Child Custody in Utah
In deciding what the children's new living situation will look like after a divorce, Utah courts focus almost exclusively on the "best interests" of the minor children rather than the best interests or the desires of the parents. By law, Utah judges must consider 14 specific factors as they seek to discover the best interests of the children (see U.C.A. 30-3-10(1)(a) and U.C.A. 30-3-10.2(2)). While parents have constitutionally protected rights to be their children's parents and courts highly respect those rights, when courts decide who the children will live with and how much time the children will spend with each parent, they look first to the children's emotional, physical, and social needs before they look to the parents' desires.
"Physical" v. "Legal" Custody
In family law, "custody" can refer to one of two things: physical custody, or legal custody. Physical custody of a child means the child lives with that parent. Legal custody of a child means that parent has a right and obligation to make decisions about the child's upbringing, such as decisions involving religion, medical treatment, schooling, etc.
Types of Custody
Custody comes in four degrees: sole, joint, split, or none. For example, Utah courts often award both parents joint legal custody of the child, which means both parents equally have the right and obligation to make important decisions concerning the child's upbringing. But if one parent has sole legal custody, then the other parent has none, meaning no right or obligation to make decisions about the child's upbringing.
If one parent has sole physical custody over a child, meaning the child lives with that parent, who we call the "custodial parent", the other parent (the "noncustodial parent") will still have the right to parent-time. Parent-time means a good amount of time spent with the child, including a certain number of overnight stays per year.
Joint physical custody usually results in a more equalized number of overnights per parent per year. Joint physical custody will only be granted if the parents can work together amicably.
Split custody can be arranged in families with more than one child: it means that one parent will take sole physical custody of some children, and the other parent will take sole physical custody of the other children. For example, if there are two children: mom gets sole physical custody of one child, and dad gets sole physical custody of the other child.
Joint physical custody is measured by the number of overnights the child has with each parent. In a joint custody arrangement in Utah, the child must spend at least 111 overnights per year with each parent. So at the extreme, one parent could have 254 overnights and the other 111. But, most likely the parents in a joint custody arrangement will have a more equalized number of overnights.
Sole physical custody in Utah means the custodial parent must have at least 226 overnights with the child. So at the extreme in sole physical custody, the custodial parent could have 226 overnights and the noncustodial could have 139. But, it is likely the parents will have a more polarized number of overnights, so that the noncustodial parents has less than 139 overnights.
If you compare the overnight minimums and maximums for joint and sole, you will notice that there is some overlap. It is possible for the parent with the least amount of overnights to have somewhere between 111-139 overnights in either a joint custody arrangement or a sole custody arrangement. But most likely, a joint custody parent will have around 182 overnights (half of 365).
Overnights with noncustodial parents must be scheduled and planned out in the Decree of Divorce. Parents may work out their own schedule that allows the minimum number of overnights, or may choose to follow the following statutory minimum schedules for parent-time:
- Children under five years of age,
- Children ages 5 to 18 years, or
- the Joint Custody ("optional") schedule for children ages 5 to 18 years.
Check out our Cheat Sheets to help you keep track of the Holiday Schedules found in the statutes:
- Sole Custody Holidays: Mother is Custodial
- Sole Custody Holidays: Father is Custodial
- Joint Custody Holiday
- (Joint: for children under 5 years old, see sole custody holiday cheat sheet)
If the parents have a custody arrangement wherein one parent has both sole physical and sole legal custody of the child, the parents are not required to prepare a "Parenting Plan." But in any other custody situation, they must prepare a Parenting Plan, which will address the following topics:
- Methods parents will use to reach a decision when they disagree, such as counseling or mediation,
- The child's overnights schedule,
- An outline of which parents will make which decisions about the child's upbringing, and
- A plan in case one parent wants to relocate.
Some parents pay for a custody evaluation, which is where the parents hire a professional custody evaluator to investigate the children's and parents' lives and circumstances to come up with an unbiased recommendation for the commissioner or judge concerning child custody. Custody evaluators are typically expensive to hire. In some circumstances, the commissioner or judge will order a custody evaluation, even if neither party formally requests it, and will order that the cost be split equally between the two parents.
Custody while the case is pending
While you are waiting for the court to enter an order concerning custody, such as a decree of divorce or a temporary order, both parents have equal custodial rights.
When the other parent is non-compliant
If you are the custodial parent, and the noncustodial parent is behind on child support or even completely non-compliant with the child support order, you are not allowed to give that parent less parent-time with the kids while the child support payment is pending. In other words, you must still give him or her all the parent-time he or she was granted by the court. To resolve the unpaid child support issue, you should file an "Order to Show Cause" with the court, to ask the court to enforce payment.
In a similar vein, if you are the noncustodial parent, and the custodial parent is denying you your parent-time with your kids, you are not allowed to withhold paying child support until your parent-time is given. You must still pay child support as you were ordered by the court. To resolve the denied parent-time issue, you should file an "Order to Show Cause" with the court asking it to enforce parent-time.
In some situations, the court might be willing to include a provision in the decree of divorce authorizing any peace officer to enforce court-ordered parent-time. But to do so, the court would have to determine that there is a specific need for such peace officer enforcement.