Custody of children in case of separation or divorce–Custody consideration
Child custody issues arise in divorce, legal separation, protective orders, child abuse cases, and paternity cases. Two types of child custody must be considered: legal custody and physical custody. Legal custody has to do with a parent’s rights, privileges, duties, and powers, regarding a child, including authority to make decisions. Physical custody has to do with where the child will live. The trial court has broad discretion to determine custody.
Child Custody
In cases where the parties are separated or where a marriage is declared void or dissolved the court shall enter an order of custody and parent-time, and the court shall have continuing jurisdiction to modify the order. In making custody determinations, the court is to consider the best interests of the child, and may consider the following factors:
• evidence of domestic violence, neglect or abuse;
• ability to meet the developmental needs of the child;
• capacity and willingness to function as a parent;
• past conduct and moral character;
• emotional stability;
• drug abuse, excessive drinking or other causes affecting the ability to function as a parent;
• intentionally exposing the child to harmful material, including pornography;
• reasons for having relinquished custody or parent-time in the past;
• desire for custody or parent-time;
• religious compatibility;
• financial responsibility;
• relationships with step-parents, extended family, etc.;
• who has been the primary caretaker;
• previous arrangements in which the child has been happy and well-adjusted;
• keeping siblings together;
• wishes and concerns of a mature child;
• strength of bond with parents; and
• any other factor the court finds relevant.
There can be joint, split, or sole custody. Joint custody may be joint legal custody, joint physical custody, or both. Joint legal custody means sharing the rights, privileges, duties and powers of a parent. Joint physical custody means that both parents have periods of time during which the children reside with them and that both parents contribute to the support and expenses of the child. There is a rebuttable presumption that joint legal custody is in the best interests of the child except when there is evidence of domestic violence, neglect or abuse; special physical or mental needs; physical distance between the residences of the parents; or other factors the court deems relevant.
Split custody means that each parent has physical custody of at least one of the children. Sole physical custody is where one parent has all the children residing with them and the other parent has some type of parent-time rights. A presumption favors natural parents and adoptive parents over nonparents. That presumption may be rebutted by evidence that:
• no strong mutual bond exists,
• the parent has not demonstrated a willingness to sacrifice their own interest and welfare for the child, and
• the parent lacks sympathy and understanding of the child. Once that presumption is rebutted the custody decision is made based on the best interests of the child.
Joint Custody and Parenting Plans
The court may not order joint legal and/or joint physical custody unless one or both of the parents files a parenting plan and the court determines it is in the best interests of the child. A parenting plan is a plan for parenting a child, including allocation of parenting functions such as maintaining a loving relationship, attending to daily needs, education, assisting with interpersonal relationships, exercising appropriate judgment, and financial support. Any party seeking a shared parenting arrangement, such as joint custody, is to file and serve a proposed parenting plan when they file their petition, answer, or counterclaim. A party that files a proposed parenting plan, as required, may move the court for an order of default to adopt the plan if the other party fails to file a proposed parenting plan. The parenting plan must include provisions concerning future dispute resolution, allocation of decision-making authority, residential arrangements, and provisions addressing notice and parent-time responsibilities in the event of the relocation of either party. Either parent may make emergency decisions affecting the health or safety of the child. Each parent is allowed to make decisions regarding the day-to-day care and control of the child during times that the child is residing with that parent. Other provisions may be included regarding the welfare of the child.
In deciding whether or not to make an order of joint legal custody and/or joint physical custody, the court is to determine whether the best interest of the child will be served by such an order, considering the following factors:
• whether or not the physical, psychological, and emotional needs and development of the child will benefit from joint legal or physical custody;
• the ability of the parents to give first priority to the welfare of the child and reach shared decisions;
• co-parenting skills, including ability to appropriately communicate with the other parent, encourage the sharing of love and affection, and willingness to allow frequent and continuous contact between the child and the other parent;
• whether both parents participated in raising the child before the divorce;
• the geographical proximity of the parents’ homes;
• the preference of a mature child;
• the maturity of the parents;
• the past and present ability of the parents to cooperate with each other and make decisions jointly;”; and
• any other relevant factors.66
An order for joint legal custody or joint physical custody is to provide the terms the court believes are appropriate. Any parental rights not specified in the order may be exercised by the parent having physical custody most of the time. The order may be modified or terminated, following a hearing, based on the petition of either party.
Custody Evaluations
A custody evaluation may be used to determine which parent should have custody. Custody evaluations must be done by a state licensed clinical social worker, psychologist, state licensed physician who is board certified in psychiatry, licensed marriage and family therapist, or clinical mental health counselor. Unless otherwise specified, custody evaluators must consider the factors set forth in Utah Code sections 30-3-10 and 30-3-10.2.71. The court orders performance of a custody evaluation, based on stipulation or motion. Although one factor in deciding custody is who can give personal rather than surrogate care, it would be an abuse of discretion to change custody because the mom now has to work full time and the dad has a new wife who can stay at home with the children. Another factor to consider is the identity of the children’s primary caretaker. If the court looks at who has been the primary caretaker, in determining who should get custody, they would look at such things as: preparation and planning of meals; bathing, grooming, and dressing; purchase, cleaning, and care of clothes; medical care; arranging social interactions; arranging alternative care, putting children to bed and attending to them at night; disciplining children; educating children; and teaching elementary skills. The district court is required to provide specific findings in custody cases. Gender-based preferences are no longer allowed in child custody cases because of article IV, section 1 of the Utah Constitution and the 14th amendment of the U.S. Constitution. Under appropriate circumstances, Utah Code Annotated section 30-3-40 allows noncustodial parents to provide care for their minor children during times when the custodial parent is away for military service.
Can Children Express Preference in Utah Custody Proceedings?
Overview of Custody Decisions in Utah
Utah courts decide child custody whenever parents can’t come to an agreement on their own. Judges must consider a number of factors when making custody decisions, including each of the following:
• the parents’ past conduct and moral standards
• which parent is most likely to act in the child’s best interests, including allowing the child frequent contact with the other parent
• the child’s relationship with each parent
• either parent’s history of domestic violence
• the child’s special needs, if any
• the distance between the parents’ residences
• the child’s preference, if the child is old enough, and
• any other factor the court deems relevant to custody.
When Will the Court Consider a Child’s Preference?
Whether a Utah court will consider a child’s preference when deciding custody depends on the child’s age and maturity. Judges will give more weight to older children’s preferences (14 and older), and disregard the opinion of children under ten. Children between ten and 14 can have limited input on custody decisions. In one case, an 11-year old boy stated a preference to live with his father, but the judge specifically stated that an 11-year old shouldn’t have control over where he lives. Judges will also look at the reasons a child prefers to live with one parent over the other. In one case, a father with custody of two boys moved them from their hometown and away from their school, friends, and other family members. The children wanted to live with their mother to be close to friends and family, and to continue going to the school they knew. The court found that these were valid reasons to want to live with their mother and gave the children’s preferences significant weight in the custody decision. On the other hand, if a child’s reasons for wanting to live one parent are immature, for example, because one parent is more lax with discipline or gives them lavish gifts, the judge won’t give the child’s preference much weight. Even if a child has a strong custodial preference, it won’t be the controlling factor in a court’s decision. A judge can always overrule a child’s preference if it’s in the child’s best interest to live with the non-preferred parent. Judges will also watch to see if parents have coached their children. In one case, a judge questioned the children and discovered that their mother had told them to lie about her boyfriend’s overnight visits in their home. The mother’s coaching was a major factor in the judge’s decision to transfer custody to the father.
Do Children Have to Testify About Their Custodial Preferences in Court?
In Utah, children can’t testify in court unless there are extenuating circumstances, and there’s no other way to obtain their testimony. Instead, judges usually interview children in court chambers to determine their custodial preferences. Normally, the court will ask the parents for permission to interview a child, but parental consent isn’t necessary if the judge decides that an interview is the only way to figure out the child’s custodial desires. Parents can’t attend the in-chambers interview. The judge may or may not allow the parent’s attorneys to be present. Often, a court reporter will record the interview. Courts can determine a child’s preference in other ways as well. In one case, the judge deciding custody considered letters written by two boys to their mom, stating that they wanted to live with her. Courts may also allow custody evaluators or mental health professionals to testify about what children have told them regarding their custodial preferences. When a couple with children parts ways, the responsibility of taking care of the children rests on the shoulders of both parents. An important part of child custody is whom the children will live with and what visitation of the other parent will be like. If both parents cannot mutually agree on whom the child will live with, the court steps in place as a neutral arbiter.
While there are no defined or set rules of which parent will automatically have the privilege of becoming the custodian, there are statutory factors that the court considers before awarding any decision regarding the minors.
What is in the “Best Interests” of Your Child?
When deciding on which parent should take the primary custodial mantle, or whether custody should be shared, and how much visitation is allowed by either parent, family courts factor in several considerations. While the factors may vary from one state to another, the overall question in nearly all custodial cases is pretty much the same, “What are the best interests of the child?” Below are just some of the factors that are considered.
• The emotional ties: The court would want to know which of the either parent has deepest emotional bonds with the kid. Some of the actions that reveal emotion ties include the tendency of caring for your child’s needs and knowledge in the child`s hobbies, or interests.
• Financial strength: Either parent seeking child custodial should prove that they are financially stable, and can cater for all the benefits of the child. The parent should have a regular, reliable, and stable stream of income.
• Past record: An aspiring parent should not have a tainted record, with regards to handling children. HE should not be convicted of engaging is vices such as kidnapping, child abuse, spouse abuse, child molestation, or rape.
• Family unit: Another critical factor in the child development is the support, stability, and love of the family unit. In such instances, the judge will consider whether the custodial parent can cooperate with the other better half in raising the kid. Also, does he/she have the ability and maturity of avoiding conflict of interest for the sake of the child.
• Other factors: Depending on the type of case, and the couple involved, the judge may also consider other factors such as the health of the parent, the child`s age, and gender, impact on the child`s education, and the distance between the parents.
Factors that Determine the Best Interests of a Child in Case of Custody Dispute
Just like most of the courts in other states, the Utah family courts always put the best interests of the child before making any custodial decision. Some of the typical factors that may influence who is going to the primary caregiver include;
• Past conduct
• Financial position/strength of the parent
• Bond between the child and parent
• The physical, physiological and emotional needs of the child
• The child’s preferences and the ability of the parent to protect the child against conflict
• Parenting skill
What Factors Can Affect Custody?
While there is no set formula for what factors count and how much weight each has, there are some fundamental questions that the court will take into consideration when determining which parent should be awarded primary physical custody. Some of the factors the court may use for a custody determination include:
• Who transports the child to and from school, daycare, or activities?
• Who takes care of the child’s primary needs such as feeding, bathing, dressing?
• Who stays at home when the child is ill or away from school?
• Who schedules and takes the child to appointments?
• Who helps the child with school and extracurricular activities?
• Who disciplines the child and monitors their behavior?
Utah Child Custody
While custody cases are rarely cut and dried, there four primary categories that a child custody ruling could fall into. When making the decisions, the court is tasked with choosing a custody agreement that will serve the best interests of the children involved.
Joint Legal Joint Physical Custody
This type of custody is most common in child custody cases where both parents live in the same general area and are more common in cases of amicable divorce where both the parents want the children to reside with them. This type of custody involves parents sharing physical custody which means that each parent will have the children for at least 111 days each year. They will also share in the decision making process in regards to the children such as medical treatment, educational goals, and additional activities the children will participate in.
Joint Legal Sole Physical Custody
In this type of custody arrangement, both parents will be involved in making decisions in regards to any legal issue associated with the children such as educational and medical decisions. Unlike joint physical and legal custody, the children will reside with one primary parent on a full-time basis. The other parent will often receive a set visitation, or parent-time schedule to spend time with the children. This type of custody is more common when one or both parents work, when the parents live farther apart, or when the children would benefit from a more set daily schedule.
Sole Legal Sole Physical Custody
In sole custody arrangements, one parent will have the children living with them full-time or at least 255 overnights a year and the other parent will be entitled to visitation. Visitation is usually set to at least a minimum of 86 overnights per year. This usually includes a mix of weekends, holidays, and school breaks. With sole legal custody, the parent who was awarded sole physical custody will have the right to make all necessary decisions for the child on their own. While the primary parent does not have to seek consent for their decision from the non-custodial parent, they must share the information as the other parent has the right to know. This type of custody arrangement is not very often used and is primarily reserved for cases where one of the parents is perceived by the court as unfit or unable to care for the children.
Split Custody
Split custody is an infrequent occurrence in the judicial system and occurs when two or more children in the household are split up between parents. In this situation, each parent would receive sole and physical custody of one of the children. This type of custody is used when the court deems that it is in the best interest of the children to live separately each with a different parent. These cases can occur in such instances as siblings that do not get along, a child who has a lot of anger against one parent, or a child who have mental health issues that make separation a better option.
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