One of the biggest worries (perhaps the biggest) for a parent going through divorce is the question of child custody.
A common misperception is that “child custody” means simply who your children will live with after you and your ex-spouse have divorced. “Child custody” has multiple meanings, however: legal and physical custody.
Legal custody is 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” or “sole,” meaning that divorced parents can exercise legal custody jointly or legal custody can be awarded to just one of the two parents to exercise. Joint legal custody is the most commonly awarded custody arrangement. Unless it can be proven that a parent is unfit to be entrusted with joint legal custody, the presumption in Utah law is that the parents will be awarded joint legal custody of their children.
Under a joint legal custody arrangement, both parents have equal rights to make decisions regarding their child(ren).
Physical custody is the determination of where the children reside physically following a divorce. As with legal custody, physical custody may be “joint” or “sole” or, if there are more than two children, the court can “split” physical custody between both parents, with some children residing with one parent, and some children residing with the other.
Even under a “sole physical custody” arrangement, the other parent (who is known as the “non-custodial parent” will still be given “parent-time” (what was formerly known as “visitation”) with the children, unless the noncustodial parent is found to be unfit to exercise parent-time.
If a parent spends 110 overnights or less with the children each year, he/she is a “noncustodial” parent. If a parent spends 111 or more overnights with the child(ren), then that is considered by Utah law to be joint physical custody. So take note: while the court can award the parents equal periods of physical custody, joint physical custody does not require that the parents have equal periods of physical custody.
Under a “joint physical custody” arrangement, parent-time will be split between the two parents and their homes.
If parents do not agree upon matters of the legal custody, physical custody, and parent-time awards, the judge will decide these issues for them after holding a trial.
The court will take into account many factors before making its legal custody, physical custody, and parent-time orders.
For a list of all of the factors a court considers in making its legal and physical custody awards, review these sections from Title 30, Chapter 3 of the Utah Code:
Section 10.1. Definitions — Joint legal custody — Joint physical custody.
Section 10.2. Joint custody order — Factors for court determination — Public assistance.
Section 10.3. Terms of joint legal or physical custody order.
If either party is a military service-member, the court must consider additional factors for servicemembers: see Utah Code Section 78B-20-306 through 309:
Section 306. Grant of caretaking or decision-making authority to nonparent.
Section 307. Grant of limited contact.
Section 308. Nature of authority created by temporary custody order.
Section 309. Content of temporary custody order.
If the court awards joint legal and/or joint physical custody, it must adopt what is known as a “parenting plan”. Without a parenting plan, joint legal and/or joint physical custody cannot be awarded.
Utah law requires that a parent who wants joint legal and/or joint physical custody must file a proposed parenting plan. A proposed parenting plan (whether merely for joint legal custody or joint physical custody, or for an award of both joint legal and joint physical custody) must include the following provisions:
Section 10.7. Parenting plan — Definitions.
Section 10.8. Parenting plan — Filing — Modifications.
Section 10.9. Parenting plan — Objectives — Required provisions — Dispute resolution — Education plan.
Section 10.10. Parenting plan — Domestic violence.
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 For Utah Code sections that deal with parent-time, see:
Section 32. Parent-time — Intent — Policy — Definitions.
Section 33. Advisory guidelines.
Section 34. Best interests — Rebuttable presumption.
Section 34.5. Supervised parent-time.
Section 35. Minimum schedule for parent-time for children 5 to 18 years of age.
Section 35.1. Optional schedule for parent-time for children 5 to 18 years of age.
Section 35.5. Minimum schedule for parent-time for children under five years of age.
Section 36. Special circumstances.