Utah Code 30-3-34: Best Interests — Rebuttable Presumption
1. If the parties are unable to agree on a parent-time schedule, the court may establish a parent-time schedule consistent with the best interests of the child.
2. The advisory guidelines as provided in Section 30-3-33 and the parent-time schedule as provided in Sections 30-3-35 and 30-3-35.5 shall be presumed to be in the best interests of the child unless the court determines that Section 30-3-35.1 should apply. The parent-time schedule shall be considered the minimum parent-time to which the noncustodial parent and the child shall be entitled unless a parent can establish otherwise by a preponderance of the evidence that more or less parent-time should be awarded based upon any of the following criteria:
a. parent-time would endanger the child’s physical health or significantly impair the child’s emotional development;
b. the distance between the residency of the child and the noncustodial parent;
c. a substantiated or unfounded allegation of child abuse has been made;
d. the lack of demonstrated parenting skills without safeguards to ensure the child’s well-being during parent-time;
e. the financial inability of the noncustodial parent to provide adequate food and shelter for the child during periods of parent-time;
f. the preference of the child if the court determines the child to be of sufficient maturity;
g. the incarceration of the noncustodial parent in a county jail, secure youth corrections facility, or an adult corrections facility;
h. shared interests between the child and the noncustodial parent;
i. the involvement or lack of involvement of the noncustodial parent in the school, community, religious, or other related activities of the child;
j. the availability of the noncustodial parent to care for the child when the custodial parent is unavailable to do so because of work or other circumstances;
k. a substantial and chronic pattern of missing, canceling, or denying regularly scheduled parent-time;
l. the minimal duration of and lack of significant bonding in the parents’ relationship prior to the conception of the child;
m. the parent-time schedule of siblings;
n. the lack of reasonable alternatives to the needs of a nursing child; and
o. any other criteria the court determines relevant to the best interests of the child.
3. The court shall enter the reasons underlying its order for parent-time that:
a) incorporates a parent-time schedule provided in Section 30-3-35 or 30-3-35.5; or
b) provides more or less parent-time than a parent-time schedule provided in Section 30-3-35 or 30-3-35.5.
4. Once the parent-time schedule has been established, the parties may not alter the schedule except by mutual consent of the parties or a court order.
Best Interests of the Child
Whenever a court here in Utah is asked to decide which (if any) of a minor child’s parents should have custody over the child, the court is required to make its decision in accordance with the child’s “best interests.” Whenever Utah parents go to court in a family law context, the “best interests of the child” is the legal standard that judges must follow in determining which parent(s) should make major decisions for the child and with which parent(s) the child should live.
Legal Decision Making
• Legal decision making means the legal right and responsibility to make all non-emergency legal decisions for a minor child – including decisions regarding education, health care, religious training, and personal care.
• Joint legal decision-making means both parents share decision-making and neither parent’s rights nor are responsibilities superior to the others (unless the final judgment or order identified certain decisions as belonging to one parent only).
• Sole legal decision-making means one parent has the legal right and responsibility to make all major decisions for a child.
When the parents of a minor child cannot agree on a plan for legal decision-making and/or parenting time, each parent is required to submit a proposed parenting plan to the court. It will be up to court to determine any element(s) of the parenting plan about which the parents cannot agree.
The proposed parenting plan must address (at a minimum) each of the following:
• A designation of the legal decision-making as either joint or sole.
• Each parent’s rights and responsibilities for the personal care of the child and for decisions in areas such as education, health care, and religious training.
• A practical schedule of parenting time for the child, including holidays and school vacations.
• A procedure for the exchanges of the child, including location and responsibility for transportation.
• A procedure by which proposed changes, relocation of where a child resides with parent, disputes, and alleged breaches may be mediated or resolved, which may include the use of conciliation services or private counseling.
• A procedure for periodic review of the plan’s terms by the parents.
• A procedure for communicating with each other about the child, including methods and frequency.
• A statement that each party has read understands and will abide by the notification requirements which take effect when a parent or custodian knows that a convicted or registered sex offender or a person who has been convicted of a dangerous crime against children may have access to the child.
How Utah Courts Determine Which Parent Should Have Legal Decision-Making And Parenting Time?
When the parents of a minor child cannot agree on a plan for legal decision-making and/or parenting time, the court will examine their proposed parenting plans and consider the arguments and evidence presented by both parties in order to determine what kind of legal decision-making and parenting time it will order. Under Utah law, courts are required to award legal decision-making and parenting time “in accordance with the best interests of the child.”
How Do Courts Determine a Child’s “Best Interests”?
These factors include (but are not limited to) each of the following:
• The past, present, and potential future relationship between the parent and the child.
• The interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings and any other person who may significantly affect the child’s best interest.
• The child’s adjustment to home, school and community.
• If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time.
• The mental and physical health of all individuals involved.
• Which parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent.
• Whether one parent intentionally misled the court to cause an unnecessary delay, to increase the cost of litigation, or to persuade the court to give a legal decision-making or a parenting time preference to that parent.
• Whether there has been domestic violence or child abuse.
If the court determines that a parent who is seeking sole or joint legal decision-making has committed an act of domestic violence against the other parent, there is a rebuttable presumption that an award of sole or joint legal decision-making to the parent who committed the act of domestic violence is contrary to the child’s best interests. (The burden of showing otherwise falls on the parent who committed an act of domestic violence.) This presumption does not apply if both parents have committed an act of domestic violence. A person commits an act of domestic violence if that person does any of the following:
• Intentionally, knowingly or recklessly causes or attempts to cause sexual assault or serious physical injury.
• Places a person in reasonable apprehension of imminent serious physical injury to any person.
• Engages in a pattern of behavior for which a court may issue an ex parte order (with the parent who committed the act of domestic violence not present) to protect the other parent who is seeking child custody or to protect the child and the child’s siblings.
• The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time.
• Whether a parent has completed the required parent education class.
• Whether either parent was convicted of an act of false reporting of child abuse or neglect. When the parents of a minor child cannot agree on a plan for legal decision-making and/or parenting time, the court is required to make specific findings on the record about each of these factors assuming they are relevant to the particular case as well as the reasons why the judge’s decision is consistent with the child’s best interests. Any parent who proposes a parenting plan with the hope of being granted a particular legal decision-making and parenting time arrangement should remember that the legal standard that the court will use when it determines which parent(s) should make major decisions for the child and with which parent(s) the child should live is “the best interests of the child.”
Purchased with Separate Property, But Both Spouses Named as Grantees.
When the purchase is made with separate property funds, but both spouses are named as grantees, a presumption arises that the acquiring spouse intended to give the other spouse a separate ½ interest in the property. This presumption can only be rebutted by clear and convincing evidence that the acquiring spouse did not intend to gift the ½ interest to the other spouse.
The Best Interests of the Child: Factors a Judge May Consider in Deciding Custody
All states use a “best interest of the child” standard in disputed custody cases. This is a rather amorphous standard, and one that lends itself to judges’ subjective beliefs about what’s best for children. There are some factors, though, that you can expect a judge to consider.
• Age of the children: Although the “tender years” doctrine has long been officially out of fashion, some judges still believe that younger children should live with their mothers, especially if the mother has been the primary caregiver.
• Each parent’s living situation: There’s a bit of a chicken-and-egg dilemma surrounding the issue of where parents live and how that affects custody. Sometimes, the parent who stays in the family home is granted custody of the children because it allows the children stability and continuity in their daily lives. Sometimes, the parent with custody is awarded the family home, for the same reason. If you are crashing in your best friend’s guest room while you get back on your feet after the divorce, don’t expect to get primary custody of your kids. If you truly want to spend a significant amount of time with your children, make sure your living situation reflects that. The proximity of your home to your spouse’s may also factor in to the judge’s decision. The closer you are, the more likely the judge will order a time-sharing plan that gives both parents significant time with the kids. The location of their school and their social and sports activities may also matter.
• Each parent’s willingness to support the other’s relationship with the children: The judge will look at your record of cooperating or not with your spouse about your parenting schedule. The judge might also want to know things like whether you bad-mouth your spouse in front of the kids or interfere with visitation in any way. The more cooperative parent is going to have an edge in a custody dispute and a parent who’s obviously trying to alienate a child from the other parent will learn the hard way that courts don’t look kindly on that type of interference.
• Each parent’s relationship with the children before the divorce: It sometimes happens that parents who haven’t been much involved with their kids’ lives suddenly develop a strong desire to spend more time with the children once the marriage has ended. In many cases, this desire is sincere, and a judge will respect it, especially if the parent has been dedicated to parenting during the separation period. But the judge will definitely take some time to evaluate a parent’s change of heart and ensure that the custody request isn’t being made primarily to win out over the other parent.
• Children’s preferences: If children are old enough usually, older than 12 or so a judge may talk to them to find out their preferences about custody and visitation. Some states require courts to consider kids’ views, but others disapprove of bringing the kids into it at all. The judge also may learn about the children’s preferences from a custody evaluator.
• Continuity and stability: When it comes to children, judges are big on the status quo, because most of them believe that piling more change on top of the traumatic transition of divorce generally isn’t good for kids. So if you’re arguing that things are working fine, you’ve got a leg up on a spouse who’s arguing for a major change in the custody or visitation schedule that’s already in place.
• Abuse or neglect: Obviously, if there’s clear evidence that either parent has abused or neglected the children, a judge will limit that parent’s contact with the children.
Benefits of Shared Custody
Parents, of course, benefit from shared custody of their children. Both mothers and fathers are usually invested in seeing their children grow and succeed, and when both parents can be closely involved with their child, everyone is happier. Of course, this is not true in every case, but for the most part, shared custody (also called joint custody) is the best-case scenario. Children whose parents have joint custody of them often do better in school than children who have a relationship with only one parent. They tend to be more emotionally stable, as well. Pragmatically speaking, these children often have better physical health because two parents, rather than just one, are noticing their health needs and any illnesses or concerns that come up. They are often also healthier because both parents pool their resources to care for the child rather than one single parent struggling to make ends meet, possibly cutting corners on food, medicine, and shelter.
Developing a Parenting Plan
Most times, parents can develop a plan to meet their child’s best interest without going to trial or having a judge make the custody arrangements. A parenting plan will allow two mature and invested parents to work together to make decisions for their shared child. Parents should not badmouth one another to the child; this can create parental alienation and is detrimental the child. Instead, they should attempt to work together to decide where the child will live, when they will spend time with the other parent, who will have the child on holidays, where they will go to school, and so on. A mediator or a legal resource group can help parents negotiate these types of items as they strive to meet their child’s best interest. Knowing what to do in a custody case can be very difficult and overwhelming.
Terms Used In Utah Code 30-3-34
• Allegation: something that someone says happened.
• Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
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