In Utah, the increased rate of marriage among couples means that there are more newlyweds and this number tends to increase year by year. In 2017 Utah had a marriage rate of 8.7 per 1000 residents, which was the fourth highest in the U.S.A. one of the reasons why most couples get married apart from loving each other deeply is so as to start a family and get children. However, also looking into the facts also Utah had the 14th highest divorce rate in U.S.A which was 3.4 per 1000 residents and the figure has increased to 3.6 per 1000 residents.
During times of divorce, it is usually an emotionally trying time for each of the spouses and the children also, especially when it comes to the matter of child custody among the parents. With increased divorce rates within the country, it means more and more children will be subjected to see their parents’ divorce. If the spouses are unable to agree on how to take care of the children then the court will make a ruling and it is usually in the best interest of the children.
In this section, we shall be looking at various aspects associated with how divorce cases are conducted in the state of Utah and the child custody regulations and guidelines that are contained in the laws of Utah. Under child custody there are various aspects that it mainly touches on which include: (i) Legal custody and (ii)Physical custody.
Divorce and Custody
During a divorce in Utah, child custody can be determined in one of two ways.
The first option is outside court by an agreement by both the spouses. Most parents in Utah usually have a plan on how the children will be taken care of even after both of the spouses have been separated since it is the spouses divorcing each other and not the children. This is agreed in the state of Utah and the court will respect this decision as long as it is in the best interest of the children.
However in the eventuality that both the spouses are unable to come to an agreement then the court will have to enforce one to both the respondent and petitioner. In Utah when the decision rests with the court there are various considerations that the court will take before making its decisions. This will include; who among the petitioner and the respondent is likely to consider the best interest of the child, the judge will also assess both parties past conduct and the demonstrated moral conduct of the parents towards the kids.
The judge will also determine which of the two parties are likely to share the child with the other spouse. The court may also consider before giving custody if either of the spouses has exposed the children to pornography or any form of material harmful to a minor. All this will be considered before the court can grant custody of children to any parent. Something to note is that in Utah physical disability cannot hinder a parent from getting custody over his/her own children. Also, gender-based preferences are not allowed during child custody cases this is due to Article Ⅳ section 1 of the Utah Constitution and the 14th amendment of the U.S constitution.
A custody evaluation is a legal process in which a state-licensed social worker, psychologist (Doctoral Level) or a state licensed physician is chosen to evaluate a family and make recommendations to the court for custody matters usually it includes residential custody, visitation and a parenting plan. During divorce when the spouses are unable to agree the court may order a custody evaluation in order to determine who in the best interest of the children is most suitable to have custody over the children. If you decide you want to go this route, call Ascent Law to speak about the costs and elements involved. It is expensive to do this.
The state licensed personnel conducting the custody evaluation should be unbiased and evaluate the family thoroughly. In conducting their investigation, the child custody evaluator is expected by the court to consider a wide range of factors before submitting their final findings to the court. These factors include:
i. If the child is 14 years and above he/she may be asked to choose a preference on which parent they would like to live with.
ii. The custody evaluator should consider the bond between the children and their parents.
iii. Another factor to consider is how best to ensure the children are kept together and the benefits associated with it.
iv. The custody should also assess the merits of maintaining previously determined custody arrangements.
v. The custody evaluator should consider each parents character, behavior and his/her ability to function as a parent.
The judge is able to make a conclusive and inclusive decision on the divorce while considering what is in the best interest of the children. The judge usually looks at who between the two spouses will be able to give the children more personal care rather than surrogate care. The judge also tries to establish who between the two spouses will be the primary caretaker of the children. If the judge considers this approach so as to be able to determine who will have custody of the children then the following things will be considered;
i. Which spouse prepares and plans for meals.
ii. The spouse who baths and grooms the children.
iii. The spouse who cleans and takes care of laundry
iv. The spouse who is concerned with the medical care of the children
v. The spouse who plans for social interactions for the kids’
vi. The spouse who properly disciplines the kids’
vii. The spouse who is concerned about teaching elementary skills to the kids.
After a custody evaluation has been conducted by the appropriate personnel then the judge can be able to grant a verdict over the custody of the children. Both the physical and legal custody. The will be one of three possibilities which are;
a) Joint custody
b) Sole custody
c) Split custody
In Utah, this is usually the presumed judgment since it is usually in the best interest of the children if they grow with both parents within their lives. In joint legal custody, both spouses have a say in matters concerning the children’s health, education, social activities and general well-being. This means that all matters concerning the children have to be agreed on by both parties. Joint legal custody works well when:
• When both parents agree that a joint legal custody arrangement is in the best interest of the child
• If both the spouses are willing to cooperate
• Both parents want to be very involved in raising their children
• Parents share fundamental values
Apart from joint legal custody, there is also joint physical custody. Joint physical custody is when each parent shares equal time with the children. Something to note under joint physical custody is that if the children spend over 111 nights annually at each spouse’s house then child support will be paid under joint custody worksheet rather than the sole custody worksheet.
Under sole legal custody, it means that a single parent gains the mandate to make decisions on matters concerning the children’s lives, while the other parent usually does not have a say in matters concerning the children. While sole physical custody generally means where the children physically live. If one parent has sole physical custody it means that the children stay and reside with one parent, this parent is known as the custodial parent. The other parent has visitation rights or parent time and is known as the non- custodial parent. Sole physical custody can be filed under the following grounds:
• When both spouses agree that sole custody is in your child’s best interest.
• A parent travels extensively for work or their work schedule makes it difficult to have the children live with them.
• Your child needs a primary residence for an age-appropriate custody schedule.
• In case the parents live far away from each other and have a long distance custody schedule.
• If a parent has problems with substance abuse or is mentally unstable.
• A parent has a history of abuse or neglect towards the child, or a parent has been absent from a child’s life.
Split custody, though not very common, means that the judge gives each parent sole custody of certain matters affecting the child as they grow up. A good example is when the father is granted the ability to decide on matters concerning the child’s discipline and education matters. This means that whichever decision that the father concludes is final and the mother cannot interfere. Also, the mother can be given custody over the children’s health and diet and meals they eat and where they stay. Thus the father cannot interfere with these decisions.
Parent time also known as visitation time can be defined as a court order from a judge where it establishes the visiting time for the non- custodial parent to visit his/her own children. Parent time usually comes from a divorce or separation between spouses. A visitation order must be clear and specific so that the court can be able to find contempt for violation of those orders. Usually, most parents usually have a plan for their children and how they will live after the divorce of which all are allowed in Utah. However, given the eventuality would occur that the two spouses can’t seem to agree then a standard parent time schedule is enforced by the court. Parent time is usually to allow for the non-custodial parent to have quality time with his children. Therefore the non-custodial parents have a number of rights under Utah law, including:
• Child support and Family Time, neither of which can be withheld due to lack of compliance with a Family Time schedule
• Notification within 24 hours of important academic, athletic, community or social events where a child is participating or being honored. Non-custodial parents have the right to attend and fully participate
• All reports from schools, day-care centres or preschools
• Immediate notification of a medical emergency and direct access to the child’s medical records
• Virtual communication with the child via email, telephone, instant messaging, video messaging, or other technologies. These activities intended to supplement in-person time, not replace it.
• Notification within 24 hours of any change in the custodial parent’s address, email address, telephone number, or virtual connection information
• A division equally of participation in major religious holidays. A parent who celebrates a religious holiday not celebrated by the other parent has the right to be with the child on said holiday
• Gradual reintroduction to a parent after a lengthy separation or lack of Parent Time to facilitate appropriate parent-child bonding
• Detailed information whenever a child is travelling with a parent, including destinations, itinerary, travel dates, locations and contact information.
Divorce and Custody Lawyer Free Consultation
If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506