CUSTODY OF MINOR CHILDREN

For parents of minor children, their top priority is usually figuring out a plan for their children’s future custody and care after the divorce or separation.

PHYSICAL CUSTODY AND PARENT-TIME

Divorcing parents of minor children must determine which parent will be the primary custodian and how to allocate parent-time with the children on a week-in/week-out basis and with regards to holidays.  Physical custody refers to amount of time (literally the number of overnights) your children live with you and with their other parent.  Utah courts categorize physical custody as being either “sole” or “joint.”

The cutoff between sole and joint physical custody is 111 overnights.  If either parent has less than 111 overnights each year with the children, then the other parent is deemed to have sole physical custody.  If both parents have at least 111 overnights each year with the children, then they are deemed to have joint physical custody.  These designations of either sole or joint physical custody are determined in advance by the parties or the court by creating a specific parent-time schedule that designates which parent will have the children on which days.

Holiday and Extended Summer Parent-Time

First, the parents must establish a holiday schedule.  Utah law provides a default holiday and extended summer parent-time schedule depending on the age of the children and how far apart the parents live from each other.  The default holiday schedules cover all holidays, children’s birthdays, school early-out days and even snow days.  Most divorcing parents elect to follow the default holiday schedules and may case-by-case adjustments going forward as needed.

Week-to-week Parent-Time

Second, the parents must establish a regular week-to-week parent-time schedule.  Utah law provides default minimum weekly parent-time schedules depending on the ages of the children to which both parents are presumed to be entitled to.  These specific default weekly parent-time schedules are included in the appendixes at the end of this pamphlet.  However, the court has wide discretion to award either parent more parent-time than the default schedules.  Ideally, the parents will be able to come to an agreement on a specific parent-time schedule that works best for their children.  Although the court requires that there be a written parent-time schedule, the parents can always agree to make temporary adjustments to the schedule from time to time.

Transportation

The parents must determine who will provide the transportation to pick up and drop off their children for parent-time exchanges.  When parents live relatively close together, they typically share this burden by agreeing that each parent will pick up the children from the other parent’s home or another mutually agreed upon location at the start of his or her parent-time.  This becomes more difficult the farther away the parents live from each other.  If the parents cannot come to an agreement, then the court will make a specific transportation order.

Designated Legal Residence

Regardless of the specific parent-time schedule, the parents must determine which of their residences will be designated as their children’s legal residence for school and other purposes.

LEGAL CUSTODY AND DECISION-MAKING

Legal custody refers to the legal rights, duties, powers and privileges of a parent, including legal recognition of parental status, decision-making authority, access to information regarding the child, and right to communication with and regarding the child.  Except in cases of domestic violence, abuse, or great physical distance between the parents, Utah law presumes that joint legal custody between the parents is in the best interest of the child.

Even where the court orders joint legal custody, there needs to be a specific allocation of decision-making authority for the children.  Typically, each parent has the right to make day-to-day decisions concerning their children while in the care of that parent.  Each parent should also have the right to make emergency decision regarding the children’s safety or health while in the care of that parent.  For all other significant decisions (i.e. healthcare, education, religious upbringing, etc.), the parents should make a good faith effort to cooperate and work together to make joint decisions that are in the best interests of their children.

In addition, Utah law incorporates several guidelines that are suggested to be incorporated into a legal custody order, including the following:

  • The parents should notify each other within 24 hours of receiving notice of all significant school, social, sports, and community functions in which the child is participating or being honored, and both parents shall be entitled to attend and participate fully.
  • Each parent should have access directly to all school reports and medical records for the children.  Each parent should immediately notify the other in the event of a medical emergency involving the children.
  • Each parent shall provide the other with the his or her current address, telephone number, email address, and other virtual parent-time access information within 24 hours of any change.
  • Each parent shall permit and encourage, during reasonable hours, reasonable and uncensored communications with the children, in the form of mail privileges and virtual parent-time if the equipment is reasonably available.
  • Parental care shall be presumed to be better care for the children than surrogate care and each party should cooperate in allowing the other to provide child care if he or she is willing and able to transport the children.  Child care arrangements existing during the marriage are preferred as are child care arrangements with nominal or no charge.
  • Each parent should provide all surrogate care providers with the name, current address, and telephone number of the other parent and should provide the other parent with the name, current address, and telephone number of all surrogate care providers.

Custody Determinations

If parents are unable to agree on a physical and legal custody plan for their children, then the court must make specific custody orders.  The court’s primary consideration is the best interests of the children without preference for either the mother or the father solely because of the biological sex of the parent.  In determining the best interests of the children, the court should consider the following factors, to the extent they are relevant:

  1. The past conduct and demonstrated moral standards of each of the parties, and moral character and emotional stability.
  2. Which parent is most likely to act in the best interest of the child, including allowing the child frequent and continuing contact with the noncustodial parent.
  3. The extent of bonding between the parent and child, meaning the depth, quality, and nature of the relationship between a parent and child.
  4. Whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal or physical custody.
  5. The ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child's best interest.
  6. Whether each parent is capable of encouraging and accepting a positive relationship between the child and the other parent, including the sharing of love, affection, and contact between the child and the other parent.
  7. Whether both parents participated in raising the child before the divorce.
  8. The geographical proximity of the homes of the parents.
  9. The preference of the child if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to joint legal or physical custody.
  10. The maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents.
  11. The past and present ability of the parents to cooperate with each other and make decisions jointly.
  12. Any history of, or potential for, child abuse, spouse abuse, or kidnaping.
  13. The benefit of keeping siblings together.
  14. The general interest in continuing previously determined custody relationships where the children are happy and well-adjusted.
  15. Duration and depth of desire for custody.
  16. Ability to provide personal rather than surrogate care.
  17. Significant impairment of ability to function as a parent through drug abuse, excessive drinking, or other causes.
  18. Reasons for having relinquished custody in the past.
  19. Religious compatibility with the children.
  20. Kinship, including in extraordinary situations stepparent status.
  21. Financial condition.
  22. Any other factors the court finds relevant.

For more information on other topics related to divorce, please visit our family law page or our frequently asked questions section.