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CUSTODY

It is important to understand child custody laws to know what rights parents have in regard to their children. There are two parts to the custody of children: legal custody and physical custody.

In Utah, as in most states, child custody is an important issue that can arise during divorce or separation proceedings. Understanding Utah’s child custody laws is essential for parents in Utah who want to know their rights and responsibilities with regard to their children.

In Utah, child custody is divided into two parts: legal custody and physical custody. Legal custody refers to the right to make important decisions about the child’s upbringing, such as education, healthcare, and religious affiliation. Physical custody, on the other hand, refers to the right to have the child physically present with the parent.

Utah law presumes that joint legal custody is in the best interests of a child, and courts generally strive to award joint legal custody to both parents whenever possible.

However, physical custody can be more complicated, and courts will consider a number of factors when making a determination about physical custody. These custody arrangements can take months to determine through the courts.

In determining physical custody, Utah courts consider factors such as the parents’ history of care and involvement with the child, the child’s wishes (if the child is old enough to express a preference), and each parent’s ability to provide for the child’s physical and emotional needs. Utah courts will also consider any evidence of abuse or neglect, which can affect both legal and physical custody determinations.

If a parent has full legal custody over a child, they are solely responsible for and have the right to make important decisions about the child, such as where the child should live.

As mentioned earlier, parents can share legal and physical custody. There are many different ways that parents can share custody of their children.

It is important to note that custody arrangements can be modified by the court if circumstances change, so it is important for parents to stay informed about their rights and responsibilities under Utah’s child custody laws.

HOW IS CUSTODY DETERMINED?

The word “custody” describes the state of a person physically holding or controlling another person or piece of property, or of having the right to do so.¹See Wex Definitions Team, Custody, https://www.law.cornell.edu/wex/custody (last updated June 2021).

Utah courts determine the best interests of a child when making custody and parent-time (which is a term used in Utah to refer to visitation) decisions. The principle of “the best interests of the child” is a legal standard that courts use to determine what custody and visitation arrangements are in the child’s best interests, and it is the primary consideration in all custody and parent-time decisions.

In determining the best interests of a child, Utah courts consider a number of factors, which may include

1. the child’s emotional and physical needs;
2. the parents’ ability to provide for the child’s needs, including food, shelter, clothing, and medical care;
3. the child’s relationship with each parent and other family members;
4. the child’s preferences as to the custody arrangement they will be subjected to, if the child is old enough to express a preference;
5. the parents’ ability to cooperate and communicate with each other in making decisions about the child’s welfare;
6. any history of abuse, neglect, or domestic violence by either parent;
7. the child’s involvement in the community, including school and extracurricular activities; and
8. any other relevant factors that may affect the child’s well-being.

Joint Legal Custody

Joint legal custody is assumed to be in the child’s best interest. This means that, in general, Utah courts will try to award joint legal custody to both parents whenever possible. Joint legal custody means that both parents have the right to make important decisions about the child’s welfare, such as decisions regarding the child’s education, healthcare, and religious upbringing. Joint legal custody can be an effective way for both parents to remain involved in the child’s life and to work together to make decisions that are in the child’s best interests.

A joint legal custody arrangement is considered to be in a child’s best interest unless

1. one or more of the children have special needs;
2. the parents live far apart;
3. there is domestic violence, neglect, physical abuse, or emotional abuse involving one of the children, a parent, or a household member of the parent; or
4. there is some other factor the court considers relevant.²See Utah Courts, Child Custody and Parent-Time, https://www.utcourts.gov/en/self-help/case-categories/family/divorce/custody.html (last visited Feb. 24, 2023)

Other Factors Considered

Other factors the court uses to determine child custody include, but are not limited to³See id.

1. the moral and financial conduct of the parents;
2. the history and nature of each parent’s relationship with the child;
3. the parents’ ability and desire to care for the child; and
4. the parents’ willingness to allow frequent and continuous contact between the child and the other parent, but the court will consider a parent’s protective actions if the parent is acting to protect the children from domestic violence, neglect, or abuse.

Additionally, as mentioned above, the court can consider the child’s desires as well, but this is not a controlling factor in custody cases.

Minimum Parent-Time Scheduling

Utah law provides a minimum parent-time schedule depending on the child’s age.

The ages considered in Utah’s minimum parent-time schedule range from children under five to children ages five to eighteen. Children aged five to eighteen also have an optional schedule and an equal parent-time schedule determined statutorily.

Ultimately, the court’s primary consideration in all custody and parent-time decisions is the best interest of the child, and the court will strive to create arrangements that promote the child’s well-being and ensure that both parents have meaningful and ongoing relationships with the child, as long as it is safe and appropriate to do so.

WHAT DOES “PRIMARY CUSTODIAL” AND “NON-CUSTODIAL” PARENT REFER TO?

Primary Custodial Parent

In Utah, the term “primary custodial parent” is used to refer to the parent who has been awarded the primary—i.e., the majority of—physical custody of the child. Primary physical custody means that the child lives with that parent for the majority of the time, and the other parent typically has visitation or parent-time rights.

When a court awards primary physical custody to one parent, that parent is responsible for the day-to-day care of the child as well as for making decisions about the child’s routine activities. This may include decisions regarding the child’s school, extracurricular activities, and healthcare, as well as decisions about the child’s daily schedule, such as bedtime and mealtimes.

Non-Custodial Parent

The other parent, who is typically referred to as the “non-custodial” parent, may have visitation or parent-time rights, which can vary depending on the specific circumstances of the case.

“Parent-time” in Utah, also known as visitations, refers to the time that a non-custodial parent spends with their child, and it can include overnights, weekends, holidays, and summer vacation time.

The Difference Between Legal and Physical Custody

It is important to note that even when one parent is awarded the primary physical custody of a child, both parents typically retain the joint legal custody of the child, which means that they share decision-making authority regarding the child’s welfare and upbringing.

Joint legal custody allows both parents to be involved in major decisions regarding their child’s upbringing, such as decisions about, as aforementioned, education, healthcare, and religious upbringing.

Overall, the concept of a “primary custodial parent” is used in Utah to refer to the parent who has been awarded the primary physical custody of the child, and it is an important consideration in determining parent time and visitation schedules.

WHAT IF THE PRIMARY CUSTODIAL PARENT DECIDES TO RELOCATE?

When there is a custody order in place from a court, and the primary custodial parent decides to relocate, they must send (i) notice to the other parent about the upcoming move, (ii) information as to how they propose parent-time should work, and (iii) a promise not to interfere with the other parent’s parent-time 60 days before the relocation.⁴See Utah Code § 30-3-37 In this situation, the non-custodial parent can fight for primary custody of the child through the court.

If the primary custodial parent relocates, they must follow certain legal procedures, such as the following:

1. Provide written notice to the non-custodial parent at least 60 days before relocation. This notice must include information about the upcoming move, the new address, and how the custodial parent proposes to handle parent-time or visitation after the move.
2. Promise to the non-custodial parent in writing not to interfere with their parent-time or visitation rights.

Contesting Relocation

If the non-custodial parent objects to the relocation, they can fight for primary custody of the child through court by filing a motion or a petition (depending on the circumstances) with the court seeking a modification of the custody order. The non-custodial parent can argue that the relocation is not in the best interests of the child and that a change in the custody arrangement of the child would be in the best interest of the child.

If the court agrees that the relocation would not be in the child’s best interests, it may modify the custody order and grant primary custody to the non-custodial parent.

In deciding whether to modify the custody order, the court will consider a number of factors, including the child’s relationship with both parents, the reasons for the proposed relocation, and the potential impact of the relocation on the child’s relationship with the non-custodial parent.

The court may also consider whether the primary custodial parent followed the legal procedures for giving notice and proposing a new parent-time schedule.

According to Utah Code § 30-3-37, a court may order a change of custody if the relocation is determined to not be in the best interest of the child. “Relocation” means moving 150 miles or more from the residence of the other parent.

WHAT IF THERE IS NOT A CUSTODY ORDER IN PLACE?

Parental Alienation and Remedies Therefor

Without a formal order from a court, there is nothing that enforces custody or visitation time with respect to the child. In such a circumstance, either parent can leave the state with their child or even keep the child away from the parent (although this “parental alienation” can be fought in court).

If a parent has been denied custody or visitation time with their child by the other parent without a court order, they can file a motion or a petition (depending on the circumstances) with the court seeking an order that grants them legal custody, physical custody, or visitation time. In such a case, the court will make a determination based on the best interests of the child, and it may grant the alienated parent the custody or visitation time sought.

It is also important to note that parental alienation—which is the practice of one parent unduly keeping their child away from the other parent and trying to damage the relationship between the child and the other parent—is a serious issue in family law. Parental alienation can negatively impact a child’s emotional, mental, and physical well-being and can lead to legal action.

In summary, while there is no legal mechanism to enforce custody or visitation time without a formal order from a court in Utah, a parent who has been denied access to their child can seek legal remedies through the court system.

Parental alienation is a serious issue that can be addressed through the court system if it is deemed to be negatively impacting the child’s well-being.

Establishing Custody Orders

Temporary Separation

If a couple who have children decide to separate, they can apply for a temporary separation before filing for divorce, especially if they are not sure they want a divorce but need to establish provisions concerning alimony, property and debt management and division, health care insurance, housing, child support, and child custody and parent-time.⁵See Utah Courts, Temporary Separation, https://www.utcourts.gov/en/self-help/case-categories/family/divorce/temporary-separation.html (last visited Feb. 24, 2023).

A temporary separation is a legal status that allows a couple to live separately while they work out the details of their separation, such as the aforementioned alimony, property and debt division, health care insurance, housing, child support, and child custody and parent-time.

A temporary separation can be useful for couples who are not sure they want a divorce but need to establish some provisions for their separation. It can also be useful for couples who want to take some time to work on their relationship before making a final decision about divorce.

To apply for a temporary separation in Utah, the couple must file a petition with the court that outlines the terms of their proposed separation agreement. The agreement must cover issues such as child custody and parent-time, child support, spousal support, property division, and debt allocation.

The court will review the agreement and may hold a hearing to ensure it is fair and reasonable. If the court approves the temporary separation agreement, it will issue an order outlining the separation terms. The order will also establish a date by which the couple must either reconcile or file for divorce.

If the couple reconciles, the temporary separation order can be terminated. If they decide to divorce, the terms of the temporary separation agreement can be incorporated into the final divorce decree.

In summary, a temporary separation in Utah is a legal status that allows a couple to live separately while they work out the details of their separation. It can be useful for couples who are not sure they want a divorce but need to establish some provisions for their separation.

Enforceability

Generally, it is in a person’s best interest to get something filed with the court to protect themselves and have something in writing regarding custody of their child or children—whether it be a temporary order or something permanent. A notarized document is not a court order and will not enforce custody; the only thing that can enforce custody is an actual order from the court.

Even if the parties completely agree to custody arrangements regarding their child or children, it is best to get that agreement formalized as an order through the court, as things can change, and the parties will not always agree.

For example, one parent may change their mind about the custody arrangement, or there may be a dispute over the interpretation of the agreement. Obtaining an order will protect both parties and allow them to have time with their children without interruption or inconvenience.

When a custody order is in place, both parties are legally bound to comply with the terms of the order. This means that, for example, the custodial parent must allow the non-custodial parent to have their court-ordered visitation or parent time, and the non-custodial parent must return the child to the custodial parent at the end of the visitation period. If one party fails to comply with the terms of the order, the other party can seek enforcement of the order through the court.

In summary, it is important for parents in Utah to obtain a court order for custody and parent-time arrangements, even if the parties agree on the terms of the arrangement. This will protect both parties and ensure that the custody arrangement is legally enforceable.

When a custody order is in place, both parties are legally bound to comply with its terms, and failure to comply can result in legal consequences, which incentivizes the parties to obey the order.