Child custody laws are federal and state laws that govern a parent’s legal authority to make decisions affecting a child (legal custody) and to maintain physical control over the child (physical custody). Child custody laws also pertain to the visitation rights of the non-custodial parent. Child custody laws exist to provide a legal structure for relationships between children and their divorced parents. Ideally, divorced parents should work together to have an amicable relationship and shared custody, but bitterness between divorced spouses and tendencies to involve children in marital and divorce disputes require child custody laws. Child custody laws help to define the family situation in terms of the best interests of the child or children involved in the divorce.
Child custody laws can also be applied in cases when unmarried parents claim custody based on a biological relationship, when grandparents dispute the competence of the child’s parents, and when same-sex couples with adopted children separate. In some cases, custody may be granted to an individual or individuals not related (e.g., foster parents). In the United States, responsibilities for a child’s care and decision-making related to that care are governed by federal and state laws. In general, custody laws and custody decisions favor continued and frequent contact between the child and both parents, as well as an ongoing role for both parents in the raising of their children. However, custody decisions are strongly influenced by the circumstances of each individual case, the welfare of the involved child or children, and the perceived effect of each parent on the child. In almost all custody cases, courts consider a value called the “best interests of the child” as the highest priority when rendering a custody decision.
The best interests of a child are determined by considering a number of factors, including the following:
• child’s age, sex, and mental/physical health
• mental and physical health of both parents
• child’s established lifestyle (home, school, church, etc.)
• lifestyle of both parents, including any history of child abuse
• emotional bonds between each parent and child, and the ability of each parent to provide emotional support and guidance
• ability of each parent to provide physical necessities (e.g., food, home, clothing, healthcare)
• impact of change on the child
• ability and willingness of each parent to encourage a healthy relationship and communication between the child and the other parent
• child’s preferences
Most courts use the above factors to determine which parent can provide the child with a stable home environment and continuity of lifestyle. Child custody laws address several different types of parenting situations and custody circumstances. For the purposes of custody, legal definitions of parenthood are as follows:
• Biological parents: The mother and father responsible for conception and birth of the child.
• Step-parent: A non-biological parent who marries or cohabitates with a biological parent.
• Step-child: A non-biological child brought into the family by marriage or cohabitation with the biological parent.
• Custodial parent: The parent awarded primary custody by a court during divorce proceedings.
• Non-custodial parent: The parent awarded part-time custody or visitation rights by a court during divorce proceedings.
Custody decisions involve physical and legal custody. Physical custody refers to the responsibility of taking care of the children (food, clothing, housing, etc.). Legal custody refers to the responsibility for decisions that affect the child’s interests (medical, educational, and religious decisions, etc.). In 20 states, custody is divided into physical custody and legal custody; in the remaining states, physical and legal custody are not considered separately, and the term “custody” refers to both responsibilities. In states that do not distinguish between physical and legal custody, the term “custody” implies both types of responsibilities.
Custody decisions by a court of law designate joint custody between two parents or primary custody for one parent (the custodial parent) and visitation rights for the non-custodial parent. Custody decisions are described as follows:
• Joint physical custody: Children split their time between parents, spending a substantial amount of time with each parent.
• Joint legal custody: Parents share in decision-making regarding medical, educational, and religious issues involving the children.
• Joint legal and physical custody: Parents share both time and decision-making responsibilities.
• Primary (sole) custody: One parent is designated the primary physical and legal custodian of the child or children, and the other parent is granted visitation rights.
Courts in every state are willing to order joint legal custody; however, about half the states are reluctant to order joint physical custody unless both parents agree to it, the child’s lifestyle is not substantially disrupted (e.g., parents live within the same school district), and parents appear to be able to effectively and amicably cooperate with each other regarding their children. Primary or sole custody is usually awarded when parents live a significant distance from one another, when one parent can provide clear benefits for the child over the other parent, or when one parent is deemed unfit to care for the child. In some cases, neither parent is judged fit to retain custody, usually due to substance abuse problems, mental health issues, or prolonged absence or incarceration. In such cases, an individual or individuals other than the parents are granted custody or given a temporary guardianship or foster care arrangement by a court. In general, courts would prefer that a child remain with family members than be placed in foster care.
Common Problems With Child Custody
Unfortunately, children are often involved in divorce and custody battles and, as a result, may suffer from psychological and emotional damage that will require counseling and therapy. In some cases, a child has the legal right to choose which parent he/she wants to live with. However, placing the responsibility of making such a decision on the child can cause internal conflict and emotional stress related to feeling that they have to choose one parent over the other. Parents should make every effort to keep bitter feelings between themselves and not involve children in their divorce conflict. Having the child attend regular therapy or counseling sessions can help the child’s adjustment to the divorce and changes in the living situation. Group therapy with other children in similar circumstances can be especially helpful. Although child custody laws were established to protect the best interests of the child, final custody decisions are not always best for the child. In some cases, the parent with the best legal representation, not necessarily the parent, who will provide the best care, wins custody. Parents may misrepresent their ability to properly care for children or provide false information about the other parent in order to win custody. An independent custody evaluator, usually appointed by the court, can help by conducting psychological evaluations of both parents and children to determine the custody arrangement that will be in the best interests of the children.
Divorce and custody battles can create stress and worries for parents. In making custody decisions, courts look for responsible parents who are actively involved in the children’s lives. Liberal, unrestricted visitation for the non-custodial parent is often based on the relationship with children and the degree of involvement in the children’s everyday activities. Parents in same-sex relationships may have concerns regarding custody issues due to their sexual orientation. However, in a few states, a parent’s sexual orientation cannot in and of itself prevent a parent from being given custody or visitation rights. However, gay and lesbian parents may still be denied custody or visitation because many judges may be motivated by personal or community prejudices. Stepparents may face a similar situation, since stepparents, unless they legally adopt a stepchild, have no legal rights with regard to custody or visitation. In cases in which a stepparent may provide a more stable environment for a child than the biological parents, judges may still favor biological parents due to personal and societal beliefs about what constitutes a “normal” family.
Types of Child Custody
Physical custody means that a parent has the right to have a child live with him or her. Some states will award joint physical custody when the child spends significant amounts of time with both parents. Joint physical custody works best if parents live relatively close to each other, as it lessens the stress on children and allows them to maintain a somewhat normal routine. Where the child lives primarily with one parent and has visitation with the other, generally the parent with whom the child primarily lives (called the “custodial” parent) will have sole or primary physical custody, and the other parent (the noncustodial parent) will have the right to visitation or parenting time with his or her child.
Legal custody of a child means having the right and the obligation to make decisions about a child’s upbringing. A parent with legal custody can make decisions about the child’s schooling, religious upbringing and medical care, for example. In many states, courts regularly award joint legal custody, which means that the decision making is shared by both parents. If you share joint legal custody with the other parent and you exclude him or her from the decision-making process, your ex can take you back to court and ask the judge to enforce the custody agreement. You won’t get fined or go to jail, but it will probably be embarrassing and cause more friction between the two of you which may harm the children. What’s more, if you’re represented by an attorney, it’s sure to be expensive. If you believe the circumstances between you and your child’s other parent make it impossible to share joint legal custody (the other parent won’t communicate with you about important matters or is abusive), you can go to court and ask for sole legal custody. But, in many states, joint legal custody is preferred, so you will have to convince a family court judge that it is not in the best interests of your child.
Sole Custody (Sometimes called Full Custody)
One parent can have either sole legal custody or sole physical custody of a child. Courts generally won’t hesitate to award sole physical custody to one parent if the other parent is deemed unfit — for example, because of alcohol or drug dependency or charges of child abuse or neglect. However, in most states, courts are moving away from awarding sole custody to one parent and toward enlarging the role both parents play in their children’s lives. Even where courts do award sole physical custody, the parties often still share joint legal custody, and the noncustodial parent enjoys a generous visitation schedule. In these situations, the parents would make joint decisions about the child’s upbringing, but one parent would be deemed the primary physical caretaker, while the other parent would have visitation rights under a parenting agreement or schedule. It goes without saying that there may be animosity between you and your soon-to-be ex-spouse. But it’s best not to seek sole custody unless the other parent truly causes direct harm to the children. Even then, courts may still allow the other parent supervised visitation.
Parents who don’t live together have joint custody (also called shared custody) when they share the decision-making responsibilities for, and/or physical control and custody of, their children. Joint custody can exist if the parents are divorced, separated, or no longer cohabiting, or even if they never lived together.
Joint custody may be:
• joint legal custody
• joint physical custody (where the children spend a significant portion of time with each parent), or
• joint legal and physical custody.
Joint Custody Arrangements
When parents share joint custody, they usually work out a schedule according to their work requirements, housing arrangements and the children’s needs. If the parents cannot agree on a schedule, the court will impose an arrangement. A common pattern is for children to split weeks between each parent’s house or apartment. Other joint physical custody arrangements include:
• alternating months, years, or six-month periods, or
• spending weekends and holidays with one parent, while spending weekdays with the other.
Pros and Cons of Joint Custody
Joint custody has the advantages of assuring the children continuing contact and involvement with both parents. And it alleviates some of the burdens of parenting for each parent.
There are, of course, disadvantages:
• Children must be shuttled around.
• Parental noncooperation or ill will can have seriously negative effects on children.
• Maintaining two homes for the children can be expensive.
Physical and Legal Child Custody in Utah
Parents can work out their own custody arrangements or go to Utah family court and have a judge decide their case. In either situation, a custody order must address both physical and legal custody and meets a child’s needs.
“Physical custody” is where the child lives. A parent with physical custody primarily lives with the child. Parents can share physical custody (called “joint physical custody”) or one parent may have “sole” or “primary” physical custody. Your custody order will dictate how much time each parent spends with the child. Parents with joint physical custody will spend substantial, but not necessarily equal amounts of time with the child. The parent who spends the most time with the child is typically designated as the “custodial parent”. The other parent is called the “noncustodial parent.”
“Legal custody” refers to a parent’s right to make major educational, medical, religious, legal, or cultural decisions on the child’s behalf. Like physical custody, parents can share legal custody or one parent may have sole decision-making power over the child. In situations where parents share legal custody, the custodial parent will still have the final say on decisions where the parents can’t agree.
Establishing Visitation Schedules With Child Custody In Utah
Under Utah custody laws, your custody order must set forth a visitation schedule covering weekly, monthly, holiday, and summer visits. Both parents are entitled to regular time with their child and neither parent can prevent visits. Even in cases where a parent has struggled with substance abuse or physical violence, a judge may award that parent visitation usually supervised. A noncustodial parent without joint custody is entitled to minimum visitation under Utah’s custody laws. Generally, this equates to one weeknight per week with the child and overnight visits every other weekend. A judge can award a parent additional visitation time, but not less. The Utah Courts website provides more information on child custody and parent-time in Utah. In limited circumstances where a child’s safety and well-being at issue, a judge may grant one parent only supervised visits. Supervised visits take place at a designated location or agency. A parent will be required to have his or her visits supervised until a judge can be sure a child is safe in that parent’s care. In situations where parents share legal custody, the custodial parent will still have the final say on decisions where the parents can’t agree.
Utah courts decide child custody whenever parents can’t come to an agreement on their own. Yet even in cases where parents agree on custody and visitation, a judge will review a custody agreement to ensure it serves a child’s best interests.
Utah family courts must consider several factors when deciding child custody in Utah, including:
• the child’s physical and emotional needs
• the child’s relationship with each parent
• the distance between the parents’ residences
• each parent’s physical and mental health
• the child’s ties to the community, sibling relationships, and relationships with extended family members
• each parent’s willingness to encourage a relationship between the child and the other parent
• either parent’s history of domestic violence
• the child’s preference if of a sufficient age and maturity, and
• any other factor the court deems relevant to custody.
Free Initial Consultation with a Utah Child Custody Law Firm
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!
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