, and so the “harm of a change in environment for the children outweighs any advantages that may have now arisen to justify a change.”

Even if there HAS been a change in circumstances of the RIGHT person, the court should not change custody unless the change is in the child’s best interest AND one of the following is true:

(i) The residential parent agrees to a change in the residential parent or both parents under a shared parenting decree agree to a change in the designation of residential parent.

(ii) The child, with the consent of the residential parent or of both parents under a shared parenting decree, has been integrated into the family of the person seeking to become the residential parent.

(iii) The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.

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

4.9 stars – based on 67 reviews


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Moves and Relocation in Divorce

In situations where court ordered parenting time has already been established, and the residential parent or the school placement parent intends to move, the first issue that must be addressed is notice to the other parent. For information regarding notice of a move.

Once issues of notice have been properly taken care of, the next question becomes – what does this mean for your parenting order?  Are changes needed?  If so, what are they?

Moves and Relocation in Divorce

If the parents can agree regarding the appropriate changes to their parenting plan, if any, then the parties can submit appropriate paperwork to the Court to modify their parenting orders.  But what if the parties cannot agree?  If parties cannot reach an agreement on their own, if they wish, they may request the help of a mediator to reach agreement.  In addition, the Local Rules of your court or the terms of your parenting order or shared parenting plan may require you to attempt mediation before filing a motion with the Court.

If the move is imminent, and you believe time is of the essence to make sure that your Child is not permanently removed from the State, you may need to seek an Ex Parte Temporary Restraining Order.

If the non-moving parent is unable to reach agreement with the moving parent regarding moving the Child and/or the revised terms that should be in the parenting order, then the non-moving parent is left with two choices:

  1. Do nothing and hope that the other party will allow you reasonable access to your Child from the new location.  If you do this, your court ordered access remains the same as your prior order, although it may now be difficult and expensive to follow it.  Or,
  2. File a motion with the Court to change your custody, shared parenting, school placement parent, or parenting time.  In addition, you may wish to file a motion to modify child support to accommodate the travel expenses that are now involved in visitation.

Before an Utah court can modify custody, terminate shared parenting, or change the school placement parent, Utah law requires that the Court must first find there has been a change in
circumstances
.

Moving or Relocation in Utah Custody, Shared Parenting and Visitation Cases

For purposes of this article, assume that moving parent and the non-moving parent have gone through the stages in the first three articles on this topic, and one or both parents have decided to go to court to seek a change of custody, shared parenting,  or the school placement parent in a shared parenting plan.  Utah law requires a court find that there has been a change in circumstances before making this modification.  In addition, the change cannot be a slight change; it must be a change of substance.

The court must find that:

…a change has occurred in the circumstances of the Child, the Child’s residential parent, or either of the parents subject to a shared parenting decree, and that the modification is necessary to serve the best interest of the Child. In applying these standards, the Court shall retain the residential parent designated by the prior decree or the prior shared parenting decree, unless a modification is in the best interest of the Child and one of the following applies:

(i) The residential parent agrees to a change in the designation of residential parent, or both parents, under a shared parenting decree, agree to a change in the designation of residential parent.

(ii) The Child, with the consent of the residential parent or of both parents under a shared parenting decree, has been integrated into the family of the person seeking to become the residential parent.

(iii) The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the Child.

In one court case, the appellate court found that a trial court abuses its discretion when it modifies custody based solely upon evidence that the residential parent intends to leave the State of Utah with the Child.  Many cases since have found that a move, in and of itself, does not constitute a change of circumstances.  However, there are also many cases that have found circumstances attendant to a move which, combined with the move itself, may constitute a change of circumstances.

Free Consultation with Divorce Lawyer in Utah

When you need moving, relocation, divorce or child custody help in Utah, call Ascent Law at (801) 676-5506 for your free consultation. 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

Ascent Law LLC

4.9 stars – based on 67 reviews


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