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

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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

4.9 stars – based on 67 reviews


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Utah Child Custody

Utah Child Custody

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

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

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.

Joint Custody

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!

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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Child Custody Utah

child custody utah

Child custody and legal guardianship are legal terms which are used to describe the legal and practical relationship between a parent and his or her child, such as the right of the child to make decisions and the parent’s duty to care for the child.

Following ratification of the United Nations Convention on the Rights of the Child in most countries, such as Utah and have superseded the concepts of “custody” and “access”. Instead of a parent having “custody” of or “access” to a child, a child is now said to “reside” or of “contact” with a parent. For a discussion of the new international nomenclature, give us a call to discuss it in a free consultation.

Residence and contact issues typically arise in proceedings involving divorce (dissolution of marriage), annulment, and other legal proceedings where children may be involved. In most jurisdictions the issue of which parent the child will reside with is determined in accordance with the best interests of the child standard.

Utah Courts Determine Child Custody

The support order will be based on the child’s needs, obligor’s ability to pay, custody arrangements and the child support guidelines. In Utah, The Criminal Code makes it an offence to abduct a child to spite a custody order. A custody order establishes both the custody and parenting time arrangement for the children. Your child custody order is also confidential.

When an unmarried mother has a child, the mother has legal custody of that child until a court says otherwise.

During divorce, marriage, or annulment proceedings, the issue of child custody often becomes a matter for the court to determine. The Court must consider the following factors in every child custody decision under the law regarding the best interest of the child. The court retains the power to alter the custody arrangements until the child turns 18 or is emancipated.

You may contest custody, child support, and alimony and property division by appearing in court and filing appropriate legal papers. At the hearing, the court shall hear evidence to determine whether the child custody and support determination should be modified. The fact that one parent has been the child’s primary caretaker is often considered but is not enough to guarantee a custody award. It is not that unusual for middle class parents to spend $60,000 on a divorce and child custody fight. Traditionally, divorce in the Utah results in one parent being awarded primary custody and decision making for a child.

Child Custody Rights

Each parent shares the rights and responsibility for the care, custody, companionship, and support of their children. In salt lake city Utah, have fathers rights groups specifically dedicated to helping fathers obtain custody of their children

Legal child custody includes the right to make decisions about the child’s education, religion, health care, and other important concerns. A child may be placed in foster care while a custody case is pending. Legal custody means the right to determine the child’s upbringing, including education, health care, and religious training.

Child Custody Conclusion

Physical custody and residence means the routine daily care and control and where the child lives. Physical child custody is awarded to one parent with whom the child will live most of the time. In most cases, both parents continue to share legal child custody but one parent gains physical child custody. There is also a presumption that it is in the child’s best interest to be in the custody of a parent over a non-parent. Parent time in Utah (also called visitation rights) allow the non-custodial parent (the person without child custody) time to spend with their child. A common arrangement is that one parent gets custody of the child and the other parent is given visitation rights.

When you are ready to move forward with a child custody case, or if you want to modify or change a current child custody order in the State of Utah, call us for a free consultation

(801) 676-5506

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

4.7 stars – based on 45 reviews


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How is Child Custody Determined in Utah?

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Child Custody in a Utah Divorce