Child Custody: How do courts provide for parents to take care of their children after divorce?
When parents divorce, one of the biggest potential conflicts is the question of child custody. Many issues in divorce, such as disputes over finances, debts, alimony, possession or disposition of the marital home, etc. can be resolved through agreement of the parties; in other words, just because a divorce is filed in court does not mean that you must fight over every issue in divorce. And child custody is no different. Still, if you and your spouse do not agree upon how to resolve child custody issues, those issues will go before a judge to be decided in a courtroom, at trial. Because child custody is such an important issue in a divorce, it is vital to understand how it works, and your options moving forward.
A common misperception is that child custody is simply who your children will live with after you and your ex-spouse have divorced. But child custody is separated into two kinds: legal custody and physical custody.
Legal custody deals with the rights, responsibilities and authority of a parent to make decisions for the child(ren). This includes decisions regarding school and extra-curricular involvement, religious or moral upbringing and health and general welfare decisions for the child(ren). Legal custody can be “joint” (exercised by both parents) or “sole” (exercised by just one parent).
Joint legal custody is the most commonly awarded custody arrangement in Utah. Under a joint legal custody arrangement, both parents have equal rights to make decisions regarding their child(ren). Although not as common, occasionally courts will award sole legal custody. Sole legal custody is usually ordered when one of the parents has shown to be unfit to be entrusted with decisions affecting the minor children. If there has been domestic violence during the marital relationship (either against the children or against a spouse), criminal behavior of a parent around the children, abuse of drugs or alcohol by a parent, disabilities of a parent that prevent the parent from exercising sound judgment, or if there are special needs of the children following the divorce that a sole legal custodial arrangement would best serve, then a court can and likely will award sole legal custody as to some decisions pertaining to the children or, if warranted, a court can award sole legal custody as to all decisions pertaining to the children.
Physical custody is the determination of where the children spend their overnights following a divorce. That’s right: overnights. So even if you were to spend 16 hours a day with your child, but the child slept at the other parent’s house each day, the other parent would be considered the physical custodian of the child. Physical custody may be “joint” or “sole”. Even under a “sole physical custody” arrangement, the other parent–“the non-custodial parent”–will usually be awarded parent-time (also known as visitation). Parent-time is the schedule and amount of time the child(ren) will spend with the non-custodial parent (also known as the number of “overnights” the child will spend at the non-custodial parent’s residence). Under a sole physical custody arrangement, the non-custodial parent may have up to 110 overnights each year. Under the statutory minimum schedule under Utah Code § 30-3-35, the noncustodial parent is awarded about 86 or so overnights per year with the children. Under the statutory minimum schedule under Utah Code § 30-3-35.1, the noncustodial parent is awarded about 145 overnights per year with the children.
Under a “joint physical custody” arrangement, custody is divided between the two parents and their homes. “Joint physical custody” does not mean, however, that the parents share physical custody on an equal, 50/50 basis (i.e., 182-183 overnights per year). Under Utah law, you can be a “joint physical custodian” and have as little as 111 overnights per year with the children.
When going through a divorce proceeding, both legal and physical custody may be contested (unless agreed upon between the parties prior to court). When determining the custody arrangements, the court will take into account many factors. Some of these factors include (but are not limited to):
- the parents’ conduct and moral standards;
- which parent is more likely to act in the child’s best interest;
- which parent is more likely to allow the child frequent and continuing contact with the other parent;
- the depth, quality, and nature of the relationship between a parent and child;
- whether joint legal custody or joint physical custody will benefit the child’s physical, psychological, and emotional needs or the child’s development;
- the parents’ ability to give first priority to the child’s welfare and reach shared decisions in the child’s best interest;
- 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;
- whether both parents participated in raising the child before the divorce;
- the distance between the parents’ homes;
- the child’s preference (if the child can form a preference about joint legal or physical custody);
- the parents’ maturity and their willingness and ability to protect the child from conflict that may arise between the parents;
- the parents’ ability to cooperate with each other and make decisions jointly;
- any history of, or potential for, child abuse, spouse abuse, or kidnapping; and
- any other factors the court finds relevant.
These factors primarily turn on the best interest of the child(ren). Because of this, courts will sometimes take into consideration the views and opinions of the children involved. If either party is a military service-member, the court must consider additional factors. See Utah Code Section 78B-20-306 through 309.
So what do you need to do, in preparing for a divorce, to ensure the best child custody arrangement for you and your child(ren)?
First, attempt to reach an agreement with your ex-spouse. If you are able to reach an agreement with your ex-spouse, you can avoid the hassle and anxiety of having these issues resolved by a judge. When parties agree, this often results in the best child custody arrangement.
Second, regardless of whether the parents agree to a “parenting plan,” if you seek an award of joint legal custody and/or joint physical custody, you must file with the court and serve upon your spouse a proposed parenting plan. If you fail to file and serve a proposed parenting plan, the court cannot award joint custody, even if it feels a joint custody award would be best for the children. The parenting plan is a document that parents submit to the court recommending parent-time with the minor child(ren).
The hoped-for objectives of a parenting plan are to: provide for the child’s physical care; maintain the child’s emotional stability; provide for the child’s changing needs as the child grows and matures in a way that minimizes the need for future modifications to the parenting plan; set forth the authority and responsibilities of each parent with respect to the child consistent with the definitions outlined in this chapter; minimize the child’s exposure to harmful parental conflict; encourage the parents, where appropriate, to meet the responsibilities to their minor children through agreements in the parenting plan rather than relying on judicial intervention; and protect the best interests of the child.
The parenting plan must contain provisions for: 1) resolution of future disputes between the parents; 2) allocation of decision-making authority; 3) residential provisions for the child; and 4) provisions addressing notice and parent-time responsibilities in the event of the relocation of either party. It may contain other provisions for the welfare of the child, if a parent wants to propose such additional provisions.
The parenting plan shall allocate decision-making authority to one or both parties regarding the child’s education, healthcare, and religious upbringing.
The parenting plan must also include child education plan designating: 1) the home residence for purposes of identifying the appropriate school or another specific plan that provides for where the child will attend school; 2) which parent has authority to make education decisions for the child if the parents cannot agree; and 3) whether one or both parents have access to the child during school and authority to check the child out of school.
The parenting plan must also include a residential schedule that designates in which parent’s home each minor child shall reside on given days of the year, including provisions for holidays, birthdays of family members, vacations, and other special occasions.
When one or both parents is/are servicemembers, the parenting plan shall contain provisions that address the foreseeable parenting and custodial issues likely to arise in the event of notification of deployment or other contingency, including long-term deployments, short-term deployments, death, incapacity, and noncombatant evacuation operations.
It’s easy to make devastating mistakes when child custody is an issue in divorce. When going through a divorce–especially where children are involved–it is good to consider obtaining professional legal advice. An attorney can help through any of these steps–including filing a parenting plan with the court–and any additional steps that you may need.
Utah Family Law, LC | divorceutah.com | 801-466-9277
 See Utah Code § § 30-3-10 and 30-3-10.2 and Utah Code of Judicial Administration, Rule 4-903
 See Utah Code § 30-3-10.8.
 Dahl v. Dahl, 345 P.3d 566 (2015 UT 23): “[T]he complete absence of a parenting plan precludes an award of joint custody, see UTAH CODE § 30–3–10.2.”
 See Utah Code § 30-3-10.9(1).
 See Utah Code § 30-3-10.9(2).
 See Utah Code § 30-3-10.9(5)(a).
 See Utah Code § 30-3-10.9(5)(b).
 See Utah Code § 30-3-10.9(8).
 See Utah Code § 30-3-10.9(10)(a). See also Utah Code § 78B-20-201.