After filling for legal separation where is my only child going to stay? I have my child with me right now. How is the custody going to work after separation?
The question of what the court will do regarding child custody is premature.
The first question you should ask is 1) “Can the other parent and I reach our own agreement on custodial and visitation (now often called parent time) arrangements?”
And if you and the other parent cannot reach agreement, then the second and third questions you should ask are 2) “What custodial and parent time arrangement is best for the children,” irrespective of what I may desire?” because that’s essentially the question the court will try to answer in fashioning its custody and parent time award; and 3) am I willing to spend thousands (maybe even tens of thousands) of dollars to fight over the issues of child custody and parent-time?
If you and your spouse/the other parent can agree on what the custody and parent time schedule will be between you both, then you both don’t need to bring that matter before the court for a temporary order. Far too often parents end up litigating more than they need to because they don’t realize they don’t need to litigate every issue. They don’t realize that they can (and should as much as possible) make agreements and follow those agreements.
That stated, I, as a divorce and family law attorney, am well aware that child custody is frequently (even usually) a bone of contention between parents who are separating or divorcing. Still, even parents that don’t get along may find it in their individual and mutual best interest to reach an agreement over child custody and parent time, instead of placing that decision in the hands of the court.
Before you go to the trouble and expense of litigating temporary child custody and support, it wouldn’t hurt you at all to try and work out an agreement on the subjects with the other parent first. Even if the other parent simply to negotiate or refuses to negotiate in good faith, you can go to court knowing that, for the sake of your kids, you did your best to reach consensus instead of conflict.
Judges don’t know (and thus cannot accommodate) your or your children’s needs nearly as well as you and the other parent do. For all that they say to the contrary, the truth is that judges usually don’t particularly care that much about other people’s children and what’s best for them. They deal with hundreds and thousands of couples and families, so to an extent, you can’t really blame them completely. Judges often have surprisingly obtuse, bizarre, and counterproductive ideas about what the best custodial and parent time arrangements are for children.
So as long as you and the other parent are decent and rational people, you should be able to come up with a custody arrangement that is not only fair to you as parents, but what your children need and deserve. If you and the other parent can’t set aside your own self-interest and posturing for the sake of doing what’s best for your children, then frankly you deserve to have the court impose a child custody and parent time award on you, like it or not.
If you and the other parent cannot reach an agreement regarding child custody and parent time so that the court is left to make that determination, then here are the factors that the courts in Utah (where I practice divorce and family law) consider in analyzing and determining what the child custody and parent time awards shall be:
(2) In determining any form of custody and parent-time under Subsection (1), the court shall consider the best interest of the child and may consider among other factors the court finds relevant, the following for each parent:
(a) evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the parent, or a household member of the parent;
(b) the parent’s demonstrated understanding of, responsiveness to, and ability to meet the developmental needs of the child, including the child’s:
(i) physical needs;
(ii) emotional needs;
(iii) educational needs;
(iv) medical needs; and
(v) any special needs;
(c) the parent’s capacity and willingness to function as a parent, including:
(i) parenting skills;
(ii) co-parenting skills, including:
(A) ability to appropriately communicate with the other parent;
(B) ability to encourage the sharing of love and affection; and
(C) willingness to allow frequent and continuous contact between the child and the other parent, except that, if the court determines that the parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration; and
(iii) ability to provide personal care rather than surrogate care;
(d) in accordance with Subsection (10), the past conduct and demonstrated moral character of the parent;
(e) the emotional stability of the parent;
(f) the parent’s inability to function as a parent because of drug abuse, excessive drinking, or other causes;
(g) whether the parent has intentionally exposed the child to pornography or material harmful to minors, as “material” and “harmful to minors” are defined in Section 76-10-1201;
(h) the parent’s reasons for having relinquished custody or parent-time in the past;
(i) duration and depth of desire for custody or parent-time;
(j) the parent’s religious compatibility with the child;
(k) the parent’s financial responsibility;
(l) the child’s interaction and relationship with step-parents, extended family members of other individuals who may significantly affect the child’s best interests;
(m) who has been the primary caretaker of the child;
(n) previous parenting arrangements in which the child has been happy and well-adjusted in the home, school, and community;
(o) the relative benefit of keeping siblings together;
(p) the stated wishes and concerns of the child, taking into consideration the child’s cognitive ability and emotional maturity;
(q) the relative strength of the child’s bond with the parent, meaning the depth, quality, and nature of the relationship between the parent and the child; and
(r) any other factor the court finds relevant.
(2) In determining whether the best interest of a child will be served by ordering joint legal custody or joint physical custody or both, the court shall consider the custody factors in Section 30-3-10 and the following factors:
(a) whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal custody or joint physical custody or both;
(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) co-parenting skills, including:
(i) ability to appropriately communicate with the other parent;
(ii) ability to encourage the sharing of love and affection; and
(iii) willingness to allow frequent and continuous contact between the child and the other parent, except that, if the court determines that the parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration; and
(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 custody or joint physical custody or both;
(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; and
(i) any other factor the court finds relevant.
(1) If the parties are unable to agree on a parent-time schedule, the court may establish a parent-time schedule consistent with the best interests of the child.
(2) The advisory guidelines as provided in Section 30-3-33 and the parent-time schedule as provided in Sections 30-3-35 and 30-3-35.5 shall be presumed to be in the best interests of the child unless the court determines that Section 30-3-35.1 should apply. The parent-time schedule shall be considered the minimum parent-time to which the noncustodial parent and the child shall be entitled unless a parent can establish otherwise by a preponderance of the evidence that more or less parent-time should be awarded based upon one or more of the following criteria:
(a) parent-time would endanger the child’s physical health or mental health, or significantly impair the child’s emotional development;
(b) evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, a parent, or a household member of the parent;
(c) the distance between the residency of the child and the noncustodial parent;
(d) a credible allegation of child abuse has been made;
(e) the lack of demonstrated parenting skills without safeguards to ensure the child’s well-being during parent-time;
(f) the financial inability of the noncustodial parent to provide adequate food and shelter for the child during periods of parent-time;
(g) the preference of the child if the court determines the child is of sufficient maturity;
(h) the incarceration of the noncustodial parent in a county jail, secure youth corrections facility, or an adult corrections facility;
(i) shared interests between the child and the noncustodial parent;
(j) the involvement or lack of involvement of the noncustodial parent in the school, community, religious, or other related activities of the child;
(k) the availability of the noncustodial parent to care for the child when the custodial parent is unavailable to do so because of work or other circumstances;
(l) a substantial and chronic pattern of missing, canceling, or denying regularly scheduled parent-time;
(m) the minimal duration of and lack of significant bonding in the parents’ relationship before the conception of the child;
(n) the parent-time schedule of siblings;
(o) the lack of reasonable alternatives to the needs of a nursing child; and
(p) any other criteria the court determines relevant to the best interests of the child.
Utah Family Law, LC | divorceutah.com | 801-466-9277