Utah has mandatory mediation requirements. If you’re fighting with your spouse about custody or visitation, prepare to be deeply involved with the court system. In fact, your first stop should be a mediator’s office to see whether you can avoid a full blown custody trial. Even if you run right out to your lawyer and ask for a court hearing, the court will send you to mandatory mediation with a court mediator before you can have your day in court. Go to mediation as the court requires—or meet with a private custody mediator chosen by your Farmington Utah divorce lawyer.
When you file your first court papers asking for the divorce or respond to your spouse’s papers, you state in general terms what you want in terms of custody. For example, you state whether you agree to share joint legal custody or are seeking sole custody with visitation to your spouse. In most states, you’re also required to file a statement describing where and with whom your children have lived for the past five years, to comply with a law called the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA ).
If you want the court to issue a temporary custody order while your divorce is pending, you’ll probably move quickly on to a motion hearing. Either you or your spouse will file a motion stating what you want, and the other will respond, arguing for something different. You may also submit declarations—written statements by you and possibly from witnesses, giving the judge facts that you think support your position. You’ll then go to court for a hearing, where the judge will make a temporary order. That order will be binding until you either agree to change it or have a full trial, after which the judge will make a permanent order.
Under Utah divorce laws, if you don’t get custody of your children you can seek visitation. A parent who doesn’t have physical custody of the kids is usually given visitation rights. If one parent has both legal and physical custody and the other has fairly limited visitation. For many parents, having to deal with an ex-spouse about visitation is really hard, especially right after the separation before anyone has settled into a new routine. Consult with an experienced Farmington Utah divorce lawyer for advice on child custody and visitation.
Some parents try to minimize contact between their children and their other parent, hoping the difficulties will go away if they’re avoided. Nothing could be further from the truth. If you’re hoping that quietly sabotaging contact between your spouse and your kids—by making the kids unavailable for phone calls, inventing excuses why visitation just can’t happen some days, or giving your kids subtle messages that they should resist visitation or shouldn’t be close to the other parent— will have a good result, think again. First of all, it’s not good for your kids, who need both of their parents’ support during this big transition. Second, it will only make things more difficult for you and your spouse in the long run. Third, it may backfire against you in court. If your spouse reports your behavior to the judge, you could lose your custody rights or some of your visitation time, or have to deal with the judge appointing someone to oversee visitation and make sure the court orders are being carried out.
If your spouse is interfering with visitation, first try direct communication. Ask your spouse whether the visitation schedule is working out and if it isn’t, what the problem is. Don’t accuse or threaten. There may be an explanation that you haven’t thought of, so be open-minded. However, it’s also important to remind your spouse that there’s a court order in place and that you expect compliance. If you continue to have problems, suggest mediation—and try to find a mediator who’s trained in dealing with custody matters. A little intervention can go a long way in a situation that hasn’t escalated too far. But what about a spouse who simply refuses to comply with court ordered visitation? There’s not much you can do except go back to court and ask the judge to intervene. If necessary, the judge will send law enforcement officers to pick up your kids and bring them to you for visitation. And you may even be able to get the judge to order a change in custody. It’s definitely in your best interest to have your Farmington Utah divorce lawyer help you with this kind of custody fight. A parent who refuses to honor visitation rights is a parent who’s probably beyond a talking cure.
If there are significant changes in the way you or your ex wants to handle custody, you may need to go back to court to request a legal change. For example, you might want to ask that physical custody change from joint to sole custody with visitation rights. Or if you compromised during the divorce by giving your spouse physical custody because your job took you out of town a great deal of the time and now you don’t travel as much, you might want to ask for a change in the schedule as well as a change to joint physical custody.
A divorce parent can seek child custody modifications. Divorced parents seeking to modify child custody arrangements should consult with an experienced divorce attorney. If both parents mutually agree on the modification, then the entire process is easy. However if the parents do not agree on the modification, then the matter must be resolved through the court. If there is a court of order on child custody, when both parents agree on the modification, the parents can jointly inform the court about the agreed modifications and the court will modify the order accordingly. However when the parents do not agree on the modifications, the parent seeking the modification must move the court for the modification. Generally once the application for modification of child custody is passed, the other parent will be asked to file a reply to the application. The court will then hear both parents. The parents can testify in support of their respective stance and also produce evidence. The court will also consider the best interest of the children before deciding on the application.
The non-custodial parent with visitation rights can apply for child custody modification if the custodial parent interferes with the visitation rights. There’s not much the non-custodial parent can do except go back to court and ask the judge to intervene. If necessary, the judge will send law enforcement officers to pick up the children and bring them to the non-custodial parent for visitation. And the non-custodial company may even be able to get the judge to order a change in custody. A non-custodial parent with visitation rights should seek the assistance of an experienced Farmington Utah divorce lawyer if he or she wants to change the child custody order.
The non-custodial parent can also seek a modification of the child custody order if the custodial parent wants to move away. One of the most contentious issues that divorcing couples deal with is one parent’s desire to move away. A move across town, or even to a different city within driving range, may not be a big deal, but when one parent wants to move across the country, it can create a lot of problems especially if that parent has custody of the children. Most judges do not favor a move that will take children away from an involved parent, school activities, and friends. At the same time, they are sympathetic to arguments of economic necessity. In some places, the court decides what would be in the “best interests” of the children, but in others, the court will allow a custodial parent to move unless it would harm the children—a much lower standard than considering only what the children’s best interests would be. Most states put the burden of showing the move is in the children’s best interest on the parent who wants to move.
A non-custodial parent can also seek modification of the child custody order if the custodial parent takes up a job that would cause the child to remain home alone at night or the custodial parent becomes a drug addict or is convicted of a criminal offense.
For parents, the long-range outcomes of joint custody have been somewhat better than sole custody arrangements, reducing the need for parents to return to court to enforce visitation and support awards. It also appears to affect the way that parents view their participation with the children after the divorce. In some cases it lessens the additional burden of care that falls on the custodial parent. In other cases it seems to diminish the likelihood that a noncustodial parent (usually the father) will not pay child support. In still other cases it seems to reduce the potentially damaging strain on the relationship between the noncustodial parent and children.
In many cases, however, it is difficult to know what is best for the children. Only hindsight can determine for certain whether divorced parents, when relieved of the burden of the deteriorating marriage, will interact with each other and the children in a way that allows the children to maintain a stable relationship with both. Joint custody is not indicated when there is continuing conflict and hostility between the parents that is exacerbated by the interaction necessary to implement this arrangement. Yet the court has only the short time of the hearing to observe and evaluate each of the parents and to speculate about what would be best for the children. For this reason, divorcing couples are urged to negotiate their own custody arrangements. Joint custody, in particular, is rarely an optimum solution if both parties will not agree to it themselves.
In case of sole custody, all decisions concerning the children should then be made by that custodial parent. He or she should decide how, and under what conditions, the children should be raised, even including visitation by the noncustodial parent. The reason for this unilateral decision making is that despite good intentions, too many parents are just not able to cooperate with one another, and never-ending conflicts arise when decisions need to be made concerning the children.
Legal custody refers to parental rights and responsibilities of decision making with regard to a minor child. In joint legal custody, both parents retain the right and responsibility to make major decisions about their child. Although there is no clear definition of what constitutes “major” decisions, they are usually thought to include the areas of education, medical care, and childrearing. Sole legal custody sanctions, but does not mandate, unilateral decision making.
Physical custody stipulates living arrangements for a minor child and, by implication, which parent is responsible for day-to-day decisions regarding the child. Joint physical custody indicates that the child lives with both parents, although the time division is often unequal. Parents are assumed to share daily decision making and provision for the child’s needs, although frequent consultation between parents does not always occur. Sole physical custody indicates that the child lives with one parent and visits with the other.
“Joint legal custody,” in which children have a primary residence but parents share responsibility for making important decisions, is often the preferred arrangement. Joint custody is a beneficial new approach that works well for most cooperative parents, and it can succeed if parents, who may not get along well with each other, are able to shield children from parental conflict. Too often, however, courts have applied this arrangement erroneously to embattled couples, for whom it fails disastrously.
Divorce laws in Utah are complex. Along with the divorce you also have to fight for alimony, child custody and child support. Different sets of laws are applicable to each of these issues. Never attempt to handle the legal aspect of these issues without the assistance of an experienced Farmington Utah divorce lawyer. It’s a one way ticket to disaster.
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When you need legal help for a divorce case in Farmington Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We want to help you.
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