Often when clients come in to discuss their situation, the first questions are about child custody. “How does the judge determine who has the kids?” Or, “I must have the kids! You can make sure of that can’t you?!” Child custody can be the most bitterly fought battle in a divorce. This is often for good reason, as most parents want to be with their children as much as possible.

Types of Custody: Utah has two types of custody, legal and physical custody.The State also uses two other definitions to define custody: Joint Custody and Sole Custody. Joint Legal Custody is defined as both parents sharing the rights, privileges, duties, and powers. In the State, Joint Physical Custody means that a child stays with each parent overnight for more than 30% of the year (or 111 days), and both parents contribute to the expenses of the child and child support. This does not mean each parent has equal time with their children. Sole Legal Custody is when only one parent has the rights, privileges, duties, and powers of a parent. Split Custody is when the other parent does not have 30% of the overnights per year.

Child custody is determined by the “best interest of the child.” The children’s interests can best be served when the parents can decide, together, on the custodial situation.

When parents cannot decide what is in the best interest of their children, it will be decided by the Courts. Generally, the Court will presume that joint legal custody is in the best interest of the child/ children; both parents are involved in making important decisions for the child. These decisions often include health, educational, religious and other life decisions. For practical matters, the custodial parent (the one with whom the child/children live with most) will make the decisions on day-to-day aspects of the child’s/children’s lives.

Utah Code Parent Time: The Utah State Legislature gives guidance to the Courts regarding Custody matters. Utah Code 30-3-35/35.1 is a guide for determining the minimum amount of parent time awarded to the noncustodial parent. The noncustodial parent has one weekday evening from the end of school until 8:30 pm and every other weekends beginning Friday pm and ending Sunday pm. Holiday and birthdays are alternated each year. During the Summer, the noncustodial parent will receive 4 weeks of extended parent time. When the children are younger this schedule is modified. The Court can modify this, according to the parties’ work schedules and location.

Fathers: Often fathers are concerned about possible discrimination against them. Utah law does not give preference toward any parent based on gender. However, there are many considerations the court shall use:
1. Evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse,
2. Parenting skills of the parent to meet the developmental needs of the child.
3. Each parent’s willingness to co-parent, communicate with the other parent, encourage the sharing of love and affection, and allow contact between the other parent, and
4. The ability to provide personal care rather than surrogate care.

Occasionally, client’s ask if their teenage child can choose who they may live with. The state of Utah states that children who are 14 years of age and older may be asked about custody matters. A child’s testimony may be given added weight, but they are not controlling.

Custody Evaluations: The court is only given limited information about child custody, therefore, it can be one of the most difficult decisions to make. Sometimes, it is helpful to complete a child custody evaluation. This is an evaluation, done by a child development professional who is licensed by the Utah Department of Occupational and Professional Licensing. The Court will order custody evaluations to provide them with information to help them make decisions about custody and parenting time arrangements. It is of the utmost importance that these decisions are in the child’s best interest. The Court relies heavily on such evaluations, as the judge is not able to personally visit the homes and talk to those who have witnessed the family circumstances and behaviors.

For parents who are contemplating a divorce, custody matters are often the most difficult to address. It can be helpful when parents can decide on a custody arrangement together. However, sometimes it is the judge who will decide on what custody situation is in the “best interest of the child/children.” Sometimes, the Judge orders a custody evaluation, which involves interviews of spouses, kids, family members and friends. Time and money can be saved when couples talk together and work out a child custody plan. Furthermore, when couples can agree on custody, the child’s/children’s needs are being met.