WHAT IS UTAH’S DEFINITION OF CUSTODY?
Custody of a minor child means the legal status awarded by a court to a parent for the maintenance, care and control of the child.
UTAH FAMILY COURTS AND TYPES OF ACTIONS
In Utah, a custody action may be filed in District Court as a case by itself, or brought as part of another legal action, such as a divorce, legal separation, protective order or a paternity matter. In child neglect, dependency or abuse cases, a custody order may be entered by a Juvenile Court.
LEGAL CUSTODY AND PHYSICAL CUSTODY IN UTAH
There are two aspects of custody awards: (1) legal and (2) physical. Physical custody refers to where the child will reside or live. Legal custody means a parent’s rights, powers, privileges, and duties to make major decisions for the child- important decisions related to such matters as education, religion, medical treatment, or consent to get a tattoo, get married, or join the military before age 18.
Regardless of legal custody or allocation of decision-making authority, each parent may generally make decisions regarding the day-to-day care and control and emergency decisions regarding the health and safety of the child while the child is residing with that parent.
AVAILABLE CUSTODY ARRANGEMENTS
Sole Legal and Sole Physical Custody:
in this custody arrangement (sometimes called “full custody”), the children have at least 225 overnights a year with the “custodial parent,” but the “non-custodial parent” has regular parent-time (also called visitation). (Sole physical custody is also known as primary physical custody, because physical custody is generally shared between parents.) In this arrangement, the custodial parent also makes the major decisions about the children’s lives.
Joint Legal and Joint Physical Custody:
in this custody arrangement, both parents make important decisions about the children. The court may award exclusive authority to one parent to make certain decisions. In fact, any parental rights not specifically addressed in the order may be exercised by the parent who has physical custody of the child a majority of the time. The court may also designate one parent as the “primary caretaker.” Also, in this arrangement, the children have at least 111 overnights a year (i.e., more than 30% of the year) with each parent. While joint legal custody is not based on awarding equal or nearly equal overnights or access to the child, joint physical custody can mean 50/50 time, or nearly 50/50 time, as required to meet the best interest of the child. The court will often require that one home be designated as the “primary physical residence” (or “home base”).
Joint Legal and Sole Physical Custody:
in this custody arrangement, the children have at least 225 overnights a year with the custodial parent, while the non-custodial parent has regular parent-time. But, both parents make important decisions about the children.
in this custody arrangement, each parent is awarded the sole physical custody of at least one of the children when there is more than one child. The custodial parent may have sole legal custody, or both parents may have joint legal custody. This arrangement is less common, as courts favor arrangements that keep the children together to provide them stability. Splitting the children between the parents might be fair to the parents, but not in the best interests of the children.
WHAT IS THE ”BEST INTEREST” STANDARD IN UTAH?
The guiding principle in child custody decisions is the “best interest” of the child. In determining whether the best interest of a child will be served by ordering joint legal or joint physical custody, the court must consider various statutory factors, including:
- Whether a child’s physical, psychological and emotional needs and development will benefit;
- The past and present ability of the parents to give first priority to the welfare of the child, to cooperate with each other, and reach shared decisions;
- Whether each parent is capable of encouraging and accepting a positive relationship, including the sharing of love, affection and contact, between the child and the other parent;
- Whether both parents participated in raising the child before the divorce or most recent order;
- The geographical proximity of the homes of the parents;
- The preference of a child of sufficient age and maturity;
- The maturity of the parents and their willingness and ability to protect the child from conflict;
- Any history of or potential for child and spousal abuse or kidnapping; or
- Any other factors the court finds relevant.
PRESUMPTION OF JOINT LEGAL CUSTODY IN UTAH
Unlike many other states, in Utah, there is a “rebuttable presumption” that joint legal custody between both parents is in the child’s best interest. This presumption may be overcome by showing that there was:
- Domestic violence in the home or in the presence of the child;
- Special physical or mental needs of a child, making joint legal custody unreasonable;
- Physical distance between the residences of the parents, making joint decision-making impractical; or
- Some other factor the court considers relevant.
Utah’s Guardianship Specialists Are at Hoyer Law Firm
Knowing what a judge considers relevant in determining child custody is critical in successfully negotiating a custody settlement or litigating the issue of custody, because judges have broad discretion to determine custody. Our custody attorney, Casey T. Hoyer, has the necessary experience and knowledge to effectively handle your custody matter.