Noncustodial Parents: Understanding Parent-Time

Noncustodial Parents: Understanding Parent-Time

When going through a divorce, one of the most common issues is child custody. A common misperception about child custody is that it is simply who your children will live with after you and your ex-spouse have divorced. That’s only part of the story.

In Utah, there are two kinds of child custody to be addressed and resolved: “legal custody” and “physical custody”.

Legal 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).

Physical custody

Physical custody is where the children will reside following a divorce. This type of custody may be “joint custody” or “sole custody”.

Joint Physical Custody

Whether you are awarded joint or sole physical custody depends not upon the number of hours a parent spends with the child(ren), but on the number of “overnights” the child will spend at the noncustodial parent’s residence). You might think that “joint custody” means that each parent has an equal or near-equal number of overnights with the children. Not so. In Utah, joint physical custody “means the child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support[.]” (Utah Code § 30-3-10.1(3)(a)) Translated, § 30-3-10.1(a) means that if a parent has 111 overnights or more per year with his/her child(ren), he/she is a joint physical custodian.[1]

Sole Physical Custody

Under a “sole custody” arrangement, the parent who is not awarded sole custody is referred to in the court orders as “the noncustodial parent”. But don’t let the term “sole custody” mislead you. Even under a “sole physical custody” arrangement, the other parent (the noncustodial parent) will still be awarded visitation or what is now known as “parent-time”.

Parent-time

Parent-time is the amount of time the child(ren) will spend with the noncustodial parent.

The parent-time schedule in Utah Code Section 30-3-35 provides a suggested minimum number of overnights[2] that a noncustodial parent be awarded.

Under the provisions of § 30-3-35, the noncustodial parent is awarded the following overnight periods with the child(ren):

• Every other Friday and Saturday night (alternating weekends beginning at 6 p.m. on Friday until 7 p.m. on Sunday), and
• Certain specified holidays that overlap with and/or extend certain weekends, with the net effect being some additional overnights the noncustodial parent exercises.
  • During odd numbered years, the noncustodial parent is entitled to overnight parent-time on the following holidays:
    • Martin Luther King, Jr. beginning 6 p.m. on Friday until Monday at 7 p.m. unless the holiday extends for a lengthier period of time to which the noncustodial parent is completely entitled;
    • subject to Utah Code § 30-3-35(2)(i), spring break beginning at 6 p.m. on the day school lets out for the holiday until 7 p.m. on the evening before school resumes;
    • July 4 beginning 6 p.m. the day before the holiday until 11 p.m. or no later than 6 p.m. on the day following the holiday, at the option of the parent exercising the holiday;
    • Labor Day beginning 6 p.m. on Friday until Monday at 7 p.m., unless the holiday extends for a lengthier period of time to which the noncustodial parent is completely entitled;
    • the fall school break, if applicable, commonly known as U.E.A. weekend beginning at 6 p.m. on Wednesday until Sunday at 7 p.m. unless the holiday extends for a lengthier period of time to which the noncustodial parent is completely entitled;
    • Veterans Day holiday beginning 6 p.m. the day before the holiday until 7 p.m. on the holiday; and
    • the first portion of the Christmas school vacation as defined in Utah Code Subsection 30-3-32(3)(b) including Christmas Eve and Christmas Day, continuing until 1 p.m. on the day halfway through the holiday period, if there are an odd number of days for the holiday period, or until 7 p.m. if there are an even number of days for the holiday period, so long as the entire holiday period is equally divided.
  • During even numbered years, the noncustodial parent is awarded every other Friday and Saturday night (alternating weekends beginning at 6 p.m. on Friday until 7 p.m. on Sunday) and certain specified holidays:
    • President’s Day beginning at 6 p.m. on Friday until 7 p.m. on Monday unless the holiday extends for a lengthier period of time to which the noncustodial parent is completely entitled;
    • Memorial Day beginning at 6 p.m. on Friday until Monday at 7 p.m., unless the holiday extends for a lengthier period of time to which the noncustodial parent is completely entitled;
    • July 24 beginning at 6 p.m. on the day before the holiday until 11 p.m. or no later than 6 p.m. on the day following the holiday, at the option of the parent exercising the holiday;
    • Columbus Day beginning at 6 p.m. the day before the holiday until 7 p.m. on the holiday;
    • Thanksgiving holiday beginning Wednesday at 7 p.m. until Sunday at 7 p.m.; and
    • the second portion of the Christmas school vacation as defined in Utah Code Subsection 30-3-32(3)(b), beginning 1 p.m. on the day halfway through the holiday period, if there are an odd number of days for the holiday period, or at 7 p.m. if there are an even number of days for the holiday period, so long as the entire Christmas holiday period is equally divided.
  • The custodial parent is entitled to the odd year holidays in even years and the even year holidays in odd years.
  • Also, under Utah Code § 30-3-35, each year the noncustodial parent may exercise “extended parent-time” which is up to four consecutive weeks (28 days) when school is not in session at the option of the noncustodial parent, including weekends normally exercised by the noncustodial parent, but not holidays.

This means that the total number of overnights, including weekends, holidays and extended summer time that a noncustodial parent will receive under Utah Code Section 30-3-35 is:

• 89 overnights during odd number years (when parent-time begins on the first alternating weekend of the year);
• 93 overnights during odd number years (when parent-time begins on the second alternating weekend of the year);
• 88 overnights during even number years (when parent-time begins on the first alternating weekend of the year); and
• 92 overnights during even number years (when parent-time begins on the second alternating weekend of the year).

So a noncustodial parent subject to parent-time under the statutory minimum schedule in § 30-3-35 would be awarded approximately 90 overnights per year.[3]

Although § 30-3-35 is not binding on judges, many will use this—shamefully—as a “standard” for assigning parent-time, unless there is reason to deviate from the standard, or if the parents agree on a different arrangement.

Another option for parents and the court to consider is Utah Code § 30-3-35.1. Under this section, the court has the option of awarding time greater than the minimum parent-time schedule of § 30-3-35.

Under § 30-3-35.1, a parent who might otherwise have been relegated to parent-time under § 30-3-35 can be awarded 145 overnights per year by imposing a schedule that consists of:

• Every Wednesday (or some other mid-week day, other than Friday or Monday)
• Every other Friday
• Every other Saturday
• Every other Sunday
• Additionally, the holiday schedule in § 30-3-35 will apply, except that in all instances that would under § 30-3-35 end after 6:00 p.m. instead end the morning after the holiday period when the child returns to school that morning, or at 8:00 a.m. if there is no school that morning.
• Under 30-3-35.1, each year the noncustodial parent may also exercise “extended parent-time” which is up to four consecutive weeks (28 days) when school is not in session at the option of the noncustodial parent, including weekends normally exercised by the noncustodial parent, but not holidays.

Under Utah Code § 30-3-35.1. then, the noncustodial parent will have the following number of overnights:

• 157 overnights during odd number years (when parent-time begins on the first alternating weekend of the year);
• 165 overnights during odd number years (when parent-time begins on the second alternating weekend of the year);
• 158 overnights during even number years (when parent-time begins on the first alternating weekend of the year); and
• 163 overnights during even number years (when parent-time begins on the second alternating weekend of the year).

As you can see, although Utah Code § 30-3-35.1 provides that a parent awarded shared custody receives 145 overnights, that parent actually receives closer to an average of 160 overnights, depending on the year and when the noncustodial parent’s alternating weekend falls. Don’t forget to take that into account when calculating child support. Why? Because child support is based upon the number of overnights the children spend with each parent.

Utah Family Law, LC | divorceutah.com | 801-466-9277

[1] Remember also that parent-time does not include merely overnights with the child(ren). Under Utah Code § 30-3-35(2)(a), noncustodial parents get, in addition to the overnights awarded, one weekday (per week, not every other week) for several hours; either from the time the child’s school is regularly dismissed until 8:30 p.m. or from approximately 9:00 a.m. when school is not in session that day. Noncustodial parents also get to celebrate the child’s birthday (either on the actual birthdate or the day before or the day after) beginning at 3 p.m. until 9 p.m., and get to spend Halloween on October 31 or the day Halloween is traditionally celebrated in the local community from after school until 9 p.m. if on a school day, or from 4 p.m. until 9 p.m.

[2] While the schedule in § 30-3-35 is followed by many parents and court, remember this: § 30-3-35’s schedule is a statutory guideline, not a mandate. Parents can create and agree upon their own “custom-made” custody and parent-time schedule, and your divorce case judge can also create a “custom-made” custody and parent-time schedule, if your judge feels it appropriate.

[3] Note: the exact number of overnights a parent will have may vary based on the length of the child(ren)’s school breaks.  The number of overnights listed here were calculated with a child having two days off school for fall break, two days off school for spring break, and two weeks off school for winter break.