How could a mother or a father claim a child’s custody?

How could a mother or a father claim a child’s custody?

Custody is not something a parent usually “claims”. Biological parents of child already legally have custody of their children. They don’t need to “claim” or “assert” or “establish” custody of their own children.

If you are asking how a parent obtains an award custody of a child over which there is a custody dispute, such as in a divorce or paternity action, here are the factors the courts in Utah (where I practice law) must consider, and I’ve thrown in a few other factors the courts can (and usually do) consider. Keep in mind, however, that while Utah courts must consider certain factors, the judges are not limited to consider those and only those factors, but what follows below is a pretty comprehensive list.

Courts must consider the facts in Utah Code §§ 30–3–10 and 30–3–10.2. The factors in UCJA 4–903 are not factors the courts must consider, but they are factors the courts can and often do consider, and they are factors that a custody evaluator must consider, if a custody evaluator is appointed in the course of your child custody dispute.

If you can establish these factors, it’s hard to imagine how you could not win the child custody fight:

Custody Factors – Utah Code § 30-3-10, § 30-3-10.2, UCJA 4-903:

Utah Code Factors:

i. the past conduct and demonstrated moral standards of each of the parties;

ii. 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;

iii. the extent of bonding between the parent and child, meaning the depth, quality, and nature of the relationship between a parent and child;

iv. whether the parent has intentionally exposed the child to pornography or material harmful to a minor, as defined in Section 76-10-1201; and

v. domestic violence in the home or in the presence of the child;

vi. special physical or mental needs of a parent or child, making joint legal custody unreasonable;

vii. physical distance between the residences of the parents, making joint decision making impractical in certain circumstances;

viii. whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal or physical custody;

ix. 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;

x. 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;

xi. whether both parents participated in raising the child before the divorce;

xii. the geographical proximity of the homes of the parents;

xiii. 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;

xiv. the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents;

xv. the past and present ability of the parents to cooperate with each other and make decisions jointly;

xvi. any history of, or potential for, child abuse, spouse abuse, or kidnapping;

xvii. any other relevant factors.

UCJA Rule 4-903

(4) The purpose of the custody evaluation will be to provide the court with information it can use to make decisions regarding custody and parenting time arrangements that are in the child’s best interest. Unless otherwise specified in the order, evaluators must consider and respond to each of the following factors:

(4)(A) the developmental needs of the child (including, but not limited to, physical, emotional, educational, medical and any special needs), and the parents’ demonstrated understanding of, responsiveness to, and ability to meet, those needs.

(4)(B) the stated wishes and concerns of each child, taking into consideration the child’s cognitive ability and emotional maturity.

(4)(C) the relative benefit of keeping siblings together;

(4)(D) the relative strength of the child’s bond with the prospective custodians, meaning the depth, quality and nature of the relationship between a prospective custodian and child;

(4)(E) previous parenting arrangements where the child has been happy and well adjusted;

(4)(F) factors relating to the prospective custodians’ character and their capacity and willingness to function as parents, including:

(4)(F)(i) parenting skills

(4)(F)(ii) co-parenting skills (including, but not limited to, the ability to facilitate the child’s relationship with the other parent, and to appropriately communicate with the other parent);

(4)(F)(iii) moral character;

(4)(F)(iv) emotional stability;

(4)(F)(v) duration and depth of desire for custody and parent-time;

(4)(F)(vi) ability to provide personal rather than surrogate care;

(4)(F)(vii) significant impairment of ability to function as a parent through drug abuse, excessive drinking or other causes;

(4)(F)(viii) reasons for having relinquished custody or parent-time in the past;

(4)(F)(ix) religious compatibility with the child;

(4)(F)(x) the child’s interaction and relationship with the child’s step-parent(s), extended family members, and/or any other person who may significantly affect the child’s best interest;

(4)(F)(xi) financial responsibility;

(4)(F)(xii) evidence of abuse of the subject child, another child, or spouse;

(4)(G) factors affecting a determination for joint legal and/or physical custody as set forth in Utah Code 30-3-10.2; and

(4)(H) any other factors deemed important by the evaluator, the parties, or the court.

(5) In cases in which specific areas of concern exist such as domestic violence, sexual abuse, substance abuse, mental illness, and the evaluator does not possess specialized training or experience in the area(s) of concern, the evaluator shall consult with those having specialized training or experience. The assessment shall take into consideration the potential danger posed to the child’s custodian and the child(ren).

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

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