30-3-10.10. Parenting plan–Domestic violence
• In any proceeding regarding a parenting plan, the court shall consider evidence of domestic violence, if presented.
• If there is a protective order, civil stalking injunction, or the court finds that a parent has committed domestic violence, the court shall consider the impact of domestic violence in awarding parent-time, and make specific findings regarding the award of parent-time.
• If the court orders parent-time and a protective order or civil stalking injunction is still in place, it shall consider whether to order the parents to conduct parent-time pick-up and transfer through the parent who is the stated victim in the order or third party. Injunction may submit to the court, and the court shall consider, the name of a person considered suitable to act as the third party.
• If the court orders the parents to conduct parent-time through a third party, the parenting plan shall specify the time, day, place, manner, and the third party to be used to implement the exchange.
How Domestic Violence Affects Child Custody in Utah
The effects of domestic violence are far-reaching and can leave visible and invisible scars for years to come. A parent’s past record of abuse, also called domestic violence, may significantly alter the outcome of a child custody case. In cases of chronic abuse, a parent may have limitations placed upon his or her visitation rights, or in the most extreme situations, the abusive parent may lose his or her parental rights entirely.
Basics of Domestic Violence
Domestic violence ranges from physical and sexual abuse to emotional abuse and its resulting internal wounds. In Utah, domestic violence is actual harm or threats to harm made by a cohabitant or family member. Utah law defines harm as hitting, kicking, pushing, stalking, harassing, kidnapping, sexual assault, restricting movement, or breaking or throwing things to intimidate.
In situations where domestic violence is ongoing or there is a fear of future abuse, a protective order may be appropriate. Utah’s court website provides protective order forms and basic information about obtaining a protective order. In order to obtain a protective order, you must show that you have been harmed or threatened by one of the following categories of individuals:
• current or former spouse (including spouse by common law marriage)
• person who resides or formerly resided at your same residence
• person who shares a child or unborn child with you, or
• person related by blood or marriage.
If a judge determines that domestic violence has occurred in your case and is likely to occur in the future without court intervention, your protective order will be granted.
Child Custody Orders in Utah
Central to any custody decision is what sort of living and visitation arrangement best serves the child’s emotional well-being. Utah recognizes two types of custody: legal custody (decision-making authority) and physical custody (where the child resides). While Utah courts prefer joint or shared custody situations, a history of domestic violence could serve as justification for a judge to deviate from a joint custody arrangement and limit the abusive parent’s visitation with his or her child.
Impact of Domestic Violence on Child Custody Orders in Utah
In determining the best interests of the child, evidence of domestic violence is one of several factors considered and weighed in a custody decision. A single, unreported incident of domestic violence does not automatically mean a parent will lose visitation rights. However, a chronic history of abuse or a parent’s failure to protect his or her children from domestic violence could result in restrictions on custody and visitation or a complete termination of parental rights.
Supervised visitation may be required in cases of chronic or recent domestic violence; it requires the presence of another adult at visitation sessions between the child and abusive parent. Although restrictive, a supervised visitation order does not mean that the abusive parent will only ever receive supervised visits with their child. Nevertheless, before the supervised visit requirement can be lifted, the abusive parent must prove to the court that the child would be safe in his or her care and there is no likelihood of ongoing abuse.
Termination of parental rights
When a judge decides to terminate a parent’s custodial rights, including all rights to visit with or otherwise parent his or her child, the decision is permanent and cannot be undone by a parent’s subsequent good behavior. A judge will only terminate parental rights in the most extreme circumstances. Some reasons a Utah court would terminate parental rights include sexual abuse of any child, causing a disabling injury of or disfigurement of the child, murder or attempted murder of any child and intentionally or recklessly causing the death of the child’s other parent.
Can domestic violence allegations affect a parenting plan?
When parents separate, a variety of legal matters may arise, such as child support and property division. However, parenting plans and custody decisions can be especially emotional and often have a significant impact on children as well as their parents. If you are a victim of domestic violence, or have been falsely accused of domestic violence, it is important to realize how domestic violence accusations could have an impact on you and your child. Utah courts take many factors into account when changing or establishing a parenting plan, including proof of domestic violence. If the court believes that a parent has abandoned, physically or sexually abused or neglected a child, they will take these issues into consideration when working toward an outcome that serves a child’s best interests. If you are facing domestic violence accusations, the court may find that the claims of abuse are detrimental to your child and they could affect your ability to spend time with your child in the future. On the other hand, if you or your child is a victim of domestic violence, you may be able to protect your child and yourself from additional abuse by taking the proper approach. Regardless of the details surrounding your set of circumstances, it is vital to carefully assess your situation and stay focused on securing a healthy outcome for your child.
What is a parenting plan?
Parenting plans are also sometimes called custody agreements, parenting schedules, custody and visitation agreements, or parenting plan forms. They describe how parents will take care of their children, when each parent will spend time with them, and how the costs of raising them will be shared.
Not all parenting plans are the same. Each parenting plan should make sense given the parents’ schedules, the children’s needs, and the family’s situation. What works well for one family may not work for yours. Look closely at your own family’s needs when creating your parenting plan or asking the court to do so. In many places, you can find forms or tools to help you create a parenting plan. Try your self-help center, court clerk’s office, law library, legal aid office, or court website. These can be very helpful since they will be based on your state’s law. Often, though, they aren’t as helpful for domestic violence survivors. They don’t always have information on how to be sure the plan is safe for you and your children.
Who decides the parenting plan?
When possible, parents usually do best at creating their own parenting plans. Parents know what will work for them and their children. Plus, parents are the ones that have to live with the parenting plan down the road. If the parents can’t agree, the court sets the parenting plan. You may be able to reach an agreement about custody and parenting with the other parent without outside help. If so, you can write up the plan and file it with the court. You may be able to have an attorney review it to make sure it meets legal requirements. For a domestic violence survivor, though, discussing custody with the other parent can be difficult and may not be safe. Reaching a safe agreement with the other parent may not be possible, especially without help. Many courts have programs to help parents reach an agreement. Some are mandatory, meaning you have to participate. These programs can be useful if you agree on some things but not everything. A mediator or other neutral party can help parents reach an agreement. Sometimes, the judge can best decide the case if it’s not safe to try to reach an agreement with the other parent, even with a mediator’s help. Cases involving domestic violence, substance abuse, mental illness, or a parent in jail are more likely to need a judge. The judge can consider the needs of the children and family based on the information you and the other party provide. Then the judge decides on a parenting plan that protects the safety and wellbeing of the children and you. You can ask for things you’d like the judge to include. Be sure to say why you’re asking for something.
What should survivors know about parenting plans?
Domestic violence may, and often does, continue after separation. A parenting plan cannot guarantee that the abuse will stop. But some things can help increase safety for you and your children. Usually, a very specific and detailed parenting plan is best. Batterers can take advantage of vague terms in a parenting plan to harass you. When parenting plans are not specific about what is allowed, they can be dangerous. So parenting plans should clearly state the places, dates, and times that the children will be exchanged. Sometimes, parents exchange the children in a public place with video cameras and/or security guards. Some examples are a superstore or fast food restaurant. Sometimes, parents have another person make or supervise the exchange. This can be a friend, grandparent, or other neutral person. Parenting plans should also clearly discuss how parents will communicate. They should state when each parent may have telephone contact with the children. Also, state whether video calls will be allowed. Sometimes, video calls can be dangerous because they allow the abusive parent to see into your home, even though the call is with the children. Parenting plans should also state how the parents will communicate about the children. Sometimes parents agree to communicate only by text messages. Sometimes, parents agree to use an app-based program for all communication. Some programs are My Family Wizard, Talking Parents, AppClose, Divvito Messenger or CoParenter. Some have a small subscription fee, and some are free. They can track communication between parents in a record that can be used in court later if needed. Avoid terms that allow an abusive parent to micromanage you. For example, a first right of refusal is usually not a good idea in these cases. The first right of refusal requires each parent to let the other parent know when they cannot care for the children. The other parent can choose to take the children before they are sent to a babysitter. This can create problems in cases involving domestic violence. It requires parents to tell each other when they are not with the children. It also increases the amount of contact between parents. And it allows one parent to control the other’s childcare arrangements. Other common agreements in parenting plans can create problems for survivors. For example, plans commonly have one parent let the other know when and where they travel. But this may increase danger for survivors. Agreements to support the other parent’s parenting may also be improper when violence is present. These are decisions that you, the other parent, and/or the court must make based on your family’s circumstances, sense of safety, and history. Avoid terms that will make it easier for abusive parents to continue to coerce or harass survivors. When deciding whether an agreement makes sense, always ask whether it will help to keep you and your children safe. If the answer is no, those terms should not become part of the agreement. A good parenting plan can set up a safe and happy future for you and your children. It should account for safety concerns. It should not allow a parent who has used violence to continue abusive or harassing tactics. A plan that ignores these points will create stress and can even be dangerous. Use the ideas and tips in this guide and any help available to you in your community. Rely on your own knowledge of what your family needs. Then put it together to create the plan that is best for you and your children.
What are custody, decision-making and parenting time?
Two types of custody are usually discussed in parenting plans; sometimes they’re referred to as types of parenting. In some places, they’re called legal and physical custody. In others, they might be called decision-making and parenting time. Ask at your self-help center or clerk’s office for the words used where you live.
Legal custody or decision-making
Legal custody refers to which parent or parents will make major decisions about the children. This doesn’t mean little day-to-day parenting decisions. Instead, this means decisions about big issues like medical care, education, and religion. Legal custody or decision-making can be sole or joint. Sole legal custody or sole decision-making means one parent makes all major decisions about the children. They don’t need the other parent’s approval. Joint legal custody or joint decision-making means that both parents share decision-making. They must talk about major decisions and try to agree. If not, they can ask the court or a neutral party like a mediator to help them decide. Courts usually want parents to share decision-making. This may not work, though, if the parents cannot safely talk to each other about the children. It also won’t work if one party won’t let the other have a different opinion. Sole legal custody may sometimes be granted in these cases. It may also be a good idea where one parent is in jail or unable to be a part of the children’s lives. Most parents, though, have joint legal custody. If you don’t think joint legal custody will work for you, you must be ready to explain why.
Physical custody or parenting time
Physical custody or parenting time refers to which parent or parents the children will live with and for what periods of time. The children’s day-to-day needs are handled by the parent they are living with at the time. If the child spends most of the time with one parent, it may be called primary physical custody. Joint physical custody is when the parents each spend about half the time with the children. Most states don’t require it to be exactly half due to many families’ work and school schedules. Instead, most states treat anything between 40-60% of the time spent with each parent as joint. Although not common, some states may give one parent sole physical custody. This means that the other parent does not have any parenting time with the children. Courts only order this in extreme situations. Examples include serious safety issues or one parent is unable to be present. Not all physical custody arrangements are the same. Physical custody agreements can be creative to meet the family’s needs.
How specific should parenting plans be?
Every parenting plan should address the needs of the individual family. Because every family is different, not all parenting plans are the same. And not all parenting plans need to be as specific as others. When parents are getting along well, they sometimes want a plan that gives them some flexibility to figure things out as they go. In those cases, parents may create a plan that is not very specific. With domestic violence, though, parenting plans should be as specific as possible. State what time the children will be exchanged, where, and who’s allowed to be there. Clearly describe how communication will happen between the parents and with the children. The more specific the parenting plan, the less room there is for an abusive parent to continue harassment or abuse.
How can parents prepare for making a parenting plan?
When preparing to create a parenting plan, you have a lot to think about. This includes:
• The children’s needs (social, emotional, and physical)
• The children’s age and developmental stage
• The children’s school environment, including extra-curricular activities
• The children’s ability to adjust to change and/or need for stability
• The physical distance between the parents’ homes
• The parents’ work schedules, travel, or other obligations
• Whether any non-parental assistance is available (for example, grandparents or friends)
• The parents’ history of and ability to work with each other
• The parents’ history of handling conflict and resolving disagreements
• Safety concerns (including a history of stalking, harassment, or violence)
• Any history of substance use or abuse that impacts safe parenting
• Mental health concerns that impact safe parenting
• Each parents’ role in childcare responsibilities before separation
• Parental involvement in the children’s extracurricular activities before separation
• Each parents’ strengths and weaknesses as a parent
• The parents’ interest in sharing parenting responsibilities
• The children’s relationships with family members (siblings, half-siblings, grandparents)
• The children’s preferences, if they are old enough to have a meaningful opinion
Can parenting plans be changed?
Parents can usually make small changes to the parenting plan if they both agree. Sometimes, parenting plans include language that says that the parents can do something different if they both agree. Even if that language is not there, courts encourage parents to try to work together. For minor changes, like an extra weekend one month, parents can usually agree to the change without telling the court. Even if the parents agree, it is always best to do this in writing. This can be done through email or text message. And it should be clear whether the change is just once or ongoing. Although small changes are usually okay, don’t make big changes to the parenting plan without telling the court. Changes that are not approved by the court cannot be enforced. Many parenting plans include directions about how parents can make major changes to the plan. This sometimes includes an agreement that they will work together to file an updated parenting plan with the court. Or, the parenting plan may say that the parents will try to mediate changes before they go back to court. When parents do not agree about whether to change the parenting plan, they can go to court. To do this, one parent can file a motion to modify the custody order. The case may be set for court-ordered mediation or another kind of alternate dispute resolution. If not, or if the parents cannot reach an agreement, the judge will decide. State laws usually require parents to show that there has been a significant change in circumstances before a judge can agree to change the parenting plan. Changes could include safety issues, a parents’ decision to move out of state, new work schedules, changes due to the children’s age, or other things. Judges will look at the information with the best interests of the children in mind. The judge will approve the new parenting plan if the judge agrees that changed circumstances require a new plan, and the change is the children’s best interest.
How are parenting plans enforced?
No one from the court is checking to see if parents are following their parenting plans. If things are going well and parents are getting along, they are usually free to do what works for them and their children. If not, though, parenting plans set the rules if the plan has been filed with the court and approved by the judge. (If the plan has not been filed with the court, it cannot be enforced in court against the other parent.) A parent can turn to the court for help enforcing the plan. The first step is usually to file a motion with the court. The motion allows the judge to bring the other parent to court to explain why he or she is not following the parenting plan. If the other parent is not doing what he or she is supposed to do, the court can find that parent in contempt of court. The court may make the parent pay a fine for not following the plan. If the parent was keeping the children away from the other parent, the court may give the other parent extra time with the children. In extreme situations, the court may change the custody order and parenting plan completely.
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