How does custody of children work if the parents live in different states?

How does custody of children work if the parents live in different states?

I’ll answer this question in the context of Utah’s family law (I practice divorce and family law in Utah).

There are two kinds of child custody in divorce and child custody court cases: physical custody and legal custody. I’ll briefly discuss legal custody, then discuss physical custody.

Legal custody” means the rights, privileges, duties, and powers of a parent, the authority to make specific decisions pertaining to a child’s life.

“Joint legal custody” does not require that the parents be awarded joint physical custody.

Physical custody” means with whom the child stays overnight.

“Joint physical custody” means that a child spends more than 30% of the year with a parent (so while joint physical custody can include circumstances in which the child spends an equal amount of time with each, it does not necessarily mean that the child spends an equal amount of time with each parent), and both parents contribute to the expenses of the child in addition to paying child support.

What do judges want to see so that they feel a joint physical custody award is appropriate? There are many, many factors the judge will consider. One of the most fundamental factors is: distance between the parents.

To make joint physical custody feasible the parents obviously must be able to transport the children between their respective residences without the travel being a burden and a hardship on the child.

That means the parents must live close enough to each other to get the child to school when the child is with each parent. It also means that the child gets to spend time with one parent without spending too much time away from the other parent. And that usually means that the parents live within about 30 minutes or less of each other; otherwise, all the time, effort, travel and expense associated with shuttling the child back and forth in the long distance between the parents benefits no one, particularly the child.

So parents who live in different states (and by “living in different states” I’ll assume that means parents that live a long distance away from each other, not just over the state line from each other) could still be awarded joint legal custody of their child, but the odds of being awarded joint physical custody are slim, and for obvious reasons.

If you want to get joint physical custody of your children in Utah, you need to live close to the other parent, so that going between the parents’ respective homes will not be an undue burden on the kids.

So if I live, say, more than 100 miles away from my ex, what kind of time will the judge likely award the kids and me together on an annual basis? The parents are free to fashion a visitation or parent-time schedule of their own creation, as long as they can agree on what the schedule will be. If they can’t, then the schedule will probably be something like the following (assuming your kids are older than 5 years of age), which is meant to help the parent and children take advantage of long breaks from school, so that even after you factor in the time it takes to travel back and forth the kids still get to spend more than just a day or two with the parent they travel to see:

In years ending in an odd number:

  • Thanksgiving holiday beginning Wednesday until Sunday; and
  • Spring break, if applicable, beginning the last day of school before the holiday until the day before school resumes;

In years ending in an even number:

  • the entire winter school break period; and
  • the Fall school break beginning the last day of school before the holiday until the day before school resumes;

Every year:

  • extended parent-time when school is dismissed for the summer in an amount of time equal to 1/2 of the summer or off-track time for consecutive weeks (but note that it’s not really a true “half” of the summer because the children must be returned to the custodial parent’s home no later than seven days before school begins, even though this week is counted when determining the amount of parent-time to be divided between the parents for the summer)
  • one weekend per month, at the option and expense of the noncustodial parent (the “at the option” language means that the parent may exercise this time each month, but is by no means required to do so).
  • The noncustodial parent’s monthly weekend entitlement is subject to the following restrictions:
  • If the noncustodial parent has not designated a specific weekend for parent-time, the noncustodial parent shall receive the last weekend of each month unless a holiday assigned to the custodial parent falls on that particular weekend. If a holiday assigned to the custodial parent falls on the last weekend of the month, the noncustodial parent shall be entitled to the next to the last weekend of the month.

(See Utah Code § 30-3-37 (Relocation))

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

Tags: , ,
Click to listen highlighted text!