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Utah divorce and child custody awards – statutory factors the court must consider

Utah divorce and child custody award – statutory factors the court must consider

(based upon Utah Code § 30-3-10, § 30-3-10.2, and UCJA 4-903)

SUMMARY OF THE FACTORS:

  1. the past conduct and demonstrated moral standards of each of the parties;
  2. 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;
  3. the extent and strength of bonding between the parent and child, meaning the depth, quality, and nature of the relationship between a parent and child;
  4. whether the parent has intentionally exposed the child to pornography or material harmful to a minor, as defined in Utah Code Section 76-10-1201;
  5. domestic violence in the home or in the presence of the child;
  6. special physical or mental needs of a parent or child, making joint legal custody unreasonable;
  7. physical distance between the residences of the parents, making joint decision making impractical in certain circumstances;
  8. whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal or physical custody; (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.
  9. 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;
  10. 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;
  11. whether both parents participated in raising the child before the divorce;
  12. the geographical proximity of the homes of the parents;
  13. 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;
  14. the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents;
  15. the past and present ability of the parents to cooperate with each other and make decisions jointly;
  16. any history of, or potential for, child abuse, spouse abuse, or kidnaping;
  17. (if applicable) the relative benefit of keeping siblings together;
  18. previous parenting arrangements where the child has been happy and well adjusted;
  19. domestic violence, sexual abuse, substance abuse, mental illness;
  20. factors relating to the prospective custodians’ character and their capacity and willingness to function as parents, including:
    • parenting skills;
    • 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);
    • moral character;
    • emotional stability;
    • duration and depth of desire for custody and parent-time;
    • ability to provide personal rather than surrogate care;
    • significant impairment of ability to function as a parent through drug abuse, excessive drinking or other causes;
    • reasons for having relinquished custody or parent-time in the past, if custody or parent-time was relinquished in the past;
    • religious compatibility with the child;
    • (if applicable) 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;
    • financial responsibility;
    • evidence of abuse of the subject child, another child, or spouse;
  21. any other relevant factors.

§ 30-3-10. Custody of children in case of separation or divorce — Custody consideration.

(1)      If a husband and wife having minor children are separated, or their marriage is declared void or dissolved, the court shall make an order for the future care and custody of the minor children as it considers appropriate.

(a)        In determining any form of custody, including a change in custody, the court shall consider the best interests of the child without preference for either the mother or father solely because of the biological sex of the parent and, among other factors the court finds relevant, the following:

(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)          those factors outlined in Section 30-3-10.2.

(b)        There shall be a rebuttable presumption that joint legal custody, as defined in Section 30-3-10.1, is in the best interest of the child, except in cases where there is:

(i)           domestic violence in the home or in the presence of the child;

(ii)          special physical or mental needs of a parent or child, making joint legal custody unreasonable;

(iii)         physical distance between the residences of the parents, making joint decision making impractical in certain circumstances; or

(iv)         any other factor the court considers relevant including those listed in this section and Section 30-3-10.2.

(c)        The person who desires joint legal custody shall file a proposed parenting plan in accordance with Sections 30-3-10.8 and 30-3-10.9. A presumption for joint legal custody may be rebutted by a showing by a preponderance of the evidence that it is not in the best interest of the child.

(d)       The children may not be required by either party to testify unless the trier of fact determines that extenuating circumstances exist that would necessitate the testimony of the children be heard and there is no other reasonable method to present their testimony.

(e)        The court may inquire of the children and take into consideration the children’s desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the children’s custody or parent-time otherwise. The desires of a child 14 years of age or older shall be given added weight, but is not the single controlling factor.

(f)        If interviews with the children are conducted by the court pursuant to Subsection (1)(e), they shall be conducted by the judge in camera. The prior consent of the parties may be obtained but is not necessary if the court finds that an interview with the children is the only method to ascertain the child’s desires regarding custody.

(2)      In awarding custody, the court shall consider, among other factors the court finds relevant, which parent is most likely to act in the best interests of the child, including allowing the child frequent and continuing contact with the noncustodial parent as the court finds appropriate.

(3)      If the court finds that one parent does not desire custody of the child, the court shall take that evidence into consideration in determining whether to award custody to the other parent.

(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, in awarding custody or determining whether a substantial change has occurred for the purpose of modifying an award of custody.

(b)        If a court takes a parent’s disability into account in awarding custody or determining whether a substantial change has occurred for the purpose of modifying an award of custody, the parent with a disability may rebut any evidence, presumption, or inference arising from the disability by showing that:

(i)         the disability does not significantly or substantially inhibit the parent’s ability to provide for the physical and emotional needs of the child at issue; or

(ii)        the parent with a disability has 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.

(c)        Nothing in this section may be construed to apply to adoption proceedings under Title 78B, Chapter 6, Part 1, Utah Adoption Act.

(5)      This section establishes neither a preference nor a presumption for or against joint physical custody or sole physical custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.

 

§ 30-3-10.2.  Joint custody order — Factors for court determination — Public assistance.     

(1)      The court may order joint legal custody or joint physical custody or both if one or both parents have filed a parenting plan in accordance with Section 30-3-10.8 and it determines that joint legal custody or joint physical custody or both is in the best interest of the child.

(2)      In determining whether the best interest of a child will be served by ordering joint legal or physical custody, the court shall consider the following factors:

(a)        whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal or physical custody;

(b)        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;

(c)        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;

(d)       whether both parents participated in raising the child before the divorce;

(e)        the geographical proximity of the homes of the parents;

(f)        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;

(g)        the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents;

(h)        the past and present ability of the parents to cooperate with each other and make decisions jointly;

(i)         any history of, or potential for, child abuse, spouse abuse, or kidnaping; and

(j)         any other factors the court finds relevant.

(3)      The determination of the best interest of the child shall be by a preponderance of the evidence.

(4)      The court shall inform both parties that an order for joint physical custody may preclude eligibility for cash assistance provided under Title 35A, Chapter 3, Employment Support Act.

(5)      The court may order that where possible the parties attempt to settle future disputes by a dispute resolution method before seeking enforcement or modification of the terms and conditions of the order of joint legal custody or joint physical custody through litigation, except in emergency situations requiring ex parte orders to protect the child.

 

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 | divorceutah.com | 801-466-9277

 

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