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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.

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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

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About the Author

People who want a lot of Bull go to a Butcher. People who want results navigating a complex legal field go to a Lawyer that they can trust. That’s where I come in. I am Michael Anderson, an Attorney in the Salt Lake area focusing on the needs of the Average Joe wanting a better life for him and his family. I’m the Lawyer you can trust. I grew up in Utah and love it here. I am a Father to three, a Husband to one, and an Entrepreneur. I understand the feelings of joy each of those roles bring, and I understand the feeling of disappointment, fear, and regret when things go wrong. I attended the University of Utah where I received a B.A. degree in 2010 and a J.D. in 2014. I have focused my practice in Wills, Trusts, Real Estate, and Business Law. I love the thrill of helping clients secure their future, leaving a real legacy to their children. Unfortunately when problems arise with families. I also practice Family Law, with a focus on keeping relationships between the soon to be Ex’s civil for the benefit of their children and allowing both to walk away quickly with their heads held high. Before you worry too much about losing everything that you have worked for, before you permit yourself to be bullied by your soon to be ex, before you shed one more tear in silence, call me. I’m the Lawyer you can trust.