Is a Disabled Parent Prohibited from Being Awarded Custody of a Child?

QUESTION: Could my dad get custody of my sister and me when he’s on disability/welfare? My mom has had sole custody since the divorce decree was first issued.

My mom is verbally, mentally, and sometimes physically abusive. Child protective services has been called, but the case was closed. I want to live with my dad. I’ve told Mom this and Mom says Dad would never get custody because he’s sick. My dad’s family is willing to help care for us. I’m 15 soon and old enough to choose.

ANSWER: See Utah Code § 30-3-10 (Custody of children in case of separation or divorce — Custody consideration), subsection 4:


(a) Except as provided in Subsection (4)(b), a court may not discriminate against a parent due to a disability, as defined in Section 57-21-2[1], in awarding custody or determining whether a substantial change has occurred for the purpose of modifying an award of custody.

(b) The court may not consider the disability of a parent as a factor in awarding custody or modifying an award of custody based on a determination of a substantial change in circumstances, unless the court makes specific findings that:

(i) the disability significantly or substantially inhibits the parent’s ability to provide for the physical and emotional needs of the child at issue; and

(ii) the parent with a disability lacks sufficient human, monetary, or other resources available to supplement the parent’s ability to provide for the physical and emotional needs of the child at issue.


[1] Utah Code § 57-21-2(10):

(a) “Disability” means a physical or mental impairment that substantially limits one or more of a person’s major life activities, including a person having a record of such an impairment or being regarded as having such an impairment.

(b) “Disability” does not include current illegal use of, or addiction to, any federally controlled substance, as defined in Section 102 of the Controlled Substances Act, 21 U.S.C. Sec. 802.


Utah Family Law, LC | | 801-466-9277

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